[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          50


          Parts 200 to 599

                         Revised as of October 1, 2004


          Wildlife and Fisheries
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2004
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



  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                                               377
          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      447
          Chapter V--Marine Mammal Commission                      497
  Finding Aids:
      Material Approved for Incorporation by Reference........     523
      Table of CFR Titles and Chapters........................     525
      Alphabetical List of Agencies Appearing in the CFR......     543
      List of CFR Sections Affected...........................     553

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

                     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, 2004), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
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.

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

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal 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 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or 
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write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

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

October 1, 2004.

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                               THIS TITLE

    Title 50--Fish and Wildlife is composed of four volumes. The parts 
in these volumes are arranged in the following order: Parts 1-17, parts 
18-199, parts 200-599 and part 600 to end. The first and second volumes 
(parts 1-17 and parts 18-199) contain the current regulations issued 
under chapter I--United States Fish and Wildlife Service, Department of 
the Interior. The third volume (parts 200-599) contains the current 
regulations issued under chapter II--National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, 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 fourth volume (part 600 to end) contains the current regulations 
issued under chapter VI--Fishery Conservation and Management, National 
Oceanic and Atmospheric Administration, Department of Commerce. The 
contents of these volumes represent all current regulations codified 
under this title of the CFR as of October 1, 2004.

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

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

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

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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, 
Sec. Sec. 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.................................          97
223             Threatened marine and anadromous species....         119
224             Endangered marine and anadromous species....         199
225             [Reserved]
226             Designated critical habitat.................         202
228             Notice and hearing on section 103(d) 
                    regulations.............................         273
229             Authorization for commercial fisheries under 
                    the Marine Mammal Protection Act of 1972         279
                          SUBCHAPTER D--WHALING
230             Whaling provisions..........................         313
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
                     SUBCHAPTER F--AID TO FISHERIES
253             Fisheries assistance programs...............         316
259             Capital construction fund...................         325
 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260             Inspection and certification................         337

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261             United States Standards for Grades..........         367
                       SUBCHAPTERS H-J [RESERVED]
                     SUBCHAPTER K--CONTINENTAL SHELF
296             Fishermen's Contingency Fund................         370

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               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 Access to marine mammal tissue, analyses, and data.
216.48-216.49 [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.

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

Subpart J [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.

Subparts L-M [Reserved]

    Subpart N_Taking of Marine Mammals Incidental to Missile Launch 
                 Operations from San Nicolas Island, CA

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

Subpart O [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_Taking of Marine Mammals Incidental to Navy Operations of 
  Surveillance Towed Array Sensor System Low Frequency Active (SURTASS 
                               LFA) Sonar

216.180 Specified activity and specified geographical region.
216.181 Effective dates.
216.182 Permissible methods of taking.
216.183 Prohibitions.
216.184 Mitigation.
216.185 Requirements for monitoring.
216.186 Requirements for reporting.
216.187 Applications for Letters of Authorization.
216.188 Letters of Authorization.
216.189 Renewal of Letters of Authorization.
216.190 Modifications to Letters of Authorization.
216.191 Designation of Biologically Important Marine Mammal Areas.

   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.

    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

[[Page 7]]

sale, and importing of marine mammals.



Sec. 216.2  Scope of regulations.

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

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



Sec. 216.3  Definitions.

    In addition to definitions contained in the MMPA, and unless the 
context otherwise requires, in this part 216:
    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, 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 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

[[Page 8]]

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 com mercial passenger 
fishing vessel (as defined) activities, but no other sport fish ing 
activities, whether or not the fish so caught are subsequently sold.
    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).
    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

[[Page 9]]

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 attempt ing to give food or non-food 
items to marine mammals in the wild. It in cludes operating a vessel or 
providing other platforms from which feeding is conducted or supported. 
It does not include the routine discard of bycatch during fishing 
operations or the routine discharge of waste or fish byproducts from 
fish processing plants or other platforms if the discharge is otherwise 
legal and is incidental to operation of the activity.
    First exporter means the person or com pany that first exports the 
fish or fish product, or, in the case of shipments that are subject to 
the labeling requirements of 50 CFR part 247 and that only contain fish 
harvested by vessels of the United States, the first seller of the fish 
or fish product.
    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 Cal 
lorhi nus 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 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

[[Page 10]]

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, and whether alive 
or dead, and any part thereof, including but not limited to, any raw, 
dressed or dyed fur or skin: Cetacea (whales, dolphins, and porpoises) 
and 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 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.

[[Page 11]]

    Regional Director means the Regional Administrator, Northeast 
Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930; or 
Regional Administrator, Northwest Regional Office, NMFS, 7600 Sandpoint 
Way, N.E., Building 1, Seattle, WA 98115; or Regional Administrator, 
Southeast Regional Office, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; or Regional Administrator, Southwest Regional 
Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 
90802; or Regional Administrator, Pacific Islands Regional Office, NMFS, 
1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or Regional 
Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK 
99802.
    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 un able to return to its natural habitat under its own 
power.
    Subsistence means the use of marine mammals taken by Alaskan Natives 
for food, clothing, shelter, heating, transportation, and other uses 
necessary to maintain the life of the taker or those who depend upon the 
taker to provide them with such subsistence.
    Subsistence uses means the customary and traditional uses of fur 
seals taken by Pribilovians for direct personal or family consumption as 
food, shelter, fuel, clothing, tools or transportation; for the making 
and selling of handicraft articles out of nonedible byproducts of fur 
seals taken for personal or family consumption; and for barter, or 
sharing for personal or family consumption. As used in this definition--
    (1) Family means all persons related by blood, marriage, or 
adoption, or any person living within a household on a permanent basis.
    (2) Barter means the exchange of fur seals or their parts, taken for 
subsistence uses--
    (i) For other wildlife or fish or their parts, or
    (ii) For other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial nature.
    Take means to harass, hunt, capture, collect, or kill, or attempt to 
harass, hunt, capture, collect, or kill any marine mammal. This 
includes, without limitation, any of the following: The collection of 
dead animals, or parts thereof; the restraint or detention of a marine 
mammal, no matter how temporary; tagging a marine mammal; the negligent 
or intentional operation of an aircraft or vessel, or the doing of any 
other negligent or intentional act which results in disturbing or 
molesting a marine mammal; and feeding or attempting to feed a marine 
mammal in the wild.
    Threatened species means a species of marine mammal listed as 
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat. 
884, Pub. L. 93-205.
    Trip means a voyage starting when a vessel leaves port with all fish 
wells empty of fish and ending when a vessel unloads all of its fish.

[[Page 12]]

    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.

[39 FR 1852, Jan. 15, 1974]

    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.



Sec. 216.4  Other laws and regulations.

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

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



Sec. 216.5  Payment of penalty.

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

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



Sec. 216.6  Forfeiture and return of seized property.

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

[[Page 13]]

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 en 
force the provisions of the MMPA and may take any actions authorized by 
the MMPA with respect to enforcement. In ad dition, the Secretary may 
utilize, by agreement, the personnel, services, and facilities of any 
other Federal Agency for the purposes of enforcing this MMPA. Pursuant 
to the terms of section 107(b) of the MMPA, the Secretary may also 
designate officers and employees of any State or of any possession of 
the United States to enforce the provi sions of this MMPA.

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



                         Subpart B_Prohibitions



Sec. 216.11  Prohibited taking.

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

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



Sec. 216.12  Prohibited importation.

    (a) Except as otherwise provided in subparts C and D of this part 
216, it is unlawful for any person to import any marine mammal or marine 
mammal product into the United States.
    (b) Regardless of whether an importation is otherwise authorized 
pursuant to subparts C and D of this part 216, it is unlawful for any 
person to import into the United States any:
    (1) Marine mammal:
    (i) Taken in violation of the MMPA, or
    (ii) Taken in another country in violation to the laws of that 
country;

[[Page 14]]

    (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 Sec. Sec. 216.31 (regarding scientific research permits only) and 
216.32 of this part 216, it is unlawful to import into the United States 
any:
    (1) Marine mammal which was pregnant at the time of taking.
    (2) Marine mammal which was nursing at the time of taking, or less 
than 8 months old, whichever occurs later.
    (3) Specimen of an endangered or threatened species of marine 
mammal.
    (4) Specimen taken from a depleted species or stock of marine 
mammals, or
    (5) Marine mammal taken in an inhumane manner.
    (d) It is unlawful to import into the United States any fish, 
whether fresh, frozen, or otherwise prepared, if such fish was caught in 
a manner proscribed by the Secretary of Commerce for persons subject to 
the jurisdiction of the United States, whether or not any marine mammals 
were in fact taken incident to the catching of the fish.

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



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

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

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



Sec. 216.14  Marine mammals taken before the MMPA.

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

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

    (b) Either one of two exhibits shall be attached to such affidavit, 
and will contain either:
    (1) Records or other available evidence showing that the product 
consists of or is composed in whole or in

[[Page 15]]

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 Sec. Sec. 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 mystic e tus).
    (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island 
population.
    (d) Bottlenose dolphin (Tursiops trunca tus), 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.
    (h) Eastern North Pacific Southern Resident stock of killer whales 
(Orcinus orca). The stock includes all resident killer whales in pods J, 
K, and L in the waters of, but not limited to, the inland waterways of 
southern British Columbia and Washington, including the Georgia Strait, 
the Strait of Juan de Fuca, and Puget Sound.
    (i) AT1 stock of killer whales (Orcinus orca). The stock includes 
all killer whales belonging to the AT1 group of transient killer whales 
occurring primarily in waters of Prince William Sound, Resurrection Bay, 
and the Kenai Fjords region of Alaska.

[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; 68 FR 31983, May 29, 2003; 69 FR 31324, 
June 3, 2004]



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]

[[Page 16]]



Sec. 216.22  Taking by State or local government officials.

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

[[Page 17]]

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

[[Page 18]]

    (b) Restrictions. (1) No marine mammal taken for subsistence may be 
sold or otherwise transferred to any person other than an Alaskan Native 
or delivered, carried, transported, or shipped in interstate or foreign 
commerce, unless:
    (i) It is being sent by an Alaskan Native directly or through a 
registered agent to a tannery registered under paragraph (c) of this 
section for the purpose of processing, and will be returned directly or 
through a registered agent to the Alaskan Native; or
    (ii) It is sold or transferred to a registered agent in Alaska for 
resale or transfer to an Alaskan Native; or
    (iii) It is an edible portion and it is sold in an Alaskan Native 
village or town.
    (2) No marine mammal taken for purposes of creating and selling 
authentic native articles of handicraft and clothing may be sold or 
otherwise transferred to any person other than an Indian, Aleut or 
Eskimo, or delivered, carried, transported or shipped in interstate or 
foreign commerce, unless:
    (i) It is being sent by an Indian, Aleut or Eskimo directly or 
through a registered agent to a tannery registered under paragraph (c) 
of this section for the purpose of processing, and will be returned 
directly or through a registered agent to the Indian, Aleut or Eskimo; 
or
    (ii) It is sold or transferred to a registered agent for resale or 
transfer to an Indian, Aleut, or Eskimo; or
    (iii) It has first been transformed into an authentic native article 
of handicraft or clothing; or
    (iv) It is an edible portion and sold (A) in an Alaskan Native 
village or town, or (B) to an Alaskan Native for his consumption.
    (c) Any tannery, or person who wishes to act as an agent, within the 
jurisdiction of the United States may apply to the Director, National 
Marine Fisheries Service, U.S. Department of Commerce, Washington, DC 
20235, for registration as a tannery or an agent which may possess and 
process marine mammal products for Indians, Aleuts, or Eskimos. The 
application shall include the following information:
    (i) The name and address of the applicant;
    (ii) A description of the applicant's procedures for receiving, 
storing, processing, and shipping materials;
    (iii) A proposal for a system of bookkeeping and/or inventory 
segregation by which the applicant could maintain accurate records of 
marine mammals received from Indians, Aleuts, or Eskimos pursuant to 
this section;
    (iv) Such other information as the Secretary may request;
    (v) A certification in the following language:

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

    (vi) The signature of the applicant.

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

[[Page 19]]

    (i) Reporting means the collection and delivery of biological data, 
harvest data, and other information regarding the effect of taking a 
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by 
NMFS.
    (ii) Whaling captain or vessel operator means the individual who is 
identified by Alaskan Natives as the leader of each hunting team 
(usually the other crew on the boat) and who is the whaling captain; or 
the individual operating the boat at the time the whale is harvested or 
transported to the place of processing.
    (iii) Cook Inlet means all waters of Cook Inlet north of 59[deg] 
North latitude, including, but not limited to, waters of Kachemak Bay, 
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
    (2) Marking. Each whaling captain or vessel operator, upon killing 
and landing a beluga whale (Delphinapterus leucas) from Cook Inlet, 
Alaska, must remove the lower left jawbone, leaving the teeth intact and 
in place. When multiple whales are harvested during one hunting trip, 
the jawbones will be 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.
    (f) Harvest management of Cook Inlet beluga whales. (1) Cooperative 
management of subsistence harvest. Subject to the provisions of 16 
U.S.C. 1371(b) and any further limitations set forth in Sec. 216.23, 
any taking of a Cook Inlet beluga whale by an Alaska Native must be 
authorized under an agreement for the co-management of subsistence uses 
(hereinafter in this paragraph ``co-management agreement'') between the 
National Marine Fisheries Service and an Alaska Native organization(s).
    (2) Limitations. (i) Sale of Cook Inlet beluga whale parts and 
products. Authentic Native articles of handicraft and clothing made from 
nonedible by-products of beluga whales taken in accordance with the 
provisions of this paragraph may be sold in interstate commerce. The 
sale of any other part or product, including food stuffs, from Cook 
Inlet beluga whales is prohibited, provided that nothing herein shall be 
interpreted to prohibit or restrict customary and traditional 
subsistence practices of barter and sharing of Cook Inlet beluga parts 
and products.
    (ii) Beluga whale calves or adults with calves. The taking of a calf 
or an adult whale accompanied by a calf is prohibited.
    (iii) Season. All takings of beluga whales authorized under Sec. 
216.23(f) shall occur no earlier than July 1 of each year.
    (iv) Taking during 2001-2004. The harvest of Cook Inlet beluga 
whales is restricted during the four-year period of 2001-2004 as 
follows:
    (A) Strike limitations. Subject to the suspension provision of 
subparagraph (C), a total of six (6) strikes, which could result in up 
to six landings, are to be allocated through co-management agreement(s).

[[Page 20]]

    (B) Strike allocations. Four strikes, not to exceed one per year, 
are allocated to the Native Village of Tyonek. The remaining two strikes 
will be allocated over the 4-year period through co-management agreement 
with other Cook Inlet community hunters, with no more than one such 
strike being allocated during every other year.
    (C) Emergency provisions. Takings of beluga whales authorized under 
Sec. 216.23 will be suspended whenever unusual mortalities exceed six 
(6) whales in any year. ``Unusual mortalities'' include all documented 
human-caused mortality (including illegal takings and net entanglements 
but excluding all legally harvested whales) and all documented mortality 
resulting from unknown or natural causes that occur above normal levels, 
considered for the purposes of this provision to be twelve beluga whales 
per year. The level of unusual mortalities shall be calculated by 
documenting mortality for the calendar year and subtracting twelve. The 
sum of this result and the carry over of unusual mortality from any 
previous year from which the population has not recovered is the level 
of unusual mortalities for the current year. If in any year the number 
of unusual mortalities exceeds six whales, no strikes will be allowed in 
that year or in subsequent years until the population has recovered from 
those mortalities through foregone future harvests and natural 
recruitment.
    (v) Taking during 2005 and subsequent years. [Reserved]

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 
FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004]



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 (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

[[Page 21]]

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;
    (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.

[[Page 22]]

    (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 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

[[Page 23]]

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 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

[[Page 24]]

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 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

[[Page 25]]

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 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

[[Page 26]]

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 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

[[Page 27]]

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 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

[[Page 28]]

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.
    (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

[[Page 29]]

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 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.

[[Page 30]]

 
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);
    (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

[[Page 31]]

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 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,

[[Page 32]]

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 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

[[Page 33]]

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 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

[[Page 34]]

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]

    Effective Date Note: At 69 FR 55297, Sept. 13, 2004, Sec. 216.24 
was revised, effective Oct. 13, 2004. For the convenience of the user, 
the revised text is set forth as follows:

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 U.S. 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 U.S. 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 U.S. purse seine fishing 
vessel of greater than 400 st (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 any 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 there is not 
a DML assigned to that vessel.
    (v) It is unlawful for any 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 with an assigned 
DML after a set in which the DML assigned to that vessel has been 
reached or exceeded.
    (vi) Alleged violations of the Agreement on the IDCP and/or these 
regulations identified by the International Review Panel will be 
considered for potential enforcement action by NMFS.
    (3) Upon written request made in advance of entering the ETP, the 
limitations in paragraphs (a)(2)(i) and (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 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 
U.S. 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 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 will be 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 U.S. 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)(5) 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

[[Page 35]]

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, U.S. Coast Guard officers, or designated agents 
of NMFS or the Inter-American Tropical Tuna Commission (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 permit from the Administrator, 
Southwest Region, allowing at least 45 days for processing. An 
application must 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)(3) 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 and signature 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. An applicant for an operator 
permit must provide the following information to the Administrator, 
Southwest Region, allowing at least 45 days for processing:
    (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;
    (iii) The name of the vessel(s) on which the applicant anticipates 
serving as an operator;
    (iv) The date, location, and provider of training required under 
paragraph (c)(5) of this section for the operator permit; and
    (v) The applicant's signature or the signature of the applicant's 
representative.
    (6) Fees--(i) Vessel permit application fees. An application for a 
permit under paragraph (b)(1) of this section will include a fee for 
each vessel. The Assistant Administrator may change the amount of this 
fee required 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 the operator permit. 
The Assistant Administrator may require a fee at any time if a 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 owner or managing owner 
must submit the fee for the placement of observers, and maintenance of 
the observer program, as established by the IATTC or other approved 
observer program, to the Administrator, Southwest Region by December 1 
of the year prior to the year in which the vessel will be operated in 
the ETP. Payments received after December 1 will be subject to a 10-
percent surcharge. The Administrator, Southwest Region, will forward all 
observer placement fees to the IATTC or to the applicable 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 observer program approved by 
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

[[Page 36]]

or the IATTC contact designated by the Administrator, Southwest Region, 
at least 5 days in advance of the vessel's departure on a fishing trip 
to allow for observer placement on every trip.
    (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 fishing 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 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 Dolphin Mortality Limits (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)(9) 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 live marine mammals. Except as otherwise 
authorized by a specific permit, live 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 may 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 centimeters (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, if present, 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 
if present, 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-shaped 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-shaped 
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) Facemask and snorkel, or viewbox. At least two facemasks and 
snorkels or viewboxes 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 sufficient light to observe

[[Page 37]]

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)(3) 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) Failure to pass inspection. 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 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 fishing 
pursuant to paragraph (c) of this section 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 crewmember 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 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.

[[Page 38]]

    (i) A vessel permit holder may apply for an experimental fishing 
operation waiver by submitting the following information to the 
Administrator, Southwest Region, no less than 90 days before the date 
the proposed operation is intended to begin:
    (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;
    (G) A statement of the qualifications of the individual or company 
doing the analysis of the research; and
    (H) Signature of the permitted operator or of the operator's 
representative.
    (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 submitted in the application identified in paragraph 
(c)(7)(i) of this section and the comments received, will either issue a 
waiver to conduct the experiment that 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, and 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 U.S. purse seine fishing vessel(s) of carrying 
capacity greater than 400 st (362.8 mt) 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 U.S. 
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-half 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) In accordance with 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

[[Page 39]]

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 that vessel 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. 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 under 15 CFR part 904 and notifying 
the IATTC.
    (v) Any vessel that exceeds its assigned DML after any applicable 
adjustment under paragraph (c)(9)(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, as 
mandated by the Agreement on the IDCP.
    (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 Secretariat 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 Agreement on 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 for the remainder of the calendar 
year:
    (A) after 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) after a set in which the vessel's DML, as adjusted, has been 
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.
    (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 may take marine mammals provided that such taking is an 
accidental occurrence in the

[[Page 40]]

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, or aborting the 
set at the earliest effective opportunity; and the use of one or more 
rafts and facemasks or viewboxes 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 necessary 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 that has the purpose or effect of unreasonably interfering with 
the observer's work performance, or that 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.
    (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 paragraph (f)(6) 
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 commerce of the nation. For other purposes, ``import'' is 
defined in Sec. 216.3.
    (2) Imports requiring a Fisheries Certificate of Origin. Shipments 
of tuna, tuna products, and certain other fish products identified by 
the U.S. Harmonized Tariff Schedule (HTS) numbers listed in paragraphs 
(f)(2)(i), (f)(2)(ii) and (f)(2)(iii) of this section may not be 
imported into the United States unless a properly completed Fisheries 
Certificate of Origin (FCO), NOAA Form 370, is filed with the U.S. 
Customs Service at the time of importation.

[[Page 41]]

    (i) HTS numbers requiring a Fisheries Certificate of Origin, subject 
to yellowfin tuna embargo. The following HTS numbers identify yellowfin 
tuna or yellowfin tuna products (other than fresh tuna) known to be 
imported into the United States. All shipments imported into the United 
States under these HTS numbers must be accompanied by an FCO. The scope 
of yellowfin tuna embargoes and procedures for attaining an affirmative 
finding are described under paragraphs (f)(6) and (f)(8) of this 
section, respectively.

(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) Airtight Containers: (products          ............................
 containing Yellowfin).
1604.14.1010..............................  Tuna, non-specific, in oil,
                                             in foil or other flexible
                                             airtight containers
                                             weighing with their
                                             contents not more than 6.8
                                             kg each
1604.14.1090..............................  Tuna, non-specific, in oil,
                                             in airtight containers,
                                             other
1604.14.2291..............................  Tuna, other than albacore,
                                             not in oil, in foil or
                                             other flexible airtight
                                             containers weighing with
                                             their contents not more
                                             than 6.8 kg each, under
                                             quota
1604.14.2299..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, under quota
1604.14.3091..............................  Tuna, other than albacore,
                                             not in oil, in foil or
                                             other flexible airtight
                                             containers weighing with
                                             their contents not more
                                             than 6.8 kg each, over
                                             quota
1604.14.3099..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, over quota
(C) Loins: (Yellowfin)....................  ............................
1604.14.4000..............................  Tuna, not in airtight
                                             containers, not in oil,
                                             weighing with their
                                             contents over 6.8 kg
1604.14.5000..............................  Tuna, not in airtight
                                             containers, other
(D) Other: (products containing Yellowfin)  ............................
0304.20.2066..............................  Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5 kg, frozen
0304.20.6096..............................  Other fish, fillets, frozen
1604.20.2500..............................  Balls and cakes, not in oil,
                                             in airtight containers,
                                             other
1604.20.3000..............................  Balls and cakes, other
------------------------------------------------------------------------

    (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 yellowfin 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 an FCO.

(A) Frozen:...............................  ............................
0303.41.0000..............................  Albacore or longfinned
                                             tunas, frozen
0303.43.0000..............................  Skipjack, frozen
0303.44.0000..............................  Bigeye, frozen
0303.45.0000..............................  Bluefin, frozen
0303.46.0000..............................  Bluefin Southern, frozen
0303.49.0100..............................  Other tuna, frozen
(B) Airtight Containers: (Other than        ............................
 Yellowfin).
1604.14.1010..............................  Tuna, non-specific, in oil,
                                             in foil or other flexible
                                             airtight containers
                                             weighing with their
                                             contents not more than 6.8
                                             kg each
1604.14.1090..............................  Tuna, non-specific, in oil,
                                             in airtight containers,
                                             other
1604.14.2251..............................  Tuna, albacore, not in oil,
                                             in foil or other flexible
                                             airtight containers
                                             weighing with their
                                             contents not more than 6.8
                                             kg each, under quota
1604.14.2259..............................  Tuna, albacore, not in oil,
                                             in airtight containers,
                                             other, under quota
1604.14.2291..............................  Tuna, other than albacore,
                                             not in oil, in foil or
                                             other flexible airtight
                                             containers weighing with
                                             their contents not more
                                             than 6.8 kg each, under
                                             quota
1604.14.2299..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, other, under
                                             quota
1604.14.3051..............................  Tuna, albacore, not in oil,
                                             in foil or other flexible
                                             airtight containers
                                             weighing with their
                                             contents not more than 6.8
                                             kg each, over quota
1604.14.3059..............................  Tuna, albacore, not in oil,
                                             in airtight containers,
                                             other, over quota
1604.14.3091..............................  Tuna, other than albacore,
                                             not in oil, in foil or
                                             other flexible airtight
                                             containers weighing with
                                             their contents not more
                                             than 6.8 kg each, over
                                             quota
1604.14.3099..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, other, over
                                             quota
(C) Loins: (Other than Yellowfin).........  ............................
1604.14.4000..............................  Tuna, not in airtight
                                             containers, in bulk or in
                                             immediate containers
                                             weighing with their
                                             contents over 6.8 kg, in
                                             oil
1604.14.5000..............................  Tuna, not in airtight
                                             containers, other
(D) Other: (only if the product contains    ............................
 tuna).
0304.20.2066..............................  Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5 kg, frozen
0304.20.6096..............................  Other fish, fillets, frozen
1604.20.2500..............................  Balls and cakes, not in oil,
                                             in airtight containers,
                                             other
1604.20.3000..............................  Balls and cakes, other
------------------------------------------------------------------------

    (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, in 
addition to 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, as identified under paragraph (f)(7) of this 
section, 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 statement described in paragraph (f)(4)(xiii) 
of this section.

[[Page 42]]



(A) Frozen:...............................
0303.19.0012..............................  Salmon, chinook, frozen
0303.19.0022..............................  Salmon, chum, frozen
0303.19.0032..............................  Salmon, pink, frozen
0303.19.0052..............................  Salmon, coho, frozen
0303.19.0062..............................  Salmon, Pacific, non-
                                             specific, frozen
0303.21.0000..............................  Trout, frozen
0303.22.0000..............................  Salmon, Atlantic and Danube,
                                             frozen
0303.29.0000..............................  Salmonidae, other, frozen
0303.75.0010..............................  Dogfish, frozen
0303.75.0090..............................  Other sharks, frozen
0303.79.2041..............................  Swordfish steaks, frozen
0303.79.2049..............................  Swordfish, other, frozen
0303.79.4097..............................  Fish, other, frozen
0304.20.2066..............................  Fish, fillet, skinned, in
                                             blocks, frozen over 4.5 kg
0304.20.6008..............................  Salmonidae, salmon fillet,
                                             frozen
0304.20.6092..............................  Swordfish fillets, frozen
0304.20.6096..............................  Fish, fillet, other, 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
1605.90.6050..............................  Squid, loligo, prepared/
                                             preserved
1605.90.6055..............................  Squid, other, prepared/
                                             preserved
(C) Other:................................  ............................
0305.30.6080..............................  Fish, other, fillet, dried/
                                             salted/brine
0305.49.4040..............................  Fish, other, smoked
0305.59.2000..............................  Shark fins, dried
0305.59.4000..............................  Fish, other, dried
0305.69.4000..............................  Salmon, other, salted (or in
                                             brine)
0305.69.5000..............................  Fish, other, salted (or in
                                             brine), in immediate
                                             containers, not over 6.8 kg
0305.69.6000..............................  Fish, other, salted (or in
                                             brine)
0307.49.0050..............................  Squid, other, frozen/dried/
                                             salted/brine
0307.49.0060..............................  Squid, other, & cuttle fish
                                             frozen/dried/salted/brine
------------------------------------------------------------------------

    (3) Disposition of Fisheries Certificates of Origin. The FCO 
described in paragraph (f)(4) of this section may be obtained from the 
Administrator, Southwest Region, or downloaded from the Internet at 
http://swr.nmfs.noaa.gov/noaa370.htm.
    (i) A properly completed FCO and its attached certificates, if 
applicable, must accompany the required U.S. Customs entry documents 
that are filed at the time of import.
    (ii) FCOs that accompany imported shipments of tuna destined for 
further processing in the United States must be endorsed at each change 
in ownership and submitted to the Administrator, Southwest Region, by 
the last endorser when all required endorsements are completed.
    (iii) Importers and exporters are required to retain their records, 
including FCOs, import or export documents, invoices, and bills of 
lading for 2 years, and such records must be made available within 30 
days of a request by the Secretary or the Administrator, Southwest 
Region.
    (4) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the exporter(s) 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, eastern Atlantic Ocean, western 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);
    (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, described by checking 
the appropriate statement on the form and attaching additional 
certifications if required;
    (xiii) For shipments harvested by vessels of a nation known to use 
large-scale driftnets, as determined by the Secretary pursuant to 
paragraph (f)(7) of this section, the High Seas Driftnet Certification 
contained on the FCO must be 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
    (xiv) 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 they accompany.
    (5) 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

[[Page 43]]

are subject to the requirements of subpart H of this part (Sec. 216.90 
et seq.).
    (6) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin 
tuna or products of yellowfin tuna 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 jurisdiction over 
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)(8) 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) 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 fish or fish products 
identified by an HTS number listed in paragraph (f)(2) of this section 
may not be imported into the United States if it is harvested by a 
large-scale driftnet, or if it is 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 a government official of 
the large-scale driftnet nation completes, signs and dates the High Seas 
Driftnet section of the FCO certifying that the fish or fish products 
were harvested by a method other than large-scale driftnet.
    (iii) Pelly certification. After 6 months of an embargo being in 
place against a nation under this section, the Secretary will certify 
that nation under section 8(a) of the Fishermen's Protective Act (22 
U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will 
terminate the certification under Section 8(d) of that Act (22 U.S.C. 
1978(d)).
    (iv) Coordination. The Assistant Administrator will promptly advise 
the Department of State and the Department of Homeland Security of 
embargo decisions, actions, and finding determinations.
    (7) 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.
    (8) Affirmative finding procedure for nations harvesting yellowfin 
tuna using a purse seine in the ETP. (i) The Assistant Administrator 
will determine, on an annual basis, whether to make an affirmative 
finding based upon documentary evidence provided by the government of 
the harvesting nation 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 must be submitted 
by the harvesting nation for the first affirmative finding application. 
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 
yellowfin tuna and yellowfin tuna products that were harvested by 
vessels of the nation after March 3, 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

[[Page 44]]

    (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) In any 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.
    (iii) Documentary Evidence and Compliance with the IDCP--(A) 
Documentary Evidence. The Assistant Administrator will make an 
affirmative finding under paragraph (f)(8)(i) of this section only 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)(8)(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 that 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.
    (iv) 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)(8)(i) and (f)(8)(ii) of this 
section, allowing at least 60 days from the submission of complete 
information to NMFS for processing.
    (v) The Assistant Administrator will make or renew an affirmative 
finding for the period from April 1 through March 31 of the following 
year, or portion thereof, if the harvesting nation has provided all the 
information and authorizations required by paragraphs (f)(8)(i) and 
(f)(8)(ii) of this section, and has met the requirements of paragraphs 
(f)(8)(i) and (f)(8)(ii) of this section.
    (vi) 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)(8)(i) and (f)(8)(ii) of this section.
    (9) Intermediary nation. Except as authorized under this paragraph, 
no yellowfin tuna or yellowfin tuna products harvested by purse seine in 
the ETP 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.
    (i) 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.
    (ii) Shipments of yellowfin tuna that pass through any nation (e.g. 
on a 'through Bill of Lading') and are not entered for consumption in 
that nation are not considered to be imports to that nation and thus, 
would not cause that nation to be considered an intermediary nation 
under the MMPA.
    (iii) 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, the import restrictions of this 
paragraph shall apply.
    (iv) Changing the status of intermediary nation determinations. 
Imports from an intermediary nation of yellowfin tuna and yellowfin 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 a notice of such 
determination in the Federal Register, that the intermediary nation has 
provided certification and reasonable proof that it has

[[Page 45]]

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.
    (v) 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 
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.
    (10) Fish refused entry. If fish is denied entry under paragraph 
(f)(2) of this section, the Port Director of Customs shall refuse to 
release the fish for entry into the United States.
    (11) Disposition of fish refused entry into the United States. Fish 
that is denied entry under paragraph (f)(2) of this section and that is 
not exported under Customs supervision within 90 days shall be disposed 
of under Customs laws and regulations at the importer's expense. 
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 of this part; 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 an 
applicant nation to become a member of the IATTC and the nation has an 
affirmative finding.
    (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. Penalties for violating these regulations may include, but 
are not limited to, civil monetary fines, permit suspension or 
revocation, and reductions in current and future DMLs. Recommended 
sanctions are identified in the IDCPA/DPCIA Tuna/Dolphin Civil 
Administrative Penalty Schedule. Procedures for the imposition of 
penalties under the MMPA are found at 15 CFR part 904.



Sec. 216.25  Exempted marine mammals and marine mammal products.

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

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

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

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



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

    Notwithstanding any other provision of this subpart:
    (a) Any bones, teeth or ivory of any dead marine mammal may be 
collected from a beach or from land within\1/4\ of a mile of the ocean. 
The term ocean includes bays and estuaries.
    (b) Notwithstanding the provisions of subpart D, soft parts that are 
sloughed, excreted, or discharged naturally by a living marine mammal in 
the wild may be collected or imported for bona fide scientific research 
and enhancement, provided that collection does not involve the taking of 
a living marine mammal in the wild.
    (c) Any marine mammal part collected under paragraph (a) of this 
section or any marine mammal part collected and imported under paragraph

[[Page 46]]

(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;
    (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:

[[Page 47]]

    (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 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

[[Page 48]]

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 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

[[Page 49]]

(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 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

[[Page 50]]

    (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 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]

[[Page 51]]



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 
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]

[[Page 52]]

    (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 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;

[[Page 53]]

    (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]



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,

[[Page 54]]

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 Sec. Sec. 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 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

[[Page 55]]

    (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
    (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

[[Page 56]]

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 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

[[Page 57]]

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.
    (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;

[[Page 58]]

    (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, 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:

[[Page 59]]

    (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]



Sec. 216.47  Access to marine mammal tissue, analyses, and data.

    (a) Applications for the National Marine Mammal Tissue Bank samples 
(NMMTB). (1) A principal investigator, contributor or holder of a 
scientific research permit issued in accordance with the provisions of 
this subpart may apply for access to a tissue specimen sample in the 
NMMTB. Applicants for tissue specimen samples from the NMMTB must submit 
a signed written request with attached study plan to the Marine Mammal 
Health and Stranding Response Program (MMHSRP) Program Manager, Office 
of Protected Resources, NMFS. The written request must include:
    (i) A clear and concise statement of the proposed use of the banked 
tissue specimen. The applicant must demonstrate that the proposed use of 
the banked tissue is consistent with the goals of the NMMTB and the 
MMHSRP.
    (A) The goals of the MMHSRP are to facilitate the collection and 
dissemination of reference data on marine mammals and health trends of 
marine mammal populations in the wild; to correlate the health of marine 
mammals and marine mammal populations in the wild with available data on 
physical, chemical, and biological environmental parameters; and to 
coordinate effective responses to unusual mortality events.
    (B) The goal of the NMMTB is to maintain quality controlled marine 
mammal tissues that will permit retrospective analyses to determine 
environmental trends of contaminants and other analytes of interest and 
that will provide the highest quality samples for analyses using new and 
innovative techniques.
    (ii) A copy of the applicant's scientific research permit. The 
applicant must demonstrate that the proposed use of the banked tissue is 
authorized by the permit;
    (iii) Name of principal investigator, official title, and affiliated 
research or academic organization;
    (iv) Specific tissue sample and quantity desired;
    (v) Research facility where analyses will be conducted. The 
applicant must demonstrate that the research facility will follow the 
Analytical Quality Assurance (AQA) program, which was designed to ensure 
the accuracy, precision, level of detection, and intercompatibility of 
data resulting from chemical analyses of marine mammal tissues. The AQA 
consists of annual interlaboratory comparisons and the development of 
control materials and standard reference materials for marine mammal 
tissues;
    (vi) Verification that funding is available to conduct the research;
    (vii) Estimated date for completion of research, and schedule/date 
of subsequent reports;
    (viii) Agreement that all research findings based on use of the 
banked tissue will be reported to the NMMTB, MMHSRP Program Manager and 
the

[[Page 60]]

contributor; and the sequences of tissue specimen samples that are used/
released for genetic analyses (DNA sequencing) will be archived in the 
National Center for biotechnology Information's GenBank. Sequence 
accessions in GenBank should document the source, citing a NIST field 
number that indentifies the animal; and
    (ix) Agreement that credit and acknowledgment will be given to U.S. 
Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National 
Institute of Standards and Technology (NIST), the Minerals Management 
Service (MMS), NMFS, the NMMTB, and the collector for use of banked 
tissues.
    (2) The applicant shall insert the following acknowledgment in all 
publications, abstracts, or presentations based on research using the 
banked tissue:
    The specimens used in this study were collected by [the contributor] 
and provided by the National Marine Mammal Tissue Bank, which is 
maintained in the National Biomonitoring Specimen Bank at NIST and which 
is operated under the direction of NMFS with the collaboration of MMS, 
USGS, USFWS, and NIST through the Marine Mammal Health and Stranding 
Response Program [and the Alaska Marine Mammal Tissue Archival Project 
if the samples are from Alaska].
    (3) Upon submission of a complete application, the MMHSRP Program 
Manager will send the request and attached study plan to the following 
entities which will function as the review committee:
    (i) Appropriate Federal agency (NMFS or USFWS) marine mammal 
management office for that particular species; and
    (ii) Representatives of the NMMTB Collaborating Agencies (NMFS, 
USFS, USGS Biological Resources Division, and NIST) If no member of the 
review committee is an expert in the field that is related to the 
proposed research activity, any member may request an outside review of 
the proposal, which may be outside of NMFS or USFWS but within the 
Federal Government.
    (4) The MMHSRP Program Manager will send the request and attached 
study plan to any contributor(s) of the tissue specimen sample. The 
contributor(s) of the sample may submit comments on the proposed 
research activity to the Director, Office of Protected Resources within 
30 days of the date that the request was sent to the contributor(s).
    (5) The USFWS Representative of the NMMTB Collaborating Agencies 
will be chair of review committees for requests involving species 
managed by the DOI. The MMHSRP Program Manager will be chair of all 
other review committees.
    (6) Each committee chair will provide recommendations on the request 
and an evaluation of the study plan to the Director, Office of Protected 
Resources, NMFS.
    (7) The Director, Office of Protected Resources, NMFS, will make the 
final decision on release of the samples based on the advice provided by 
the review committee, comments received from any contributor(s) of the 
sample within the time provided in paragraph (a)(4) of this section, and 
determination that the proposed use of the banked tissue specimen is 
consistent with the goals of the MMHSRP and the NMMTB. The Director will 
send a written decision to the applicant and send copies to all review 
committee members. If the samples are released, the response will 
indicate whether the samples have been homogenized and, if not, the 
homogenization schedule.
    (8) The applicant will bear all shipping and homogenization costs 
related to use of any specimens from the NMMTB.
    (9) The applicant will dispose of the tissue specimen sample 
consistent with the provisions of the applicant's scientific research 
permit after the research is completed, unless the requester submits 
another request and receives approval pursuant to this section. The 
request must be submitted within three months after the original project 
has been completed.
    (b) [Reserved]

[69 FR 41979, July 13, 2004]



Sec. Sec. 216.48-216.49  [Reserved]



                       Subpart E_Designated Ports



Sec. 216.50  Importation at designated ports.

    (a) Any marine mammal or marine mammal product which is subject to

[[Page 61]]

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

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

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

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

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

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



       Subpart F_Pribilof Islands, Taking for Subsistence Purposes



Sec. 216.71  Allowable take of fur seals.

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

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



Sec. 216.72  Restrictions on taking.

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

[[Page 62]]

    (1) St. Paul Island--Seals may only be harvested from the following 
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, 
Kitovi, and Reef. No haulout area may be harvested more than once per 
week.
    (2) St. George Island--Seals may only be harvested from the 
following haulout areas: Northeast and Zapadni. Neither haulout area may 
be harvested more than twice per week.
    (e)(1) The Assistant Administrator is required to suspend the take 
provided for in Sec. 215.31 when:
    (i) He determines, after reasonable notice by NMFS representatives 
to the Pribilovians on the island, that the subsistence needs of the 
Pribilovians on the island have been satisfied;

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

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



Sec. 216.73  Disposition of fur seal parts.

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

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



Sec. 216.74  Cooperation with Federal officials.

    Pribilovians who engage in the harvest of seals are required to co 
operate with scientists engaged in fur seal research on the Pribilof 
Islands who may need assistance in recording tag or other data and 
collecting tissue or other fur seal samples for re search purposes. In 
addition, Prib i lovians who take fur seals for sub sistence uses must, 
consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS 
representatives on the Pribilof Islands who are responsible for 
compiling the following information on a daily basis:
    (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

[[Page 63]]

needs of the Pribilovians or for making determinations under Sec. 
215.32(e).

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



                Subpart G_Pribilof Islands Administration



Sec. 216.81  Visits to fur seal rookeries.

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

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



Sec. 216.82  Dogs prohibited.

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

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



Sec. 216.83  Importation of birds or mammals.

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

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



Sec. 216.84  [Reserved]



Sec. 216.85  Walrus and Otter Islands.

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

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



Sec. 216.86  Local regulations.

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

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



Sec. 216.87  Wildlife research.

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

[[Page 64]]



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 
Sec. Sec. 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 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]

[[Page 65]]



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;
    (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 Sec. Sec. 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]

    Effective Date Note: At 69 FR 55307, Sept. 13, 2004, Sec. 216.93 
was removed, effective Oct. 13, 2004.



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

[[Page 66]]

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 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.

[[Page 67]]

    (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 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

[[Page 68]]

    (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.
    (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 Sec. Sec. 216.91 through 216.94:

[[Page 69]]

[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]

    Effective Date Note: At 69 FR 55307, Sept. 13, 2004, in subpart H, 
Sec. 216.93 was removed, Sec. Sec. 216.94 through 216.96 were 
redesignated as Sec. Sec. 216.93 through 216.95, and Sec. Sec. 216.90 
through 216.92 and the newly redesignated Sec. 216.93 was revised, 
effective Oct. 13, 2004. For the convenience of the user, the revised 
text is set forth as follows:

Sec. 216.90  Purposes.

    This subpart governs the requirements for using the official mark 
described in Sec. 216.95 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.

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 Sec. 
216.92 and 216.93 are met;

[[Page 70]]

    (ii) No dolphins were killed or seriously injured during the sets in 
which the tuna were caught; and
    (iii) None of the tuna were caught on a trip using a purse seine net 
intentionally deployed on or to encircle dolphins, provided that this 
paragraph (a)(1)(iii) will not apply if the Assistant Administrator 
publishes a notification in the Federal Register announcing a finding 
under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse 
seine nets on or encirclement of dolphins is not having a significant 
adverse impact on any depleted stock.
    (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 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 trip 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 trip 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. 216.95, may not be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

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 only if the following 
requirements are met:
    (1) Tuna Tracking Forms containing a complete record of all the 
fishing activities on the trip, certified by the vessel Captain and the 
observer, are submitted to the Administrator, Southwest Region, at the 
end of the fishing trip during which the tuna was harvested;
    (2) The tuna is delivered for processing to 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. 216.93; and
    (3) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec. 216.91.
    (b) Imported tuna.
    (1) Yellowfin tuna or tuna products harvested in the ETP by vessels 
of greater than 400 st (362.8 mt) carrying capacity and presented for 
import into the United States may be labeled dolphin-safe only if the 
yellowfin 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 under 
Sec. 216.24(f)(8).
    (2) Tuna or tuna products, other than yellowfin tuna, 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 may be 
labeled dolphin-safe only if:
    (i) 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 is a Party to the Agreement on the 
IDCP or has applied to become a Party and is adhering to all the 
requirements of the Agreement on the IDCP Tuna Tracking and Verification 
Plan;
    (ii) The tuna or tuna products are accompanied by a properly 
completed FCO; and
    (iii) The tuna or tuna products are accompanied by valid 
documentation signed by a representative of the appropriate IDCP member 
nation, containing the harvesting vessel names and tuna tracking form 
numbers represented in the shipment, and certifying that:
    (A) There was an IDCP approved observer on board the vessel(s) 
during the entire trip(s); and

[[Page 71]]

    (B) The tuna contained in the shipment were caught according to the 
dolphin-safe labeling standards of Sec. 216.91.

Sec. 216.93  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. Sec. 
216.91 and 216.92. The tracking program includes procedures and reports 
for use when importing tuna into the United States and during U.S. purse 
seine fishing, processing, and marketing in the United States 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 Agreement on 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 a unique 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 the date, well number, 
weights by species composition, estimated tons loaded, and additional 
notes, if any. The observer and the vessel engineer initial the entry as 
soon as possible following 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 forms is accurate. TTFs are confidential official 
documents of the IDCP, consistent with Article XVIII of the Agreement on 
the IDCP, and the Agreement on the IDCP Rules of Confidentiality.
    (b) Dolphin-Safe Certification. Upon request, the Office of the 
Administrator, Southwest Region, will provide written certification that 
tuna harvested by U.S. purse seine vessels greater than 400 st (362.8 
mt) carrying capacity is dolphin-safe, but only if NMFS' review of the 
TTFs for the subject trip shows that the tuna for which the 
certification is requested is dolphin-safe under the requirements of the 
Agreement on the IDCP and U.S. law.
    (c) Tracking fishing operations. (1) During ETP fishing trips by 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity, 
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. 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 is considered non-
dolphin-safe tuna. The observer will change the designation of a 
dolphin-safe well to non-dolphin-safe if any tuna are loaded into the 
well that were captured in a set in which a dolphin died or was 
seriously injured.
    (2) The captain, managing owner, or vessel agent of a U.S. purse 
seine vessel greater than 400 st (362.8 mt) 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.
    (3) 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.
    (4) 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.
    (5)(i) When ETP caught tuna is offloaded from a U.S. purse seine 
vessel greater than 400 st (362.8 mt) 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 seine 
vessel to receive the TTFs from the vessel observer and to monitor the 
handling of dolphin-safe and non-dolphin-safe tuna.
    (ii) If a NMFS representative does not meet the vessel in port at 
the time of arrival, the captain of the vessel or the vessel's managing 
office must assure delivery of the TTFs to the Administrator, Southwest 
Region, from that location within 5 working days of the end of the trip. 
Alternatively, if the captain approves and notifies the Administrator, 
Southwest Region, the captain may entrust the observer to deliver the 
signed TTFs to the local office of the IATTC.

[[Page 72]]

    (iii) When ETP caught tuna is offloaded from a U.S. purse seine 
vessel greater than 400 st (362.8 mt) carrying capacity directly to a 
processing facility located outside the jurisdiction of the United 
States in a country that is a Party to the Agreement on the IDCP, the 
national authority in whose area of jurisdiction the tuna is to be 
processed will assume the responsibility for tracking and verification 
of the tuna offloaded. If a representative of the national authority 
meets the vessel in port, that representative will receive the original 
TTFs and assume the responsibility for providing copies of the TTFs to 
the Administrator, Southwest Region. If a representative of the national 
authority does not meet the vessel, the fishing vessel captain or the 
vessel's managing office must assure delivery of the completed TTFs in 
accordance with paragraphs (ii) and (v) of this section.
    (iv) When ETP caught tuna is offloaded from a U.S. purse seine 
vessel greater than 400 st (362.8 mt) carrying capacity in a country 
that is not a Party to the Agreement on the IDCP, the tuna becomes the 
tracking and verification responsibility of the national authority of 
the processing facility when it is unloaded from the fishing vessel. The 
captain or the vessel's managing office must assure delivery of the 
completed TTFs in accordance with paragraphs (ii) and (v) of this 
section.
    (v) TTFs are confidential official documents of the IDCP. Vessel 
captains and managing offices shall not provide copies of TTFs to any 
representatives of private organizations or non-member states.
    (d) Tracking cannery operations. (1) Whenever a U.S. tuna canning 
company in the 50 states, Puerto Rico, or American Samoa receives a 
domestic or imported shipment of ETP caught tuna for processing, a NMFS 
representative may be present to monitor delivery and verify that 
dolphin-safe and non-dolphin-safe tuna are clearly identified and remain 
segregated. Such inspections may be scheduled or unscheduled, and 
canners must allow the NMFS representative access to all areas and 
records.
    (2) 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: dolphin-safe status, species, condition 
(round, loin, dressed, gilled and gutted, other), weight in short tons 
to the fourth decimal, ocean area of capture (ETP, 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 (d)(2)(i) of this section, a copy of the FCO for each imported 
receipt must be provided.
    (3) Tuna processors must report on a monthly basis the amounts of 
ETP-caught tuna that were immediately utilized upon receipt or removed 
from cold storage. This report may be submitted in conjunction with the 
monthly report required in paragraph (d)(2) of this section. This report 
must contain:
    (i) The date of removal from cold storage or disposition;
    (ii) Storage container or lot identifier number(s) and dolphin-safe 
or non-dolphin-safe designation of each container or lot; 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 during 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.
    (e) Tracking imports. All tuna products, except fresh tuna, that are 
imported into the United States must be accompanied by a properly 
certified FCO that is submitted to the Administrator, Southwest Region, 
as required by section 216.24(f).
    (f) Verification requirements.--(1) Record maintenance. Any 
exporter, trans-shipper, 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 2 years. These records include, but 
are not limited to: FCO and required certifications, any report required 
in paragraphs (a), (b) and (d) 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, trans-shipper, 
importer, or processor of tuna or tuna products containing tuna 
harvested in the ETP must submit to the Administrator, Southwest Region, 
any record required to be maintained under paragraph (f)(1) of this 
section.
    (3) Audits and spot-checks. Upon request of the Administrator, 
Southwest Region, any such exporter, trans-shipper, 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, stored, and processed tuna.
    (g) Confidentiality of proprietary information. Information 
submitted to the Assistant Administrator under this section will be 
treated as confidential in accordance with NOAA

[[Page 73]]

Administrative Order 216-100 ``Protection of Confidential Fisheries 
Statistics.''



 Subpart I_General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

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



Sec. 216.101  Purpose.

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



Sec. 216.102  Scope.

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



Sec. 216.103  Definitions.

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

[[Page 74]]

    (1) That is likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by:
    (i) Causing the marine mammals to abandon or avoid hunting areas;
    (ii) Directly displacing subsistence users; or
    (iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and
    (2) That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.



Sec. 216.104  Submission of requests.

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

[[Page 75]]

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



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

[[Page 76]]

combination thereof, specific regulations shall be established for each 
allowed activity that set forth:
    (1) Permissible methods of taking;
    (2) Means of effecting the least practicable adverse impact on the 
species and its habitat and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including 
requirements for the independent peer-review of proposed monitoring 
plans where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses.
    (c) Regulations will be established based on the best available 
information. As new information is developed, through monitoring, 
reporting, or research, the regulations may be modified, in whole or in 
part, after notice and opportunity for public review.



Sec. 216.106  Letter of Authorization.

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



Sec. 216.107  Incidental harassment authorization for Arctic waters.

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

[[Page 77]]

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



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

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

[[Page 78]]

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

Subpart J [Reserved]



Subpart K_Taking of Marine Mammals Incidental to Space Vehicle and Test 
                            Flight Activities

    Source: 69 FR 5727, Feb. 6, 2004, unless otherwise noted.

    Effective Date Note: At 69 FR 5727, Feb. 6, 2004, subpart K was 
added, effective Feb. 6, 2004, through Feb. 6, 2009.



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 30 space and missiles vehicles each year from 
Vandenberg Air Force Base, for a total of up to 150 missiles and rockets 
over the 5-year period of these regulations,
    (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 period of 
these regulations,
    (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), and 
northern fur seals (Callorhinus ursinus).



Sec. 216.121  Effective dates.

    Regulations in this subpart are effective from February 6, 2004, 
through February 6, 2009.



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

[[Page 79]]

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.

    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 practicable, 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 haul-outs 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, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of March through June, unless constrained by factors 
including, but not limited to, human safety, national security, or for 
space vehicle launch trajectory necessary to meet mission objectives.
    (3) VAFB must avoid, whenever possible, launches which are predicted 
to produce a sonic boom on the Northern Channel Islands during harbor 
seal, elephant seal, and California sea lion pupping seasons, March 
through June.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and 
appropriate changes must be made through modification to a Letter of 
Authorization, prior to conducting the next launch under that Letter of 
Authorization.
    (5) Additional mitigation measures as contained in a Letter of 
uthorization.
    (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, approved in advance by the National Marine Fisheries 
Service, 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 occurring during the 
harbor seal pupping season (1 March through 30 June) and continue for a 
period of time not less than 48 hours subsequent to launching,
    (2) For launches during the harbor seal pupping season (March 
through June), conduct follow-up surveys within 2 weeks of the launch to 
ensure that there were no adverse effects on any marine mammals,

[[Page 80]]

    (3) Monitor haul-out sites on the Northern Channel Islands, if it is 
determined by modeling that a sonic boom of greater than 1 psf could 
occur in those areas (this determination will be made in consultation 
with the National Marine Fisheries Service),
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive dysfunction,
    (5) Supplement observations on Vandenberg and on the Northern 
Channel Islands with video-recording of mother-pup seal responses for 
daylight launches during the pupping season,
    (6) Conduct acoustic measurements of those launch vehicles that have 
not had sound pressure level measurements made previously, and
    (7) Include multiple surveys each day that record the species, 
number of animals, general behavior, presence of pups, age class, gender 
and reaction to launch noise, sonic booms or other natural or human 
caused disturbances, in addition to recording environmental conditions 
such as tide, wind speed, air temperature, and swell.
    (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 that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted at the time of renewal of the 
LOA.
    (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 in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impact on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.



Sec. 216.126  Applications for Letters of Authorization.

    (a) To incidentally take harbor seals and other marine mammals 
pursuant to these regulations, either the U.S. citizen 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.

[[Page 81]]



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), 
if determined by the Assistant Administrator to be acceptable; and
    (b) A determination that the mitigation measures required under 
Sec. 216.124 and the Letter of Authorization have been undertaken.



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 a Letter of 
Authorization 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), a Letter of 
Authorization may be substantively modified without prior notice and 
opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.

Subparts L-M [Reserved]



    Subpart N_Taking of Marine Mammals Incidental to Missile Launch 
                 Operations from San Nicolas Island, CA

    Source: 68 FR 52138, Sept. 2, 2003, unless otherwise noted.

    Effective Date Note: At 68 FR 52138, Sept. 2, 2003, Subpart N of 
Part 216 was added, effective Oct. 2, 2003, through Oct. 2, 2008.



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

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in target missile launch activities at the Naval Air 
Warfare Center Weapons Division facilities on San Nicolas Island, 
California.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: northern elephant seals (Mirounga angustirostris), harbor seals 
(Phoca vitulina), and California sea lions (Zalophus californianus).
    (c) This Authorization is valid only for activities associated with 
the launching of a total of 40 Vandal (or similar sized) vehicles from 
Alpha Launch Complex and smaller missiles and targets from Building 807 
on San Nicolas Island, California.



Sec. 216.152  Effective dates.

    Regulations in this subpart are effective from October 2, 2003 
through October 2, 2008.



Sec. 216.153  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 
those marine mammal species specified in Sec. 216.151(b) by Level B 
harassment, in the course of conducting target missile launch activities 
within the area described in Sec. 216.151(a), provided all terms, 
conditions, and requirements of these regulations and such Letter of 
Authorization are complied with.
    (b) The activity specified in Sec. 216.151 must be conducted in a 
manner that minimizes, to the greatest extent possible, adverse impacts 
on marine mammals and their habitat. When conducting these activities, 
the following mitigation measures must be utilized:
    (1) The holder of the Letter of Authorization must prohibit 
personnel from entering pinniped haul-out sites below the missile's 
predicted flight path for 2 hours prior to planned missile launches.
    (2) The holder of the Letter of Authorization must avoid launch 
activities during harbor seal pupping season (February to April), when 
operationally practicable.

[[Page 82]]

    (3) The holder of this Authorization must limit launch activities 
during other pinniped pupping seasons, when operationally practicable.
    (4) The holder of the Letter of Authorization must not launch Vandal 
target missiles from the Alpha Complex at low elevation (less than 1,000 
feet (304.8 m) on launch azimuths that pass close to pinniped haul-out 
sites).
    (5) The holder of the Letter of Authorization must avoid, where 
practicable, launching multiple target missiles in quick succession over 
haul-out sites, especially when young pups are present.
    (6) The holder of the Letter of Authorization must limit launch 
activities during nighttime hours when operationally practicable.
    (7) Aircraft and helicopter flight paths must maintain a minimum 
altitude of 1,000 feet (304.8 m) from pinniped haul-outs.
    (8) If injurious or lethal take is discovered during monitoring 
conducted under Sec. 216.155, the holder of the Letter of Authorization 
must contact the Regional Administrator, Southwest Region, National 
Marine Fisheries Service, or his/her designee, at (562) 980-4023 within 
48 hours and, in cooperation with the National Marine Fisheries Service, 
launch procedure, mitigation measures, and monitoring methods must be 
reviewed and appropriate changes made prior to the next launch.
    (9) If post-test surveys determine that an injurious or lethal take 
of a marine mammal has occurred, the test procedure and the monitoring 
methods must be reviewed and appropriate changes must be made prior to 
conducting the next missile launch.



Sec. 216.154  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.151(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, or in a manner not authorized, in this subpart.



Sec. 216.155  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals.
    (b) The National Marine Fisheries Service must be notified 
immediately of any changes or deletions to any portions of the proposed 
monitoring plan submitted in accordance with the Letter of 
Authorization.
    (c) The holder of the Letter of Authorization must designate 
biologically trained, on-site observer(s), approved in advance by the 
National Marine Fisheries Service, to record the effects of the launch 
activities and the resulting noise on pinnipeds.
    (d) The holder of the Letter of Authorization must implement the 
following monitoring measures:
    (1) Visual Land-Based Monitoring. (i) Prior to each missile launch, 
an observer(s) will place 3 autonomous digital video cameras overlooking 
chosen haul-out sites located varying distances from the missile launch 
site. Each video camera will be set to record a focal subgroup within 
the larger haul-out aggregation for a maximum of 4 hours or as permitted 
by the videotape capacity.
    (ii) Systematic visual observations, by observers described in 
paragraph (c) of this section, on pinniped presence and activity will be 
conducted and recorded in a field logbook a minimum of 2 hours prior to 
the estimated launch time and for at least 1 hour immediately following 
the launch of all launch vehicles.
    (iii) Documentation, both via autonomous video camera and human 
observer, will consist of:
    (A) Numbers and sexes of each age class in focal subgroups;
    (B) Description and timing of launch activities or other disruptive 
event(s);
    (C) Movements of pinnipeds, including number and proportion moving, 
direction and distance moved, and pace of movement;
    (D) Description of reactions;

[[Page 83]]

    (E) Minimum distances between interacting and reacting pinnipeds;
    (F) Study location;
    (G) Local time;
    (H) Substratum type;
    (I) Substratum slope;
    (J) Weather condition;
    (K) Horizontal visibility; and
    (L) Tide state.
    (2) Acoustic Monitoring. (i) During all target missile launches, 
calibrated recordings of the levels and characteristics of the received 
launch sounds will be obtained from 3 different locations of varying 
distances from the target missile's flight path. To the extent 
practicable, these acoustic recording locations will correspond with the 
haul-out sites where video and human observer monitoring is done.
    (ii) Acoustic recordings will be supplemented by the use of radar 
and telemetry systems to obtain the trajectory of target missiles in 
three dimensions.
    (iii) Acoustic equipment used to record launch sounds will be 
suitable for collecting a wide range of parameters, including the 
magnitude, characteristics, and duration of each target missile.
    (e) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (1) For each target missile launch, the lead contractor or lead 
observer for the holder of the Letter of Authorization must provide a 
status report on the information required under Sec. 216.155(d)(1)(iii) 
to the National Marine Fisheries Service, Southwest Regional Office, 
unless other arrangements for monitoring are agreed in writing.
    (2) An initial report must be submitted to the Office of Protected 
Resources, and the Southwest Regional Office at least 60 days prior to 
the expiration of each annual Letter of Authorization. This report must 
contain the following information:
    (i) Timing and nature of launch operations;
    (ii) Summary of pinniped behavioral observations;
    (iii) Estimate of the amount and nature of all takes by harassment 
or by other means.
    (3) A draft comprehensive technical report will be submitted to the 
Office of Protected Resources and Southwest Regional Office, National 
Marine Fisheries Service, 180 days prior to the expiration of these 
regulations and providing full documentation of the methods, results, 
and interpretation of all monitoring tasks for launches to date plus 
preliminary information for missile launches during the first 6 months 
of the final Letter of Authorization.
    (4) A revised final technical report, including all monitoring 
results during the entire period of the Letter of Authorization, will be 
due 90 days after the end of the period of effectiveness of these 
regulations.
    (5) Both the 60-day and draft comprehensive technical reports will 
be subject to review and comment by the National Marine Fisheries 
Service. Any recommendations made by the National Marine Fisheries 
Service must be addressed in the final comprehensive report prior to 
acceptance by the National Marine Fisheries Service.
    (f) Activities related to the monitoring described in paragraph (d) 
of this section, or in the Letter of Authorization issued under Sec. 
216.106, may be conducted without the need for a separate scientific 
research permit.
    (g) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place an observer on San Nicolas Island for any activity involved in 
marine mammal monitoring either prior to, during, or after a missile 
launch in order to monitor the impact on marine mammals.



Sec. 216.156  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. 216.157.
    (c) A Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;

[[Page 84]]

    (2) Specified 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 level of taking will be consistent with the 
findings made for the total taking allowable under these regulations.
    (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. 216.157  Renewal of a Letter of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.156 for the activity specified in Sec. 216.151 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. 216.156 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. 
216.155, and acceptance by the National Marine Fisheries Service;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring, and reporting measures required under 
Sec. Sec. 216.153 and 216.155 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) A determination that the number of marine mammals taken by the 
activity continues to be small and that the level of taking will be 
consistent with the findings made for the total taking allowable under 
these regulations.
    (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. 216.158  Modifications to the Letter of Authorization.

    (a) 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. 216.151(b), the Letter of 
Authorization issued pursuant to Sec. 216.106 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.

Subpart O [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

[[Page 85]]

(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). 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 Sec. Sec. 
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 Sec. Sec. 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 Sec. Sec. 216.106 and 216.176.



Sec. 216.174  Mitigation.

    As described in the Letter of Authorization issued under Sec. Sec. 
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 Sec. Sec. 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.

[[Page 86]]

    (d) Activities related to the monitoring described in paragraphs (b) 
and (c) of this section, or in the Letter of Authorization issued under 
Sec. Sec. 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 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 
Sec. Sec. 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

[[Page 87]]

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 Sec. Sec. 
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 Sec. Sec. 
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 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 Sec. Sec. 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_Taking of Marine Mammals Incidental to Navy Operations of 
  Surveillance Towed Array Sensor System Low Frequency Active (SURTASS 
                               LFA) Sonar

    Source: 67 FR 46785, July 16, 2002, unless otherwise noted.

    Effective Date Note: At 67 FR 46785, July 16, 2002, subpart Q was 
added, effective Aug. 15, 2002, through Aug. 15, 2007.



Sec. 216.180  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 the U.S. Navy, Department of Defense, while engaged in the operation 
of no more than two SURTASS LFA sonar systems conducting active sonar 
operations, in areas specified in paragraph (a) of this section. The 
authorized activities, as specified in a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.188, include the transmission of low 
frequency sounds from the SURTASS LFA sonar and the transmission of high 
frequency sounds from the mitigation sonar described in Sec. 216.185 
during training, testing, and routine military operations of SURTASS LFA 
sonar.
    (a) With the exception of those areas specified in Sec. 216.183(d), 
the incidental taking by harassment may be authorized in the following 
areas as specified in a Letter of Authorization:
    (1) Atlantic Polar Biome:
    (i) Boreal Polar Province (1/BPLR)(i.e., LFA sonar 180-dB exclusion 
zone);
    (ii) Atlantic Arctic Province (2/ARCT);
    (iii) Atlantic Subarctic Province (3/SARC);
    (2) North Atlantic Coastal Biome:
    (i) Northeast Atlantic Shelves Province (11/NECS),
    (A) North/Irish Sea Subprovince,
    (B) English Channel Subprovince,
    (C) Southern Outer Shelf Subprovince,
    (D) Northern Outer Shelf Subprovince, and
    (E) Baltic Subprovince; and
    (ii) Northwest Atlantic Shelves Province (15/NWCS),
    (A) Newfoundland/Nova Scotia Shelf Subprovince,
    (B) Gulf of St. Lawrence Coastal Subprovince,
    (C) Gulf of Maine/Bay of Fundy Coastal Subprovince,
    (D) Georges Bank/New York Bight Coastal Subprovince,
    (E) Middle Atlantic Bight Coastal Subprovince,
    (F) South Atlantic Bight Coastal Subprovince;
    (3) South Atlantic Coastal Biome:
    (i) Benguela Current Coastal Province (22/BENG);
    (ii) Brazil Current Coastal Province (20/BRAZ);
    (iii) Eastern (Canary) Coastal Province (12/CNRY);
    (iv) Southwest Atlantic Shelves Province (21/FKLD);

[[Page 88]]

    (v) Guianas Coastal Province (14/GUIA);
    (vi) Guinea Current Coastal Province (13/GUIN),
    (A) Guiana Coastal Subprovince, and
    (B) Central African Coastal Subprovince;
    (4) Atlantic Westerly Winds Biome:
    (i) Gulf Stream Province (5/GFST);
    (ii) North Atlantic Drift Province (4/NADR);
    (iii) North Atlantic Subtropical Gyral East Province (18/NASTE); and
    (iv) North Atlantic Subtropical Gyral West Province (6/NASTW);
    (5) Atlantic Trade Wind Biome:
    (i) Caribbean Province (17/CARB);
    (A) Gulf of Mexico Subprovince;
    (B) Caribbean Sea Subprovince;
    (ii) Eastern Tropical Atlantic Province (9/ETRA);
    (iii) North Atlantic Tropical Gyral Province (7/NATR);
    (iv) South Atlantic Gyral Province (10/SATL);
    (v) Western Tropical Atlantic Province (8/WTRA);
    (6) Mediterranean/Black Sea Biome:
    (i) Mediterranean Sea Province (16A/MEDI);
    (ii) Black Sea Province (16B/BLSE);
    (7) Indian Ocean Coastal Biome:
    (i) Australia/Indonesia Coastal Province (37/AUSW);
    (ii) Eastern India Coastal Province (35/INDE);
    (iii) Northwestern Arabian Upwelling Province (34/ARAB);
    (iv) Eastern Africa Coastal Province (32/EAFR);
    (v) Western India Coastal Province (36/INDW);
    (vi) Red Sea, Persian Gulf Province (33/REDS);
    (8) Indian Ocean Trade Wind Biome:
    (i) Indian South Subtropical Gyre Province (31/ISSG);
    (ii) Indian Monsoon Gyres Province (30/MONS);
    (9) North Pacific Coastal Biome:
    (i) Alaska Downwelling Coastal Province (65/ALSK),
    (A) Canadian/Alaskan Coastal Subprovince,
    (B) Aleutian Stream Coastal Subprovince,
    (ii) California Current Province (66/CALC),
    (A) Oregon-British Columbia Coastal Subprovince,
    (B) Point Conception/Cape Mendicino Coastal Subprovince,
    (C) Southern California Bight Subprovince, and
    (D) Baja California Subprovince;
    (iii) Central American Coastal Province (67/CAMR);
    (iv) China Sea Coastal Province (69/CHIN);
    (10) South Pacific Coastal Biome:
    (i) East Australian Coastal Province (71/AUSE);
    (ii) Humboldt Current Coastal Province (68/HUMB);
    (A) Chilean Coastal Subprovince and
    (B) Peruvian Coastal Subprovince;
    (iii) New Zealand Coastal Province (72/NEWZ);
    (iv) Sunda/Arafura Shelves Province (70/SUND);
    (11) Pacific Polar Biome:
    (i) North Pacific Epicontinental Sea Province (50/BERS);
    (A) Bering Sea Subprovince;
    (B) Okhotsk Sea Subprovince;
    (ii) Reserved;
    (12) Pacific Trade Wind Biome:
    (i) Archipelagic Deep Basins Province (64/ARCH);
    (ii) North Pacific Tropical Gyre West Province (56/NPTGW);
    (iii) North Pacific Tropical Gyre East Province (60/NPTGE);
    (iv) Pacific Equatorial Divergence Province (62/PEQD);
    (v) North Pacific Equatorial Countercurrent Province (61/PNEC);
    (vi) South Pacific Subtropical Gyre Province (59/SPGS);
    (vii) Western Pacific Warm Pool Province (63/WARM);
    (13) Pacific Westerly Winds Biome:
    (i) Kuroshio Current Province (53/KURO);
    (ii) North Pacific Transition Zone Province (54/NPPF);
    (iii) Pacific Subarctic Gyres (East) Province (51/PSAGE);
    (iv) Pacific Subarctic Gyres (West) Province (52/PSAGW);
    (14) Antarctic Westerly Winds Biome:
    (i) Subantarctic Water Ring Province (81/SANT),
    (A) Atlantic Subantarctic Ring Subprovince;
    (B) Indian Ocean Subantarctic Ring Subprovince;
    (C) Pacific Ocean Subantarctic Water Ring Subprovince;

[[Page 89]]

    (ii) Subtropical Convergence Province (80/SSTC),
    (A) Atlantic South Subtropical Convergence Subprovince;
    (B) Indian Ocean South Subtropical Convergence Subprovince;
    (C) Pacific Ocean South Subtropical Convergence Subprovince;
    (iii) Tasman Sea Province (58/TASM);
    (15) Antarctic Polar Biome: (SURTASS LFA sonar exclusion zone);
    (i) Antarctic Province (82/ANTA)
    (ii) Austral Polar Province (83/APLR).
    (b) The incidental take by Level A and Level B harassment of marine 
mammals under the activity identified in this section is limited to the 
following species and species groups:
    (1) Mysticete whales--blue whale (Balaenoptera musculus), fin whale 
(Balaenoptera physalus), minke whale (Balaenoptera acutorostrata), 
Bryde's whale (Balaenoptera edeni), sei whale (Balaenoptera borealis), 
humpback whale (Megaptera novaeangliae), northern right whale (Eubalaena 
glacialis), southern right whale (Eubalaena australis), pygmy right 
whale (Capera marginata), bowhead whale (Balaena mysticetus), and gray 
whales (Eschrichtius robustus).
    (2) Odontocete whales--Risso's dolphin (Grampus griseus), rough-
toothed dolphin (Steno bredanensis), Fraser's dolphin (Lagenodelphis 
hosei), right-whale dolphin (Lissodelphis spp.), bottlenose dolphin 
(Tursiops truncatus), common dolphin (Delphinus delphis), Dall's 
porpoise (Phocoenoides dalli), harbor porpoise (Phocoena phocoena), 
beluga whale (Delphinapterus leucas), Stenella spp. Lagenorhynchus spp., 
Cephalorhynchus spp. melon-headed whale (Peponocephala spp.), beaked 
whales (Berardius spp., Hyperoodon spp., Mesoplodon spp.), Cuvier's 
beaked whale (Ziphius cavirostris), Shepard's beaked whale (Tasmacetus 
shepherdi), Longman's beaked whale (Indopacetus pacificus), killer whale 
(Orcinus orca), false killer whale (Pseudorca crassidens), pygmy killer 
whale (Feresa attenuata), sperm whale (Physeter macrocephalus), dwarf 
and pygmy sperm whales (Kogia simus and K. breviceps), and short-finned 
and long-finned pilot whales (Globicephala macrorhynchus and G. melas).
    (3) Pinnipeds--harbor seals (Phoca vitulina), spotted seals (P. 
largha), ribbon seals (P. fasciata), gray seals (Halichoerus grypus), 
hooded seal (Cystophora cristata), elephant seals (Mirounga 
angustirostris and M. leonina). Hawaiian monk seals (Monachus 
schauinslandi), Mediterranean monk seals (Monachus monachus), northern 
fur seals (Callorhinus ursinus); southern fur seals (Arctocephalus 
spp.), Steller sea lions (Eumetopias jubatus), California sea lions 
(Zalophus californianus), Australian sea lions (Neophoca cinerea), New 
Zealand sea lions (Phocarctos hookeri), and South American sea lions 
(Otaria flavescens).



Sec. 216.181  Effective dates.

    Regulations in this subpart are effective from August 15, 2002 
through August 15, 2007.



Sec. 216.182  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.188, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment within the areas described in Sec. 216.180(a), 
provided the activity is in compliance with all terms, conditions, and 
requirements of these regulations and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec. 216.180 must be conducted in 
a manner that minimizes, to the greatest extent practicable, any adverse 
impacts on marine mammals, their habitat, and the availability of marine 
mammals for subsistence uses.



Sec. 216.183  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.180 and by a Letter 
of Authorization issued under Sec. Sec. 216.106 and 216.188, no person 
in connection with the activities described in Sec. 216.180 shall:
    (a) Take any marine mammal not specified in Sec. 216.180(b);
    (b) Take any marine mammal specified in Sec. 216.180(b) other than 
by incidental, unintentional Level A and Level B harassment;
    (c) Take any marine mammal by receiving a sound pressure level 
greater

[[Page 90]]

than 180 dB while operating under a Letter of Authorization in any 
geographic area for which a Letter of Authorization has not been issued;
    (d) Take a marine mammal specified in Sec. 216.180(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (e) Violate, or fail to comply with, the terms, conditions, and 
requirements of the regulations in this subpart or any Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.188.



Sec. 216.184  Mitigation.

    The activity identified in Sec. 216.180(a) must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.180, the mitigation measures described in this 
section and in any Letter of Authorization issued under Sec. Sec. 
216.106 and 216.188 must be implemented.
    (a) Through monitoring described under Sec. 216.185, the Holder of 
a Letter of Authorization will ensure, to the greatest extent 
practicable, that no marine mammal is subjected to a sound pressure 
level of 180 dB or greater.
    (b) If a marine mammal is detected within the area subjected to 
sound pressure levels of 180 dB or greater (safety zone) or within the 1 
km (0.5 nm) (buffer) zone extending beyond the 180-dB safety zone, 
SURTASS LFA sonar transmissions will be immediately delayed or 
suspended. Transmissions will not resume earlier than 15 minutes after:
    (1) All marine mammals have left the area of the safety and buffer 
zones; and
    (2) There is no further detection of any marine mammal within the 
safety and buffer zones as determined by the visual and/or passive or 
active acoustic monitoring described in Sec. 216.185.
    (c) The high-frequency marine mammal monitoring sonar (HF/M3) 
described in Sec. 216.185 will be ramped-up slowly to operating levels 
over a period of no less than 5 minutes:
    (1) At least 30 minutes prior to any SURTASS LFA sonar 
transmissions;
    (2) Prior to any SURTASS LFA sonar calibrations or testings that are 
not part of regular SURTASS LFA sonar transmissions described in 
paragraph (c)(1) of this section; and
    (3) Anytime after the HF/M3 source has been powered down for more 
than 2 minutes.
    (d) The HF/M3 source will not increase its sound pressure level once 
a marine mammal is detected; ramp-up may proceed once marine mammals are 
no longer detected.
    (e) The Holder of a Letter of Authorization will not operate the 
SURTASS LFA sonar while under a Letter of Authorization, such that the 
SURTASS LFA sonar sound field exceeds 180 dB (re 1 [mu]Pa(rms)):
    (1) At a distance of 12 nautical miles (nm) (22 kilometers (km)) 
from any coastline, including offshore islands;
    (2) Within any offshore area that has been designated as 
biologically important for marine mammals under Sec. 216.183(f), during 
the biologically important season for that particular area;
    (3) Within the offshore boundaries that extend beyond 12 nm (22 km) 
of the following National Marine Sanctuaries:
    (i) Monterey Bay,
    (ii) Gulf of the Farallones, and
    (iii) Cordell Bank;
    (4) Within 23 nm (37.4 km) during the months of December, January, 
March, and May of each year in the Olympic Coast National Marine 
Sanctuary.
    (f) The following areas have been designated by NMFS as offshore 
areas of critical biological importance for marine mammals (by season if 
appropriate):

------------------------------------------------------------------------
                                                           Months of
          Name of area             Location of area       importance
------------------------------------------------------------------------
(1) 200-m isobath North American  From 28[deg] N. to  Year-Round.
 East Coast.                       50[deg] N. west
                                   of 40[deg] W.
(2) Antarctic Convergence Zone..  30[deg] E. to       October 1 through
                                   80[deg] E to        March 31.
                                   45[deg] S.
                                   80[deg] E. to
                                   150[deg] E. to
                                   55[deg] S.
                                   150[deg] E. to
                                   50[deg] W. to
                                   60[deg] S.
                                   50[deg] W to
                                   30[deg] E. to
                                   50[deg] S.
(3) Costa Rica Dome.............  Centered at 9[deg]  Year-Round.
                                   N. and 88[deg] W.
(4) Penguin Bank................  Centered at         November 1 through
                                   21[deg] N. and      May 1.
                                   157[deg]30[min] W.
------------------------------------------------------------------------


[[Page 91]]



Sec. 216.185  Requirements for monitoring.

    (a) In order to mitigate the taking of marine mammals by SURTASS LFA 
sonar to the greatest extent practicable, the Holder of a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.188 must:
    (1) Conduct visual monitoring from the ship's bridge during all 
daylight hours;
    (2) Use low frequency passive SURTASS LFA sonar to listen for 
vocalizing marine mammals; and
    (3) Use the HF/M3 sonar to locate and track marine mammals in 
relation to the SURTASS LFA sonar vessel and the sound field produced by 
the SURTASS LFA sonar source array.
    (b) Monitoring under paragraph (a) of this section must:
    (1) Commence at least 30 minutes before the first SURTASS LFA sonar 
transmission;
    (2) Continue between transmission pings; and
    (3) Continue either for at least 15 minutes after completion of the 
SURTASS LFA sonar transmission exercise, or, if marine mammals are 
exhibiting unusual behavioral patterns, for a period of time until 
behavior patterns return to normal or conditions prevent continued 
observations;
    (c) Holders of Letters of Authorization for activities described in 
Sec. 216.180 are required to cooperate with the National Marine 
Fisheries Service and any other federal agency for monitoring the 
impacts of the activity on marine mammals.
    (d) Holders of Letters of Authorization must designate qualified on-
site individuals to conduct the mitigation, monitoring and reporting 
activities specified in the Letter of Authorization.
    (e) Holders of Letters of Authorization must conduct all monitoring 
and research required under the Letter of Authorization.



Sec. 216.186  Requirements for reporting.

    (a) The Holder of the Letter of Authorization must submit quarterly 
mission reports to the Director, Office of Protected Resources, NMFS, no 
later than 30 days after the end of each quarter beginning on the date 
of effectiveness of a Letter of Authorization or as specified in the 
appropriate Letter of Authorization. Each quarterly mission report will 
include all active-mode missions completed during that quarter. At a 
minimum, each classified mission report must contain the following 
information:
    (1) Dates, times, and location of the vessel during the mission;
    (2) Information on sonar transmissions as detailed in the Letter of 
Authorization; and
    (3) Results of the marine mammal monitoring program specified in the 
Letter of Authorization.
    (b) The Holder of a Letter of Authorization must submit an annual 
report to the Director, Office of Protected Resources, NMFS, no later 
than 90 days prior to expiration of a Letter of Authorization. This 
report must contain all the information required by the Letter of 
Authorization.
    (c) A final comprehensive report must be submitted to the Director, 
Office of Protected Resources, NMFS at least 240 days prior to 
expiration of these regulations. In addition to containing all the 
information required by any final year Letter of Authorization, this 
report must contain an analysis of new passive technologies and an 
assessment of whether such a system is feasible as an alternative to 
SURTASS LFA sonar.



Sec. 216.187  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Navy authority conducting the activity identified 
in Sec. 216.180 must apply for and obtain a Letter of Authorization in 
accordance with Sec. 216.106.
    (b) The application for an initial or a renewal of a Letter of 
Authorization must be submitted to the Director, Office of Protected 
Resources, NMFS, at least 60 days before the date that either the vessel 
is scheduled to begin conducting SURTASS LFA sonar operations or the 
previous Letter of Authorization is scheduled to expire.
    (c) All applications for a Letter of Authorization must include the 
following information:

[[Page 92]]

    (1) The date(s), duration, and the specified geographical region 
where the vessel's activity will occur;
    (2) The species and/or stock(s) of marine mammals likely to be found 
within each specified geographical region;
    (3) The type of incidental taking authorization requested (i.e., 
take by Level A and/or Level B harassment);
    (4) The estimated percentage of marine mammal species/stocks 
potentially affected in each specified geographic region for the 12-
month period of effectiveness of the Letter of Authorization; and
    (5) The means of accomplishing the necessary monitoring and 
reporting that will result in increased knowledge of the species and the 
level of taking or impacts on marine mammal populations.
    (d) The National Marine Fisheries Service will review an application 
for a Letter of Authorization in accordance with Sec. 216.104(b) and, 
if adequate and complete, issue a Letter of Authorization.



Sec. 216.188  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked will be 
valid for a period of time not to exceed one year, but may be renewed 
annually subject to annual renewal conditions in Sec. 216.189.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Authorized geographic areas for incidental takings;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking, their habitat, and the 
availability of the species for subsistence uses; and
    (4) Requirements for monitoring and reporting incidental takes.
    (c) Issuance 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 specified in Sec. 216.180 as a whole will have no more than a 
negligible impact on the species or stock of affected marine mammal(s), 
and that the total taking 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 an application for a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.189  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.188 for the activity identified in Sec. 216.180 will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.187 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) Notification to NMFS of the information identified in Sec. 
216.187(c), including the planned geographic area(s), and anticipated 
duration of each SURTASS LFA sonar operation;
    (3) Timely receipt of the monitoring reports required under Sec. 
216.185, which have been reviewed by NMFS and determined to be 
acceptable;
    (4) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. Sec. 216.184 and 216.185 and the 
Letter of Authorization were undertaken and will be undertaken during 
the upcoming annual period of validity of a renewed Letter of 
Authorization; and
    (5) A determination by NMFS that the number of marine mammals taken 
by the activity continues to be small, that the total number of marine 
mammals taken by the activity specified in Sec. 216.180, as a whole 
will have no more than a negligible impact on the species or stock of 
affected marine mammal(s), and that the total taking will not have an 
unmitigable adverse impact on the availability of species or stocks of 
marine mammals for taking for subsistence uses.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.188 indicates that a substantial 
modification to the described work, mitigation or monitoring will occur, 
or if NMFS proposes a substantial modification to the Letter of

[[Page 93]]

Authorization, NMFS will provide a period of 30 days for public review 
and comment on the proposed modification. Amending the list of areas for 
upcoming SURTASS LFA sonar operations is not considered a substantial 
modification to the Letter of Authorization.
    (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. 216.190  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantial modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to Sec. Sec. 216.106 and 
216.188 and subject to the provisions of this subpart shall be made by 
NMFS 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. 216.189, without modification, except for the 
period of validity and a listing of planned operating areas, or for 
moving the authorized SURTASS LFA sonar system from one ship to another, 
is not considered a substantial modification.
    (b) If the National Marine Fisheries Service determines that an 
emergency exists that poses a significant risk to the well-being of the 
species or stocks of marine mammals specified in Sec. 216.180(b), a 
Letter of Authorization issued pursuant to Sec. Sec. 216.106 and 
216.188 may be substantially modified without prior notice and 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.



Sec. 216.191  Designation of Biologically Important Marine Mammal Areas.

    (a) Biologically important areas for marine mammals may be nominated 
under this paragraph by the National Marine Fisheries Service or by the 
public.
    (b) In order for the National Marine Fisheries Service to designate 
offshore areas of biological importance for marine mammals under this 
rule, proponents must petition NMFS by requesting an area be added to 
the list of biologically important areas in Sec. 216.184(f) and 
submitting the following information:
    (1) Geographic region proposed for consideration (including 
geographic boundaries);
    (2) A list of marine mammals within the proposed geographic region;
    (3) Whether the proposal is for year-round designation or seasonal, 
and if seasonal, months of years for proposed designation;
    (4) Detailed information on the biology of marine mammals within the 
area, including estimated population size, distribution, density, 
status, and the principal biological activity during the proposed period 
of designation sufficient for NMFS to make a preliminary determination 
that the area is biologically important for marine mammals; and
    (5) Detailed information on the area with regard to its importance 
for either primary feeding, breeding, or migration for those species of 
marine mammals that have the potential to be affected by low frequency 
sounds;
    (c) Areas within 12 nm (22 km) of any coastline, including offshore 
islands, or within non-operating areas for SURTASS LFA sonar are not 
eligible for consideration;
    (d) If a petition is received without sufficient information for the 
National Marine Fisheries Service to proceed, NMFS will determine 
whether the nominated area warrants further study. If so, NMFS will 
begin a scientific review of the area.
    (e)(1) If through a petition or independently, NMFS makes a 
preliminary determination that an area is biologically important for 
marine mammals and is not located within a previously designated area, 
NMFS will propose to add the area to Sec. 216.184(f) and provide a 
public comment period of at least 45 days from the date of publication 
in the Federal Register.
    (2) The National Marine Fisheries Service will publish its final 
determination in the Federal Register.

[[Page 94]]



   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 Sec. Sec. 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 Sec. Sec. 
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 Sec. Sec. 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.



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 Sec. Sec. 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

[[Page 95]]

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 
Sec. Sec. 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 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

[[Page 96]]

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 Sec. Sec. 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 Sec. Sec. 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 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.

[[Page 97]]



Sec. 216.210  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. Sec. 
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 Sec. Sec. 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 Sec. Sec. 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 species, respectively. Part 226 enumerates 
designated critical habitat for endangered and threatened species. 
Certain of the endangered and threatened marine species enumerated in 
Sec. Sec. 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

[[Page 98]]

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[min]00.8[sec] 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[min]45.6[sec] N. lat.) to the North Carolina-South 
Carolina border (defined as the line extending in a direction of 
135[deg]34[min]55[sec] from true north from the North Carolina-South 
Carolina land boundary, as marked by the border station on Bird Island 
at 33[deg]51[min]07.9[sec] N. lat., 078[deg]32[min]32.6[sec] 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

[[Page 99]]

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 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.
    Gillnet means a panel of netting, suspended vertically in the water 
by floats along the top and weights along the bottom, to entangle fish 
that attempt to pass through it.

[[Page 100]]

    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[min] 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.
    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.
    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

[[Page 101]]

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.
    Pound net leader means a long straight net that directs the fish 
offshore towards the pound, an enclosure that captures the fish. Some 
pound net leaders are all mesh, while others have stringers and mesh. 
Stringers are vertical lines in a pound net leader that are spaced a 
certain distance apart and are not crossed by horizontal lines to form 
mesh. An offshore pound net leader refers to a leader with the inland 
end set greater than 10 horizontal feet (3 m) from the mean low water 
line. A nearshore pound net leader refers to a leader with the inland 
end set 10 horizontal feet (3 m) or less from the mean low water line.
    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 Sec. 224.103 of this chapter, any 
whale that is a member of the western North Atlantic population of the 
North Atlantic 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 102]]

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[min] N. 
lat. (Cape Charles, VA) and bounded on the south by a line extending in 
a direction of 135[deg]34[min]55[sec] from true north from the North 
Carolina-South Carolina land boundary, as marked by the border station 
on Bird Island at 33[deg]51[min]07.9[sec] N. lat., 
078[deg]32[min]32.6[sec] 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 103]]

    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; 67 
FR 13101, Mar. 21, 2002; 67 FR 41203, June 17, 2002; 67 FR 71899, Dec. 
3, 2002; 68 FR 8467, Feb. 21, 2003; 68 FR 17562, Apr. 10, 2003; 69 FR 
25011, May 5, 2004]



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

[[Page 104]]

    (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.
    (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.

[[Page 105]]

    (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.
    (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,

[[Page 106]]

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 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

[[Page 107]]

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, 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

[[Page 108]]

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.
    (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 (2), which contain information collection and 
recordkeeping 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,

[[Page 109]]

permitted activity is included, one application may be accepted for all 
permits required, and a single permit may be issued.
    (d)(1) Any permit issued under these regulations must be in the 
possession of the person to whom it is issued (or of an agent of such 
person) while any animal subject to the permit is in the possession of 
such person or agent. Specifically, a person or his/her agent must be in 
possession of a permit during the time of the authorized taking, 
importation, exportation, or of any 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.

[[Page 110]]

    (c)(1) Upon receipt of an insufficiently or improperly executed 
application, the applicant shall be notified of the deficiency in the 
application. If the applicant fails to supply the deficient information 
or otherwise fails to correct the deficiency within 60 days following 
the date of notification, the application shall be considered abandoned.
    (2) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of this 
part. The Assistant Administrator, however, may 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.

[[Page 111]]

    (2) The applicant shall be notified in writing of the denial of any 
permit request, and the reasons thereof. If authorized in the notice of 
denial, the applicant may submit further information or reasons why the 
permit should not be denied. Such further information shall not be 
considered a new application. The final action by the Assistant 
Administrator shall be considered the final administrative decision of 
the Department of Commerce.
    (f) If a permit is issued under Sec. 222.308, the Assistant 
Administrator shall publish notice thereof in the Federal Register, 
including the Assistant Administrator's finding that such permit--
    (1) Was applied for in good faith;
    (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) Except as otherwise provided in this section, 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 business 
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 paragraphs (a)(2) 
and (a)(3) 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.
    (3) Incidental take permits issued under Sec. 222.307, and 
enhancement permits issued under Sec. 222.308, as part of a Safe Harbor 
Agreement with Assurances or Candidate Conservation Agreement with 
Assurances, may be transferred in whole or in part through a joint 
submission by the permittee and the proposed transferee, or in the case 
of a deceased permittee, the deceased permittee's legal representative 
and the proposed transferee, provided NMFS determines in writing that:
    (i) The proposed transferee meets all of the qualifications under 
parts 222, 223, or 224 (as applicable) for holding a permit;
    (ii) The proposed transferee has provided adequate written 
assurances that it will provide sufficient funding for the conservation 
plan or other agreement or plan associated with the permit and will 
implement the relevant terms and conditions of the permit, including any 
outstanding minimization and mitigation requirements; and

[[Page 112]]

    (iii) The proposed transferee has provided such other information as 
NMFS determines is relevant to process the transfer.
    (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 and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.

[64 FR 14054, Mar. 23, 1999, as amended at 67 FR 57973, Sept. 13, 2002]



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

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

[[Page 113]]

    (b) Permit application procedures. Applications should be sent to 
the Assistant Administrator. The Assistant Administrator shall determine 
the sufficiency of the application in accordance with the requirements 
of this section. At least 120 days should be allowed for processing. 
Each application must be signed and dated and must include the 
following:
    (1) The type of application, either:
    (i) Application for an Individual Incidental Take Permit under the 
Act; or
    (ii) Application for a General Incidental Take Permit under the Act;
    (2) The name, address, and telephone number of the applicant. If the 
applicant is a partnership or a corporate entity or is representing a 
group or an organization, the applicable details;
    (3) The species or stocks, by common and scientific name, and a 
description of the status, distribution, seasonal distribution, habitat 
needs, feeding habits and other biological requirements of the affected 
species or stocks;
    (4) A detailed description of the proposed activity, including the 
anticipated dates, duration, and specific location. If the request is 
for a general incidental take permit, an estimate of the total level of 
activity expected to be conducted;
    (5) A conservation plan, based on the best scientific and commercial 
data available, which specifies the following:
    (i) The anticipated impact (i.e., amount, extent, and type of 
anticipated taking) of the proposed activity on the species or stocks;
    (ii) The anticipated impact of the proposed activity on the habitat 
of the species or stocks and the likelihood of restoration of the 
affected habitat;
    (iii) The steps (specialized equipment, methods of conducting 
activities, or other means) that will be taken to monitor, minimize, and 
mitigate such impacts, and the funding available to implement such 
measures;
    (iv) The alternative actions to such taking that were considered and 
the reasons why those alternatives are not being used; and
    (v) A list of all sources of data used in preparation of the plan, 
including 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;

[[Page 114]]

    (3) The authorized method of taking;
    (4) The procedures to be used to handle or dispose of any animals 
taken; and
    (5) The payment of an adequate fee to the National Marine Fisheries 
Service to process the application.
    (e) Duration of permits. The duration of permits issued under this 
section will be such as to provide adequate assurances to the permit 
holder to commit funding necessary for the activities authorized by the 
permit, including conservation activities. In determining the duration 
of a permit, the Assistant Administrator will consider the duration of 
the proposed activities, as well as the possible positive and negative 
effects on listed species associated with issuing a permit of the 
proposed duration, including the extent to which the conservation plan 
is likely to enhance the habitat of the endangered species or to 
increase the long-term survivability of the species.
    (f) Certificates of inclusion. (1) Any individual who wishes to 
conduct an activity covered by a general incidental take permit must 
apply to the Assistant Administrator for a Certificate of Inclusion. 
Each application must be signed and dated and must include the 
following:
    (i) The general incidental take permit under which the applicant 
wants coverage;
    (ii) The name, address, and telephone number of the applicant. If 
the applicant is a partnership or a corporate entity, the applicable 
details;
    (iii) A description of the activity the applicant seeks to have 
covered under the general incidental take permit, including the 
anticipated dates, duration, and specific location; and
    (iv) A signed certification that the applicant has read and 
understands the general incidental take permit and the conservation 
plan, will comply with their terms and conditions, and will fund and 
implement applicable measures of the conservation plan.
    (2) To issue a Certificate of Inclusion, the Assistant Administrator 
must find that:
    (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

[[Page 115]]

implemented. However, such additional measures are limited to 
modifications within any conserved habitat areas or to the conservation 
plan's operating conservation program for the affected species. The 
original terms of the conservation plan will be maintained to the 
maximum extent possible. Additional conservation and mitigation measures 
will not involve the commitment of additional land, water, or financial 
compensation or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use under 
the original terms of the conservation plan without the consent of the 
permittee.
    (iii) NMFS has the burden of demonstrating that unforeseen 
circumstances exist, using the best scientific and commercial data 
available. These findings must be clearly documented and based upon 
reliable technical information regarding the status and habitat 
requirements of the affected species. NMFS will consider, but not be 
limited to, the following factors:
    (A) Size of the current range of the affected species;
    (B) Percentage of range adversely affected by the conservation plan;
    (C) Percentage of range conserved by the conservation plan;
    (D) Ecological significance of that portion of the range affected by 
the conservation plan;
    (E) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the conservation 
plan; and
    (F) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (h) Nothing in this rule will be construed to limit or constrain the 
Assistant Administrator, any Federal, State, local, or Tribal government 
agency, or a private entity, from taking additional actions at his or 
her own expense to protect or conserve a species included in a 
conservation plan.



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

[[Page 116]]

than the applicant, set forth the name of that person and such other 
information as would be required if such person were an applicant.
    (4) A description of the purpose of the proposed acts, including the 
following:
    (i) A detailed justification of the need for the endangered species, 
including a discussion of possible alternatives, whether or not under 
the control of the applicant; and
    (ii) A detailed description of how the species will be used.
    (5) A detailed description of the project, or program, in which the 
endangered species is to be used, including the following:
    (i) The period of time over which the project or program will be 
conducted;
    (ii) A list of the names and addresses of the sponsors or 
cooperating institutions and the scientists involved;
    (iii) A copy of the formal research proposal or contract if one has 
been prepared;
    (iv) A statement of whether the proposed project or program has 
broader significance than the individual researcher's goals. For 
example, does the proposed project or program respond directly or 
indirectly to recommendation of any national or international scientific 
body charged with research or management of the endangered species? If 
so, how?; and
    (v) A description of the arrangements, if any, for the disposition 
of any dead specimen or its skeleton or other remains in a museum or 
other institutional collection for the continued benefit to science.
    (6) A description of the endangered species which is the subject of 
the application, including the following:
    (i) A list of each species and the number of each, including the 
common and scientific name, the subspecies (if applicable), population 
group, and range;
    (ii) A physical description of each animal, including the age, size, 
and sex;
    (iii) A list of the probable dates of capture or other taking, 
importation, exportation, and other acts which require a permit for each 
animal and the location of capture or other taking, importation, 
exportation, and other acts which require a permit, as specifically as 
possible;
    (iv) A description of the status of the stock of each species 
related insofar as 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:

[[Page 117]]

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

[[Page 118]]

    (6) If a live animal is to be taken, transported, or held in 
captivity, the applicant's qualifications for the proper care and 
maintenance of the species and the adequacy of the applicant's 
facilities;
    (7) Whether alternative non-endangered species or population stocks 
can and should be used;
    (8) Whether the animal was born in captivity or was (or will be) 
taken from the wild;
    (9) Provision for disposition of the species if and when the 
applicant's project or program terminates;
    (10) How the applicant's needs, program, and facilities compare and 
relate to proposed and ongoing projects and programs;
    (11) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to successfully accomplish the 
objectives stated in the application; and
    (12) Opinions or views of scientists or other persons or 
organizations knowledgeable about the species which is the subject of 
the application or of other matters germane to the application.
    (d) Terms and conditions. Permits applied for under this section 
shall contain terms and conditions as the Assistant Administrator may 
deem appropriate, including but not limited to the following:
    (1) The number and kind of species covered;
    (2) The location and manner of taking;
    (3) Port of entry or export;
    (4) The methods of transportation, care, and maintenance to be used 
with live species;
    (5) Any requirements for reports or rights of inspections with 
respect to any activities carried out pursuant to the permit;
    (6) The transferability or assignability of the permit;
    (7) The sale or other disposition of the species, its progeny, or 
the species product; and
    (8) A reasonable fee covering the costs of issuance of such permit, 
including reasonable inspections and an appropriate apportionment of 
overhead and administrative expenses of the Department of Commerce. All 
such fees will be deposited in the Treasury to the credit of the 
appropriation which is current and chargeable for the cost of furnishing 
the service.



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.

[[Page 119]]



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.

Figures 1-2 to Part 223 [Reserved]
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 [Reserved]
Figure 12 to Part 223--Escape Opening & Cover Dimensions for 71-inch TED
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--Weedless TED Brace Bar Description
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.; 16 U.S.C. 5503(d) for Sec. 223.206(d)(9).

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



                      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.

[[Page 120]]

    (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 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.

[[Page 121]]

    (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]



 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:

[[Page 122]]

    (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
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
                                    0 N         .5 W        .0 N       1.5 W                  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.
                                    0 N         .5 W        .5 N       9.0 W
21. Adak I.......................  51[deg]36.  176[deg]59  51[deg]38  176[deg]5      16460   SW Point, Lake
                                    5 N         .0 W        .0 N       9.5 W                  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.
                                    5 N         .0 E        .5 N       5.0 E
27. Amchitka I...................  51[deg]32.  178[deg]49  .........  .........      16440   Column Rocks.
                                    5 N         .5 E
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.
                                    5 N         .5 E        .5 N       1.5 E
----------------------------------------------------------------------------------------------------------------
\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.

[[Page 152]]

    (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.

    Available guidance documents cited in the regulatory text are listed 
in Appendix A to this section.
    (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)(22), 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 
implementing such exceptions, also apply to the threatened species of 
salmonids listed in Sec. 223.102(a)(1) through (a)(10), and (a)(12) 
through (a)(22).
    (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

[[Page 153]]

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 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

[[Page 154]]

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 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).

[[Page 155]]

    (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 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;

[[Page 156]]

    (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.
    (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

[[Page 157]]

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.
    (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.

[[Page 158]]

    (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 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

[[Page 159]]

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.
    (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.

[[Page 160]]

    (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 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

[[Page 161]]

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 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)

[[Page 162]]

(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.
    (14) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(20) through 
(a)(22) 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 
April 9, 2002. 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 September 9, 2002, 
whichever occurs earliest.
    (15) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3), and 
(a)(20) through (a)(22) do not

[[Page 163]]

apply to any employee or designee of NMFS, the United States Fish and 
Wildlife Service, any Federal land management agency, the 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.
    (16) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3), and 
(a)(20) through (a)(22) 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 NMFS's 
technical report entitled ``Viable Salmonid Populations and the Recovery 
of ESUs'' (NMFS, 2000b). This report 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 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

[[Page 164]]

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 the NMFS' Southwest Regional 
Administrator. 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 
the program is deficient, 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 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' 
Southwest Region web site (http://swr.nmfs.noaa.gov).
    (v) The prohibitions of paragraph (a) of this section relating to 
threatened species listed in Sec. 223.102 (a)(20) do not apply to 
fishery harvest activities managed solely by the State of California 
until July 8, 2002.
    (17) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3) and 
(a)(20) through (a)(22) 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:

[[Page 165]]

    (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 is 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 NMFS' 
technical report entitled: ``Viable Salmonid Populations and Recovery of 
ESUs'' (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) Broodstock collection programs reflect appropriate priorities 
taking into account health, abundances, and trends in the donor 
population. The primary purpose of broodstock collection programs of 
listed species is to re-establish 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 for secondary 
purposes such 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 those 
programs of which the purpose is to sustain fisheries, HGMPs must not 
compromise the ability of FMEPs or other management plans to conserve 
listed salmonids.
    (G) The HGMP provides for adequate artificial propagation facilities 
to properly rear progeny of naturally spawned broodstock, to maintain 
population health and diversity, and to avoid hatchery-influenced 
selection or domestication.
    (H) The HGMP provides for adequate monitoring and evaluation 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.
    (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

[[Page 166]]

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 consistency 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 an HGMP shall be a written approval by NMFS' 
Southwest Regional Administrator.
    (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, NMFS will identify to the responsible agency 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 not 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 program. A template for developing HGMPs is 
available from NMFS Northwest Region's web site (www.nwr.noaa.gov).
    (vii) The prohibitions of paragraph (a) of this section relating to 
threatened species listed in Sec. 223.102 (a)(20) do not apply to 
artificial propagation programs managed solely by the State of 
California until July 8, 2002.
    (18) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(3) and 
(a)(20) through (a)(22) do not apply to scientific research activities 
provided that:
    (i) Scientific research activities involving purposeful take are 
conducted by employees or contractors of CDFG or as a part of a 
monitoring and research program overseen by or coordinated with CDFG.
    (ii) CDFG provides 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) CDFG annually provides 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 CDFG personnel, or are in 
accord with a permit issued by the CDFG.
    (v) CDFG provides 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' Southwest Regional Administrator.
    (19) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(3) and 
(a)(20) through (a)(22) do not apply to habitat restoration activities, 
as defined in paragraph (b)(19)(iv), provided that the activity is part 
of a watershed conservation plan, and:
    (i) The watershed conservation plan has been certified by the State 
of California to be consistent with the state's

[[Page 167]]

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 that are listed as threatened.
    (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.
    (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 state watershed conservation plan guidelines 
under paragraph (b)(19)(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 not less 
than 30 days.
    (20) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(3) and 
(a)(20) through (a)(22) 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 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 may 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 the 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 include any impacts or take caused by 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.
    (21) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3) and 
(a)(20) through (a)(22) do not apply to routine road maintenance 
activities provided that:
    (i) The activity results from routine road maintenance conducted by 
employees or agents of the State of California, or any county, city or 
port in California, that complies with a program substantially similar 
to that contained in the Oregon Department of

[[Page 168]]

Transportation's (ODOT) Transportation Maintenance Management System 
Water Quality and Habitat Guide (July, 1999) or that is determined to 
meet or exceed the protections provided by the ODOT Guide; or by 
employees or agents of the State of California or any county, city or 
port in California that complies with a routine road maintenance program 
that meets proper functioning habitat conditions as described further in 
paragraph (a)(21)(ii) of this section. NMFS' approval of state, city, 
county, or port programs that are equivalent to the ODOT program, or of 
any amendments, shall be a written approval by NMFS' Southwest Regional 
Administrator. Any jurisdiction desiring its routine road maintenance 
activities to be considered 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 the State 
of California, or any city, county, or port, to be consistent with the 
conservation of threatened salmonids' habitat when it contributes 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 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 
threatened ESUs. 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. 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 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 to being within this limit.
    (iv) Prior to approving any State of California, city, county, or 
port program as being within this limit, or approving any substantive 
change in a program as being 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.
    (22) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3) and 
(a)(20) through (a)(22) 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 threatened species by maintaining or restoring properly 
functioning habitat conditions. NMFS approval or determinations about 
any MRCI development ordinances or plans shall be a written approval by 
the NMFS Southwest Regional Administrator. NMFS will apply the following 
12 evaluation

[[Page 169]]

considerations when reviewing MRCI development ordinances or plans to 
assess whether they adequately conserve threatened salmonids by 
maintaining and restoring properly functioning habitat conditions:
    (A) The 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) The 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) The 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 properly functioning habitat 
conditions caused by MRCI development impacts to riparian management 
areas.
    (D) The MRCI development ordinance or plan avoids stream crossings 
by roads, utilities, and other linear development wherever possible, 
and, where crossings must be provided, minimizes impacts through choice 
of mode, sizing, and placement.
    (E) The MRCI development ordinance or plan adequately protects 
historical stream meander patterns and channel migration zones and 
avoids hardening of stream banks and shorelines.
    (F) The MRCI development ordinance or plan adequately protects 
wetlands and wetland functions, including isolated wetlands.
    (G) The MRCI development ordinance or plan adequately preserves the 
hydrologic capacity of permanent and intermittent streams to pass peak 
flows.
    (H) The 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) The MRCI development ordinance or plan includes adequate 
provisions to prevent erosion and sediment run-off during construction.
    (J) The 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) The 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) The 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 threatened salmonids' habitat when it contributes to 
the attainment and maintenance of properly functioning habitat 
conditions. For this purpose, NMFS defines properly functioning habitat 
conditions 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. To contribute to the 
attainment and maintenance of properly functioning habitat conditions, 
activities 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 achieving

[[Page 170]]

properly functioning habitat conditions. 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 threatened species. 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. 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 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 being within this limit, or approving any 
substantive change in an ordinance or plan as being 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 not less than 30 days.
    (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)(3), (a)(5) through (a)(10) and (a)(12) through (a)(22), any person 
claiming the benefit of any limit listed in paragraph (b) of this 
section or 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 9(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.

         Appendix A to Sec. 223.203--List of Guidance Documents

    The following is a list of documents cited in the regulatory text. 
Copies of these documents may be obtained upon request from the 
Northwest or Southwest Regional Administrators (see Table 1 in Sec. 
600.502 of this title).
    1. Oregon Department of Transportation (ODOT) Maintenance Management 
System Water Quality and Habitat Guide (July, 1999).
    2. Guidelines for Electrofishing Waters Containing Salmonids Listed 
Under the Endangered Species Act.
    3. Fish Screening Criteria for Anadromous Salmonids, National Marine 
Fisheries Service, Southwest Region, 1997.
    4. Viable Salmonid Populations and the Recovery of Evolutionarily 
Significant Units. (June 2000).

[65 FR 42475, July 10, 2000, as amended at 67 FR 1129, Jan. 9, 2002; 67 
FR 68725, Nov. 12, 2002]



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

[[Page 171]]

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.
    (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:

[[Page 172]]

    (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 
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;
    (15) Fail to comply with the restrictions set forth in Sec. 
223.206(d)(10) regarding pound net leaders; or
    (16) 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

[[Page 173]]

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, as amended at 67 FR 41203, June 17, 2002; 
69 FR 25012, May 5, 2004]



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 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 towards 
such member)

[[Page 174]]

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)(10) 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 actively moving or determined to be dead as 
described in paragraph (d)(1)(i)(C) of this section must be released 
over the stern of the boat. In addition, they must be released only when 
fishing or scientific collection gear is 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, as determined in paragraph (d)(1) of this 
section, by:
    (1) Placing the turtle on its bottom shell (plastron) so that the 
turtle is right side up and elevating its hindquarters at least 6 inches 
(15.2 cm) for a period of 4 up to 24 hours. The amount of the elevation 
depends on the size of the turtle; greater elevations are needed for 
larger turtles. Periodically, rock the turtle gently left to right and 
right to left by holding the outer edge of the shell (carapace) and 
lifting one side about 3 inches (7.6 cm) then alternate to the other 
side. Gently touch the eye and pinch the tail (reflex test) periodically 
to see if there is a response.
    (2) Sea turtles being resuscitated must be shaded and kept damp or 
moist but under no circumstance be placed into a container holding 
water. A water-soaked towel placed over the head, carapace, and flippers 
is the most effective method in keeping a turtle moist.
    (3) Sea turtles that revive and become active must be released over 
the stern of the boat only when fishing or scientific collection gear is 
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. Sea 
turtles that fail to respond to the reflex test or fail to move within 4 
hours (up to 24, if possible) must be returned to the water in the same 
manner as that for actively moving turtles.
    (C) A turtle is determined to be dead if the muscles are stiff 
(rigor mortis) and/or the flesh has begun to rot; otherwise the turtle 
is determined to be comatose or inactive and resuscitation attempts are 
necessary.
    (ii) In addition to the provisions of paragraph (d)(1)(i) of this 
section, a person aboard a vessel in the Atlantic, including the 
Caribbean Sea and the Gulf of Mexico, that has pelagic longline gear on 
board and that has been issued, or is required to have, a limited access 
permit for highly migratory species under 50 CFR 635.4, must comply with 
the handling and release requirements specified in 50 CFR 635.21.
    (iii) 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 for trawlers--(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 with a 
circulating

[[Page 175]]

seawater system, if it does not possess more than 32 lb. (14.5 kg) of 
dead shrimp on board, if it has a valid original state bait-shrimp 
license, and if the state license allows the licensed vessel to 
participate in the bait shrimp fishery exclusively;
    (3) Has only a pusher-head trawl, skimmer trawl, or wing net rigged 
for fishing;
    (4) Is in an area during a period for which tow-time restrictions 
apply under paragraphs (d)(3)(ii) or (iii) of this section, if it 
complies with all applicable provisions imposed under those paragraphs; 
or
    (5) Is using 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 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, in which case 
the exemption under this paragraph (d)(2)(ii)(A) applies to the test 
net.
    (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 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
    (2) 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[min] 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

[[Page 176]]

than summer flounder fishery-sea turtle protection area, a requirement 
to use limited tow-times, and closure of the fishery.
    (B) Regulated waters. The restrictions on pound net leaders 
described in paragraph (d)(2)(v)(A) of this section apply to the 
following waters: the Virginia waters of the mainstem Chesapeake Bay 
from the Maryland-Virginia State line (approximately 37[deg]55[min] N. 
lat., 75[deg]55[min] W. long.) to the COLREGS line at the mouth of the 
Chesapeake Bay; the James River downstream of the Hampton Roads Bridge 
Tunnel (I-64; approximately 36[deg]59.55[min] N. lat., 76[deg]18.64[min] 
W. long.); the York River downstream of the Coleman Memorial Bridge 
(Route 17; approximately 37[deg]14.55[min] N. lat, 76[deg]30.40[min] W. 
long.); and the Rappahannock River downstream of the Robert Opie Norris 
Jr. Bridge (Route 3; approximately 37[deg]37.44[min] N. lat, 
76[deg]25.40[min] W. long.).
    (C) Reporting requirement. At any time during the year, if a turtle 
is taken live and uninjured in a pound net operation, in the pound or in 
the leader, the operator of vessel must report the incident to the NMFS 
Northeast Regional Office, (978) 281-9388 or fax (978) 281-9394, within 
24 hours of returning from the trip in which the incidental take 
occurred. The report shall include a description of the turtle's 
condition at the time of release and the measures taken as required in 
paragraph (d)(1) of this section. At any time during the year, if a 
turtle is taken in a pound net operation, and is determined to be 
injured, or if a turtle is captured dead, the operator of the vessel 
shall immediately notify NMFS Northeast Regional Office and the 
appropriate rehabilitation or stranding network, as determined by NMFS 
Northeast Regional Office.
    (D) Monitoring. Pound net fishing operations must be observed by a 
NMFS-approved observer if requested by the Northeast Regional 
Administrator. 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 law enforcement purposes.
    (E) Expedited modification of restrictions and effective dates. From 
May 8 to June 30 of each year, if NMFS receives information that one sea 
turtle is entangled alive or that one sea turtle is entangled dead, and 
NMFS determines that the entanglement contributed to its death, in pound 
net leaders that are in compliance with the restrictions described in 
paragraph (d)(2)(v)(A) of this section on pound net leaders in the 
waters identified in paragraph (d)(2)(v)(B) of this section, the AA may 
issue a final rule modifying the restrictions on pound net leaders as 
necessary to protect threatened sea turtles. Such modifications may 
include, but are not limited to, reducing the maximum allowable mesh 
size of pound net leaders and prohibiting the use of pound net leaders 
regardless of mesh size. In addition, if information indicates that a 
significant level of sea turtle strandings will likely continue beyond 
June 30, the AA may issue a final rule extending the effective date of 
the restrictions, including any additional restrictions imposed under 
this subparagraph, for an additional 30 days, but not beyond July 30, to 
protect threatened sea turtles.
    (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

[[Page 177]]

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 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

[[Page 178]]

turtles and ensure compliance. Notification of restriction of fishing 
activities will include findings in support of the restriction, will 
specify the time and area where the restriction is applicable, and will 
specify any applicable conditions or restrictions that the Assistant 
Administrator determines are necessary or appropriate to protect sea 
turtles and ensure compliance. Such conditions and restrictions may 
include, but are not limited to, limitations on the types of fishing 
gear that may be used, tow-time restrictions, alteration or extension of 
the periods of time during which particular tow-time requirements apply, 
requirements to use TEDs, 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) [Reserved]
    (6) [Reserved]
    (7) Restrictions applicable to gillnet fisheries in North Carolina. 
No person may fish with gillnet fishing gear which has a stretched mesh 
size larger than 4 \1/4\ inches (10.8 cm), annually from September 1 
through December 15, in the inshore waters of Pamlico Sound, North 
Carolina, and all contiguous tidal waters, bounded on the north by 
35[deg]46.3[min] N. lat., on the south by 35[deg]00[min] N. lat., and on 
the west by 76[deg]30[min] W. long.
    (8) Restrictions applicable to large-mesh gillnet fisheries in the 
mid-Atlantic region. No person may fish (including, but not limited to, 
setting, hauling back, or leaving in the ocean) with, or possess any 
gillnet with a stretched mesh size larger than 8 inches (20.3 cm), 
unless all gillnets are covered with canvas or other similar material 
and lashed or otherwise securely fastened to the deck or the rail, and 
all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and 
anchors are disconnected. This restriction applies in the Atlantic 
Exclusive Economic Zone (as defined in 50 CFR 600.10) during the 
following time periods and in the following areas:
    (i) Waters north of 33[deg]51.0[min] N (North Carolina/South 
Carolina border at the coast) and south of 35[deg]46.0[min] N (Oregon 
Inlet) at any time;
    (ii) Waters north of 35[deg]46.0[min] N (Oregon Inlet) and south of 
36[deg]22.5[min] N (Currituck Beach Light, NC) from March 16 through 
January 14;
    (iii) Waters north of 36[deg]22.5[min] N (Currituck Beach Light, NC) 
and south of 37[deg]34.6[min] N (Wachapreague Inlet, VA) from April 1 
through January 14; and
    (iv) Waters north of 37[deg]34.6[min] N (Wachapreague Inlet, VA) and 
south of 37[deg]56.0[min] N (Chincoteague, VA) from April 16 through 
January 14.
    (9) Restrictions applicable to Pacific pelagic longline vessels. In 
addition to the general prohibitions specified in Sec. 600.725 of 
Chapter VI, it is unlawful for any person who is not operating under a 
western Pacific longline permit under Sec. 660.21 to do any of the 
following on the high seas of the Pacific Ocean east of 150[deg] W. 
long. and north of the equator (0[deg] N. lat.):
    (i) Direct fishing effort toward the harvest of swordfish (Xiphias 
gladius) using longline gear.
    (ii) Possess a light stick on board a longline vessel. A light stick 
as used in this paragraph is any type of light emitting device, 
including any fluorescent glow bead, chemical, or electrically powered 
light that is affixed underwater to the longline gear.
    (iii) An operator of a longline vessel subject to this section may 
land or possess no more than 10 swordfish from a fishing trip where any 
part of the trip

[[Page 179]]

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

[[Page 180]]

collected by observers may be used for law enforcement purposes.
    (v) Expedited modification of restrictions and effective dates. From 
May 6 to July 15 of each year, if NMFS receives information that one sea 
turtle is entangled alive or that one sea turtle is entangled dead, and 
NMFS determines that the entanglement contributed to its death, in pound 
net leaders that are in compliance with the restrictions described in 
paragraph (d)(10)(ii) of this section, NMFS may issue a final rule 
modifying the restrictions on pound net leaders as necessary to protect 
threatened sea turtles. Such modifications may include, but are not 
limited to, reducing the maximum allowable mesh size of pound net 
leaders and prohibiting the use of pound net leaders regardless of mesh 
size. In addition, if information indicates that a significant level of 
sea turtle entanglements, impingements or strandings will likely 
continue beyond July 15, NMFS may issue a final rule extending the 
effective date of the restrictions, including any additional 
restrictions imposed under this subparagraph, for an additional 15 days, 
but not beyond July 30, to protect threatened sea turtles.

[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; 66 FR 50354, Oct. 
3, 2001; 66 FR 52362, Oct. 15, 2001; 66 FR 67496, Dec. 31, 2001; 67 FR 
13101, Mar. 21, 2002; 67 FR 41203, June 17, 2002; 67 FR 56934, Sept. 6, 
2002; 67 FR 71899, Dec. 3, 2002; 67 FR 78392, Dec. 24, 2002; 68 FR 8467, 
Feb. 21, 2003; 68 FR 41945, July 16, 2003; 68 FR 69967, Dec. 16, 2003; 
69 FR 11545, Mar. 11, 2004; 69 FR 25012, May 5, 2004; 69 FR 18453, Apr. 
7, 2004; 69 FR 40753, July 6, 2004]

    Effective Date Notes: 1. At 64 FR 14070, Mar. 23, 1999, newly 
redesignated Sec. 223.206 was revised. Paragraph (d)(5) contains 
information collection and recordkeeping requirements and will not 
become effective until approval has been given by the Office of 
Management and Budget.
    2. At 67 FR 41203, June 17, 2002, Sec. 223.206 was amended by 
adding paragraph (d)(2)(v). Paragraph (d)(2)(v)(C) contains information 
collection and recordkeeping 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'' and ``single-grid hard TEDs'' such 
as the Matagorda and Georgia TED (Figures 3 & 4 to this part). Hard TEDs 
complying with the following generic design criteria are approved TEDs:
    (1) Construction materials--(i) Single-grid and inshore hooped hard 
TED. A single-grid hard TED or an inshore hooped hard TED must be 
constructed of one or a combination of the following materials, with 
minimum dimensions as follows:
    (A) Solid steel rod with a minimum outside diameter of 1/4 inch 
(0.64 cm);
    (B) Fiberglass or aluminum rod with a minimum outside diameter of 1/
2 inch (1.27 cm); or
    (C) Steel or aluminum tubing with a minimum outside diameter of 1/2 
inch (1.27 cm) and a minimum wall thickness of 1/8 inch (0.32 cm) (also 
known as schedule 40 tubing).
    (ii) Offshore hooped hard TED. An offshore hooped hard TED must be 
constructed of aluminum, with minimum dimensions as follows:
    (A) Solid rod with a minimum outside diameter of 5/8 inch (1.59 cm); 
or
    (B) Tubing with a minimum outside diameter of 1 inch (2.54 cm) and a 
minimum wall thickness of 1/8 inch (0.32 cm).
    (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 the 
angle of the bottom-most 4 inches (10.2

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cm) of each deflector bar, measured along the bars, must not exceed 
45[deg] (Figures 14a and 14b to this part).
    (4) Space between bars. The space between deflector bars and the 
deflector bars and the TED 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. The deflector bars must be 
permanently attached to the TED frame or to the horizontal bars, if 
used, at both ends.
    (6) Position of the escape opening. The escape opening must be made 
by removing a rectangular section of webbing from the trawl, except for 
a TED with an escape opening size described at paragraph (a)(7)(ii)(A) 
for which the escape opening may alternatively be made by making a 
horizontal cut along the same plane as the TED. The escape opening must 
be centered on and immediately forward of the frame at either the top or 
bottom of the net when the net is in the 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. The passage from the mouth of the trawl through the 
escape opening must be completely clear of any obstruction or 
modification, other than those specified in paragraph (d) of this 
section.
    (7) Size of escape opening--(i) Hooped hard TEDs--(A) Escape opening 
for inshore hooped hard TED. The inshore hooped hard TED escape opening 
must have a horizontal measurement of no less than 35 inches (89 cm) 
wide and a forward measurement of no less than 27 inches (69 cm). A 
hinged door frame may be used to partially cover the escape opening as 
provided in paragraph (d)(7) of this section. Alternatively, a webbing 
flap may be used as provided in paragraph (d)(3)(i) of this section. The 
resultant opening with a webbing flap must be a minimum width of 35 
inches (89 cm) and a minimum height of 20 inches (51 cm), with each 
measurement taken simultaneously. This opening may only be used in 
inshore waters, except it may not be used in the inshore waters of 
Georgia and South Carolina.
    (B) Escape opening for offshore hooped hard TED. The offshore hooped 
hard TED escape opening must have a horizontal measurement of no less 
than 40 inches (102 cm) wide and a forward measurement of no less than 
35 inches (89 cm). A hinged door frame may be used to partially cover 
the escape opening as provided in paragraph (d)(7) of this section. 
Alternatively, a webbing flap may be used as provided in paragraph 
(d)(3)(ii) of this section. The resultant escape opening with a webbing 
flap must have a stretched mesh circumference of no less than 142 inches 
(361 cm).
    (ii) Single-grid hard TEDs. On a single-grid hard TED, the 
horizontal cut(s) for the escape opening may not be narrower than the 
outside width of the TED frame minus 4 inches (10.2 cm) on both sides of 
the grid, when measured as a straight line width. Fore-and-aft cuts to 
remove a rectangular piece of webbing must be made from the ends of the 
horizontal cuts along a single row of meshes along each side. The 
overall size of the escape opening must match one of the following 
specifications:
    (A) 44-inch inshore opening. The escape opening must have a minimum 
width of 44 inches (112 cm) and a minimum height of 20 inches (51 cm) 
with each measurement taken separately. A webbing flap, as described in 
paragraph (d)(3)(i) of this section, may be used with this escape hole, 
so long as this minimum opening size is achieved. This opening may only 
be used in inshore waters, except it may not be used in the inshore 
waters of Georgia and South Carolina.
    (B) The 71-inch offshore opening: The two forward cuts of the escape 
opening must not be less than 26 inches (66 cm) long from the points of 
the cut immediately forward of the TED frame. The resultant length of 
the leading edge of the escape opening cut must be no less than 71 
inches (181 cm) with a resultant circumference of the opening being 142 
inches (361 cm) (Figure 12 to this part). A webbing flap, as described 
in paragraph (d)(3)(ii) of this section, may be used with this escape 
hole, so long as this minimum opening size is achieved.

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Either this opening or the one described in paragraph (a)(7)(ii)(C) of 
this section must be used in all offshore waters and in all inshore 
waters in Georgia and South Carolina, but may also be used in other 
inshore waters.
    (C) Double cover offshore opening. The two forward cuts of the 
escape opening must not be less than 20 inches (51 cm) long from the 
points of the cut immediately forward of the TED frame. The resultant 
length of the leading edge of the escape opening cut must be no less 
than 56 inches (142 cm)(Figure 16 to this part illustrates the 
dimensions of these cuts). A webbing flap, as described in paragraph 
(d)(3)(iii) of this section, may be used with this escape hole. Either 
this opening or the one described in paragraph (a)(7)(ii)(B) of this 
section must be used in all offshore waters but also in all inshore 
waters in Georgia and South Carolina, and may be used in other inshore 
waters.
    (8) Size of hoop or grid--(i) Hooped hard TED--(A) Inshore hooped 
hard TED. The front hoop on an inshore hooped hard TED must have an 
inside horizontal measurement of at least 35 inches (89 cm) and an 
inside vertical measurement of at least 30 inches (76 cm). The minimum 
clearance between the deflector bars and the forward edge of the escape 
opening must be at least 20 inches (51 cm).
    (B) Offshore hooped hard TED. The front hoop on an offshore hooped 
hard TED must have an inside horizontal measurement of at least 40 
inches (102 cm) and an inside vertical measurement of at least 30 inches 
(76 cm). The minimum clearance between the deflector bars and the 
forward edge of the escape opening must be at least 23 1/4 inches (59 
cm).
    (ii) Single-grid hard TED. A single-grid hard TED must have a 
minimum outside horizontal and vertical measurement of 32 inches (81 
cm). The required outside measurements must be at the mid-point of the 
deflector grid.
    (9) Flotation. Floats must be attached to the top one-half of all 
hard TEDs with bottom escape openings. The floats may be attached either 
outside or inside the net, but not to a flap. Floats attached inside the 
net must be behind the rear surface of the TED. Floats must be attached 
with heavy twine or rope. Floats must be constructed of aluminum, hard 
plastic, expanded polyvinyl chloride, or expanded ethylene vinyl acetate 
unless otherwise specified. The requirements of this paragraph may be 
satisfied by compliance with either the dimension requirements of 
paragraph (a)(9)(i) of this section, or the buoyancy requirements of 
paragraph (a)(9)(ii) of this section, or the buoyancy-dimension 
requirements of paragraph (a)(9)(iii) of this section. If roller gear is 
used pursuant to paragraph (d)(5) of this section, the roller gear must 
be included in the circumference measurement of the TED or the total 
weight of the TED.
    (i) Float dimension requirements. (A) For hard TEDs with a 
circumference of 120 inches (304.8 cm) or more, a minimum of either one 
round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 
cm) in diameter, or two expanded polyvinyl chloride or expanded ethylene 
vinyl acetate floats, each no smaller than 6.75 inches (17.2 cm) in 
diameter by 8.75 inches (22.2 cm) in length, must be attached.
    (B) For hard TEDs with a circumference of less than 120 inches 
(304.8 cm), a minimum of either one round, aluminum or hard plastic 
float, no smaller than 9.8 inches (25.0 cm) in diameter, or one expanded 
polyvinyl chloride or expanded ethylene vinyl acetate float, no smaller 
than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in 
length, must be attached.
    (ii) Float buoyancy requirements. Floats of any size and in any 
combination must be attached such that the combined buoyancy of the 
floats, as marked on the floats, equals or exceeds the weight of the 
hard TED, as marked on the TED. The buoyancy of the floats and the 
weight of the TED must be clearly marked on the floats and the TED as 
follows:
    (A) Float buoyancy markings. Markings on floats must be made in 
clearly legible raised or recessed lettering by the original 
manufacturer. The marking must identify the buoyancy of the float in 
water, expressed in grams or kilograms, and must include the metric unit 
of measure. The marking may additionally include the buoyancy in

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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 
paragraph (a)(2) of this section. The angle of the deflector bars must 
be between 30 and 55 from the normal, horizontal flow through the 
interior of the trawl. The entire width of the escape opening from the 
trawl must be centered on and immediately forward of the frame at the 
top of the net when the net is in its deployed position. The escape 
opening must be at the top of the net and the slope of the deflector 
bars from forward to aft is upward. 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. 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. The resulting escape opening in the net webbing must measure 
at least 35 inches (88.9 cm) in horizontal taut length and, 
simultaneously, 12 inches (30.5 cm) in vertical taut height. The 
vertical measurement must be taken at

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the midpoint of the horizontal measurement. This TED may not be 
configured with a bottom escape opening. Installation of an accelerator 
funnel is not permitted with this TED.
    (2) Weedless TED. The weedless TED must meet all the requirements of 
paragraph (a) of this section for single-grid hard TEDs, with the 
exception of paragraphs (a)(1) and (a)(5) of this section. The weedless 
TED must be constructed of at least 1-1/4 inch (3.2 cm) outside diameter 
aluminum with a wall thickness of at least 1/8 inch (0.3 cm). The 
deflector bars must run from top to bottom of the TED, as the TED is 
positioned in the net. The ends of the deflectors bars on the side of 
the frame opposite to the escape opening must be permanently attached to 
the frame. The ends of the deflector bars nearest the escape opening are 
not attached to the frame and must lie entirely forward of the leading 
edge of the outer frame. The ends of the unattached deflector bars must 
be no more than 4 inches (10.2 cm) from the frame and may not extend 
past the frame. A horizontal brace bar to reinforce the deflector bars, 
constructed of the same size or larger pipe as the deflector bars, must 
be permanently attached to the frame and the rear face of each of the 
deflector bars at a position anywhere between the vertical mid-point of 
the frame and the unattached ends of the deflector bars. The horizontal 
brace bar may be offset behind the deflector bars, using spacer bars, 
not to exceed 5 inches (12.7 cm) in length and constructed of the same 
size or larger pipe as the deflector bars. See Figure 15.
    (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

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for attachment to the trawl must run the entire width of the bottom body 
panel and half the height of each wing panel of the trawl. Every mesh of 
the leading edge of the excluder panel must be evenly sewn to this row 
of meshes; meshes may not be laced to the trawl. The row of meshes for 
attachment to the trawl must contain the following number of meshes, 
depending on the stretched mesh size used in the trawl:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 152-168 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 161-178 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 182-202 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 196-216 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 211-233 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 228-252 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 249-275 meshes; and
    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 274-302 meshes.
    (B) Apex attachment. The apex of the triangular excluder panel must 
be attached to the inside of the top body panel of the trawl at the 
centerline of the trawl. The distance, measured aft along the centerline 
of the top body panel from the same row of meshes for attachment of the 
excluder panel to the bottom body panel of the trawl, to the apex 
attachment point must contain the following number of meshes, depending 
on the stretched mesh size used in the trawl:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 78-83 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 83-88 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 93-99 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 100-106 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 107-114 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 114-124 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 127-135 meshes; and
    (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) Inshore opening. This opening is the minimum size opening that 
may be used in inshore waters, except it may not be used in the inshore 
waters of Georgia and South Carolina, in which a larger minimum opening 
is required. 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) Offshore 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

[[Page 186]]

row of steel chain not larger than\3/16\ inch (4.76 mm) may be sewn 
evenly to the back edge of the flap. The stretched length of the chain 
must not exceed 96 inches (244 cm). A Parker TED using the escape 
opening described in this paragraph meets the requirements of Sec. 
223.206(d)(2)(iv)(B). This opening or one that is larger must be used in 
all offshore waters and in the inshore waters of Georgia and South 
Carolina. It also may be used in other inshore waters.
    (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 of not greater than 1 5/8 inches (4 cm), 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 one-third of the circumference of the funnel is attached, 
and if the inside horizontal opening as described above in maintained. 
In a bottom opening TED only the top one-third of the circumference of 
the funnel may be attached to the TED. In a top opening TED only the 
bottom one-third of the circumference of the funnel may be attached to 
the TED.
    (i) In inshore waters, other than the inshore waters of Georgia and 
South Carolina in which a larger opening is required, the inside 
horizontal opening of the accelerator funnel must be at least 44 inches 
(112 cm).
    (ii) In offshore waters and the inshore waters of Georgia and South 
Carolina, the inside horizontal opening of the accelerator funnel must 
be at least 71 inches (180 cm).
    (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 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 cm) behind the posterior edge 
of the grid; the sides of the flap are sewn on the same row of meshes 
fore and aft; and the flap does not overlap the escape hole cut by more 
than 5 inches (13 cm) on either side.
    (i) 44-inch inshore TED flap. This flap may not extend more than 24 
inches (61 cm) beyond the posterior edge of the grid.
    (ii) 71-inch offshore TED Flap. The flap must be a 133-inch (338-cm) 
by 52-inch (132-cm) piece of webbing. The 133-inch (338-cm) edge of the 
flap is attached to the forward edge of the opening (71-inch (180-cm) 
edge). The flap may extend no more than 24 inches (61 cm) behind the 
posterior edge of the grid (Figure 12 to this part illustrates this 
flap).
    (iii) Double cover flap offshore TED flap. This flap must be 
composed of two equal size rectangular panels of webbing. Each panel 
must be no less than 58 inches (147 cm) wide and may overlap each other 
no more than 15 inches (38 cm). The panels may only be sewn together 
along the leading edge of the cut. The trailing edge of each panel must 
not extend more than 24 inches (61 cm) past the posterior edge of the 
grid (Figure 16 to this part). Each panel may be sewn down the entire 
length of the outside edge of each panel. Chafing webbing described in 
paragraph (d)(4) of this section may not be used with this type of flap.
    (A) Edge lines. Optional edge lines can be used in conjunction with 
this flap. The line must be made of polyethylene with a maximum diameter 
of 3/8 inches (.95 cm). A single length of line must be used for each 
flap panel. The line must be sewn evenly to the unattached, inside edges 
and trailing edges, of each

[[Page 187]]

flap panel. When edge lines are installed, the outside edge of each flap 
panel must be attached along the entire length of the flap panel.
    (B) [Reserved]
    (4) Chafing webbing. A single piece of nylon webbing, with a twine 
size no smaller than size 36 (2.46 mm in diameter), may be attached 
outside of the escape opening webbing flap to prevent chafing on bottom 
opening TEDs. This webbing may be attached along its leading edge only. 
This webbing may not extend beyond the trailing edge or sides of the 
existing escape opening webbing flap, and it must not interfere or 
otherwise restrict the turtle escape opening.
    (5) Roller gear. Roller gear may be attached to the bottom of a TED 
to prevent chafing on the bottom of the TED and the trawl net. When a 
webbing flap is used in conjunction with roller gear, the webbing flap 
must be of a length such that no part of the webbing flap can touch or 
come in contact with any part of the roller gear assembly or the means 
of attachment of the roller gear assembly to the TED, when the trawl net 
is in its normal, horizontal position. Roller gear must be constructed 
according to one of the following design criteria:
    (i) A single roller consisting of hard plastic shall be mounted on 
an axle rod, so that the roller can roll freely about the axle. The 
maximum diameter of the roller shall be 6 inches (15.24 cm), and the 
maximum width of the axle rod shall be 12 inches (30.4 cm). The axle rod 
must be attached to the TED by two support rods. The maximum clearance 
between the roller and the TED shall not exceed 1 inch (2.5 cm) at the 
center of the roller. The support rods and axle rod must be made from 
solid steel or solid aluminum rod no larger than \1/2\ inch (1.28 cm) in 
diameter. The attachment of the support rods to the TED shall be such 
that there are no protrusions (lips, sharp edges, burrs, etc.) on the 
front face of the grid. The axle rod and support rods must lie entirely 
behind the plane of the face of the TED grid.
    (ii) A single roller consisting of hard plastic tubing shall be 
tightly tied to the back face of the TED grid with rope or heavy twine 
passed through the center of the roller tubing. The roller shall lie 
flush against the TED. The maximum outside diameter of the roller shall 
be 3\1/2\ inches (8.0 cm), the minimum outside diameter of the roller 
shall be 2 inches (5.1 cm), and the maximum length of the roller shall 
be 12 inches (30.4 cm). The roller must lie entirely behind the plane of 
the face of the grid.
    (6) Water deflector fin for hooped hard TEDs. On a hooped hard TED, 
a water deflector fin may be welded to the forward edge of the escape 
opening. The fin must be constructed of a flat aluminum bar, up to 3/8 
inch (0.95 cm) thick and up to 4 inches (10.2 cm) deep. The fin may be 
as wide as the width of the escape opening, minus 1 inch (2.5 cm). The 
fin must project aft into the TED with an angle between 5[deg] and 
45[deg] from the normal, horizontal plane of the trawl. On an inshore 
hooped hard TED, the clearance between the deflector bars and the 
posterior edge of the deflector fin must be at least 20 inches (51 cm). 
On an offshore hooped hard TED, the clearance between the deflector bars 
and the posterior edge of the deflector fin must be at least 23-1/4 
inches (59 cm).
    (7) Hinged door frame for hooped hard TEDs. A hinged door frame may 
be attached to the forward edge of the escape opening on a hooped hard 
TED. The door frame must be constructed of materials specified at 
paragraphs (a)(1)(i) or (a)(1)(ii) of this section for inshore and 
offshore hooped hard TEDs, respectively. The door frame may be covered 
with a single panel of mesh webbing that is taut and securely attached 
with twine to the perimeter of the door frame, with a mesh size not 
greater than that used for the TED extension webbing. The door frame 
must be at least as wide as the TED escape opening. The door frame may 
be a maximum of 24 inches (61 cm) long. The door frame must be connected 
to the forward edge of the escape opening by a hinge device that allows 
the door to open outwards freely. The posterior edge of the door frame, 
in the closed position, must lie at least 12 inches (30 cm) forward of 
the posterior edge of the escape opening. A water deflector fin may be 
welded to the posterior edge of the hinged door frame. The fin must be

[[Page 188]]

constructed of a flat aluminum bar, up to 3/8 inch (0.95 cm) thick and 
up to four inches (10.2 cm) deep. The fin may be as wide as the width of 
the escape opening, minus one inch (2.5 cm). The fin must project aft 
into the TED with an angle between 5[deg] and 45[deg] from the normal, 
horizontal plane of the trawl, when the door is in the closed position. 
The clearance between the posterior edge of the escape opening and the 
posterior edge of the door frame or the posterior edge of the water 
deflector fin, if installed, must be no less than 12 inches (30 cm), 
when the door is in the closed position. Two stopper ropes or a hinge 
limiter may be used to limit the maximum opening height of the hinged 
door frame, as long as they do not obstruct the escape opening in any 
way or restrict the free movement of the door to its fully open 
position. When the door is in its fully open position, the minimum 
clearance between any part of the deflector bars and any part of the 
door, including a water deflector fin if installed, must be at least 20 
inches (51 cm) for an inshore hooped hard TED and at least 23 1/4 inches 
(59 cm) for an offshore hooped hard TED. The hinged door frame may not 
be used in combination with a webbing flap specified at paragraph (d)(3) 
of this section or with a water deflection fin specified at paragraph 
(d)(6) of this section.
    (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; 68 FR 8467, Feb. 
21, 2003; 68 FR 51514, Aug. 27, 2003; 68 FR 54934, Sept. 19, 2003; 69 FR 
31037, June 2, 2004]

    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 and recordkeeping requirements and will not become effective 
until approval has been given 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,

[[Page 189]]

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 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]

                   Figures 1-2 to Part 223 [Reserved]

                   Figure 3 to Part 223--Matagorda TED
[GRAPHIC] [TIFF OMITTED] TC01JY91.047


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

[[Page 190]]

                    Figure 4 to Part 223--Georgia TED
[GRAPHIC] [TIFF OMITTED] TC01JY91.048


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

[[Page 191]]

 Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker 
                                Soft TED
[GRAPHIC] [TIFF OMITTED] TR13AP98.001


[63 FR 17958, Apr. 13, 1998]

[[Page 192]]

      Figure 6 to Part 223--TED Extension in Summer Flounder Trawl
[GRAPHIC] [TIFF OMITTED] TR15OC99.001


[64 FR 55864, Oct. 15, 1999]

[[Page 193]]

                   Figures 7-9b to Part 223 [Reserved]

                   Figure 10 to Part 223--Flounder TED
[GRAPHIC] [TIFF OMITTED] TC01JY91.056


[58 FR 54069, Oct. 20, 1993]

                    Figure 11 to Part 223 [Reserved]

[[Page 194]]

Figure 12 to Part 223--Escape Opening & Cover Dimensions for 71-inch TED
[GRAPHIC] [TIFF OMITTED] TR21FE03.002


[68 FR 8469, Feb. 21, 2003]

[[Page 195]]

       Figure 13 to Part 223--Single Grid Hard TED Escape Opening
[GRAPHIC] [TIFF OMITTED] TC01JY91.060


[60 FR 15520, Mar. 24, 1995]

[[Page 196]]

 Figures 14a and 14b to Part 223--Maximum Angle of Deflector Bars With 
 Straight Bars Attached to the Bottom of the Frame and Maximum Angle of 
    Deflector Bars With Bent Bars Attached to the Bottom of the Frame
[GRAPHIC] [TIFF OMITTED] TR19DE96.002


[61 FR 66946, Dec. 19, 1996]

[[Page 197]]

       Figure 15 to Part 223-- Weedless TED Brace Bar Description
[GRAPHIC] [TIFF OMITTED] TR21FE03.003


[68 FR 8469, Feb. 21, 2003]

[[Page 198]]

Figure 16 to Part 223--Escape Opening and Flap Dimensions for the Double 
                             Cover Flap TED
[GRAPHIC] [TIFF OMITTED] TR02JN04.003


[69 FR 31037, June 2, 2004]

[[Page 199]]



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. Shortnose sturgeon (Acipenser 
brevirostrum); Smalltooth sawfish (Pristis pectinata) in the United 
States; Atlantic salmon (Salmo salar) Gulf of Maine population, 
including naturally reproducing populations and those river-specific 
hatchery populations cultured from them; Totoaba (Cynoscian macdonaldi); 
Snake River sockeye salmon (Oncorhynchus nerka); Southern California 
steelhead (Oncorhynchus mykiss), which includes all naturally spawned 
populations of steelhead (and their progeny) in streams from the Santa 
Maria River, San Luis Obispo County, CA (inclusive) to the U.S. - Mexico 
Border; Upper Columbia River steelhead (Oncorhynchus mykiss), including 
the Wells Hatchery stock and all naturally spawned populations of 
steelhead (and their progeny) in streams in the Columbia River Basin 
upstream from the Yakima River, Washington, to the U.S. - Canada Border; 
Upper Columbia River spring-run chinook salmon (Oncorhynchus 
tshawytscha), including all naturally spawned populations of chinook 
salmon in Columbia River tributaries upstream of the Rock Island Dam and 
downstream of Chief Joseph Dam in Washington (excluding the Okanogan 
River), the Columbia River from a straight line connecting the west end 
of the Clatsop jetty (south jetty, Oregon side) and the west end of the 
Peacock jetty (north jetty, Washington side) upstream to Chief Joseph 
Dam in Washington, and the Chiwawa River (spring run), Methow River 
(spring run), Twisp River (spring run), Chewuch River (spring run), 
White River (spring run), and Nason Creek (spring run) hatchery stocks 
(and their progeny); Sacramento River winter-run chinook salmon 
(Oncorhynchus tshawytscha).
    (b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead 
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis); 
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus); 
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal 
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae); Indus 
River dolphin (Platanista minor); Mediterranean monk seal (Monachus 
monachus); Right whales (Eubalaena spp.); Saimaa seal (Phoca hispida 
saimensis); Sei whale (Balaenoptera borealis); Sperm whale (Physeter 
catodon); Western North Pacific (Korean) gray whale (Eschrichtius 
robustus); Steller sea lion, western population, (Eumetopias jubatus), 
which consists of Stellar sea lions from breeding colonies located west 
of 144[deg] W. longitude.
    (c) Sea turtles. Green turtle (Chelonia mydas) breeding colony 
populations in Florida and on the Pacific coast of Mexico; Hawksbill 
turtle (Eretmochelys imbricata); Kemp's ridley turtle (Lepidochelys 
kempii); Leatherback turtle (Dermochelys coriacea); Olive ridley turtle 
(Lepidochelys olivacea) breeding colony population on the Pacific coast 
of Mexico.

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

[[Page 200]]

    (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; 67 FR 21598, May 1, 2002; 68 FR 15680, Apr. 1, 2003]



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;
    (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).

[[Page 201]]

    (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 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.

[[Page 202]]

    (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 sea turtles are provided at 
Sec. 223.206 (d)(2)(iv).

[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 44552, Aug. 24, 2001; 
66 FR 67496, Dec. 31, 2001; 68 FR 8471, Feb. 21, 2003; 69 FR 18453, Apr. 
7, 2004]

                           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 North Atlantic 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 [Reserved]
226.213 Critical habitat for Johnson's seagrass.
226.214 Critical habitat for Gulf sturgeon.

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

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

[[Page 203]]

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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 211]]



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[sec]/157[deg]27[min]W) and the 
southwestern tip of Tugidak Island (56[deg]24[min]N/154[deg]41[min]W) 
and bounded in the east by a line connecting Cape Douglas 
(58[deg]51[min]N/153[deg]15[min]W) and the northernmost tip of Shuyak 
Island (58[deg]37[min]N/152[deg]22[min]W).
    (2) Critical habitat includes the Bogoslof area in the Bering Sea 
shelf and consists of the area between 170[deg]00[min]W and 
164[deg]00[min]W, south of straight lines connecting 55[deg]00[min]N/
170[deg]00[min]W and 55[deg]00[min]N/168[deg]00[min]W; 55[deg]30[min]N/
168[deg]00[min]W and 55[deg]30[min]N/166[deg]00[min]W; 56[deg]00[min]N/
166[deg]00[min]W and 56[deg]00[min]N/164[deg]00[min]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[min]N/169[deg]40.4[min]W
52[deg]49.8[min]N/169[deg]06.3[min]W
53[deg]23.8[min]N/167[deg]50.1[min]W
53[deg]18.7[min]N/167[deg]51.4[min]W
53[deg]59.0[min]N/166[deg]17.2[min]W
54[deg]02.9[min]N/166[deg]03.0[min]W
54[deg]07.7[min]N/165[deg]40.6[min]W
54[deg]08.9[min]N/165[deg]38.8[min]W
54[deg]11.9[min]N/165[deg]23.3[min]W
54[deg]23.9[min]N/164[deg]44.0[min]W

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

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



Sec. 226.203  Critical habitat for North Atlantic right whales.

            North Atlantic Right Whale (Eubalaena glacialis)

    (a) Great South Channel. The area bounded by 41[deg]40[min] N/
69[deg]45[min] W; 41[deg]00[min] N/69[deg]05[min] W; 41[deg]38[min] N/
68[deg]13[min] W; and 42[deg]10[min] N/68[deg]31[min] W.
    (b) Cape Cod Bay, Massachusetts. The area bounded by 
42[deg]04.8[min] N/70[deg]10[min] W; 42[deg]12[min] N/70[deg]15[min] W; 
42[deg]12[min] N/70[deg]30[min] W; 41[deg]46.8[min] N/70[deg]30[min] 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[min] N and 30[deg]15[min] N from the coast out 15 nautical 
miles; and the coastal waters between

[[Page 212]]

30[deg]15[min] N and 28[deg]00[min] 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; 68 FR 17562, Apr. 10, 2003]



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 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (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,

[[Page 213]]

Wallowa, Wasco; the following counties in Washington: Asotin, Benton, 
Clark, Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, 
Skamania, Wahkiakum, Walla, Whitman; and the following counties in 
Idaho: Blaine, Custer, Idaho, Lemhi, Lewis, Nez Perce.
    (b) Snake River Spring/Summer Chinook Salmon (Oncorhynchus 
tshawytscha). 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; 69 FR 18803, Apr. 9, 2004]



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

[[Page 214]]

level of mean high tide with boundaries at 17[deg]42[min]12[sec] North 
and 64[deg]50[min]00[sec] 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 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 National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.
    (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

[[Page 215]]

Punta Gorda, California. Critical habitat consists of the water, 
substrate, and adjacent riparian zone of estuarine and riverine reaches 
(including off-channel habitats) in hydrologic units and counties 
identified in Table 6 of this part. Accessible reaches are those within 
the historical range of the ESU that can still be occupied by any life 
stage of coho salmon. Inaccessible reaches are those above specific dams 
identified in Table 6 of this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).

[64 FR 24061, May 5, 1999, as amended at 69 FR 18803, Apr. 9, 2004]



Sec. 226.212  [Reserved]



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[min]15.03[sec]N, 80[deg]27[min]55.49[sec]W
Northeast corner: 27[deg]51[min]16.57[sec]N, 80[deg]27[min]53.05[sec]W
Southwest corner: 27[deg]51[min]08.85[sec]N, 80[deg]27[min]50.48[sec]W
Southeast corner: 27[deg]51[min]11.58[sec]N, 80[deg]27[min]47.35[sec]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[min]01.32[sec]N, 80[deg]27[min]46.10[sec]W
Northeast corner: 27[deg]51[min]02.69[sec]N, 80[deg]27[min]45.27[sec]W
Southwest corner: 27[deg]50[min]59.08[sec]N, 80[deg]27[min]41.84[sec]W
Southeast corner: 27[deg]51[min]01.07[sec]N, 80[deg]27[min]40.50[sec]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[min]06.00[sec]N, 80[deg]18[min]48.89[sec]W
Northeast corner: 27[deg]28[min]04.43[sec]N, 80[deg]18[min]42.25[sec]W
Southwest corner: 27[deg]28[min]02.86[sec]N, 80[deg]18[min]49.06[sec]W
Southeast corner: 27[deg]28[min]01.46[sec]N, 80[deg]18[min]42.42[sec]W

    (d) A portion of the Indian River Lagoon, Florida, north of the St. 
Lucie Inlet, from South Nettles Island to the 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[min]44.04[sec]N, 80[deg]14[min]00.00[sec]W
Northeast corner: 27[deg]16[min]44.04[sec]N, 80[deg]12[min]51.33[sec]W
Southwest corner: 27[deg]12[min]49.70[sec]N, 80[deg]11[min]46.80[sec]W
Southeast corner: 27[deg]12[min]49.70[sec]N, 80[deg]11[min]02.50[sec]W

    (e) Hobe Sound beginning at State Road 708 
(27[deg]03[min]49.90[sec]N, 80[deg]07[min]20.57[sec]W) and extending 
south to 27[deg]00[min]00.00[sec]N, 80[deg]05[min]32.54[sec]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[min]43.34[sec]N, 80[deg]04[min]47.84[sec]W
Northeast corner: 26[deg]56[min]40.93[sec]N, 80[deg]04[min]42.61[sec]W
Southwest corner: 26[deg]56[min]40.73[sec]N, 80[deg]04[min]48.65[sec]W
South central point: 26[deg]56[min]38.11[sec]N, 
80[deg]04[min]45.83[sec]W
Southeast corner: 26[deg]56[min]38.31[sec]N, 80[deg]04[min]42.41[sec]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[min]44.00[sec]N, 80[deg]02[min]39.00[sec]W
Northeast corner: 26[deg]40[min]40.00[sec]N, 80[deg]02[min]34.00[sec]W
Southwest corner: 26[deg]40[min]32.00[sec]N, 80[deg]02[min]44.00[sec]W
Southeast corner: 26[deg]40[min]33.00[sec]N, 80[deg]02[min]35.00[sec]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[min]28.00[sec]N, 80[deg]02[min]54.00[sec]W
Northeast corner: 26[deg]33[min]30.00[sec]N, 80[deg]03[min]04.00[sec]W
Southwest corner: 26[deg]32[min]50.00[sec]N, 80[deg]03[min]11.00[sec]W
Southeast corner: 26[deg]32[min]50.00[sec]N, 80[deg]02[min]58.00[sec]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[min]27.00[sec]N, 80[deg]04[min]23.00[sec]W
Northeast corner: 26[deg]22[min]27.00[sec]N, 80[deg]04[min]18.00[sec]W
Southwest corner: 26[deg]22[min]05.00[sec]N, 80[deg]04[min]16.00[sec]W
Southeast corner: 26[deg]22[min]05.00[sec]N, 80[deg]04[min]18.00[sec]W


[[Page 216]]


    (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[min]N).
[GRAPHIC] [TIFF OMITTED] TR05AP00.000


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[GRAPHIC] [TIFF OMITTED] TR05AP00.006


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[GRAPHIC] [TIFF OMITTED] TR05AP00.007


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[GRAPHIC] [TIFF OMITTED] TR05AP00.008


[65 FR 17795, Apr. 5, 2000]



Sec. 226.214  Critical habitat for Gulf sturgeon.

    Gulf sturgeon is under the joint jurisdiction of the U.S. Fish and 
Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). The 
FWS will maintain primary responsibility for recovery actions and NMFS 
will assist in and continue to fund recovery actions pertaining to 
estuarine and marine habitats. In riverine units, the FWS will be 
responsible for all consultations regarding Gulf sturgeon and critical 
habitat. In estuarine units, we

[[Page 225]]

will divide responsibility based on the action agency involved. The FWS 
will consult with the Department of Transportation, the Environmental 
Protection Agency, the U.S. Coast Guard, and the Federal Emergency 
Management Agency. NMFS will consult with the Department of Defense, 
U.S. Army Corps of Engineers, Minerals Management Service and any other 
Federal agencies not mentioned here explicitly. In marine units, NMFS 
will be responsible for all consultations regarding Gulf sturgeon and 
critical habitat. Any Federal projects that extend into the jurisdiction 
of both the Services will be consulted on by the FWS with internal 
coordination with NMFS. Each agency will conduct its own intra-agency 
consultations as necessary.
    The primary constituent elements essential for the conservation of 
Gulf sturgeon are those habitat components that support feeding, 
resting, and sheltering, reproduction, migration, and physical features 
necessary for maintaining the natural processes that support these 
habitat components. The primary constituent elements include: abundant 
prey items within riverine habitats for larval and juvenile life stages, 
and within estuarine and marine habitats and substrates for juvenile, 
subadult, and adult life stages; riverine spawning sites with substrates 
suitable for egg deposition and development, such as limestone outcrops 
and cut limestone banks, bedrock, large gravel or cobble beds, marl, 
soapstone or hard clay; riverine aggregation areas, also referred to as 
resting, holding, and staging areas, used by adult, subadult, and/or 
juveniles, generally, but not always, located in holes below normal 
riverbed depths, believed necessary for minimizing energy expenditures 
during fresh water residency and possibly for osmoregulatory functions; 
a flow regime (i.e., the magnitude, frequency, duration, seasonality, 
and rate-of-change of fresh water discharge over time) necessary for 
normal behavior, growth, and survival of all life stages in the riverine 
environment, including migration, breeding site selection, courtship, 
egg fertilization, resting, and staging; and necessary for maintaining 
spawning sites in suitable condition for egg attachment, eggs 
sheltering, resting, and larvae staging; water quality, including 
temperature, salinity, pH, hardness, turbidity, oxygen content, and 
other chemical characteristics, necessary for normal behavior, growth, 
and viability of all life stages; sediment quality, including texture 
and other chemical characteristics, necessary for normal behavior, 
growth, and viability of all life stages; and safe and unobstructed 
migratory pathways necessary for passage within and between riverine, 
estuarine, and marine habitats (e.g. a river unobstructed by any 
permanent structure, or a dammed river that still allows for passage).
    The river reaches within Units 1 to 7 as critical habitat lie within 
the ordinary high water line. As defined in 33 CFR 329.11, the ordinary 
high water line on non-tidal rivers is the line on the shore established 
by the fluctuations of water and indicated by physical characteristics 
such as a clear, natural line impressed on the bank; shelving; changes 
in the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas.
    The downstream limit of the riverine units is the mouth of each 
river. The mouth is defined as rkm 0 (rmi 0). Although the interface of 
fresh and saltwater, referred to as the saltwater wedge, occurs within 
the lower-most reach of a river, for ease in delineating critical 
habitat units, we are defining the boundary between the riverine and 
estuarine units as rkm 0 (rmi 0).
    Regulatory jurisdiction in coastal areas extends to the line on the 
shore reached by the plane of the mean (average) high water (MHW) (33 
CFR 329.12(a)(2)). All bays and estuaries within Units 8 to 14, 
therefore, lie below the MHW lines. Where precise determination of the 
actual location becomes necessary, it must be established by survey with 
reference to the available tidal datum, preferably averaged over a 
period of 18.6 years. Less precise methods, such as observation of the 
``apparent shoreline'' which is determined by reference to physical 
markings, lines of vegetation, may be used only where an estimate is 
needed

[[Page 226]]

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.038


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[GRAPHIC] [TIFF OMITTED] TR19MR03.039

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

[[Page 230]]

bank of the associated rivers and shorelines.
    (2) Major shipping channels in this unit are excluded under section 
4(b)(2) of the Act.
    (3) Maps of Unit 2 follow:
    [GRAPHIC] [TIFF OMITTED] TR19MR03.040
    

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[GRAPHIC] [TIFF OMITTED] TR19MR03.045

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.047


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[GRAPHIC] [TIFF OMITTED] TR19MR03.048

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.053

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.057

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.059

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.063

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

[[Page 254]]

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

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.068

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

[[Page 260]]

is the U.S. Highway 98 bridge in Fort Walton Beach, FL. The northern and 
southern boundaries of Unit 10 are formed by the shorelines to the MHW 
line or by the entrance to rivers, bayous, and creeks.
    (2) A Map of Unit 10 follows:
    [GRAPHIC] [TIFF OMITTED] TR19MR03.069
    

[[Page 261]]


    (k) Unit 11: Florida Nearshore Gulf of Mexico Unit in Escambia, 
Santa Rosa, Okaloosa, Walton, Bay, and Gulf Counties, Florida.
    (1) Unit 11 includes a portion of the Gulf of Mexico as defined by 
the following boundaries. The western boundary is the line of longitude 
87[deg]20.0[min]W (approximately 1 nm (1.9 km) west of Pensacola Pass) 
from its intersection with the shore to its intersection with the 
southern boundary. The northern boundary is the MHW of the mainland 
shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 
(a-g). The southern boundary is 1 nm (1.9 km) offshore of the northern 
boundary. The eastern boundary is the line of longitude 
85[deg]17.0[min]W from its intersection with the shore (near Money Bayou 
between Cape San Blas and Indian Peninsula) to its intersection with the 
southern boundary.
    (2) A Map of Unit 11 follows:

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[GRAPHIC] [TIFF OMITTED] TR19MR03.070

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

[[Page 263]]

U.S. Highway 98 bridge at Fort Walton Beach, FL. The southern boundary 
is the 72 COLREGS line across East (Destin) Pass as defined at 33 CFR 
80.810(f). The lateral extent of Unit 12 is the MHW line on each 
shoreline of the included water bodies.
    (2) A Map of Unit 12 follows:
    [GRAPHIC] [TIFF OMITTED] TR19MR03.071
    

[[Page 264]]


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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.072

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

[[Page 266]]

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

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[GRAPHIC] [TIFF OMITTED] TR19MR03.073


[68 FR 13454, Mar. 19, 2003]

[[Page 268]]

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

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

----------------------------------------------------------------------------------------------------------------
                                                                  Boundaries to--
        State/region/site        -------------------------------------------------------------------------------
                                       Latitude            Longitude           Latitude            Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
    Western Aleutians:
        Agattu I.:
            Cape Sabak \1\......  52 23.5N..........  173 43.5E.........  52 22.0N..........  173 41.0E
            Gillon Point \1\....  52 24.0N..........  173 21.5E.........
        Attu I.\1\..............  52 54.5N..........  172 28.5E.........  52 57.5N..........  172 31.5E
        Buldir I.\1\............  52 20.5N..........  175 57.0E.........  52 23.5N..........  172 51.0E
    Central Aleutians:
        Adak I.\1\..............  51 36.5N..........  176 59.0W.........  51 38.0N..........  176 59.5W
        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.........

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


[58 FR 45278, Aug. 27, 1993]

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

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

----------------------------------------------------------------------------------------------------------------
                                                                  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.........  ..................  ..................

[[Page 270]]

 
        Tigalda I.\1\...........  54 08.5N..........  164 58.5W.........  ..................  ..................
        Umnak I./Cape Aslik \1\.  53 25.0N..........  168 24.5W.........  ..................  ..................
    Bering Sea:
        Cape Newenham \1\.......  58 39.0N..........  162 10.5W.........  ..................  ..................
        Hall I.\1\..............  60 37.0N..........  173 00.0W.........  ..................  ..................
        Round I.\1\.............  58 36.0N..........  159 58.0W.........  ..................  ..................
        St. Paul I:
            Northeast Point \1\.  57 15.0N..........  170 06.5W.........  ..................  ..................
            Sea Lion Rock \1\...  57 06.0N..........  170 17.5W.........  ..................  ..................
        St. George I:
            S Rookery \1\.......  56 33.5N..........  169 40.0W.........  ..................  ..................
            Dalnoi Point \1\....  56 36.0N..........  169 46.0W.........  ..................  ..................
        St. Lawrence I:
            S Punuk I.\1\.......  64 04.0N..........  168 51.0W.........  ..................  ..................
            SW Cape \1\.........  63 18.0N..........  171 26.0W.........  ..................  ..................
    Western Gulf of Alaska:
        Bird I. \1\.............  54 40.5N..........  163 18.0W.........  ..................  ..................
        Castle Rock \1\.........  55 17.0N..........  159 30.0W.........  ..................  ..................
        Caton I.\1\.............  54 23.5N..........  162 25.5W.........  ..................  ..................
        Jude I.\1\..............  55 16.0N..........  161 06.0W.........  ..................  ..................
        Lighthouse Rocks \1\....  55 47.5N..........  157 24.0W.........  ..................  ..................
        Nagai I.\1\.............  54 52.5N..........  160 14.0W.........  54 56.0N..........  160 15.0W
        Nagai Rocks \1\.........  55 50.0N..........  155 46.0W.........  ..................  ..................
        Sea Lion Rocks (Unga)     55 04.5N..........  160 31.0W.........  ..................  ..................
         \1\.
        South Rock \1\..........  54 18.0N..........  162 43.5W.........  ..................  ..................
        Spitz I.\1\.............  55 47.0N..........  158 54.0W.........  ..................  ..................
        The Whaleback \1\.......  55 16.5N..........  160 06.0W.........  ..................  ..................
    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.........

[[Page 271]]

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


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

 Table 3 to Part 226--Hydrologic Units Containing Critical Habitat for 
   Snake River Sockeye Salmon and Snake River Spring/Summer and Fall 
                             Chinook Salmon

----------------------------------------------------------------------------------------------------------------
                                                               Hydrologic unit number
                                   -----------------------------------------------------------------------------
       Hydrologic unit name                                     Spring/summer chinook
                                         Sockeye salmon                salmon              Fall chinook salmon
----------------------------------------------------------------------------------------------------------------
Hells Canyon......................  ........................                 17060101                  17060101
Imnaha............................  ........................                 17060102                  17060102
Lower Snake--Asotin...............                 17060103                  17060103                  17060103
Upper Grande Ronde................  ........................                 17060104   ........................
Wallowa...........................  ........................                 17060105   ........................
Lower Grande Ronde................  ........................                 17060106                  17060106
Lower Snake--Tucannon.............                 17060107                  17060107                  17060107
Palouse...........................  ........................  ........................                 17060108
Lower Snake.......................                 17060110                  17060110                  17060110
Upper Salmon......................                 17060201                  17060201   ........................
Pahsimeroi........................  ........................                 17060202   ........................
Middle Salmon--Panther............                 17060203                  17060203   ........................
Lemhi.............................  ........................                 17060204   ........................
Upper Middle Fork Salmon..........  ........................                 17060205   ........................
Lower Middle Fork Salmon..........  ........................                 17060206   ........................
Middle Salmon--Chamberlain........                 17060207                  17060207   ........................
South Fork Salmon.................  ........................                 17060208   ........................
Lower Salmon......................                 17060209                  17060209                  17060209
Little Salmon.....................  ........................                 17060210   ........................
Clearwater........................  ........................  ........................                 17060306
Lower North Fork Clearwater.......  ........................  ........................                 17060308
----------------------------------------------------------------------------------------------------------------
\1\ Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS);
  State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974.


[58 FR 68552, Dec. 28, 1993]

                           Table 4 [Reserved]

 Table 5 to Part 226--Hydrologic Units and Counties Containing Critical 
 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)......

[[Page 272]]

 
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]

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

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


[64 FR 24061, May 5, 1999]

[[Page 273]]



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:
    (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 Sec. Sec. 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;

[[Page 274]]

    (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.



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

[[Page 275]]

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.
    (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.

[[Page 276]]

    (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
    (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.

[[Page 277]]



Sec. 228.15  Waiver of right to participate.

    Persons who fail to notify the Assistant Administrator pursuant to 
Sec. Sec. 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 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:

[[Page 278]]

    (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.
    (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

[[Page 279]]

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.
    (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)).

[[Page 280]]

    (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 Sec. Sec. 229.4(k) and 
229.5(f).
    (g) The purposes of the regulations in this part are to:
    (1) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial fishing operations below 
the potential biological removal level for a particular stock, and
    (2) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial fishing operations to 
insignificant levels approaching a zero mortality and serious injury 
rate by the statutory deadline of April 30, 2001.

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



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

[[Page 281]]

deter marine mammals, target species, seasons and areas fished, 
qualitative data from logbooks or fisher reports, stranding data, and 
the species and distribution of marine mammals in the area, or at the 
discretion of the Assistant Administrator. Eligible commercial fisheries 
not specifically identified in the list of fisheries are deemed to be 
Category II fisheries until the next list of fisheries is published.
    Category III fishery means a commercial fishery determined by the 
Assistant Administrator to have a remote likelihood of, or no known 
incidental mortality and serious injury of marine mammals. A commercial 
fishery that has a remote likelihood of causing incidental mortality and 
serious injury of marine mammals is one that collectively with other 
fisheries is responsible for the annual removal of:
    (1) Ten percent or less of any marine mammal stock's potential 
biological removal level, or
    (2) More than 10 percent of any marine mammal stock's potential 
biological removal level, yet that fishery by itself is responsible for 
the annual removal of 1 percent or less of that stock's potential 
biological removal level. In the absence of reliable information 
indicating the frequency of incidental mortality and serious injury of 
marine mammals by a commercial fishery, the Assistant Administrator will 
determine whether the incidental serious injury or mortality is 
``remote'' by evaluating other factors such as fishing techniques, gear 
used, methods used to deter marine mammals, target species, seasons and 
areas fished, qualitative data from logbooks or fisher reports, 
stranding data, and the species and distribution of marine mammals in 
the area or at the discretion of the Assistant Administrator.
    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

[[Page 282]]

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.
    Insignificance threshold means the upper limit of annual incidental 
mortality and serious injury of marine mammal stocks by commercial 
fisheries that can be considered insignificant levels approaching a zero 
mortality and serious injury rate. An insignificance threshold is 
estimated as 10 percent of the Potential Biological Removal level for a 
stock of marine mammals. If certain parameters (e.g., maximum net 
productivity rate or the recovery factor in the calculation of the 
stock's potential biological removal level) can be estimated or 
otherwise modified from default values, the Assistant Administrator may 
use a modification of the number calculated from the simple formula for 
the insignificance threshold. The Assistant Administrator may also use a 
modification of the simple formula when information is insufficient to 
estimate the level of mortality and serious injury that would have an 
insignificant effect on the affected population stock and provide a 
rationale for using the modification.
    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 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[min]W, then due south to 33[deg]51[min]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[min] N. latitude where it intersects with the shoreline 
of New Jersey east to its intersection with 73[deg]20[min] W. longitude, 
then south to its intersection with 40[deg]05[min] N. latitude, then 
west to its intersection with the shoreline of New Jersey.
    Negligible impact has the same meaning as in Sec. 216.103 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.

[[Page 283]]

    Neutrally buoyant line means line with a specific gravity near that 
of sea water, so that the line neither sinks to the ocean floor nor 
floats at the surface, but remains close to the bottom.
    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.
    Qualified individual means an individual ascertained by NMFS to be 
reasonably able, though training or experience, to identify a right 
whale. Such individuals include, but are not limited to, NMFS staff, 
U.S. Coast Guard and Navy personnel trained in whale identification, 
scientific research survey personnel, whale watch operators and 
naturalists, and mariners trained in whale species identification 
through disentanglement training or some other training program deemed 
adequate by NMFS.
    Regional Fishery Management Council means a regional fishery 
management council established under section 302 of the Magnuson Fishery 
Conservation and Management Act.
    Reliable report means a credible right whale sighting report based 
upon which a DAM zone would be triggered.
    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 the north by a line extending eastward from the northern shoreline of 
Delaware at 38[deg]47[min] N. latitude (the latitude that corresponds 
with Cape Henlopen, DE), east to its intersection with 72[deg]30[min] W. 
longitude, south to the 33[deg]51[min] 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

[[Page 284]]

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[min] N. latitude, on 
the south by a line extending eastward from the northern shoreline of 
Delaware at 38[deg]47[min] N. latitude (the latitude that corresponds 
with Cape Henlopen, DE), and on the east by the 72[deg]30[min] 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; 67 FR 1141, Jan. 9, 2002; 67 FR 
1313, Jan. 10, 2002; 69 FR 6584, Feb. 11, 2004; 69 FR 43345, July 20, 
2004]



Sec. 229.3  Prohibitions.

    (a) It is prohibited to take any marine mammal incidental to 
commercial fishing operations except as otherwise provided in part 216 
of this chapter or in this part 229.
    (b) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with an observer, or attempt the same. This prohibition 
includes, but is not limited to, any action that interferes with an 
observer's responsibilities, or that creates an intimidating, hostile, 
or offensive environment.
    (c) It is prohibited to provide false information when registering 
for an Authorization Certificate, applying for renewal of the 
Authorization Certificate, reporting the injury or mortality of any 
marine mammal, or providing information to any observer.
    (d) It is prohibited to tamper with or destroy observer equipment in 
any way.
    (e) It is prohibited to retain any marine mammal incidentally taken 
in commercial fishing operations unless

[[Page 285]]

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 gillnet gear in the areas and for 
the times specified in Sec. 229.32(f)(1) through (f)(4), unless the 
gear or the person with gillnet gear complies with the gear marking 
requirements specified in Sec. 229.32(f)(2), the requirements for 
observer coverage as specified in Sec. 229.32(f)(3), and the closures, 
requirements, and other restrictions as specified in Sec. 229.32(f)(4).
    (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 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

[[Page 286]]

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; 67 FR 1313, Jan. 10, 2002; 67 FR 
59477, Sept. 23, 2002]



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 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

[[Page 287]]

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 
Sec. Sec. 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 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

[[Page 288]]

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 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

[[Page 289]]

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 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;

[[Page 290]]

    (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.
    (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

[[Page 291]]

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, 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.

[[Page 292]]

    (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 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.

[[Page 293]]



       Subpart B_Takes of Endangered and Threatened Marine Mammals



Sec. 229.20  Issuance of permits.

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

[[Page 294]]

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 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

[[Page 295]]

embayment, harbor, or inlet and to waters landward of the following 
lines:

                              Rhode Island

41[deg]27.99[min] N 71[deg]11.75[min] W TO 41[deg]28.49[min] N 
71[deg]14.63[min] W (Sakonnet River)
41[deg]26.96[min] N 71[deg]21.34[min] W TO 41[deg]26.96[min] 
71[deg]25.92[sec] W (Narragansett Bay)
41[deg]22.41[min] N 71[deg]30.80[min] W TO 41[deg]22.41[min] N 
71[deg]30.85[min] W (Pt. Judith Pond Inlet)
41[deg]21.31[min] 71[deg]38.30[min] W TO 41[deg]21.30[min] N 
71[deg]38.33[min] W (Ninigret Pond Inlet)
41[deg]19.90[min] N 71[deg]43.08[min] W TO 41[deg]19.90[min] N 
71[deg]43.10[min] W (Quonochontaug Pond Inlet)
41[deg]19.66[min] N 71[deg]45.75[min] W TO 41[deg]19.66[min] N 
71[deg]45.78[min] 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[min] N 72[deg]09.70[min] W TO 41[deg]04.50[min] N 
71[deg]51.60;min; W (Gardiners Bay)
40[deg]50.30[min] 72[deg]28.50[min] W TO 40[deg]50.36[min] N 
72[deg]28.67[min] W (Shinnecock Bay Inlet)
40[deg]45.70[min] N 72[deg]45.15[min] W TO 40[deg]45.72[min] N 
72[deg]45.30[min] W (Moriches Bay Inlet)
40[deg]37.32[min] N 73[deg]18.40[min] W TO 40[deg]38.00[min] N 
73[deg]18.56[min] W (Fire Island Inlet)
40[deg]34.40[min] N 73[deg]34.55[min] W TO 40[deg]35.08[min] N 
73[deg]35.22[min] W (Jones Inlet)

                               New Jersey

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

                            Maryland/Virginia

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

[[Page 296]]

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.
    (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

[[Page 297]]

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 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)

[[Page 298]]

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[m  67[deg]22[m
                                                        in]          in]
B.............................................  43[deg]41[m  68[deg]00[m
                                                        in]          in]
C.............................................  43[deg]12[m  69[deg]00[m
                                                        in]          in]
D.............................................  42[deg]49[m  69[deg]40[m
                                                        in]          in]
E.............................................  42[deg]15.5  69[deg]40[m
                                                      [min]          in]
F.............................................  42[deg]10[m  69[deg]56[m
                                                        in]          in]
K.............................................  41[deg]10[m  69[deg]6.5[
                                                        in]         min]
N.............................................  40[deg]45.5  71[deg]34[m
                                                      [min]          in]
M.............................................  40[deg]27.5  72[deg]14[m
                                                      [min]          in]
U.............................................  40[deg]12.5  72[deg]48.5
                                                      [min]        [min]
V.............................................  39[deg]50[m  73[deg]01[m
                                                        in]          in]
X.............................................  38[deg]39.5  73[deg]40[m
                                                      [min]          in]
Y.............................................  38[deg]12[m  73[deg]55[m
                                                        in]          in]
Z.............................................  37[deg]12[m  74[deg]44[m
                                                        in]          in]
ZA............................................  35[deg]34[m  74[deg]51[m
                                                        in]          in]
ZB............................................  35[deg]14.5  75[deg]31[m
                                                      [min]       in]\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 on all buoy lines. 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 may not exceed 2,000 
lb (906.9 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) [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

[[Page 299]]

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 year round unless the Assistant Administrator 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 paragraph (c)(1) of this section, and the following 
gear requirements for this area, which the Assistant Administrator may 
revise in accordance with paragraph (g) of this section:
    (1) Buoy Line Weak Links. All buoy lines must be attached to the 
main buoy with a weak link placed as close to each individual buoy as 
operationally feasible that meets the following specifications:
    (i) 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.
    (ii) The breaking strength of this weak link may not exceed 600 lb 
(272.4 kg).
    (iii) Weak links must be designed such that the bitter end of the 
buoy line is clean and free of knots when the link breaks. Splices are 
not considered to be knots for the purpose of this provision.
    (2) [Reserved]
    (9) Lobster Take Reduction Technology List. The following gear 
modification options comprise the Lobster Take Reduction Technology 
List:

[[Page 300]]

    (i) Through December 31, 2002, 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 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 and/or 
neutrally buoyant line.
    (iv) All ground lines must be comprised entirely of sinking and/or 
neutrally buoyant 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

[[Page 301]]

following four points: 41[deg]02.2[min] N/69[deg]02[min] W, 
41[deg]43.5[min] N/69[deg]36.3[min] W, 42[deg]10[min] N/68[deg]31[min] 
W, and 41[deg]38[min] N/68[deg]13[min] 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 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[min] N/69[deg]02[min] W, 
41[deg]43.5[min] N/69[deg]36.3[min] W, 41[deg]40[min] N/69[deg]45[min] 
W, and 41[deg]00[min] N/69[deg]05[min] 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[min] 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

[[Page 302]]

(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, 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 consists of all U.S. waters bounded by the line 
defined by the following points: The southern shore of Long Island, NY, 
at 72[deg]30[min] W. long., then due south to 33[deg]51[min] N. lat., 
thence west to the North Carolina-South Carolina border, as defined in 
Sec. 229.2.
    (ii) Area-specific gear requirements. From December 1 through March 
31, no person may fish with anchored gillnet gear in the Mid-Atlantic 
Coastal 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 paragraph 
(d)(1) of this section, and the following area-specific requirements, 
which the Assistant Administrator may revise 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 placed as close to each individual buoy as 
operationally feasible that meets 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 breaking strength, 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 may not exceed 1,100 
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 
that meet the following specifications:
    (1) Weak links must be inserted in the center of the floatline of 
each 50-fathom (300-ft or 91.4-m) net panel in a net string or every 25 
fathoms for longer panels.
    (2) The breaking strength of these weak links may not exceed 1,100 
lb (498.8 kg).
    (C) Tending/anchoring. All gillnets must return to port with the 
vessel or be anchored at each end with an anchor capable of the holding 
power of at least a 22-lb (10.0-kg) Danforth-style anchor.
    (8) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:

[[Page 303]]

    (i) All buoy lines are attached to the buoy line with a weak link 
having a maximum breaking strength of up to 1,100 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.
    (ii) Weak links with a breaking strength of up to 1,100 lb (498.8 
kg) must be inserted in the center of the floatline (headrope) of each 
50 fathom net panel or every 25 fathoms for longer panels.
    (iii) All buoy lines must be comprised entirely of sinking and/or 
neutrally buoyant 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 the southeast U.S. restricted area 
and the southeast U.S. observer area--(1) Management areas--(i) 
Southeast U.S. restricted area. The southeast U.S. restricted area 
consists of the area from 32[deg]00[min] N lat. (near Savannah, GA) 
south to 27[deg]51[min] N lat. (near Sebastian Inlet, FL), extending 
from the shore eastward to 80[deg]00[min] 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[min] N lat. (near West Palm Beach, 
FL) and extending from the shore eastward out to 80[deg]00[min] W long., 
unless the Assistant Administrator changes that area in accordance with 
paragraph (g) of this section.
    (2) Gear marking requirements. From November 15 through March 31 of 
the following year, no person may fish with gillnet gear in the 
southeast U.S. observer area unless that gear is marked according to the 
gear marking code specified under paragraph (b) of this section. All 
buoy lines must be marked within 2 ft (0.6 m) of the top of the buoy 
line and midway along the length of the buoy line. From November 15, 
1999, each net panel must be marked along both the float line and the 
lead line at least once every 100 yards (92.4 m).
    (3) 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.
    (4) Restricted period, closure and restrictions, and exemption. (i) 
Restricted period. The restricted period for the southeast U.S. 
restricted area is from November 15 through March 31 of the following 
year, unless the Assistant Administrator revises this restricted period 
in accordance with paragraph (g) of this section.
    (ii) Closure for shark gillnet gear. Except as provided under 
paragraph (f)(4)(iv) of this section, no person may fish with shark 
gillnet gear in the southeast U.S. restricted area during the restricted 
period.
    (iii) Restrictions for straight sets. Except as provided for shark 
gillnet gear under paragraph (f)(4)(iv) of this section, no person may 
fish with a straight set of gillnet gear at night in the southeast U.S. 
restricted area during the restricted period. A straight set is defined 
as a set in which the gillnet is placed in a line in the water column, 
as opposed to a circular set in which the gillnet is placed to encircle 
an area in the water column.
    (iv) Special provision for strikenets. Fishing for sharks with 
strikenet gear is exempt from the restrictions under

[[Page 304]]

paragraphs (f)(4)(ii) and (f)(4)(iii) of this section if:
    (A) No nets are set at night or when visibility is less than 500 
yards (460m);
    (B) Each set is made under the observation of a spotter plane;
    (C) No net is set within 3 nautical miles of a right, humpback or 
fin whale; and
    (D) If a right, humpback or fin whale moves within 3 nautical miles 
of the set gear, the gear is removed immediately from the water.
    (g) Other provisions. In addition to any other emergency authority 
under the Marine Mammal Protection Act, the Endangered Species Act, the 
Magnuson-Stevens Fishery Conservation and Management Act, or other 
appropriate authority, the Assistant administrator may take action under 
this section in the following situations:
    (1) Entanglements in critical habitat. If a serious injury or 
mortality of a right whale occurs in the Cape Cod Bay critical habitat 
from January 1 through 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.
    (3) For the purpose of reducing the risk of fishery interactions 
with right whales, NMFS may establish a temporary Dynamic Area 
Management (DAM) zone in the following manner:
    (i) Trigger. Upon receipt of a single reliable report from a 
qualified individual of three or more right whales within an area NMFS 
will plot each individual sighting (event) and draw a circle with a 2.8 
nm (5.2 km) radius around it, which will be adjusted for the number of 
right whales sighted such that a density of at least 0.04 right whales 
per nm2 (1.85 km2) is maintained within the circle. If any circle or 
group of contiguous circles includes 3 or more right whales, NMFS would 
consider this core area and its surrounding waters a candidate DAM zone.
    (ii) DAM zone. Areas for consideration for DAM zones are limited to 
areas north of 40o N latitude. Having identified any circle or group of 
contiguous circles including 3 or more right whales as candidates for 
protection, as identified in paragraph (g)(3)(i) of this section, NMFS 
will determine the extent of the DAM zone as follows:
    (A) A larger circular zone will be drawn to extend 15 nm (27.8 km) 
from the perimeter of a circle around each core area.
    (B) The DAM zone will then be defined by a polygon drawn outside but 
tangential to the circular buffer zone(s). The latitudinal and 
longitudinal coordinates of the corners of the polygon will then be 
identified.
    (iii) Requirements and prohibitions within DAM zones. Notice of 
specific area restrictions will be published in the Federal Register and 
will become effective 2 days after publication. Gear not in compliance 
with the imposed restrictions may not be set in the DAM zone after the 
effective date. NMFS may:

[[Page 305]]

    (A) Require owners of gillnet and lobster gear set within the DAM 
zone to remove all such gear within 2 days after notice is published in 
the Federal Register,
    (B) Allow fishing within a DAM zone with anchored gillnet and 
lobster trap gear, provided such gear satisfies the requirements 
specified in paragraphs (g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) of this 
section, except that a second buoy line and a section of floating line 
in the bottom portion of each line not to exceed one-third the overall 
length of the buoy line are allowed within a DAM zone. These 
requirements are in addition to requirements found in Sec. 229.32 (b) 
through (d) but supersede them when the requirements in paragraphs 
(g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) of this section, with the exception 
that a second buoy line and a section of floating line in the bottom 
portion of each line not to exceed one-third the overall length of the 
buoy line are allowed within a DAM zone, are more restrictive than those 
in Sec. 229.32 (b) through (d). Requirements for anchored gillnet gear 
in Other Northeast Gillnet Waters are as specified in paragraphs 
(g)(4)(i)(B)(1) of this section, except that a second buoy line and a 
section of floating line in the bottom portion of each line not to 
exceed one-third the overall length of the buoy line are allowed within 
a DAM zone. Requirements for lobster trap gear in Offshore Lobster 
Waters, Northern Nearshore Lobster Waters and Northern Inshore State 
Lobster Waters are as specified in paragraph (g)(4)(i)(B)(2) of this 
section, except that a second buoy line and a section of floating line 
in the bottom portion of each line not to exceed one-third the overall 
length of the buoy line are allowed within a DAM zone. Requirements for 
anchored gillnet gear in Cape Cod Bay Restricted Area (May 16 through 
December 31), Stellwagen Bank/Jeffreys Ledge Restricted Area, Great 
South Channel Restricted Gillnet Area (July 1 through March 31), Great 
South Channel Sliver Restricted Area (July 1 through March 31), and Mid-
Atlantic Coastal Waters are the same as requirements for Other Northeast 
Gillnet Waters. Requirements for lobster trap gear in Southern Nearshore 
Lobster Waters, Cape Cod Bay Restricted Area (May 16 through December 
31) and Stellwagen Bank/Jeffreys Ledge Restricted Area are the same as 
requirements for Northern Nearshore Lobster Waters and Northern Inshore 
State Lobster Waters. Requirements for lobster trap gear in the Great 
South Channel Restricted Lobster Area (July 1 through March 31) are the 
same as requirements for Offshore Lobster Waters.
    (C) Issue an alert to fishermen using appropriate media to inform 
them of the fact that right whale density in a certain area has 
triggered a DAM zone. In the alert, NMFS will provide detailed 
information on the location of the DAM zone and the number of animals 
sighted within it. Furthermore, NMFS will request that fishermen 
voluntarily remove lobster trap and anchored gillnet gear from the DAM 
zone and ask that no additional gear be set inside it for 15 days or 
until NMFS rescinds the alert.
    (D) The determination of whether restrictions will be imposed within 
a DAM zone would be based on NMFS' review of a variety of factors, 
including but not limited to: the location of the DAM zone with respect 
to other fishery closure areas, weather conditions as they relate to the 
safety of human life at sea, the type and amount of gear already present 
in the area, and a review of recent right whale entanglement and 
mortality data.
    (iv) Restricted period. Any DAM zone will remain in effect for a 
minimum period of 15 days. At the conclusion of the 15-day period, the 
DAM zone will expire automatically unless it is extended by subsequent 
publication in the Federal Register.
    (v) Extensions of the restricted period. Any 15-day period may be 
extended if NMFS determines that the trigger established in paragraph 
(g)(3)(i) of this section continues to be met.
    (vi) Reopening of restricted zone. NMFS may remove any gear 
restriction or prohibition and reopen the DAM zone prior to its 
automatic expiration if there are no confirmed sightings of right whales 
for at least 1 week, or other credible evidence indicates that right 
whales have left the DAM zone. NMFS will notify the public of the 
reopening of a DAM zone prior to

[[Page 306]]

the expiration of the 15-day period by issuing a document in the Federal 
Register and through other appropriate media.
    (4) Seasonal Area Management (SAM) Program. In addition to existing 
requirements for vessels deploying anchored gillnet or lobster trap gear 
in the Other Northeast Gillnet Waters, Northern Inshore State Lobster 
Waters, Northern Nearshore Lobster Waters, and Offshore Lobster Waters 
found at Sec. 229.32 (b) - (d), a vessel may fish in the SAM Areas as 
described in paragraphs (g)(4)(i)(A) and (g)(4)(ii)(A) of this section, 
which overlay the previously mentioned areas, provided the vessel 
complies with the gear requirements specified in paragraphs (g)(4)(i)(B) 
and (g)(4)(ii)(B) of this section during the times specified in those 
paragraphs. The gear requirements in (g)(4)(i)(B) and (g)(4)(ii)(B) 
supercede requirements found at Sec. 229.32 (b) - (d) when the former 
are more restrictive than the latter. Copies of a chart depicting these 
areas are available from the Regional Administrator upon request.
    (i) SAM West. (A) Area. SAM West consists of all waters bounded by 
straight lines connecting the following points in the order stated:

                                SAM West
------------------------------------------------------------------------
              Point                      N. Lat.            W. Long.
------------------------------------------------------------------------
SAM1.............................  42[deg]04.8[min]..  70[deg]10[min]
SAM2.............................  42[deg]12[min]....  70[deg]15[min]
SAM3.............................  42[deg]30[min]....  70[deg]15[min]
SAM4.............................  42[deg]30[min]....  69[deg]24[min]
SAM5.............................  41[deg]48.9[min]..  69[deg]24[min]
SAM6.............................  41[deg]45[min]....  69[deg]33[min]
SAM7.............................  41[deg]45[min]....  69[deg]55.8[min]
------------------------------------------------------------------------

    (B) Gear requirements. Unless otherwise authorized by the Assistant 
Administrator for Fisheries, NMFS, in accordance with paragraph (g)(2) 
of this section, from March 1 through April 30, no person may fish with 
anchored gillnet or lobster trap gear in SAM West unless that person's 
gear complies with the following gear characteristics:
    (1) Anchored gillnet gear. (i) Ground lines and Buoy lines--All 
ground lines and buoy lines must be made entirely of sinking or 
neutrally buoyant line. Floating ground lines and buoy lines are 
prohibited.
    (ii) Buoy weak links--All buoy lines are attached to the buoy with a 
weak link having a maximum breaking strength of up to 1,100 lb (498.9 
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) Net panel weak link--Each net panel must have a total of five 
weak links. The breaking strength of each of these weak links must not 
exceed 1,100 lb (498.9 kg). The weak link requirements apply to all 
variations in panel size. Three of the five weak links must be located 
on the floatline. One floatline weak link must be placed at the center 
of the net panel, and two weak links must be placed as close as possible 
to each of the bridle ends of the net panel. The remaining two of the 
five weak links must be placed in the center of each of the up and down 
lines at either end of each panel.
    (iv) Buoy line--No more than one buoy line per net string may be 
used, and it must be deployed at the northern or western end of the 
gillnet string depending on the direction of the set.
    (v) Gillnet anchor--All anchored gillnets, regardless of the number 
of net panels, must be securely anchored with a holding power of at 
least a 22 lb (9.9 kg) Danforth-style anchor at each end of the net 
string.
    (2) Lobster Trap gear. (i) Ground lines and Buoy lines--All ground 
lines and buoy lines must be made entirely of sinking or neutrally 
buoyant line. Floating ground lines and buoy lines are prohibited.
    (ii) Northern Inshore State Lobster Waters and Northern Nearshore 
Lobster Waters Areas buoy weak links--All buoy lines must be attached to 
the buoy with a weak link having a maximum breaking strength of up to 
600-lb (272.4-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 for Fisheries.
    (iii) Offshore Lobster Waters Area buoy weak links--All buoy lines 
must be attached to the buoy with a weak link having a maximum breaking

[[Page 307]]

strength of up to 1,500 lb (680.4 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.
    (iv) Buoy line--No more than one buoy line per trawl is allowed. The 
buoy line must be attached to the northern or western end of the trawl 
string depending on the direction of the set. These requirements 
supersede the requirements found at Sec. 697.21, which require one 
radar reflector at each end of a trawl with more than three traps.
    (ii) SAM East. (A) Area. SAM East consists of all waters bounded by 
straight lines connecting the following points in the order stated:

                                SAM EAST
------------------------------------------------------------------------
              Point                      N. Lat.            W. Long.
------------------------------------------------------------------------
SAM5.............................  41[deg]48.9[min]..  69[deg]24[min]
SAM4.............................  42[deg]30[min]....  69[deg]24[min]
SAM8.............................  42[deg]30[min]....  67[deg]26[min]
SAM9.............................  41[deg]45[min]....  66[deg]50[min]
SAM10............................  41[deg]45[min]....  68[deg]17[min]
SAM11............................  42[deg]10[min]....  68[deg]31[min]
------------------------------------------------------------------------

    (B) Gear requirements. Unless otherwise authorized by the Assistant 
Administrator for Fisheries, NMFS, in accordance with paragraph (g)(2) 
of this section, from May 1 through July 31, no person may fish with 
anchored gillnet or lobster trap gear in SAM East unless that person's 
gear complies with the gear characteristics found at paragraph 
(g)(4)(i)(B) of this section.
    Note to Sec. 229.32: Additional regulations that affect fishing 
with lobster trap gear have also been issued under authority of the 
Atlantic Coastal Fisheries Cooperative Management Act in part 697 of 
this title.

[64 FR 7552, Feb. 16, 1999, as amended at 65 FR 70317, Nov. 22, 2000; 65 
FR 80377, Dec. 21, 2000; 67 FR 1141, 1159, Jan. 9, 2002; 67 FR 1313, 
Jan. 10, 2002; 67 FR 15494, Apr. 2, 2002; 67 FR 59477, Sept. 23, 2002; 
67 FR 65727, Oct. 28, 2002; 68 FR 19465, Apr. 21, 2003; 68 FR 51200, 
Aug. 26, 2003]



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

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

                         Northeast Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
NE1                    (\1\)                  68[deg]55.0[min]
NE2                    43[deg]29.6[min]       68[deg]55.0[min]
NE3                    44[deg]04.4[min]       67[deg]48.7[min]
NE4                    44[deg]06.9[min]       67[deg]52.8[min]
NE5                    44[deg]31.2[min]       67[deg]02.7[min]
NE6                    (\1\)                  67[deg]02.7[min]
------------------------------------------------------------------------
\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[min]         (\1\)
MC2                    42[deg]30[min]         70[deg]15[min]
MC3                    42[deg]40[min]         70[deg]15[min]
MC4                    42[deg]40[min]         70[deg]00[min]
MC5                    43[deg]00[min]         70[deg]00[min]
MC6                    43[deg]00[min]         69[deg]30[min]
MC7                    43[deg]30[min]         69[deg]30[min]
MC8                    43[deg]30[min]         69[deg]00[min]
MC9                    (\2\)                  69[deg]00[min]
------------------------------------------------------------------------
\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)

[[Page 308]]

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[min]         (\1\)
MB2                    42[deg]30[min]         70[deg]30[min]
MB3                    42[deg]12[min]         70[deg]30[min]
MB4                    42[deg]12[min]         70[deg]00[min]
MB5                    (\2\)                  70[deg]00[min]
MB6                    42[deg]00[min]         (\2\)
MC7                    42[deg]00[min]         (\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[min]
CCS2                   40[deg]40[min]         71[deg]45[min]
CCS3                   40[deg]40[min]         70[deg]30[min]
CCS4                   (\2\)                  70[deg]30[min]
------------------------------------------------------------------------
\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[min]         69[deg]30[min]
OFS2                   43[deg]10[min]         69[deg]10[min]
OFS3                   43[deg]10[min]         67[deg]40[min]
OFS4                   42[deg]10[min]         67[deg]40[min]
OFS5                   42[deg]10[min]         69[deg]30[min]
OFS6                   42[deg]50[min]         69[deg]30[min]
------------------------------------------------------------------------

    (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[min]         69[deg]00[min]
CL2                    42[deg]30[min]         68[deg]30[min]
CL3                    43[deg]00[min]         68[deg]30[min]
CL4                    43[deg]00[min]         69[deg]00[min]
CL5                    42[deg]30[min]         69[deg]00[min]
------------------------------------------------------------------------

    (b) Pingers--(1) Pinger specifications. For the purposes of this 
subpart, a pinger is an acoustic deterrent device which, when immersed 
in water, broadcasts a 10 kHz (2 kHz) sound at 132 
dB (4 dB) re 1 micropascal at 1 m, lasting 300 
milliseconds (15 milliseconds), and repeating 
every 4 seconds (.2 seconds).
    (2) Pinger attachment. An operating and functional pinger must be 
attached at the end of each string of the gillnets and at the bridle of 
every net within a string of nets.
    (c) Pinger training and certification. Beginning on January 1, 1999, 
the operator of a vessel may not fish with, set or haul back sink 
gillnets or gillnet gear, or allow such gear to be in closed areas where 
pingers are required as specified under paragraph (b) of this section, 
unless the operator has satisfactorily completed the pinger 
certification training program and possesses on board the vessel a valid 
pinger training certificate issued by NMFS. Notice will be given 
announcing the times and locations of pinger certification training 
programs.

[[Page 309]]

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

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



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

    (a)(1) Regulated waters. The regulations in this section apply to 
all waters in the Mid-Atlantic bounded on the east by 72[deg]30[min] W. 
longitude and on the south by the North Carolina/South Carolina border 
(33[deg]51[min] 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[min] N 72[deg]45.15[min] W TO 40[deg]45.72[min] N 
72[deg]45.30[min] W (Moriches Bay Inlet)
40[deg]37.32[min] N 73[deg]18.40[min] W TO 40[deg]38.00[min] N 
73[deg]18.56[min] W (Fire Island Inlet)
40[deg]34.40[min] N 73[deg]34.55[min] W TO 40[deg]35.08[min] N 
73[deg]35.22[min] W (Jones Inlet)

                           New Jersey/Delaware

39[deg]45.90[min] N 74[deg]05.90[min] W TO 39[deg]45.15[min] N 
74[deg]06.20[min] W (Barnegat Inlet)
39[deg]30.70[min] N 74[deg]16.70[min] W TO 39[deg]26.30[min] N 
74[deg]19.75[min] W (Beach Haven to Brigantine Inlet)
38[deg]56.20[min] N 74[deg]51.70[min] W TO 38[deg]56.20[min] N 
74[deg]51.90[min] 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[min] N 75[deg]05.10[min] W TO 38[deg]19.35[min] N 
75[deg]05.25[min] W (Ocean City Inlet)
37[deg]52.[min] N 75[deg]24.30[min] W TO 37[deg]11.90[min] N 
75[deg]48.30[min] W (Chincoteague to Ship Shoal Inlet)
37[deg]11.10[min] N 75[deg]49.30[min] W TO 37[deg]10.65[min] N 
75[deg]49.60[min] W (Little Inlet)
37[deg]07.00[min] N 75[deg]53.75[min] W TO 37[deg]05.30[min] N 
75[deg]56.[min] W (Smith Island Inlet)

[[Page 310]]

                             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 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

[[Page 311]]

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.
    (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 312]]

 Figure 1 to Part 229--Drift Gillnet Pinger Configuration and Extender 
                              Requirements
[GRAPHIC] [TIFF OMITTED] TR22JA99.001


[64 FR 3434, Jan. 22, 1999]

[[Page 313]]



                          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 314]]

    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 315]]

    (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.



 SUBCHAPTER E_TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]



[[Page 316]]



                      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 and for its unloading, 
receiving, holding, processing, or distribution for commercial purposes.
    CCF means Capital Construction Fund.

[[Page 317]]

    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 contractual 
arrangements associated with the U.S. note.
    Underutilized fishery means:
    (1) For a vessel, any fish species harvested below its sustainable 
yield.

[[Page 318]]

    (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 
the U.S. or accommodate the notemaker; actual if, and to the same 
monetary extent that, the guarantor does). Payment of the guaranteed 
note

[[Page 319]]

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.).
    (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

[[Page 320]]

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.
    (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

[[Page 321]]

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.



                 Subpart C_Interjurisdictional Fisheries



Sec. 253.20  Definitions.

    The terms used in this subpart have the following meanings:

[[Page 322]]

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

[[Page 323]]



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 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

[[Page 324]]

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.
    (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.

[[Page 325]]

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.
    (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

[[Page 326]]

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,
    (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

[[Page 327]]

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 
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

[[Page 328]]

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:
    (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

[[Page 329]]

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 
fish ery provided, however, that this para graph shall apply only to 
construction or reconstruction for which a binding contract has been 
reduced to writing prior to the date upon which condi tional fishery 
adoption occurred. Nevertheless, the conditions as set forth in 
paragraph (d) of this section shall apply.
    (d) Conditional fishery adoption shall have no effect whatsoever 
upon a

[[Page 330]]

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 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

[[Page 331]]

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.



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

[[Page 332]]

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 qual ified) made without first 
having obtained Secretary's consent. The Secre tary may ratify as 
qualified any withdrawal made without first having obtained the 
Secretary's consent therefor, provided the withdrawal was such as would 
have resulted in the Secretary's consent had it been requested before 
withdrawal, and provided further that the party's request for consent 
(together with sufficient supporting data to enable issuance of the 
Secretary's consent) is submitted to the Secretary either before the end 
of Period (bb) or, if extension was requested and received, before the 
end of Period (cc).
    (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.
    (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

[[Page 333]]

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 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

[[Page 334]]

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 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

[[Page 335]]

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.
    (d) These Sec. Sec. 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 Sec. Sec. 259.30 through 
259.38 are adopted. These Sec. Sec. 259.30 through 259.38 are 
applicable to all Interim CCF Agreements entered into before the date 
these Sec. Sec. 259.30 through 259.38 are adopted, with the following 
exceptions only:

[[Page 336]]

    (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 Sec. Sec. 259.30 through 259.38 are adopted.
    (e) These Sec. Sec. 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 337]]



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 338]]

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 339]]

    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 340]]

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 341]]

    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 342]]



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 343]]

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 there of) 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 344]]

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 345]]

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 346]]



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 347]]

    (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 348]]



                                 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 (300x407)....
 
                 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 (404x700).............
 
                 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 (603x812)......................
 
                 group 4
 
Any type of container of a volume             200 or less         201-800       801-1,600     1,601-2,400  2,401[ndash
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 per formed 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 354]]



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 355]]

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 356]]

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 357]]

[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 358]]

    (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 359]]

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 360]]

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. Trans cripts of testimony will be available in any proceeding 
under the regula tions 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 follow ing 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 361]]

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 Hear ing 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 de scribed 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 362]]

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

[[Page 363]]

    (15) Submit to NMFS, four (4) copies of each label which may or may 
not bear official identification marks, when such labels are to be 
withdrawn from inspection or when approved labels are disapproved for 
further use under inspection;
    (16) Notify NMFS in advance of the proposed use of any labels which 
require obliteration of any official identification marks, and all 
reference to the inspection service on approved labels which have been 
withdrawn or disapproved for use;
    (17) Accord representatives of NMFS at all reasonable times free and 
immediate access to establishment(s) and official establishment(s) under 
applicant's control for the purpose of checking codes, coded products, 
coding devices, coding procedures, official identification marks 
obliteration, and use of withdrawn or disapproved labels.
    (d) Termination of inspection services:
    (1) The fishery products inspection service, including the issuance 
of inspection reports, shall be rendered from the date of the 
commencement specified in the contract and continue until suspended or 
terminated:
    (i) By mutual consent;
    (ii) by either party giving the other party sixty (60) days' written 
notice specifying the date of suspension or termination;
    (iii) by one (1) day's written notice by NMFS in the event the 
applicant fails to honor any invoice within ten (10) days after date of 
receipt of such invoice covering the full costs of the inspection 
service provided, or in the event the applicant fails to maintain its 
designated plants in a sanitary condition or to use wholesome raw 
materials for processing as required by NMFS, or in the event the 
applicant fails to comply with any provisions of the regulations 
contained in this part;
    (iv) by automatic termination in case of bankruptcy, closing out of 
business, or change in controlling ownership.
    (2) In case the contracting party wishes to terminate the fishery 
products inspection service under the terms of paragraph (d)(1)(i) or 
(ii) of this section, either the service must be continued until all 
unused containers, labels, and advertising material on hand or in 
possession of his supplier bearing official identification marks, or 
reference to fishery products inspection service have been used, or said 
containers, labels, and advertising material must be destroyed, or 
official identification marks, and all other reference to the fishery 
products inspection service on said containers, labels, advertising 
material must be obliterated, or assurance satisfactory to NMFS must be 
furnished that such containers, labels, and advertising material will 
not be used in violation of any of the provisions of the regulations in 
the part.
    (3) In case the fishery products inspection service is terminated 
for cause by NMFS under the terms of paragraph (d)(1)(iii) of this 
section, or in case of automatic termination under terms of paragraph 
(d)(1)(iv) of this section, the contracting party must destroy all 
unused containers, labels, and advertising material on hand bearing 
official identification marks, or reference to fishery products 
inspection service, or must obliterate official identification marks, 
and all reference to the fishery products inspection service on said 
containers, labels and advertising material.

After termination of the fishery products inspection service, NMFS may, 
at such time or times as it may determine to be necessary, during 
regular business hours, enter the establishment(s) or other facilities 
in order to ascertain that the containers, labels, and advertising 
material have been altered or disposed of in the manner provided herein, 
to the satisfaction of NMFS.

[36 FR 21039, Nov. 3, 1971]



Sec. 260.98  Premises.

    The premises about an official establishment shall be free from 
conditions which may result in the contamination of food including, but 
not limited to, the following:
    (a) Strong offensive odors;
    (b) Improperly stored equipment, litter, waste, refuse, and uncut 
weeds or grass within the immediate vicinity of the buildings or 
structures that may constitute an attractant, breeding place, or 
harborage for rodents, insects, and other pests;
    (c) Excessively dusty roads, yards, or parking lots that may 
constitute a

[[Page 364]]

source of contamination in areas where food is exposed;
    (d) Inadequately drained areas that may contribute contamination to 
food products through seepage or foot-borne filth and by providing a 
breeding place for insects or micro-organisms;

If the grounds of an official establishment are bordered by grounds not 
under the official establishment operator's control of the kind 
described in paragraphs (b) through (d) of this section, care must be 
exercised in the official establishment by inspection, extermination, or 
other means to effect exclusion of pests, dirt, and other filth that may 
be a source of food contamination.

[36 FR 21040, Nov. 3, 1971]



Sec. 260.99  Buildings and structures.

    The buildings and structures shall be properly constructed and 
maintained in a sanitary condition, including, but not limited to the 
following requirements:
    (a) Lighting. There shall be sufficient light (1) consistent with 
the use to which the particular portion of the building is devoted, and 
(2) to provide for efficient cleaning. Belts and tables on which 
picking, sorting, or trimming operations are carried on shall be 
provided with sufficient nonglaring light to insure adequacy of the 
respective operation. Light bulbs, fixtures, skylights, or other glass 
suspended over exposed food in any step of preparation shall be of the 
safety type or otherwise protected to prevent food contamination in case 
of breakage.
    (b) Ventilation. There shall be sufficient ventilation in each room 
and compartment thereof to prevent excessive condensation of moisture 
and to insure sanitary and suitable processing and operating conditions. 
If such ventilation does not prevent excessive condensation, the 
Director may require that suitable facilities be provided to prevent the 
condensate from coming in contact with equipment used in processing 
operations and with any ingredient used in the manufacture or production 
of a processed product.
    (c) Drains and gutters. All drains and gutters shall be properly 
installed with approved traps and vents. The drainage and plumbing 
system must permit the quick runoff of all water from official 
establishment buildings, and surface water around buildings and on the 
premises; and all such water shall be disposed of in such a manner as to 
prevent a nuisance or health hazard. Tanks or other equipment whose 
drains are connected to the waste system must have such screens and 
vacuum breaking devices affixed so as to prevent the entrance of waste 
water, material, and the entrance of vermin to the processing tanks or 
equipment.
    (d) Water supply. There shall be ample supply of both hot and cold 
water; and the water shall be of safe and sanitary quality with adequate 
facilities for its (1) distribution throughout buildings, and (2) 
protection against contamination and pollution.

Sea water of safe suitable and sanitary quality may be used in the 
processing of various fishery products when approved by NMFS prior to 
use.
    (e) Construction. Roofs shall be weathertight. The walls, ceilings, 
partitions, posts, doors, and other parts of all buildings and 
structures shall be of such materials, construction, and finish as to 
permit their efficient and thorough cleaning. The floors shall be 
constructed of tile, cement, or other equally impervious material, shall 
have good surface drainage, and shall be free from openings or rough 
surfaces which would interfere with maintaining the floors in a clean 
condition.
    (f) Processing rooms. Each room and each compartment in which any 
processed products are handled, processed, or stored (1) shall be so 
designed and constructed as to insure processing and operating 
conditions of a clean and orderly character; (2) shall be free from 
objectional odors and vapors; and (3) shall be maintained in a clean and 
sanitary condition.
    (g) Prevention of animals and insects in official establishment(s). 
Dogs, cats, birds, and other animals (including, but not being limited 
to rodents and insects) shall be excluded from the rooms from which 
processed products are being prepared, handled, or stored and from any 
rooms from which ingredients (including, but not being limited to salt, 
sugar, spices, flour, batter, breading, and fishery products) are 
handled and stored. Screens, or other

[[Page 365]]

devices, adequate to prevent the passage of insects shall, where 
practical, be provided for all outside doors and openings. The use of 
chemical compounds such as cleaning agents, insecticides, bactericides, 
or rodent poisons shall not be permitted except under such precautions 
and restrictions as will prevent any possibility of their contamination 
of the processed product. The use of such compounds shall be limited to 
those circumstances and conditions as approved by NMFS.
    (h) Inspector's office. Furnished suitable and adequate office 
space, including, but not being limited to, light, heat, and janitor 
service shall be provided rent free in official establishments for use 
for official purposes by the inspector and NMFS representatives. The 
room or rooms designated for this purpose shall meet with the approval 
of NMFS and shall be conveniently located, properly ventilated, and 
provided with lockers or cabinets suitable for the protection and 
storage of inspection equipment and supplies and with facilities 
suitable for inspectors to change clothing.
    (i) Adequate parking space, conveniently located, for private or 
official vehicles used in connection with providing inspection services 
shall be provided.

[36 FR 21040, Nov. 3, 1971]



Sec. 260.100  Facilities.

    Each official establishment shall be equipped with adequate sanitary 
facilities and accommodations, including, but not being limited to, the 
following:
    (a) Containers approved for use as containers for processed products 
shall not be used for any other purpose.
    (b) No product or material not intended for human food or which 
creates an objectionable condition shall be processed, handled, or 
stored in any room, compartment, or place where any fishery product is 
manufactured, processed, handled, or stored.
    (c) Suitable facilities for cleaning and sanitizing equipment (e.g., 
brooms, brushes, mops, clean cloths, hose, nozzles, soaps, detergent, 
sprayers) shall be provided at convenient locations throughout the 
plant.

[36 FR 21040, Nov. 3, 1971]



Sec. 260.101  Lavatory accommodations.

    Modern lavatory accommodations, and properly located facilities for 
cleaning and sanitizing utensils and hands, shall be provided.
    (a) Adequate lavatory and toilet accommodations, including, but not 
being limited to, running hot water (135 [deg]F. or more) and cold 
water, soap, and single service towels, shall be provided. Such 
accommodations shall be in or near toilet and locker rooms and also at 
such other places as may be essential to the cleanliness of all 
personnel handling products.
    (b) Sufficient containers with covers shall be provided for used 
towels and other wastes.
    (c) An adequate number of hand washing facilities serving areas 
where edible products are prepared shall be operated by other than hand-
operated controls, or shall be of a continuous flow type which provides 
an adequate flow of water for washing hands.
    (d) Durable signs shall be posted conspicuously in each toilet room 
and locker room directing employees to wash hands before returning to 
work.
    (e) Toilet facilities shall be provided according to the following 
formula:

------------------------------------------------------------------------
                                                                Toilet
                      Number of persons                          bowls
                                                               required
------------------------------------------------------------------------
1 to 15, inclusive..........................................           1
16 to 35, inclusive.........................................           2
36 to 55, inclusive.........................................       \1\ 3
56 to 80, inclusive.........................................       \1\ 4
For each additional 30 persons in excess of 80..............       \1\ 1
------------------------------------------------------------------------
\1\ Urinals may be substituted for toilet bowls but only to the extent
  of one-third of the total number of bowls required.


All toilet equipment shall be kept operative, in good repair, and in a 
sanitary condition.

[36 FR 21041, Nov. 3, 1971]



Sec. 260.102  Equipment.

    All equipment used for receiving, washing, segregating, picking, 
processing, packaging, or storing any processed products or any 
ingredients used in the manufacture or production thereof, shall be of 
such design, material, and construction as will:
    (a) Enable the examination, segregation, preparation, packaging, and 
other processing operations applicable to

[[Page 366]]

processed products, in an efficient, clean, and sanitary manner, and
    (b) Permit easy access to all parts to insure thorough cleaning and 
effective bactericidal treatment. Insofar as is practicable, all such 
equipment shall be made of smooth impermeable corrosion-resistant 
material that will not adversely affect the processed product by 
chemical action or physical contact. Such equipment shall be kept in 
good repair and sanitary condition. Such equipment shall be cleaned and 
sanitized at a frequency as is necessary or required in accordance with 
Good Manufacturing Practice Regulations, 21 CFR part 128.

[36 FR 21041, Nov. 3, 1971]



Sec. 260.103  Operations and operating pro cedures shall be in accordance 
with an effective sanitation program.

    (a) All operators in the receiving transporting, holdings, 
segregating, preparing, processing, packaging, and storing of processed 
products and ingredients, used as aforesaid, shall be strictly in accord 
with clean and sanitary methods and shall be conducted as rapidly as 
possible and at temperatures that will inhibit and retard the growth of 
bacterial and other micro-organisms and prevent any deterioration or 
contamination of such processed products or ingredients thereof. 
Mechanical adjustments or practices which may cause contamination of 
foods by oil, dust, paint, scale, fumes, grinding materials, decomposed 
food, filth, chemicals, or other foreign materials shall not be 
conducted during any manufacturing or processing operation.
    (b) All processed products, raw materials, ingredients, and 
components thereof shall be subject to inspection during each 
manufacturing or processing operation. To assure a safe, wholesome 
finished product, changes in processing methods and procedures as may be 
required by the Director shall be effectuated as soon as practicable. 
All processed products which are not manufactured or prepared in 
accordance with the requirements contained in Sec. 260.96 to Sec. 
260.104 or are unwholesome or otherwise not fit for human food shall be 
removed and segregated prior to any further processing operation.
    (c) Official establishments operating under Federal inspection 
should have an effective quality control program as appropriate for the 
nature of the products and processing operations.
    (d) All ingredients used in the manufacture or processing of any 
processed product shall be wholesome and fit for human food.
    (e) The methods and procedures employed in the receiving, 
segregating, handling, transporting, and processing of ingredients in 
official estab lishment(s) shall be adequate to result in a satis 
factory processed product. Such methods and procedures include, but are 
not limited to, the following requirements:
    (1) Containers, utensils, pans, and buckets used for the storage or 
transporting of partially processed food ingredients shall not be nested 
unless rewashed and sanitized before each use;
    (2) Containers which are used for holding partially processed food 
ingredients shall not be stacked in such manner as to permit 
contamination of the partially processed food ingredients;
    (3) Packages or containers for processed products shall be clean 
when being filled with such products; and all reasonable precautions 
shall be taken to avoid soiling or contaminating the surface of any 
package or container liner which is, or will be, in direct contact with 
such products.
    (f) Retention tags: (1) Any equipment such as, but not limited to, 
conveyors, tillers, sorters, choppers, and containers which fail to meet 
appropriate and adequate sanitation requirements will be identified by 
the inspector in an appropriate and conspicuous manner with the word 
``RETAINED.'' Following such identification, the equipment shall not be 
used until the discrepancy has been resolved, the equipment reinspected 
and approved by the inspector and the ``RETAINED'' identification 
removed by the inspector.
    (2) Lot(s) of processed products that may be considered to be 
mislabeled and/or unwholesome by reason of contaminants or which may 
otherwise be in such condition as to require further evaluation or 
testing to determine that

[[Page 367]]

the product properly labeled and/or wholesome will be identified by the 
inspector in an appropriate and conspicuous manner with the word 
``RETAINED.'' Such lot(s) of product shall be held for reinspection or 
testing. Final disposition of the lot(s) shall be determined by NMFS and 
the removal of the ``RETAINED'' identification shall be performed by the 
inspector.

[36 FR 21041, Nov. 3, 1971]



Sec. 260.104  Personnel.

    The establishment management shall be responsible for taking all 
precautions to assure the following:
    (a) Disease control. No person af fected by disease in a 
communicable form, or while a carrier of such disease, or while affected 
with boils, sores, infected wounds, or other abnormal sources of 
microbiological contamination, shall work in a food plant in any 
capacity in which there is a reasonable possibility of food ingredients 
becoming contaminated by such person, or of disease being transmitted by 
such person to other individuals.
    (b) Cleanliness. All persons, while working in direct contact with 
food preparation, food ingredients, or surfaces coming into contact 
therewith shall:
    (1) Wear clean outer garments, maintain a high degree of personal 
cleanliness, and conform to hygenic practices while on duty, to the 
extent necessary to prevent contamination of food products.
    (2) Wash and sanitize their hands thoroughly to prevent 
contamination by undesirable microorganisms before starting work, after 
each absence from the work station, and at any other time when the hands 
may have become soiled or contaminated.
    (3) Remove all insecure jewelry and, when food is being manipulated 
by hand, remove from hands any jewelry that cannot be adequately 
sanitized.
    (4) If gloves are used in food handling, maintain them in an intact, 
clean, and sanitary condition. Such gloves shall be of an impermeable 
material except where their usage would be inappropriate or incompatible 
with the work involved.
    (5) Wear hair nets, caps, masks, or other effective hair restraints. 
Other persons that may incidentally enter the processing areas shall 
comply with this requirement.
    (6) Not store clothing or other personal belongings, eat food, drink 
beverages, chew gum, or use tobacco in any form in areas where food or 
food ingredients are exposed or in areas used for washing equipment or 
utensils.
    (7) Take any other necessary precautions to prevent contamination of 
foods with microorganisms or foreign substances including, but not 
limited to perspiration, hair, cosmetics, tobacco, chemicals, and 
medicants.
    (c) Education and training. Personnel responsible for identifying 
sanitation failures or food contamination should have a background of 
education or experience, or a combination thereof, to provide a level of 
competency necessary for production of clean wholesome food. Food 
handlers and supervisors should receive appropriate training in proper 
food-handling techniques and food-protection principles and should be 
cognizant of the danger of poor personal hygiene and unsanitary 
practices, and other vectors of contamination.

[36 FR 21041, Nov. 3, 1971]

                          Labeling Requirements



Sec. Sec. 260.200-260.201  [Reserved]



PART 261_UNITED STATES STANDARDS FOR GRADES--Table of Contents




Sec.
261.101 Standard description.
261.102 Publication and removal of U.S. Grade Standards.
261.103 Basis for determination of a U.S. Standard for Grades.

    Authority: 7 U.S.C. 1621-1630.

    Source: 61 FR 9369, Mar. 8, 1996, unless otherwise noted.



Sec. 261.101  Standard description.

    A U.S. Standard for Grades authorized under this part is a standard 
for a fish or fishery product that has been developed and adopted by the 
voluntary seafood inspection program pursuant to the Agricultural 
Marketing Act of 1946 (7 U.S.C. 1621 et seq.) and

[[Page 368]]

other authorities delegated to the U.S. Department of Commerce.



Sec. 261.102  Publication and removal of U.S. Grade Standards.

    (a) The voluntary U.S. Standards for Grades adopted pursuant to this 
part shall be issued as Program policies and contained within the NMFS 
Fishery Products Inspection Manual. Compliance with voluntary standards 
issued as Program policies within the manual shall satisfy the 
requirements of this part. Compliance with a voluntary standard issued 
as a Program policy does not relieve any party from the responsibility 
to comply with the provisions of the Federal Food, Drug, and Cosmetic 
Act; or other Federal laws and regulations.
    (b) Notification of an application for a new grade standard shall be 
published in the Federal Register. If adopted, the grade standard shall 
be issued as a Program policy and contained in the NMFS Fishery Products 
Inspection Manual.
    (c) Recision and revision of a U.S. Standard for Grades will be made 
a Program policy amendment and contained in the NMFS Fishery Products 
Inspection Manual.
    (d) The NMFS Fishery Products Inspection Manual is available to 
interested parties.



Sec. 261.103  Basis for determination of a U.S. Standard for Grades.

    (a) To address the inherently distinct and dissimilar attributes 
found in the fishery product groups, each standard for grades should 
have a different scope and product description, product forms, sample 
sizes, definition of defects, etc. The Secretary will make the final 
determination regarding the content of a U.S. Standard for Grades.
    (b) A proposal for a new or revised U.S. grade standard may include 
the following:
    (1) Scope and product description, which describes the products that 
are eligible for grading using the standard (e.g., fish portion, fish 
fillet).
    (2) Product forms, which describe the types, styles and market forms 
covered by the standard (e.g., skin-off, tail-on, headless).
    (3) Grade and inspection marks, which describe the grades and 
inspection mark criteria for each grade category (e.g., Grade A <= 15 
points).
    (4) Grade determination, which describes the means by which the 
grade is determined (i.e., the factors rated by score points and those 
that are not). Standards may contain defect grouping limiting rules that 
contain additional provisions that must be met.
    (5) Sampling, which describes the method of sampling and sample unit 
sizes (e.g., 10 portions, 8 ounces, etc.).
    (6) Procedures that describe the process used to determine the 
product grade (e.g., label declarations, sensory evaluation).
    (7) Definitions of defects, which outline the defects associated 
with the products covered by the standard, defines them, and describes 
the method of counting or measuring the defects. This section may 
provide associated defect points or reference a defect table (e.g., 
bruises, blood spots, bones, black spots, coating defects, 1-inch 
squares, percent by weight, ratios).
    (8) Defect point assessment, which describes how to assess points 
and provides any special guidance that may be necessary to the 
particular standard (e.g., defect points for certain categories are 
added together and divided by the weight of the sample unit; the number 
of instances are counted to determine if it is slight, moderate, or 
excessive defect).

[[Page 369]]

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



                        SUBCHAPTER H-J [RESERVED]



[[Page 370]]



                     SUBCHAPTER K_CONTINENTAL SHELF





PART 296_FISHERMEN'S CONTINGENCY FUND--Table of Contents




Sec.
296.1 Purpose.
296.2 Definitions.
296.3 Fishermen's contingency fund.
296.4 Claims eligible for compensation.
296.5 Instructions for filing claims.
296.6 NMFS processing of claims.
296.7 Burden of proof and presumption of causation.
296.8 Amount of award.
296.9 Initial determination.
296.10 Agency review.
296.11 Final determination.
296.12 Payment of costs.
296.13 Payment of award for claim.
296.14 Subrogation.
296.15 Judicial review.

    Authority: Pub. L. 97-212 (43 U.S.C. 1841 et seq.).

    Source: 47 FR 49600, Nov. 1, 1982, unless otherwise noted.



Sec. 296.1  Purpose.

    These regulations implement title IV of the Outer Continental Shelf 
Lands Act Amendments of 1978, as amended (title IV). Title IV 
establishes a Fishermen's Contingency Fund to compensate commercial 
fishermen for damage or loss caused by obstructions associated with oil 
and gas activities on the Outer Continental Shelf.



Sec. 296.2  Definitions.

    Area affected by Outer Continental Shelf activities means the area 
within a 3-mile radius of any casualty site which:
    (1) Includes any portion of a leased block, pipeline, easement, 
right of way, or other OCS oil and gas exploration, development, or 
production activity; or
    (2) Is otherwise associated (as determined by the Chief, Financial 
Services Division) with OCS oil and gas activities, such as, for 
example, expired lease areas, relinquished rights-of-way or easements, 
and areas used extensively by surface vessels supporting OCS oil and gas 
activities (areas landward of the OCS are included when such areas meet 
this criterion).
    Chief, FSD means Chief, Financial Services Division, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; 
telephone: (301) 713-2396.
    Citizen of the United States means any person who is a United States 
citizen, any State, or any corporation, partnership, or association 
organized under the laws of any state which meets the requirements for 
documenting vessels in the U.S. coastwise trade.
    Commercial fisherman means any citizen of the United States who 
owns, operates, or is employed on a commercial fishing vessel.
    Commercial fishing vessel means any marine craft which is documented 
under the laws of the United States or, if under five net tons, 
registered under the laws of any State, and used for commercial fishing 
or activities directly related to commercial fishing.
    Easement means a right of use or easement granted under 30 CFR 
250.18.
    Fish means all forms of marine animal and plant life other than 
marine mammals, birds, and highly migratory species.
    Fishing gear means any commercial fishing vessel, and any equipment 
of such vessel.
    Fund means the Fishermen's Contingency Fund established by title IV 
of the Outer Continental Shelf Lands Act Amendments of 1978.
    Holder means the owner of record of each lease, prelease exploratory 
drilling permit, easement, or right-of-way or any agent or assignee of 
an owner.
    Lease means any authority under section 8 or section 6 of the OCS 
Lands Act to develop and produce or explore for oil or gas.
    Negligence or fault includes, but is not limited to, failure to:
    (1) Remain outside of any navigation safety zone established around 
oil and gas rigs and platforms by any responsible Federal agency;
    (2) Avoid obstructions recorded on nautical charts or in the Notice 
to Mariners or marked by a buoy or other surface marker (casualties 
occurring within a one-quarter mile radius of obstructions so recorded 
or marked are presumed to involve negligence or fault of the claimant);

[[Page 371]]

    (3) Abide by established rules of the road;
    (4) Use proper care; or
    (5) Use due care and diligence to mitigate the damage or loss.
    Outer Continental Shelf means all submerged lands lying seaward and 
outside of the area of lands beneath navigable waters as defined in 43 
U.S.C. section 1301, and of which the subsoil and seabed appertain to 
the United States and are subject to its jurisdiction and control. 
Generally, but not in all cases, this includes all submerged lands lying 
seaward of the territorial sea (3 miles from a State's coastline, or 9 
miles from the coast of Texas or Florida).
    Person means an individual, partnership, corporation, association, 
public or private organization, government, or other entity.
    Resulting Economic Loss means the gross income, as estimated by the 
Chief, FSD, that a claimant will lose because of not being able to fish, 
or having to reduce fishing effort, during the period before the damaged 
or lost fishing gear concerned is repaired or replaced and available for 
use. This period must be reasonable. This period begins on the date of 
the casualty and stops on the date the damage could reasonably have been 
remedied by repair or replacement.
    Right-of-way means any right-of-way granted under section 5(e) of 
the OCS Lands Act or under 43 CFR 3340.0-5.
    Secretary means the Secretary of Commerce or his designee.

[47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996]



Sec. 296.3  Fishermen's contingency fund.

    (a) General. There is established in the Treasury of the United 
States the Fishermen's Contingency Fund. The Fund is available without 
fiscal year limitation as a revolving fund to carry out the purposes of 
title IV of the Outer Continental Shelf Lands Act Amendments of 1978, as 
amended.
    (b) Payments into the fund. Each Holder of an exploration permit, 
lease, easement, or rights-of-way for the construction of a pipeline, or 
a prelease exploration drilling permit issued or maintained under the 
Outer Continental Shelf Lands Act, in effect on or after June 30, 1982, 
shall pay assessments to the Fund. All pipeline right-of-way and 
easements are to be included for assessment except those constructed and 
operated lines within the confines of a single lease or group of 
contiguous leases under unitized operation or single operator. Payments 
will not be required for geological or geophysical permits, other than 
prelease exploratory drilling permits issued under section 11 of the 
Outer Continental Shelf Lands Act (43 U.S.C. 1340).
    (1) Assessments to maintain the fund. When the total amount in the 
Fund is less than the Chief, FSD, determines is needed to pay Fund 
claims and expenses, the Chief, FSD, will notify the Secretary of the 
Interior that additional assessments are needed.
    (2) Billing and collections. The Secretary of the Interior will 
calculate the amounts to be paid by each Holder and shall notify each 
Holder of the dollar amount and the time and place for all payments. 
Each assessment shall be paid to the Secretary of the Interior no later 
than 45 days after the Secretary of the Interior sends notice of the 
assessment.
    (3) Annual assessment limits. No Holder shall be required to pay in 
excess of $5,000 for any lease, permit, easement or right-of-way in any 
calendar year.
    (c) Moneys recovered through subrogation. Any moneys recovered by 
the Secretary through the subrogation of a claimant's rights shall be 
deposited into the Fund.
    (d) Investments of the fund. Excess sums in the Fund will be 
invested in obligations of, or guaranteed by, the United States. Revenue 
from such investments shall be deposited in the Fund.
    (e) Litigation. The Fund may sue and be sued in its own name.



Sec. 296.4  Claims eligible for compensation.

    (a) Claimants. Damage or loss eligible for Fund compensation must be 
suffered by a commercial fisherman.
    (b) Damage or loss of fishing gear. Damage or loss is eligible for 
Fund compensation if it was caused by materials, equipment, tools, 
containers, or other items associated with OCS oil and gas exploration, 
development, or production activities. Damage or loss

[[Page 372]]

may be eligible for compensation even though it did not occur in OCS 
waters if the item causing the damage or loss was associated with oil 
and gas exploration, development, or production activities in OCS 
waters.
    (c) Exceptions. Damage or loss is not eligible for Fund 
compensation:
    (1) If the damage or loss was caused by the negligence or fault of 
the claimant;
    (2) If the damage or loss occurred prior to September 18, 1978;
    (3) To the extent that damage or loss exceeds the replacement value 
of the fishing gear involved;
    (4) For any portion of the damage or loss which can be compensated 
by insurance;
    (5) If the claim is not filed within 90 calendar days of the date 
the claimant or the claimant's agent first became aware of the damage or 
loss (or such longer period as the Secretary may allow under unusual and 
extenuating circumstances); or
    (6) If the damage or loss was caused by an obstruction unrelated to 
OCS oil and gas exploration, development, or production activities.

[47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985; 61 
FR 6322, Feb. 20, 1996]



Sec. 296.5  Instructions for filing claims.

    (a) Fifteen-day report required to gain presumption of causation--
(1) General. Damages or losses are presumed to be qualified for 
compensation if certain requirements are satisfied. One requirement is 
that a report must be made to NMFS within fifteen (15) days after the 
date on which the vessel first returns to a port after discovering the 
damage or loss. Filing of a fifteen-day report must be followed up by 
filing a detailed claim.
    (2) When and how to file a fifteen-day report. To qualify for the 
presumption of causation, a fifteen-day report must be made to NMFS 
within fifteen days after the date on which the vessel first returns to 
a port after discovering the damage or loss. Satisfaction of the 
fifteen-day requirement is determined by the postmark, if the report is 
mailed; by the date of a call, if the report is telephoned or 
radiotelephoned; or, by the date of appearance, if the report is made in 
person. The fifteen-day report must be made to the Chief, Financial 
Services Division, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910; telephone: (301) 713-2396.
    (3) Contents of fifteen-day report. Each fifteen-day report must 
include the following information:
    (i) The claimant's name and address;
    (ii) The name of the commercial fishing vessel involved;
    (iii) The location of the obstruction which caused the damage or 
loss;
    (iv) A description of the nature of the damage or loss;
    (v) The date such damage or loss was discovered;
    (vi) If the fifteen-day report is made after the vessel returns to 
port, the date on which the vessel first returned to port after 
discovering the damage.
    (b) Form of claim. Claims must be in writing. Claims may be 
submitted on NOAA form 88-164. This form may be obtained from any NMFS 
regional office or from the Chief, FSD. Although claimants are not 
required to use this claim form, it will probably be to their benefit to 
do so.
    (c) Who must file and when and where to file claims. All claimants 
(including those who filed 15-day reports to gain the presumption of 
causation) must submit a claim application to the Chief, Financial 
Services Division, within 90 calendar days of the date the claimant or 
the claimant's agent first became aware of the damage or loss. The 
Chief, FSD, may allow a longer period for filing claims if, in his 
discretion, unusual and extenuating circumstances justify a longer 
period. The term ``filed'' means delivered in person, or mailed (as 
determined by the date of the postmark) to the Chief, Financial Services 
Division, National Marine Fisheries Service, 1825 Connecticut Avenue, 
NW., Washington, DC 20235. The Chief, FSD, suggests that mailed claims 
be sent by registered or certified mail, return receipt requested, so 
the claimant will have a record that the claim was received by the 
Chief, FSD.
    (d) Aggregating claims. If more than one commercial fisherman 
suffers loss or damage from the same incident (for example, when several 
members of the

[[Page 373]]

crew lost income due to loss of fishing time), all claims should be 
submitted on their behalf by the owner or operator of the commercial 
fishing vessel involved.
    (e) Contents of claim. Each claim must be signed by the claimant and 
must accurately and completely provide the following information:
    (1) The name, mailing address, telephone number, citizenship, and 
occupational status (for example, vessel owner, operator, or crew 
member) of each claimant;
    (2) The name and Coast Guard documentation number or State 
registration number of the commercial fishing vessel involved in the 
damage or loss;
    (3) The home port, type, and size of the vessel involved in the 
casualty;
    (4) A full statement of the circumstances of the damage or loss 
including:
    (i) The date when the casualty was first discovered by the claimant,
    (ii) The water depth (if known) and visibility at the time and 
location where the casualty occurred,
    (iii) The direction, speed, and activities of the claimant's vessel 
immediately before, during, and after the casualty (including a full 
description of both the deployment of any fishing gear which is the 
subject of the claim and all attempts at retrieval of the gear),
    (iv) The names and addresses of all witnesses to the casualty,
    (v) The location where the casualty occurred in Loran C coordinates 
or the next most accurate method of position fixing available to the 
claimant,
    (vi) A description of the item or obstruction (if sighted or 
recovered) which caused the casualty, and whether or not any surface 
markers were attached to or near the obstruction. Submit any available 
photographs of the item or obstruction. State reasons for believing the 
obstruction is associated with OCS oil and gas activities.
    (5) The amount claimed for property damage or loss and a full 
statement of the type and extent of damage or loss including:
    (i) An inventory of all components of fishing gear damaged or lost,
    (ii) The date, place, and cost of acquisition of all fishing gear 
damaged or lost and proof of its purchase (sales receipts, affidavits, 
or other evidence),
    (iii) One estimate from a commercial fishing gear repair or supply 
company of the present replacement or repair (whichever applies) cost of 
the damaged or lost fishing gear. If the gear will be repaired by the 
claimant himself, a detailed estimate by the claimant identifying the 
repair cost.
    (6) The amount claimed for economic loss and the basis for that 
amount with supporting documentation, as follows:
    (i) Trip tickets for the three vessel trips immediately before the 
trip during which the casualty was discovered and for the vessel trip 
immediately following the trip during which the casualty occurred.
    (ii) A statement of the amount of time involved on each of the 
vessel trips above (or if the casualty involves fixed gear, a statement 
of the number of gear units deployed on each of these trips).
    (iii) A statement of the amount of time lost from fishing because of 
the damage or loss and a full explanation of why this time period is 
reasonable.
    (iv) Documentation of the date replacement gear was ordered and 
received or the date gear repair began and ended. This documentation may 
consist of purchase orders, bills of lading, or statements from sellers 
or repairers.
    (7) The amount claimed for other consequential loss or costs 
(including fees for claim preparation, etc.) with suitable documentation 
of the amounts claimed (such as invoices, receipts, etc.).

[47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985; 53 
FR 24645, June 29, 1988; 61 FR 6322, Feb. 20, 1996]



Sec. 296.6  NMFS processing of claims.

    (a) Action by NMFS. Upon receipt of a claim, the Chief, FSD, will:
    (1) Send an abstract of the claim to the Secretary of the Interior;
    (2) Send the reported location of any obstruction which was not 
recovered and retained to the National Ocean Survey, which will inform 
the Defense Mapping Agency Hydrographic/Topographic Center.
    (b) Actions by the Interior Department. Upon receipt of an abstract 
of a claim,

[[Page 374]]

the Interior Department will immediately:
    (1) Plot the casualty site, and advise NMFS whether the site is in 
an area affected by OCS activities;
    (2) make reasonable efforts to notify all persons known to have 
engaged in activities associated with OCS energy activity in the 
vicinity where the damage or loss occurred.
    (c) Responses to notice of claim. (1) Each person notified by the 
Interior Department will, within thirty days after receipt of the 
notice, advise the Chief, FSD, and the Interior Department whether he 
admits or denies responsibility for the damages claimed.
    (2) Each person notified by the Interior Department who fails to 
give timely and proper advice of admission or denial of responsibility 
shall be presumed to deny responsibility for the damages claimed.
    (3) If any person admits responsibility, the Chief, FSD, will 
initiate action to recover from that party any sums paid or to be paid 
for the claimed damages.
    (4) Any person referred to in this section, including lessees or 
permittees or their contractors or subcontractors, may submit evidence 
about any claim to the Chief, FSD.
    (d) Failure to meet filing requirements. The Chief, FSD, may reject 
any claim that does not meet the filing requirements. The Chief, FSD, 
will give a claimant whose claim is rejected written notice of the 
reasons for rejection within 30 days after the date on which the claim 
was filed. If the claimant does not refile an acceptable claim within 30 
days after the date of this written notice, the claimant is not eligible 
for Fund compensation unless there are extenuating circumstances.
    (e) Proceedings--(1) Location. Any required proceeding will be 
conducted within such United States judicial district as may be mutually 
agreeable to the claimant and the Assistant Administrator, NMFS, or his 
designee, or if no agreement can be reached, within the United States 
judicial district in which the claimant's home port is located.
    (2) Powers. For purposes of any proceeding, the Assistant 
Administrator, NMFS, or his designee, shall have the power to administer 
oaths and subpoena witnesses and the production of books, records, and 
other evidence relative to the issues involved.
    (3) Amendments to claims. A claimant may amend the claim at any time 
before the Chief, FSD, issues an initial determination.
    (4) Criminal penalty for fraudulent claims. Any person who files a 
fraudulent claim is subject to prosecution under 18 U.S.C. sections 287 
and 1001, each of which, upon conviction, imposes a penalty of not more 
than a $10,000 fine and 5 years' imprisonment, or both.

[47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996]



Sec. 296.7  Burden of proof and presumption of causation.

    (a) Burden of proof. The claimant has the burden to establish, by a 
preponderance of the evidence, all facts necessary to qualify his claim, 
including:
    (1) The identity or nature of the item which caused the damage or 
loss; and
    (2) That the item is associated with oil and gas exploration, 
development, or production activities on the Outer Continental Shelf.
    (b) Presumption of causation. Notwithstanding the above, damages or 
losses are presumed to be caused by items associated with oil and gas 
exploration, development, or production activities on the OCS if the 
claimant establishes that:
    (1) The claimant's commercial fishing vessel was being used for 
commercial fishing and was located in an area affected by OCS oil and 
gas exploration, development, or production activities;
    (2) A report on the location of the obstruction which caused such 
damage or loss, and the nature of such damage or loss, was made within 
fifteen days after the date on which the vessel first returned to a port 
after discovering such damage;
    (3) There was no record on the most recent nautical charts issued by 
the National Ocean Survey, NOAA, or in any weekly Notice to Mariners 
issued by the Defense Mapping Agency Hydrographic/Topographic Center, in 
effect at least 15 days before the date the

[[Page 375]]

damage or loss occurred, then an obstruction existed in the immediate 
vicinity where the damage or loss occurred. In the case of damages 
caused by a pipeline, the presumption will be available regardless of 
whether the pipeline was recorded on charts or in the Notice to 
Mariners; and
    (4) There was no proper surface marker or lighted buoy attached, or 
closely anchored, to such obstruction.
    (c) Geographic exclusion from presumption of causation. Damage or 
loss occurring within a one-quarter mile radius of obstructions recorded 
on charts or in a Notice to Mariners, or properly marked, is presumed to 
involve the recorded or marked obstruction.



Sec. 296.8  Amount of award.

    (a) Actual damages. The award for damaged fishing gear will be the 
lesser of the gear's repair cost or replacement cost. The award for lost 
fishing gear will be the gear's replacement cost.
    (b) Consequential damages. An award may also include compensation 
for any damage or loss (except personal injury) that is incurred as a 
consequence of the fishing gear damage or loss.
    (c) Resulting economic loss. An award may also include 50 percent of 
the resulting economic loss from damage to or loss of fishing vessels 
and gear.
    (d) Attorney, CPA, consultant fees. An award may also include 
compensation for reasonable fees paid by the claimant to an attorney, 
CPA, or other consultant for the preparation or prosecution of a claim.
    (e) Negligence of claimant. (1) An award will be reduced to the 
extent that the loss or damage was caused by the negligence or fault of 
the claimant. (For example, a claimant who sustained $10,000 in damages 
and whose negligence or fault was found to be responsible for 40% of the 
damage would receive $6,000 in compensation. If the same claimant were 
responsible for 99% of the negligence or fault that caused the damage, 
the claimant would receive $100 in compensation).
    (2) Negligence of the owner or operator of the fishing vessel or 
gear will reduce crewmember awards to the same extent that it reduces an 
award to the vessel's owner or operator.
    (f) Insurance proceeds. An award will be reduced by the amount the 
claimant has, or reasonably would have, received under a commercial 
policy of full hull and machinery and protection and indemnity 
insurance, whether or not such insurance was in effect at the time the 
casualty occurred.

[47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985]



Sec. 296.9  Initial determination.

    The Chief, FSD will make an initial determination on a claim within 
60 days after the day on which the claim is accepted for filing. The 
initial determination will state:
    (a) If the claim is disapproved, the reason for disapproval, or
    (b) If the claim is approved, the amount of compensation and the 
basis on which the amount was determined.



Sec. 296.10  Agency review.

    (a) Within 30 days after the Chief, FDS, issues an initial 
determination, the claimant, or any other interested person who 
submitted evidence relating to the initial determination, may ask the 
Assistant Administrator, NMFS, or his designee, for a review of the 
initial determination.
    (b) The petitioner may submit written or oral evidence within 30 
days of filing the petition for review.



Sec. 296.11  Final determination.

    (a) If a petition for review of an initial determination is filed 
within 30 days after the date the Chief, FSD, issues an initial 
determination, the Assistant Administrator, NMFS, or his designee will 
conduct a review of the initial determination, and will issue a final 
determination no later than 60 days after receipt of the request for 
review of the initial determination.
    (b) If a petition for review of an initial determination is not 
filed within 30 days after the day on which the Chief, FSD, issues an 
initial determination, the initial determination will become a final 
determination.



Sec. 296.12  Payment of costs.

    (a) By person denying responsibility for damage. Any person who is 
notified by the Interior Department and fails to

[[Page 376]]

respond or denies responsibility for the damages claimed will pay the 
costs of the proceedings if such person is subsequently found to be 
responsible for the damage claimed.
    (b) By the claimant. Any claimant who files a claim will pay the 
cost of the proceedings if such person is subsequently found to be 
responsible for the damage claimed.
    (c) By person denying responsibility for damage and the claimant. If 
more than one party is found to have responsibility for the damage 
claimed, then the cost of the proceedings will be apportioned between 
them.



Sec. 296.13  Payment of award for claim.

    (a) Upon an initial determination, the Chief, Financial Services 
Division, shall immediately disburse the claim awarded if the claimant 
signed as part of his/her application a statement agreeing to repay all 
or any part of the award if the award should for any reason be 
subsequently reduced.
    (b) [Reserved]

[61 FR 6322, Feb. 20, 1996]



Sec. 296.14  Subrogation.

    (a) The claim application will contain a subrogation statement 
signed by the claimant as a condition of payment of the claim which:
    (1) Assigns to the Fund the claimant's rights against third parties; 
and
    (2) Provides that the claimant will assist the Fund in any 
reasonable way to pursue those rights.
    (b) Collection of subrogated rights. If a reasonable chance of 
successful collection exists, NMFS will refer any subrogated rights to 
the Justice Department for collection.
    (c) Any moneys recovered through subrogation shall be deposited into 
the Fund.

[47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6323, Feb. 20, 1996]



Sec. 296.15  Judicial review.

    Any claimant or other person who is aggrieved by a final 
determination may, no later than 30 days after the determination, seek 
judicial review of the determination in the United States District Court 
for such judicial district as may be mutually agreeable to the parties 
concerned or, if no agreement can be reached, in the United States 
District Court for the judicial district in which the claimant's home 
port is located.

[[Page 377]]



        CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES




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

[[Page 379]]



PART 300_INTERNATIONAL FISHERIES REGULATIONS--Table of Contents




                            Subpart A_General

Sec.
300.1 Purpose and scope.
300.2 Definitions.
300.3 Relation to other laws.
300.4 General prohibitions.
300.5 Facilitation of enforcement.

                      Subpart B_High Seas Fisheries

300.10 Purpose.
300.11 Definitions.
300.12 Issuing offices.
300.13 Vessel permits.
300.14 Vessel identification.
300.15 Prohibitions.
300.16 Penalties.
300.17 Reporting.

                    Subpart C_Pacific Tuna Fisheries

300.20 Purpose and scope.
300.21 Definitions.
300.22 Recordkeeping and reporting.
300.23 Yellowfin tuna--Persons and vessels exempted.
300.24 Pacific bluefin tuna--Dealer permits.
300.25 Pacific bluefin tuna--Dealer recordkeeping and reporting.
300.26 Pacific bluefin tuna--Tags.
300.27 Pacific bluefin tuna--Documentation requirements.
300.28 Prohibitions.
300.29 Eastern Pacific fisheries management.

                 Subpart D_South Pacific Tuna Fisheries

300.30 Purpose and scope.
300.31 Definitions.
300.32 Vessel licenses.
300.33 Compliance with applicable national laws.
300.34 Reporting requirements.
300.35 Vessel and gear identification.
300.36 Closed area stowage requirements.
300.37 Radio monitoring.
300.38 Prohibitions.
300.39 Exceptions.
300.40 Civil penalties.
300.41 Investigation notification.
300.42 Findings leading to removal from fishing area.
300.43 Observers.
300.44 Other inspections.

                   Subpart E_Pacific Halibut Fisheries

300.60 Purpose and scope.
300.61 Definitions.
300.62 Annual management measures.
300.63 Catch sharing plan and domestic management measures in Area 2A.
300.64 Fishing by U.S. treaty Indian tribes.
300.65 Catch sharing plan and domestic management measures in waters in 
          and off Alaska.
300.66 Prohibitions.

Figure 1 to Subpart E--Boundaries for Sitka Sound Local Area Management 
          Plan (LAMP)
Figure 2 to Subpart E--Ketchikan non-rural area
Figure 3 to Subpart E--Juneau non-rural area
Figure 4 to Subpart E--Anchorage-Matsu-Kenai non-rural area
Figure 5 to Subpart E--Valdez non-rural area

        Subpart F_Fraser River Sockeye and Pink Salmon Fisheries

300.90 Purpose and scope.
300.91 Definitions.
300.92 Relation to other laws.
300.93 Reporting requirements.
300.94 Prohibitions and restrictions.
300.95 Treaty Indian fisheries.
300.96 Penalties.
300.97 Inseason orders.

               Subpart G_Antarctic Marine Living Resources

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

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

[[Page 380]]

   Subpart H_Vessels of the United States Fishing in Colombian Treaty 
                                 Waters

300.120 Purpose.
300.121 Definitions.
300.122 Relation to other laws.
300.123 Certificates and permits.
300.124 Recordkeeping and reporting.
300.125 Vessel identification.
300.126 Prohibitions.
300.127 Facilitation of enforcement.
300.128 Penalties.
300.129 Fishing year.
300.130 Vessel and gear restrictions.
300.131 Conch harvest limitations.
300.132 Lobster harvest limitations.

          Subpart I_United States-Canada Fisheries Enforcement

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

          Subpart J_U.S. Nationals Fishing in Russian Fisheries

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

        Subpart K_Transportation and Labeling of Fish or Wildlife

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

                Subpart L_Pacific Albacore Tuna Fisheries

300.170 Purpose and scope.
300.171 Definitions.
300.172 Vessel list.
300.173 Vessel identification.
300.174 Logbook reports.
300.175 Hail-in and hail-out reports.
300.176 Prohibitions.

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

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



                            Subpart A_General

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



Sec. 300.1  Purpose and scope.

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



Sec. 300.2  Definitions.

    In addition to the definitions in each act, agreement, convention, 
or treaty specified in subparts B through K of this part, the terms used 
in this part have the following meanings:
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Oceanic and Atmospheric Administration, Department 
of Commerce, or a designee. Address: Room 14555, 1315 East-West Highway, 
Silver Spring, MD 20910.
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard; or any U.S. Coast Guard personnel accompanying and acting under 
the direction of a commissioned, warrant, or petty officer of the U.S. 
Coast Guard;
    (2) Any special agent or fisheries enforcement officer of NMFS; or
    (3) Any person designated by the head of any Federal or state agency 
that has entered into an agreement with the Secretary of Commerce or the 
Commandant of the U.S. Coast Guard to enforce the provisions of any 
statute administered by the Secretary.
    CCAMLR inspector means a person designated by a member of the 
Commission for the Conservation of Antarctic Marine Living Resources as 
an inspector under Article XXIV of the Convention on the Conservation of 
Antarctic Marine Living Resources to verify compliance with measures in 
effect under the Convention.
    Director, Alaska Region, means Director, Alaska Region, NMFS, 709 
West Ninth Street, Suite 401, P.O. Box 21668, Juneau, AK 99802, or a 
designee.
    Director, Northeast Region, means Director, Northeast Region, NMFS,

[[Page 381]]

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

[[Page 382]]

    Yellowfin tuna means any fish of the species Thunnus albacares 
(synonomy: Neothunnus macropterus).



Sec. 300.3  Relation to other laws.

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



Sec. 300.4  General prohibitions.

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



Sec. 300.5  Facilitation of enforcement.

    (a) Compliance. The operator of, or any other person aboard, any 
fishing vessel subject to this part must immediately comply with 
instructions and signals issued by an authorized officer or CCAMLR 
inspector to stop the vessel, and with instructions to facilitate safe 
boarding and inspection of the vessel, its gear, equipment, fishing 
record (where applicable), and catch for purposes of enforcing this 
part.

[[Page 383]]

    (b) Communications. (1) Upon being approached by a USCG vessel or 
aircraft, or other vessel or aircraft with an authorized officer or 
CCAMLR inspector aboard, the operator of a fishing vessel must be alert 
for communications conveying enforcement instructions.
    (2) VHF-FM radiotelephone is the preferred method of communicating 
between vessels. If the size of the vessel and the wind, sea, and 
visibility conditions allow, a loudhailer may be used instead of the 
radio. Hand signals, placards, high frequency radiotelephone, voice, 
flags, whistle or horn may be employed by an authorized officer or 
CCAMLR inspector, and message blocks may be dropped from an aircraft.
    (3) If other communications are not practicable, visual signals may 
be transmitted by flashing light directed at the vessel signaled. USCG 
units will normally use the flashing light signal ``L'' which, in the 
International Code of Signals, means ``you should stop your vessel 
instantly.''
    (4) Failure of a vessel's operator promptly to stop the vessel when 
directed to do so by an authorized officer or CCAMLR inspector, or by an 
enforcement vessel or aircraft, using loudhailer, radiotelephone, 
flashing light, flags, whistle, horn or other means constitutes prima 
facie evidence of the offense of refusal to allow an authorized officer 
or CCAMLR inspector to board.
    (5) A person aboard a vessel who does not understand a signal from 
an enforcement unit and who is unable to obtain clarification by 
loudhailer or radiotelephone must consider the signal to be a command to 
stop the vessel immediately.
    (c) Boarding. The operator of a vessel directed to stop must:
    (1) Monitor Channel 16, VHF-FM, if so equipped.
    (2) Stop immediately and lay to or, if appropriate and/or directed 
to do so by the authorized officer or CCAMLR inspector, maneuver in such 
a way as to allow the safe boarding of the vessel by the authorized 
officer or CCAMLR inspector and the boarding party.
    (3) Except for those vessels with a freeboard of 4 ft (1.25 m) or 
less, provide a safe ladder, if needed, for the authorized officer or 
CCAMLR inspector and boarding party to come aboard.
    (4) When necessary to facilitate the boarding or when requested by 
an authorized officer or CCAMLR inspector, provide a manrope or safety 
line, and illumination for the ladder.
    (5) Take such other actions as necessary to facilitate boarding and 
to ensure the safety of the authorized officer or CCAMLR inspector and 
the boarding party.
    (d) Signals. The following signals, extracted from the International 
Code of Signals, may be sent by flashing light by an enforcement unit 
when conditions do not allow communications by loudhailer or 
radiotelephone. Knowledge of these signals by vessel operators is not 
required. However, knowledge of these signals and appropriate action by 
a vessel operator may preclude the necessity of sending the signal ``L'' 
and the necessity for the vessel to stop instantly.
    (1) ``AA'' repeated (.- .-) is the call to an unknown station. The 
operator of the signaled vessel should respond by identifying the vessel 
by radiotelephone or by illuminating the vessel's identification.
    (2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at 
slow speed, a boat is coming to you.'' This signal is normally employed 
when conditions allow an enforcement boarding without the necessity of 
the vessel being boarded coming to a complete stop, or, in some cases, 
without retrieval of fishing gear that may be in the water.
    (3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I 
am going to board you.''



                      Subpart B_High Seas Fisheries

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



Sec. 300.10  Purpose.

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



Sec. 300.11  Definitions.

    In addition to the terms defined in section 300.2 and those in the 
Act and

[[Page 384]]

the Agreement to Promote Compliance with International Conservation and 
Management Measures by Fishing Vessels on the High Seas, adopted by the 
Conference of the Food and Agriculture Organization of the United 
Nations on November 24, 1993 (Agreement), the terms used in this subpart 
have the following meanings. If a term is defined differently in Sec. 
300.2, the Act, or the Agreement, the definition in this section shall 
apply.
    High seas means the waters beyond the territorial sea or exclusive 
economic zone (or the equivalent) of any Nation, to the extent that such 
territorial sea or exclusive economic zone (or the equivalent) is 
recognized by the United States.
    High seas fishing vessel means any vessel of the United States used 
or intended for use on the high seas for the purpose of the commercial 
exploitation of living marine resources as a harvesting vessel, 
mothership, or any other support vessel directly engaged in a fishing 
operation.
    International conservation and management measures means measures to 
conserve or manage one or more species of living marine resources that 
are adopted and applied in accordance with the relevant rules of 
international law, as reflected in the 1982 United Nations Convention on 
the Law of the Sea, and that are recognized by the United States.
    Regional Administrator means any one of the Directors of the five 
NMFS regional offices, defined under Sec. 300.2, serving as the issuing 
office.



Sec. 300.12  Issuing offices.

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



Sec. 300.13  Vessel permits.

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

[[Page 385]]

issuance of the permit. Payment by a commercial instrument later 
determined to be insufficiently funded will invalidate any permit.
    (e) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, the Regional Administrator will issue a permit, which will include 
appropriate conditions or restrictions, within 30 days of receipt of a 
completed application and payment of the appropriate fee.
    (2) The Regional Administrator will notify the applicant of any 
deficiency in the application.
    (f) Validity. Permits issued under this subpart are valid for 5 
years from the date of issuance. Renewal of a permit prior to its 
expiration is the responsibility of the permit holder. For a permit to 
remain valid to its expiration date, the vessel's USCG documentation or 
state registration must be kept current. A permit issued under this 
subpart is void when the name of the owner or vessel changes, or in the 
event the vessel is no longer eligible for U.S. documentation, such 
documentation is revoked or denied, or the vessel is removed from such 
documentation.
    (g) Change in application information. Any changes in vessel 
documentation status or other permit application information must be 
reported to the Regional Administrator in writing within 15 days of such 
changes.
    (h) Transfer. A permit issued under this subpart is not transferable 
or assignable to another vessel or owner; it is valid only for the 
vessel and owner to which it is issued.
    (i) Display. A valid permit, or a copy thereof, issued under this 
subpart must be on board the vessel while operating on the high seas and 
available for inspection by an authorized officer. Faxed copies of 
permits are acceptable.

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



Sec. 300.14  Vessel identification.

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

[[Page 386]]

    (x) The space between adjacent letters having sloping sides must not 
exceed h/8 nor be less than h/10;
    (xi) The marks must be white on a black background, or black on a 
white background;
    (xii) The background must extend to provide a border around the mark 
of no less than h/6; and
    (xiii) The marks and the background must be maintained in good 
condition at all times.

[64 FR 15, Jan. 4, 1999]



Sec. 300.15  Prohibitions.

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

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



Sec. 300.16  Penalties.

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

[64 FR 15, Jan. 4, 1999]



Sec. 300.17  Reporting.

    (a) General. The operator of any vessel permitted under this subpart 
must report high seas catch and effort information to NMFS in a manner 
set by this section. Reports must include: identification information 
for vessel and operator; operator signature; crew size; whether an 
observer is aboard; target species; gear used; dates, times, locations, 
and conditions under which fishing was conducted; species and amounts of 
fish retained and discarded; and details of any interactions with sea 
turtles or birds.
    (b) Reporting options. (1) For the following fisheries, a permit 
holder must maintain and submit the listed reporting forms to the 
appropriate address and in accordance with the time limits required by 
the relevant regulations:
    (i) Antarctic--CCAMLR Logbook (50 CFR 300.107);
    (ii) Atlantic--Fishing Vessel Log Reports (50 CFR 648.7(b));
    (iii) Atlantic Pelagic Longline--Longline Logbook (50 CFR 630.5);
    (iv) Atlantic Purse Seine--Vessel Logbook (50 CFR 635.5);
    (v) Pacific Pelagic Longline--Longline Logbook (50 CFR 660.14(a));
    (vi) Eastern Pacific Purse Seine--IATTC Logbook (50 CFR 300.22); or
    (vii) Western Pacific Purse Seine--South Pacific Tuna Treaty Logbook 
(50 CFR 300.34).
    (2) For the albacore troll fisheries in the North and South Pacific, 
a permit holder must report high seas catch and effort by maintaining 
and submitting the log provided by the Regional Administrator, Southwest 
Region, NMFS.
    (3) For other fisheries, a permit holder must report high seas catch 
and effort by maintaining and submitting records, specific to the 
fishing gear being used, on forms provided by the Regional Administrator 
of the NMFS Region which issued the permit holder's HSFCA permit.
    (c) Confidentiality of statistics. Information submitted pursuant to 
this subpart will be treated in accordance with

[[Page 387]]

the provisions of 50 CFR part 600 of this title.

[64 FR 15, Jan. 4, 1999, as amended at 67 FR 64312, Oct. 18, 2002]



                    Subpart C_Pacific Tuna Fisheries

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



Sec. 300.20  Purpose and scope.

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

[64 FR 44430, Aug. 16, 1999]



Sec. 300.21  Definitions.

    In addition to the terms defined in Sec. 300.2, in the Act, the 
Convention for the Establishment of an Inter-American Tropical Tuna 
Commission, and the International Convention for the Conservation of 
Atlantic Tunas, the terms used in this subpart have the following 
meanings. If a term is defined differently in Sec. 300.2, the Act, or 
the Conventions, the definition in this section shall apply.
    Bigeye tuna means the species Thunnus obesus.
    Bluefin tuna means the fish species Thunnus thynnus that is found in 
any ocean area.
    Commission's Yellowfin Regulatory Area (CYRA) means the waters 
bounded by a line extending westward from the mainland of North America 
along the 40[deg] N. latitude parallel, and connecting the following 
coordinates:

40[deg] N. lat., 125[deg] W. long.;
20[deg] N. lat., 125[deg] W. long.;
20[deg] N. lat., 120[deg] W. long.;
5[deg] N. lat., 120[deg] W. long.;
5[deg] N. lat., 110[deg] W. long.;
10[deg] S. lat., 110[deg] W. long.;
10[deg] S. lat., 90[deg] W. long.;
30[deg] S. lat., 90[deg] W. long.; and then eastward along the 30[deg] 
S. latitude parallel to the coast of South America.

    Convention Area means the waters within the area bounded by the 
mainland of the Americas, lines extending westward from the mainland of 
the Americas along the 40[deg] N. lat. and 40[deg] S. lat., and 150[deg] 
W. long.
    Fish aggregating device (FAD) means a manmade raft or other floating 
object used to attract tuna and make them available to fishing vessels.
    Fishing trip means a period of time between landings when fishing is 
conducted.
    Fishing vessel means any vessel, boat, ship, or other craft that is 
used for, equipped to be used for, or of a type that is normally used 
for fishing or for assisting or supporting a vessel engaged in fishing, 
except purse seine skiffs.
    Floating object means any natural object or FAD around which fishing 
vessels may catch tuna.
    Incidental catch or incidental species means species caught while 
fishing with the primary purpose of catching a different species. An 
incidental catch is expressed as a percentage of the weight of the total 
fish on board.
    Land or Landing means to begin transfer of fish from a fishing 
vessel. Once transfer begins, all fish on board the vessel are counted 
as part of the landing.
    Observer means an individual placed aboard a fishing vessel under 
the IATTC observer program or any other international observer program 
in which the United States may participate.
    Pacific bluefin tuna means the subspecies of bluefin tuna Thunnus 
thynnus orientalis that is found in the Pacific Ocean.
    Regional Administrator means the Administrator, Southwest Region, 
NMFS, or his designee.
    Tag means the dealer tag, a flexible self-locking ribbon issued by 
NMFS for the identification of bluefin tuna under Sec. 300.26, or the 
BSD tag specified under Sec. 635.42 (a)(2) of this title.
    Tender vessel means a vessel that does not engage in purse seine 
fishing but

[[Page 388]]

tends to FADs in support of tuna fishing operations.
    Transship means to unload fish from a vessel that caught fish to 
another vessel.
    Transshipment receiving vessel means any vessel, boat, ship, or 
other craft that is used to receive fish from a fishing vessel.

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



Sec. 300.22  Recordkeeping and reporting.

    (a) The master or other person in charge of a fishing vessel, or a 
person authorized in writing to serve as the agent for either person, 
must keep an accurate log of all operations conducted from the fishing 
vessel, entering for each day the date, noon position (stated in 
latitude and longitude or in relation to known physical features), and 
the tonnage of fish on board, by species. The record and bridge log 
maintained at the request of the IATTC shall be sufficient to comply 
with this paragraph, provided the items of information specified are 
accurately entered in the log.
    (b) The owner of any fishing vessel that uses purse seine, longline, 
drift gillnet, harpoon, or troll fishing gear to harvest tuna in the 
Convention Area for sale or a person authorized in writing to serve as 
agent for the owner must provide such information about the vessel and 
its characteristics as the Regional Administrator requests to conform to 
IATTC actions to establish a regional register of all vessels used to 
fish for species under IATTC purview in the Convention Area. This 
initially includes, but is not limited to, vessel name and registration 
number; a photograph of the vessel with the registration number showing; 
vessel length, beam and moulded depth; gross tonnage and hold capacity 
in cubic meters and tonnage; engine horsepower; date and place where 
built; and type of fishing method or methods used.

[61 FR 35550, July 5, 1996, as amended at 66 FR 49320, Sept. 27, 2001]



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

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



Sec. 300.24  Pacific bluefin tuna--Dealer permits.

    (a) General. A dealer importing Pacific bluefin tuna, or purchasing 
or receiving for export Pacific bluefin tuna first landed in the United 
States, must have a valid permit issued under this section.
    (b) Application. A dealer must apply for a permit in writing on an 
appropriate form obtained from NMFS. The application must be signed by 
the dealer and be submitted to NMFS at least 30 days before the date 
upon which the dealer desires to have the permit made effective. The 
application must contain the following information: Company name, 
principal place of business, owner's or owners' names, applicant's name 
(if different from owner or owners) and mailing address and telephone 
number, and any other information required by NMFS.
    (c) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, NMFS will issue a permit within 30 days of receipt of a completed 
application.
    (2) NMFS will notify the applicant of any deficiency in the 
application. If the applicant fails to correct the deficiency within 15 
days following the date of notification, the application will be 
considered abandoned.
    (d) Duration. Any permit issued under this section is valid until 
December 31 of the year for which it is issued, unless suspended or 
revoked.
    (e) Alteration. Any permit that is substantially altered, erased, or 
mutilated is invalid.
    (f) Replacement. NMFS may issue replacement permits. An application 
for a replacement permit is not considered a new application.
    (g) Transfer. A permit issued under this section is not transferable 
or assignable; it is valid only for the dealer to whom it is issued.
    (h) Inspection. The dealer must keep the permit issued under this 
section at his/her principal place of business. The

[[Page 389]]

permit must be displayed for inspection upon request of any authorized 
officer, or any employee of NMFS designated by NMFS for such purpose.
    (i) Sanctions. The Assistant Administrator may suspend, revoke, 
modify, or deny a permit issued or sought under this section. Procedures 
governing permit sanctions and denials are found at subpart D of 15 CFR 
part 904.
    (j) Fees. NMFS may charge a fee to recover the administrative 
expenses of permit issuance. The amount of the fee is calculated, at 
least annually, in accordance with the procedures of the NOAA Finance 
Handbook, available from NMFS, for determining administrative costs of 
each special product or service. The fee may not exceed such costs and 
is specified on each application form. The appropriate fee must 
accompany each application. Failure to pay the fee will preclude 
issuance of the permit. Payment by a commercial instrument later 
determined to be insufficiently funded shall invalidate any permit.
    (k) Change in application information. Within 15 days after any 
change in the information contained in an application submitted under 
this section, the dealer issued a permit must report the change to NMFS 
in writing. The permit is void if any change in information is not 
reported within 15 days.

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



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

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

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



Sec. 300.26  Pacific bluefin tuna--Tags.

    (a) Issuance. NMFS will issue numbered tags to each person receiving 
a dealer's permit under Sec. 300.24.
    (b) Transfer. Tail tags issued under this section are not 
transferable and are usable only by the permitted dealer to whom they 
are issued.
    (c) Affixing tags. At the discretion of dealers permitted under 
Sec. 300.24, a tag issued under paragraph (a) of this section may be 
affixed to each Pacific bluefin tuna purchased or received by the 
dealer. If so tagged, the tag must be affixed to the tuna between the 
fifth dorsal finlet and the keel and tag numbers must be recorded on 
NMFS reports required by Sec. 300.25(a) and any documents accompanying 
the shipment of Pacific bluefin tuna for domestic commercial use or 
export.
    (d) Removal. A NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna at the option of any permitted dealer under paragraph (c) 
of this section or any tag affixed to any Pacific bluefin tuna to meet 
the requirements of Sec. 635.42(a)(2) of this title must remain on the 
tuna until the tuna is cut into portions. If the tuna or tuna parts 
subsequently are packaged for transport for domestic commercial use or 
for export, the number on each tag attached

[[Page 390]]

to each tuna or its parts must be written legibly and indelibly on the 
outside of any package or container.
    (e) Reuse. Tags issued under this section are separately numbered 
and may be used only once, one tail tag per fish, to distinguish the 
purchase of one Pacific bluefin tuna. Once affixed to a tuna or recorded 
on any package, container or report, a tail tag and associated number 
may not be reused.

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



Sec. 300.27  Pacific bluefin tuna--Documentation requirements.

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

[64 FR 29133, May 28, 1999]



Sec. 300.28  Prohibitions.

    In addition to the prohibitions in Sec. 300.4, it is unlawful for 
any person or vessel subject to the jurisdiction of the United States 
to:
    (a) Land any species of tuna during the closed season for that 
species in excess of the amount allowed by the Regional Administrator.
    (b) Fish on floating objects in the Convention Area using any gear 
type specified by the Regional Administrator's notification of closure 
issued under Sec. 300.29.
    (c) Use tender vessels in the Convention Area.
    (d) Transship purse seine-caught tuna at sea within the Convention 
Area.
    (e) Import Pacific bluefin tuna or purchase or receive for export 
Pacific bluefin tuna first landed in the United States without a valid 
dealer permit issued under Sec. 300.24.
    (f) Remove any NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna at the option of any permitted dealer or any tag affixed to 
a Pacific bluefin tuna to meet the requirements of Sec. 635.42(a)(2) of 
this title, before removal is allowed under Sec. 300.26, or fail to 
write the tag number on the shipping package or container as specified 
in Sec. 300.26.
    (g) Reuse any NMFS-issued numbered tag affixed to a Pacific bluefin 
tuna at the option of a permitted dealer or any tag affixed to a Pacific 
bluefin tuna to meet the requirements of Sec. 635.42(a)(2) of this 
title or reuse any tag number previously written on a shipping package 
or container as prescribed by Sec. 300.26.
    (h) Fail to retain any bigeye, skipjack, or yellowfin tuna brought 
on board a purse seine vessel in the Convention Area, except fish unfit 
for human consumption due to spoilage, and except on the last set of the 
trip if the well capacity is filled;
    (i) When using purse seine gear to fish for tuna in the Convention 
Area, fail to release any non-tuna species as soon as practicable after 
being identified on board the vessel during the brailing operation;
    (j) Land any non-tuna fish species taken in a purse seine set in the 
Convention Area;
    (k) Fail to use the sea turtle handling, release, and resuscitation 
procedures in Sec. 300.29(e); or
    (l) Fail to report information when requested by the Regional 
Administrator under Sec. 300.21.

[61 FR 35550, July 5, 1996, as amended at 64 FR 29133, May 28, 1999; 64 
FR 44430, Aug. 16, 1999; 66 FR 49320, Sept. 27, 2001]



Sec. 300.29  Eastern Pacific fisheries management.

    (a) Notification of IATTC recommendations. The Regional 
Administrator will directly notify owners or agents of U.S. tuna vessels 
of any fishery management recommendations made by the IATTC and approved 
by the Department of State that will affect fishing or other activities 
by U.S. parties with fishery interests in the Convention Area. As soon 
as practicable after such notification, the Regional Administrator will 
announce approved IATTC recommendations in the Federal Register.
    (b) Tuna quotas. (1) Fishing seasons for all tuna species begin on 
January 1 and end either on December 31 or when NMFS closes the fishery 
for a specific species.
    (2) The Regional Administrator may close the U.S. fishery for 
yellowfin, bigeye, or skipjack tuna or any other

[[Page 391]]

tuna species in the Convention Area or portion of the Convention Area 
when advised by the Director of Investigations of the IATTC that the 
associated quota has been or is projected to be reached. Any such 
closure may include:
    (i) An allowance for an incidental catch that may be landed while 
fishing for other tuna species;
    (ii) A prohibition on the further setting of specified gear types on 
floating objects by U.S. vessels in the Convention Area;
    (iii) Provisions for vessels that are at sea during an announced 
closure to fish unrestricted until the fishing trip is completed;
    (iv) Provisions for vessels at sea with an observer on board during 
any closure to land fish unrestricted if the landing occurs after 
December 31; or
    (v) Other measures to ensure that the conservation and management 
measures of the IATTC are achieved.
    (3) The Regional Administrator will announce any such closures 
directly to the owners or agents of U.S. vessels who are fishing in or 
are eligible to fish in the Convention Area.
    (4) As soon as practicable after being advised of the quota 
attainment or projection under paragraph (b)(2) of this section, the 
Regional Administrator will publish an announcement of the closure in 
the Federal Register.
    (c) Use of tender vessels. No person subject to these regulations 
may use a tender vessel in the Convention Area.
    (d) Transshipments at sea. No person subject to these regulations 
may transship purse seine-caught tuna from one vessel to another vessel 
at sea within the Convention Area.
    (e) Bycatch reduction measures. (1) Through December 31, 2001, all 
purse seine vessels must retain on board and land all bigeye, skipjack, 
and yellowfin tuna brought on board the vessel after a set, except fish 
deemed unfit for human consumption for other than reason of size. This 
requirement shall not apply to the last set of a trip if the available 
well capacity is insufficient to accommodate the entire fish catch 
brought on board.
    (2) All purse seine vessels must release all sharks, billfishes, 
rays, mahimahi (dorado), and other non-tuna fish species, except those 
being retained for consumption aboard the vessel, as soon as practicable 
after being identified on board the vessel during the brailing 
operation.
    (3) All purse seine vessels must apply special sea turtle handling 
and release procedures, as follows:
    (i) Whenever a sea turtle is sighted in the net, a speedboat shall 
be stationed close to the point where the net is lifted out of the water 
to assist in release of the turtle;
    (ii) If a turtle is entangled in the net, net roll shall stop as 
soon as the turtle comes out of the water and shall not resume until the 
turtle has been disentangled and released;
    (iii) If, in spite of the measures taken under paragraphs (e)(3)(i) 
and (ii) of this section, a turtle is accidentally brought onboard the 
vessel alive and active, the vessel's engine shall be disengaged and the 
turtle shall be released as quickly as practicable;
    (iv) If a turtle brought on board under paragraph (e)(3)(iii) of 
this section is alive but comatose or inactive, the resuscitation 
procedures described in Sec. 223.206(d)(1)(i)(B) of this title shall be 
used before release of the turtle.

[64 FR 44431, Aug. 16, 1999, as amended at 66 FR 49320, Sept. 27, 2001]



                 Subpart D_South Pacific Tuna Fisheries

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



Sec. 300.30  Purpose and scope.

    This subpart implements the South Pacific Tuna Act of 1988 (Act) and 
the Treaty on Fisheries Between the Governments of Certain Pacific 
Island States and the Government of the United States of America 
(Treaty) and applies to persons and vessels subject to the jurisdiction 
of the United States.



Sec. 300.31  Definitions.

    In addition to the terms defined in Sec. 300.2, in the Act, and in 
the Treaty, and unless the context requires otherwise, the terms used in 
this subpart have the following meanings. If a term is defined 
differently in Sec. 300.2, the Act, or the Treaty, the definition in 
this section shall apply.

[[Page 392]]

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



Sec. 300.32  Vessel licenses.

    (a) Each vessel fishing in the Licensing Area must have a license 
issued by the Administrator for the licensing period being fished, 
unless excepted by Sec. 300.39. Each licensing period begins on June 15 
and ends on June 14 of the following year.
    (b) Upon receipt, the license or a duly certified copy, facsimile or 
telex confirmation must be carried on board the vessel when in the 
Licensing Area or Closed Areas and must be produced at the request of 
authorized officers, authorized party officers, or authorized 
inspectors. Prior to receipt of the license, but after issuance, a 
vessel may be used to fish, provided the number of the issued license is 
available on board.
    (c) Application forms for licenses to use a vessel to fish in the 
Licensing Area may be requested from, and upon completion, must be 
returned to, the Regional Administrator. All of the information 
requested on the form and the following must be supplied before the 
application will be considered complete:

[[Page 393]]

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



Sec. 300.33  Compliance with applicable national laws.

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



Sec. 300.34  Reporting requirements.

    (a) License holders shall comply with the reporting requirements of 
parts 4 and 5 of Annex I to the Treaty.
    (b) Information provided by license holders under Schedule 5 of 
Annex I of the Treaty shall be provided on the designated Forum 
Fisheries Agency form(s) to the Regional Administrator within 2 days of 
reaching port.
    (c) Information provided by license holders under Schedule 6 of 
Annex I of the Treaty shall be provided on the designated Forum 
Fisheries Agency form(s) to the Regional Administrator within 2 days of 
completing unloading.
    (d) Any information required to be recorded, or to be notified, 
communicated or reported pursuant to a requirement of these regulations, 
the Act, or the Treaty shall be true, complete and correct. Any change 
in circumstances that has the effect of rendering any of the information 
provided false, incomplete or misleading shall be communicated 
immediately to the Regional Administrator.



Sec. 300.35  Vessel and gear identification.

    While a vessel is in the Licensing Area, a Limited Area closed to 
fishing, or a Closed Area, a recent and up-to-date copy of the 
International Code of Signals (INTERCO) shall be on board and accessible 
at all times. The operator shall comply with the 1989 Food

[[Page 394]]

and Agricultural Organization standard specifications for the marking 
and identification of fishing vessels. The international radio call sign 
of the vessel shall be painted in white on a black background, or in 
black on a white background, and be clear, distinct, and uncovered, in 
the following manner:
    (a) On both sides of the vessel's hull or superstructure, with each 
letter and number being at least 1 m high and having a stroke width of 
16.7 cm, with the background extending to provide a border around the 
mark of not less than 16.7 cm.
    (b) On the vessel's deck, on the body of any helicopter and on the 
hull of any skiff, with each letter and number being at least 30 cm 
high, and having a stroke width of 5 cm with the background extending to 
provide a border around the mark of not less than 5 cm.
    (c) On any other equipment being carried by and intended to be 
separated from the vessel during normal fishing operations, with each 
letter and number being at least 10 cm high and having a stroke width of 
1.7 cm, with the background extending to provide a border around the 
mark of not less than 1.7 cm.



Sec. 300.36  Closed area stowage requirements.

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



Sec. 300.37  Radio monitoring.

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



Sec. 300.38  Prohibitions.

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

[[Page 395]]

    (2) To use a vessel for directed fishing for southern bluefin tuna 
or for fishing for any kinds of fish other than tunas, except that fish 
may be caught as a incidental bycatch.
    (3) To use a vessel for fishing by any method, except the purse-
seine method.
    (4) To use any vessel to engage in fishing after the revocation of 
its license, or during the period of suspension of an applicable 
license.
    (5) To operate a vessel in such a way as to disrupt or in any other 
way adversely affect the activities of traditional and locally based 
fishermen and fishing vessels.
    (6) To use a vessel to fish in a manner inconsistent with an order 
issued by the Secretary under Sec. 300.42 (section 11 of the Act).
    (7) Except for circumstances involving force majeure and other 
emergencies involving the health or safety of crew members or the safety 
of the vessel, to use aircraft in association with fishing activities of 
a vessel, unless it is identified on the license application for the 
vessel, or any amendment thereto.



Sec. 300.39  Exceptions.

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



Sec. 300.40  Civil penalties.

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



Sec. 300.41  Investigation notification.

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



Sec. 300.42  Findings leading to removal from fishing area.

    (a) Following an investigation conducted under section 10(b) of the 
Act, the Secretary, with the concurrence of the Secretary of State, and 
upon the request of the Pacific Island Party concerned, may order a 
fishing vessel that has not submitted to the jurisdiction of that 
Pacific Island Party to leave immediately the Licensing Area, all 
Limited Areas, and all Closed Areas upon making a finding that:
    (1) The fishing vessel--
    (i) While fishing in the Licensing Area did not have a license under 
the Treaty to fish in the Licensing Area, and that under paragraph 2 of 
Article 3 of the Treaty, the fishing is not authorized to be conducted 
in the Licensing Area without a license;
    (ii) Was involved in any incident in which an authorized officer, 
authorized party officer, or observer was allegedly assaulted with 
resultant bodily harm, physically threatened, forcibly resisted, refused 
boarding or subjected to physical intimidation or physical interference 
in the performance of duties as authorized by the Act or the Treaty;
    (iii) Has not made full payment within 60 days of any amount due as 
a result of a final judgement or other final determination deriving from 
a violation in waters within the Treaty Area of a Pacific Island Party; 
or
    (iv) Was not represented by an agent for service of process in 
accordance with the Treaty; or
    (2) There is probable cause to believe that the fishing vessel--
    (i) Was used in violation of section 5(a)(4), (a)(5), (b)(2), or 
(b)(3) of the Act;
    (ii) Used an aircraft in violation of section 5(b)(7) of the Act; or
    (iii) Was involved in an incident in which section 5(a)(7) of the 
Act was violated.
    (b) Upon being advised by the Secretary of State that proper 
notification to Parties has been made under paragraph 7 of Article 5 of 
the Treaty that a Pacific Island Party is investigating an alleged 
infringement of the Treaty

[[Page 396]]

by a vessel in waters under the jurisdiction of that Pacific Island 
Party, the Secretary shall order the vessel to leave those waters until 
the Secretary of State notifies the Secretary that the order is no 
longer necessary.
    (c) The Secretary shall rescind any order issued on the basis of a 
finding under paragraphs (a)(1) (iii) or (iv) of this section 
(subsections 11(a)(1) (C) or (D) of the Act) as soon as the Secretary 
determines that the facts underlying the finding do not apply.
    (d) An order issued in accordance with this section is not subject 
to judicial review.



Sec. 300.43  Observers.

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



Sec. 300.44  Other inspections.

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



                   Subpart E_Pacific Halibut Fisheries

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



Sec. 300.60  Purpose and scope.

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



Sec. 300.61  Definitions.

    In addition to the terms defined in Sec. 300.2 and those in the Act 
and the Convention, the terms used in this subpart have the following 
meanings. If a term is defined differently in Sec. 300.2, the Act, or 
the Convention, the definition in this section shall apply.
    Alaska Native tribe means, for purposes of the subsistence fishery 
for Pacific halibut in waters in and off Alaska, a Federally recognized 
Alaska Native tribe that has customary and traditional use of halibut 
and that is listed in Sec. 300.65(f)(2) of this part.
    Area 2A includes all waters off the States of California, Oregon, 
and Washington.
    Charter vessel means a vessel used for hire in sport fishing for 
halibut, but

[[Page 397]]

not including a vessel without a hired operator.
    Commercial fishing means fishing, the resulting catch of which 
either is, or is intended to be, sold or bartered but does not include 
subsistence fishing.
    Commission means the International Pacific Halibut Commission.
    Commission regulatory area means an area defined by the Commission 
for purposes of the Convention identified in 50 CFR 300.60 and 
prescribed in the annual management measures published pursuant to 50 
CFR 300.62.
    Customary trade means, for purposes of the subsistence fishery for 
Pacific halibut in waters in and off Alaska, the non-commercial exchange 
of subsistence halibut for anything other than items of significant 
value.
    Fishing means the taking, harvesting, or catching of fish, or any 
activity that can reasonably be expected to result in the taking, 
harvesting, or catching of fish, including specifically the deployment 
of any amount or component part of setline gear anywhere in the maritime 
area.
    Guideline harvest level (GHL) means a level of allowable halibut 
harvest by the charter vessel fishery.
    Halibut harvest means the catching and retaining of any halibut.
    Individual Fishing Quota (IFQ), for purposes of this subpart, means 
the annual catch limit of halibut that may be harvested by a person who 
is lawfully allocated a harvest privilege for a specific portion of the 
TAC of halibut.
    IFQ fishing trip, for purposes of the subpart, means the period 
beginning when a vessel operator commences harvesting IFQ halibut and 
ending when the vessel operator lands any species.
    IFQ halibut means any halibut that is harvested with setline or 
other hook and line gear while commercial fishing in any IFQ regulatory 
area defined at Sec. 679.2 of this title.
    Overall length of a vessel means the horizontal distance, rounded to 
the nearest ft/meter, between the foremost part of the stem and the 
aftermost part of the stern (excluding bowsprits, rudders, outboard 
motor brackets, and similar fittings or attachments).
    Person includes an individual, corporation, firm, or association.
    Rural means, for purposes of the subsistence fishery for Pacific 
halibut in waters in and off Alaska, a community or area of Alaska in 
which the non-commercial, customary and traditional use of fish and game 
for personal or family consumption is a principal characteristic of the 
economy or area and in which there is a long-term, customary and 
traditional use of halibut, and that is listed in Sec. 300.65(f)(1).
    Rural resident means, for purposes of the subsistence fishery for 
Pacific halibut in waters in and off Alaska, a person domiciled in a 
rural community listed in the table in Sec. 300.65(f)(1) of this part 
and who has maintained a domicile in a rural community listed in the 
table in Sec. 300.65(f)(1) for the 12 consecutive months immediately 
preceding the time when the assertion of residence is made, and who is 
not claiming residency in another state, territory, or country.
    Setline gear means one or more stationary, buoyed, and anchored 
lines with hooks attached.
    Sport fishing means:
    (1) In regulatory area 2A, all fishing other than commercial fishing 
and treaty Indian ceremonial and subsistence fishing; and
    (2) In waters in and off Alaska, all fishing other than commercial 
fishing and subsistence fishing.
    Subarea 2A-1 includes all U.S. waters off the coast of Washington 
that are north of 46[deg]53[min]18[sec] N. lat. and east of 
125[deg]44[min]00[sec] W. long., and all inland marine waters of 
Washington.
    Subsistence means, with respect to waters in and off Alaska, the 
non-commercial, long-term, customary and traditional use of halibut.
    Subsistence halibut means halibut caught by a rural resident or a 
member of an Alaska Native tribe for direct personal or family 
consumption as food, sharing for personal or family consumption as food, 
or customary trade.
    Treaty Indian tribes means the Hoh, Jamestown S'Klallam, Lower Elwha 
S'Klallam, Lummi, Makah, Port Gamble S'Klallam, Quileute, Quinault,

[[Page 398]]

Skokomish, Suquamish, Swinomish, and Tulalip tribes.

[61 FR 35550, July 5, 1996, as amended at 64 FR 52469, Sept. 29, 1999; 
68 FR 18156, Apr. 15, 2003; 68 FR 47264, Aug. 8, 2003]



Sec. 300.62  Annual management measures.

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



Sec. 300.63  Catch sharing plan and domestic management measures in Area 2A.

    Catch sharing plans (CSP) and local area management plans (LAMP) may 
be developed by the appropriate regional fishery management council, and 
approved by NMFS, for portions of the fishery. Any approved CSP or LAMP 
may be obtained from the Administrator, Northwest Region, or the 
Administrator, Alaska Region.
    (a) A catch sharing plan (CSP) may be developed by the Pacific 
Fishery Management Council and approved by NMFS for portions of the 
fishery. Any approved CSP may be obtained from the Administrator, 
Northwest Region, NMFS.
    (b)(1) Each year, before January 1, NMFS will publish a proposal to 
govern the recreational fishery under the CSP for the following year and 
will seek public comment. The comment period will extend until after the 
Commission's annual meeting, so the public will have the opportunity to 
consider the final area 2A total allowable catch (TAC) before submitting 
comments. After the Commission's annual meeting and review of public 
comments, NMFS will publish in the Federal Register the final rule 
governing sport fishing in area 2A. Annual management measures may be 
adjusted inseason by NMFS.
    (2) A portion of the commercial TAC is allocated as incidental catch 
in the salmon troll fishery in Area 2A. Each year the landing 
restrictions necessary to keep the fishery within its allocation will be 
recommended by the Pacific Fishery Management Council at its spring 
meetings, and will be published in the Federal Register along with the 
annual salmon management measures.
    (3) A portion of the Area 2A Washington recreational TAC is 
allocated as incidental catch in the primary directed longline sablefish 
fishery north of 46[deg]53[min]18[sec] N. lat, (Pt. Chehalis, WA), which 
is regulated under 50 CFR 660.323(a)(2). This fishing opportunity is 
only available in years in which the Area 2A TAC is greater than 900,000 
lb (408.2 mt,) provided that a minimum of 10,000 lb (4.5 mt) is 
available above a Washington recreational TAC of 214,100 lb (97.1 mt). 
Each year that this harvest is available, the landing restrictions 
necessary to keep this fishery within its allocation will be recommended 
by the Pacific Fishery Management Council at its spring meetings, and 
will be published in the Federal Register. These restrictions will be 
designed to ensure the halibut harvest is incidental to the sablefish 
harvest and will be based on the amounts of halibut and sablefish 
available to this fishery, and other pertinent factors. The restrictions 
may include catch or landing ratios, landing limits, or other means to 
control the rate of halibut landings.
    (i) In years when this incidental harvest of halibut in the directed 
sablefish fishery north of 46[deg]53[min]18[sec] N. lat. is allowed, it 
is allowed only for vessels using longline gear that are registered to 
groundfish limited entry permits with sablefish endorsements and that 
possess the appropriate incidental halibut harvest license issued by the 
Commission.

[[Page 399]]

    (ii) It is unlawful for any person to possess, land or purchase 
halibut south of 46[deg]53[min]18[sec] N. lat. that were taken and 
retained as incidental catch authorized by this section in the directed 
longline sablefish fishery.
    (4) The commercial longline fishery in area 2A is governed by the 
annual management measures published pursuant to Sec. Sec. 300.62 and 
300.63.
    (5) The treaty Indian fishery is governed by Sec. 300.64 and tribal 
regulations. The annual quota for the fishery will be announced with the 
Commission regulations under Sec. 300.62

[61 FR 35550, July 5, 1996, as amended at 63 FR 13009, Mar. 17, 1998; 63 
FR 24752, May 5, 1998; 64 FR 52469, Sept. 29, 1999; 65 FR 67308, Nov. 9, 
2000; 65 FR 8373, Jan. 31, 2001; 66 FR 36208, July 11, 2001; 66 FR 
42156, Aug. 10, 2001; 68 FR 11003, Mar. 7, 2003; 68 FR 18156, Apr. 15, 
2003; 69 FR 24532, May 4, 2004]



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

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

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

[[Page 400]]

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



Sec. 300.65  Catch sharing plan and domestic management measures in waters 
in and off Alaska.

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

[[Page 401]]

    (ii) With respect to paragraphs (d)(3) and (d)(4) of this section, 
that part of the Commission regulatory area 2C that is enclosed on the 
north and east:
    (A) By a line from Kruzof Island at 57[deg]20[min]30[sec] N. lat., 
135[deg]45[min]10[sec] W. long. to Chichagof Island at 
57[deg]22[min]03[sec] N. lat., 135[deg]43[min]00[sec] W. long., and
    (B) A line from Chichagof Island at 57[deg]22[min]35[sec] N. lat., 
135[deg]41[min]18[sec] W. long. to Baranof Island at 
57[deg]22[min]17[sec] N. lat., 135[deg]40[min]57[sec] W. lat.; and
    (C) That is enclosed on the south and west by a line from Sitka 
Point at 56[deg]59[min]23[sec] N. lat., 135[deg]49[min]34[sec] W. long., 
to Hanus Point at 56[deg]51[min]55[sec] N. lat., 135[deg]30[min]30[sec] 
W. long.,
    (D) To the green day marker in Dorothy Narrows at 
56[deg]49[min]17[sec] N. lat., 135[deg]22[min]45[sec] W. long. to 
Baranof Island at 56[deg]49[min]17[sec] N. lat., 135[deg]22[min]36[sec] 
W. long.
    (2) A person using a vessel greater than 35 ft (10.7 m) in overall 
length, as defined at 50 CFR 300.61, is prohibited from fishing for IFQ 
halibut with setline gear, as defined at 50 CFR 300.61, within Sitka 
Sound as defined in paragraph (d)(1)(i) of this section.
    (3) A person using a vessel less than or equal to 35 ft (10.7 m) in 
overall length, as defined at 50 CFR 300.61:
    (i) Is prohibited from fishing for IFQ halibut with setline gear 
within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, 
from June 1 through August 31; and
    (ii) Is prohibited, during the remainder of the designated IFQ 
season, from retaining more than 2,000 lb (0.91 mt) of IFQ halibut 
within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, 
per IFQ fishing trip, as defined in 50 CFR 300.61.
    (4) No charter vessel, as defined at 50 CFR 300.61, shall engage in 
sport fishing, as defined at 50 CFR 300.61(b), for halibut within Sitka 
Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 
through August 31.
    (i) No charter vessel shall retain halibut caught while engaged in 
sport fishing, as defined at 50 CFR 300.61(b), for other species, within 
Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from 
June 1 through August 31.
    (ii) Notwithstanding paragraphs (d)(4) and (d)(4)(i) of this 
section, halibut harvested outside Sitka Sound, as defined in (d)(1)(ii) 
of this section, may be retained onboard a charter vessel engaged in 
sport fishing, as defined in 50 CFR 300.61(b), for other species within 
Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from 
June 1 through August 31.
    (e) Sitka Pinnacles Marine Reserve. (1) For purposes of this 
paragraph (e), the Sitka Pinnacles Marine Reserve means an area totaling 
2.5 square nm off Cape Edgecumbe, defined by straight lines connecting 
the following points in a counterclockwise manner:
    56[deg]55.5[min]N lat., 135[deg]54.0[min]W long;
    56[deg]57.0[min]N lat., 135[deg]54.0[min]W long;
    56[deg]57.0[min]N lat., 135[deg]57.0[min]W long;
    56[deg]55.5[min]N lat., 135[deg]57.0[min]W long.
    (2) No person shall engage in commercial, sport or subsistence 
fishing, as defined at Sec. 300.61, for halibut within the Sitka 
Pinnacles Marine Reserve.
    (3) No person shall anchor a vessel within the Sitka Pinnacles 
Marine Reserve if halibut is on board.
    (f) Subsistence fishing in and off Alaska. No person shall engage in 
subsistence fishing for halibut unless that person meets the 
requirements in paragraphs (f)(1) or (f)(2) of this section.
    (1) A person is eligible to harvest subsistence halibut if he or she 
is a rural resident of a community with customary and traditional uses 
of halibut listed in the following table:

                       Halibut Regulatory Area 2C
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Angoon....................................  Municipality
Coffman Cove..............................  Municipality
Craig.....................................  Municipality
Edna Bay..................................  Census Designated Place
Elfin Cove................................  Census Designated Place
Gustavus..................................  Census Designated Place
Haines....................................  Municipality
Hollis....................................  Census Designated Place
Hoonah....................................  Municipality
Hydaburg..................................  Municipality
Hyder.....................................  Census Designated Place
Kake......................................  Municipality
Kasaan....................................  Municipality
Klawock...................................  Municipality
Klukwan...................................  Census Designated Place
Metlakatla................................  Census Designated Place
Meyers Chuck..............................  Census Designated Place
Pelican...................................  Municipality
Petersburg................................  Municipality
Point Baker...............................  Census Designated Place
Port Alexander............................  Municipality
Port Protection...........................  Census Designated Place
Saxman....................................  Municipality
Sitka.....................................  Municipality
Skagway...................................  Municipality
Tenakee Springs...........................  Municipality

[[Page 402]]

 
Thorne Bay................................  Municipality
Whale Pass................................  Census Designated Place
Wrangell..................................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 3A
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Akhiok....................................  Municipality
Chenega Bay...............................  Census Designated Place
Cordova...................................  Municipality
Karluk....................................  Census Designated Place
Kodiak City...............................  Municipality
Larsen Bay................................  Municipality
Nanwalek..................................  Census Designated Place
Old Harbor................................  Municipality
Ouzinkie..................................  Municipality
Port Graham...............................  Census Designated Place
Port Lions................................  Municipality
Seldovia..................................  Municipality
Tatitlek..................................  Census Designated Place
Yakutat...................................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 3B
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Chignik Bay...............................  Municipality
Chignik Lagoon............................  Census Designated Place
Chignik Lake..............................  Census Designated Place
Cold Bay..................................  Municipality
False Pass................................  Municipality
Ivanof Bay................................  Census Designated Place
King Cove.................................  Municipality
Nelson Lagoon.............................  Census Designated Place
Perryville................................  Census Designated Place
Sand Point................................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 4A
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Akutan....................................  Municipality
Nikolski..................................  Census Designated Place
Unalaska..................................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 4B
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Adak......................................  Census Designated Place
Atka......................................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 4C
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
St. George................................  Municipality
St. Paul..................................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 4D
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Gambell...................................  Municipality
Savoonga..................................  Municipality
Diomede (Inalik)..........................  Municipality
------------------------------------------------------------------------


                       Halibut Regulatory Area 4E
------------------------------------------------------------------------
              Rural Community                     Organized Entity
------------------------------------------------------------------------
Alakanuk..................................  Municipality
Aleknegik.................................  Municipality
Bethel....................................  Municipality
Brevig Mission............................  Municipality
Chefornak.................................  Municipality
Chevak....................................  Municipality
Clark's Point.............................  Municipality
Council...................................  Census Designated Place
Dillingham................................  Municipality
Eek.......................................  Municipality
Egegik....................................  Municipality
Elim......................................  Municipality
Emmonak...................................  Municipality
Golovin...................................  Municipality
Goodnews Bay..............................  Municipality
Hooper Bay................................  Municipality
King Salmon...............................  Census Designated Place
Kipnuk....................................  Census Designated Place
Kongiganak................................  Census Designated Place
Kotlik....................................  Municipality
Koyuk.....................................  Municipality
Kwigillingok..............................  Census Designated Place
Levelock..................................  Census Designated Place
Manokotak.................................  Municipality
Mekoryak..................................  Municipality
Naknek....................................  Census Designated Place
Napakiak..................................  Municipality
Napaskiak.................................  Municipality
Newtok....................................  Census Designated Place
Nightmute.................................  Municipality
Nome......................................  Municipality
Oscarville................................  Census Designated Place
Pilot Point...............................  Municipality
Platinum..................................  Municipality
Port Heiden...............................  Municipality
Quinhagak.................................  Municipality
Scammon Bay...............................  Municipality
Shaktoolik................................  Municipality
Sheldon Point (Nunam Iqua)................  Municipality
Shishmaref................................  Municipality
Solomon...................................  Census Designated Place
South Naknek..............................  Census Designated Place
St. Michael...............................  Municipality
Stebbins..................................  Municipality
Teller....................................  Municipality
Togiak....................................  Municipality
Toksook Bay...............................  Municipality
Tuntutuliak...............................  Census Designated Place
Tununak...................................  Census Designated Place
Twin Hills................................  Census Designated Place
Ugashik...................................  Census Designated Place
Unalakleet................................  Municipality
Wales.....................................  Municipality
White Mountain............................  Municipality
------------------------------------------------------------------------

    (2) A person is eligible to harvest subsistence halibut if he or she 
is a member of an Alaska Native tribe with customary and traditional 
uses of halibut listed in the following table:

                       Halibut Regulatory Area 2C
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Angoon....................................  Angoon Community Association
Craig.....................................  Craig Community Association
Haines....................................  Chilkoot Indian Association

[[Page 403]]

 
Hoonah....................................  Hoonah Indian Association
Hydaburg..................................  Hydaburg Cooperative
                                             Association
Juneau....................................  Aukquan Traditional Council
                                            Central Council Tlingit and
                                             Haida Indian Tribes
                                            Douglas Indian Association
Kake......................................  Organized Village of Kake
Kasaan....................................  Organized Village of Kasaan
Ketchikan.................................  Ketchikan Indian Corporation
Klawock...................................  Klawock Cooperative
                                             Association
Klukwan...................................  Chilkat Indian Village
Metlakatla................................  Metlakatla Indian Community,
                                             Annette Island Reserve
Petersburg................................  Petersburg Indian
                                             Association
Saxman....................................  Organized Village of Saxman
Sitka.....................................  Sitka Tribe of Alaska
Skagway...................................  Skagway Village
Wrangell..................................  Wrangell Cooperative
                                             Association
------------------------------------------------------------------------


                       Halibut Regulatory Area 3A
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Akhiok....................................  Native Village of Akhiok
Chenega Bay...............................  Native Village of Chanega
Cordova...................................  Native Village of Eyak
Karluk....................................  Native Village of Karluk
Kenai-Soldotna............................  Kenaitze Indian Tribe
                                            Village of Salamatoff
Kodiak City...............................  Lesnoi Village (Woody
                                             Island)
                                            Native Village of Afognak
                                            Shoonaq' Tribe of Kodiak
Larsen Bay................................  Native Village of Larsen Bay
Nanwalek..................................  Native Village of Nanwalek
Ninilchik.................................  Ninilchik Village
Old Harbor................................  Village of Old Harbor
Ouzinkie..................................  Native Village of Ouzinkie
Port Graham...............................  Native Village of Port
                                             Graham
Port Lions................................  Native Village of Port Lions
Seldovia..................................  Seldovia Village Tribe
Tatitlek..................................  Native Village of Tatitlek
Yakutat...................................  Yakutat Tlingit Tribe
------------------------------------------------------------------------


                       Halibut Regulatory Area 3B
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Chignik Bay...............................  Native Village of Chignik
Chignik Lagoon............................  Native Village of Chignik
                                             Lagoon
Chignik Lake..............................  Chignik Lake Village
False Pass................................  Native Village of False Pass
Ivanof Bay................................  Ivanoff Bay Village
King Cove.................................  Agdaagux Tribe of King Cove
                                            Native Village of Belkofski
Nelson Lagoon.............................  Native Village of Nelson
                                             Lagoon
Perryville................................  Native Village of Perryville
Sand Point................................  Pauloff Harbor Village
                                            Native Village of Unga
                                            Qagan Toyagungin Tribe of
                                             Sand Point Village
------------------------------------------------------------------------


                       Halibut Regulatory Area 4A
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Akutan....................................  Native Village of Akutan
Nikolski..................................  Native Village of Nikolski
Unalaska..................................  Qawalingin Tribe of Unalaska
------------------------------------------------------------------------


                       Halibut Regulatory Area 4B
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Atka......................................  Native Village of Atka
------------------------------------------------------------------------


                       Halibut Regulatory Area 4C
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
 
St. George................................  Pribilof Islands Aleut
St. Paul..................................   Communities of St. Paul
                                             Island and St. George
                                             Island
------------------------------------------------------------------------


                       Halibut Regulatory Area 4D
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Gambell...................................  Native Village of Gambell
Savoonga..................................  Native Village of Savoonga
Diomede (Inalik)..........................  Native Village of Diomede
                                             (Inalik)
------------------------------------------------------------------------


                       Halibut Regulatory Area 4E
------------------------------------------------------------------------
      Place with Tribal Headquarters           Organized Tribal Entity
------------------------------------------------------------------------
Alakanuk..................................  Village of Alakanuk
Aleknagik.................................  Native Village of Aleknagik
Bethel....................................  Orutsararmuit Native Village
Brevig Mission............................  Native Village of Brevig
                                             Mission
Chefornak.................................  Village of Chefornak
Chevak....................................  Chevak Native Village
Clark's Point.............................  Village of Clark's Point
Council...................................  Native Village of Council
Dillingham................................  Native Village of Dillingham
                                            Native Village of Ekuk
                                            Native Village of Kanakanak
Eek.......................................  Native Village of Eek
Egegik....................................  Egegik Village
                                            Village of Kanatak
Elim......................................  Native Village of Elim
Emmonak...................................  Chuloonawick Native Village
                                            Emmonak Village
Golovin...................................  Chinik Eskimo Community
Goodnews Bay..............................  Native Village of Goodnews
                                             Bay
Hooper Bay................................  Native Village of Hooper Bay
                                            Native Village of Paimiut
King Salmon...............................  King Salmon Tribal Council
Kipnuk....................................  Native Village of Kipnuk
Kongiganak................................  Native Village of Kongiganak
Kotlik....................................  Native Village of Hamilton
                                            Village of Bill Moore's
                                             Slough
                                            Village of Kotlik
Koyuk.....................................  Native Village of Koyuk
Kwigillingok..............................  Native Village of
                                             Kwigillingok
Levelock..................................  Levelock Village
Manokotak.................................  Manokotak Village
Mekoryak..................................  Native Village of Mekoryak

[[Page 404]]

 
Naknek....................................  Naknek Native Village
Napakiak..................................  Native Village of Napakiak
Napaskiak.................................  Native Village of Napaskiak
Newtok....................................  Newtok Village
Nightmute.................................  Native Village of Nightmute
                                            Umkumiute Native Village
Nome......................................  King Island Native Community
                                            Nome Eskimo Community
Oscarville................................  Oscarville Traditional
                                             Village
Pilot Point...............................  Native Village of Pilot
                                             Point
Platinum..................................  Platinum Traditional Village
Port Heiden...............................  Native Village of Port
                                             Heiden
Quinhagak.................................  Native Village of Kwinhagak
Scammon Bay...............................  Native Village of Scammon
                                             Bay
Shaktoolik................................  Native Village of Shaktoolik
Sheldon Point (Nuna Iqua).................  Native Village of Sheldon's
                                             Point
Shishmaref................................  Native Village of Shishmaref
Solomon...................................  Village of Solomon
South Naknek..............................  South Naknek Village
St. Michael...............................  Native Village of Saint
                                             Michael
Stebbins..................................  Stebbins Community
                                             Association
Teller....................................  Native Village of Mary's
                                             Igloo
                                            Native Village of Teller
Togiak....................................  Traditional Village of
                                             Togiak
Toksook Bay...............................  Native Village of Toksook
                                             Bay
Tuntutuliak...............................  Native Village of
                                             Tuntutuliak
Tununak...................................  Native Village of Tununak
Twin Hills................................  Twin Hills Village
Ugashik...................................  Ugashik Village
Unalakleet................................  Native Village of Unalakleet
Wales.....................................  Native Village of Wales
White Mountain............................  Native Village of White
                                             Mountain
------------------------------------------------------------------------

    (g) Limitations on subsistence fishing. Subsistence fishing for 
halibut may be conducted only by persons who qualify for such fishing 
pursuant to paragraph (f) of this section and who hold a valid 
subsistence halibut registration certificate in that person's name 
issued by NMFS pursuant to paragraph (h) of this section, provided that 
such fishing is consistent with the following limitations.
    (1) Subsistence fishing is limited to setline gear and hand-held 
gear, including longline, handline, rod and reel, spear, jig and hand-
troll gear.
    (i) Subsistence fishing gear must not have more than 30 hooks per 
person registered in accordance with paragraph (h) of this section and 
on board the vessel from which gear is being set or retrieved.
    (ii) All setline gear marker buoys carried on board or used by any 
vessel regulated under this section shall be marked with the following: 
first initial, last name, and address (street, city, and state), 
followed by the letter ``S'' to indicate that it is used to harvest 
subsistence halibut.
    (iii) Markings on setline marker buoys shall be in characters at 
least 4 inches (10.16 cm) in height and 0.5 inch (1.27 cm) in width in a 
contrasting color visible above the water line and shall be maintained 
so the markings are clearly visible.
    (2) The daily retention of subsistence halibut in rural areas is 
limited to no more than 20 fish per person eligible to conduct 
subsistence fishing for halibut under paragraph (g) of this section, 
except that no daily retention limit applies in Areas 4C, 4D, and 4E.
    (3) Subsistence fishing may be conducted in any waters in and off 
Alaska except for the following four non-rural areas defined as follows:
    (i) Ketchikan non-subsistence marine waters area in Commission 
regulatory area 2C (see Figure 2 to subpart E) is defined as those 
waters between a line from Caamano Point at 55[deg]29.90[min] N. lat., 
131[deg]58.25[min] W. long. to Point Higgins at 55[deg]27.42[min] N. 
lat., 131[deg]50.00[min] W. long. and a point at 55[deg]11.78[min] N. 
lat., 131[deg]05.13[min] W. long., located on Point Sykes to a point at 
55[deg]12.22[min] N. lat., 131[deg]05.70[min] W. long., located one-half 
mile northwest of Point Sykes to Point Alava at 55[deg]11.54[min] N. 
lat., 131[deg]11.00[min] W. long. and within one mile of the mainland 
and the Gravina and Revillagigedo Island shorelines, including within 
one mile of the Cleveland Peninsula shoreline and east of the longitude 
of Niblack Point at 132[deg]07.23[min] W. long., and north of the 
latitude of the southernmost tip of Mary Island at 55[deg]02.66[min] N. 
lat.;
    (ii) Juneau non-subsistence marine waters area in Commission 
regulatory area 2C (see Figure 3 to subpart E) is defined as those 
waters of Stephens Passage and contiguous waters north of the latitude 
of Midway Island Light (57[deg]50.21[min] N. lat.), including the waters 
of Taku Inlet, Port Snettisham, Saginaw Channel, and Favorite Channel, 
and those waters of Lynn Canal and contiguous waters south of the 
latitude of the northernmost entrance of Berners Bay (58[deg]43.07[min] 
N. lat.), including the waters of Berners Bay and Echo Cove, and those 
waters of Chatham Strait and contiguous waters north of the latitude of 
Point Marsden (58[deg]03.42[min] N. lat.), and east of a line from Point

[[Page 405]]

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

[[Page 406]]

for subsistence halibut), daytime telephone number, certification that 
he or she is a ``rural resident'' as that term is defined at Sec. 
300.61, and signature and date of signature.
    (ii) For an Alaska Native Tribal Registration, the person must 
submit his or her full name, date of birth, mailing address (number and 
street, city and state, zip code), Alaska Native tribe (the name of the 
Alaska Native Tribe from 50 CFR 300.65(f)(2) that qualifies the fisher 
as eligible to fish for subsistence halibut), daytime telephone number, 
certification that he or she is a member of an ``Alaska Native tribe'' 
as that term is defined at Sec. 300.61, and signature and date of 
signature.
    (3) Expiration of registration. Each subsistence halibut 
registration certificate will be valid only for the period of time 
specified on the certificate. A person eligible to harvest subsistence 
halibut under paragraph (f) of this section may renew his or her 
registration certificate that is expired or will expire within 3 months 
by following the procedures described in paragraph (h)(2) of this 
section. A subsistence halibut registration certificate will expire:
    (i) 2 years from the date of its issuance to a person eligible to 
harvest subsistence halibut under paragraph (f)(1) of this section, and
    (ii) 4 years from the date of its issuance to a person eligible to 
harvest subsistence halibut under paragraph (f)(2) of this section.
    (4) The Administrator, Alaska Region, NMFS, or an authorized 
representative, may conduct periodic surveys of persons who hold valid 
subsistence halibut registration certificates to estimate the annual 
harvest of subsistence halibut and related catch and effort information. 
For purposes of this paragraph, an authorized representative of NMFS may 
include employees of, or contract workers for, the State of Alaska or a 
Federal agency or an Alaska Native tribal government representative as 
may be prescribed by cooperative agreement with NMFS. Responding to a 
subsistence halibut harvest survey will be voluntary and may include 
providing information on:
    (i) The subsistence fisher's identity including his or her full 
name, date of birth, mailing address (number and street, city and state, 
zip code), community of residence, daytime phone number, and tribal 
identity (if appropriate);
    (ii) The subsistence halibut harvest, including whether the 
participant fished for subsistence halibut during the year and, if so, 
the number and weight (in pounds) of halibut harvested, the type of gear 
and number of hooks usually used, the Commission regulatory area and 
local water body from which the halibut were harvested, and the number 
of ling cod and rockfish caught while subsistence fishing for halibut; 
and
    (iii) Any sport halibut harvest, including whether the participant 
sport fished for halibut during the year and the number and weight (in 
pounds) of halibut harvested while sport fishing.
    (i) Guideline harvest level. (1) The annual GHLs for regulatory 
areas 2C and 3A are determined as follows:

----------------------------------------------------------------------------------------------------------------
                                                                             If the Annual
                                                                            Total Constant
 If the Annual Total Constant Exploitation Yield for   Than the GHL for   Exploitation Yield   Than the GHL for
          Halibut in Area 2C is More Than:             Area 2C will be:     for Halibut in     Area 3A will be:
                                                                            Area 3A is More
                                                                                 Than:
----------------------------------------------------------------------------------------------------------------
(i) 9,027,000 lbs.                                       1,432,000 lbs.     21,581,000 lbs.      3,650,000 lbs.
(4094.5 mt)                                                  (649.5 mt)        (9,788.9 mt)         (1655.6 mt)
(ii) 7,965,000 lbs.                                      1,217,000 lbs.     19,042,000 lbs.      3,103,000 lbs.
(3612.9 mt)                                                  (552.0 mt)         (8637.3 mt)         (1407.0 mt)
(iii) 6,903,000 lbs.                                     1,074,000 lbs.     16,504,000 lbs.      2,734,000 lbs.
(3,131.2 mt)                                                 (496.7 mt)        (7,485.9 mt)         (1266.4 mt)
(iv) 5,841,000 lbs.                                        931,000 lbs.     13,964,000 lbs.      2,373,000 lbs.
(2,649.4 mt)                                                 (447.2 mt)         (6334.0 mt)        (1,139.9 mt)
(v) 4,779,000 lbs.                                         788,000 lbs.     11,425,000 lbs.      2,008,000 lbs.
(2,167.7 mt)                                                 (357.4 mt)        (5,182.3 mt)          (910.8 mt)
----------------------------------------------------------------------------------------------------------------


[[Page 407]]

    (2) NMFS will publish a notice in the Federal Register on an annual 
basis establishing the GHL for Area 2C and Area 3B for that calendar 
year within 30 days of receiving information from the Commission which 
establishes the constant exploitation yield for that year.
    (3) If the GHL in either Area 2C or 3A is exceeded, NMFS will notify 
the Council in writing that the GHL has been exceeded within 30 days of 
receiving information that the GHL has been exceeded.

[68 FR 18156, Apr. 15, 2003, as amended at 68 FR 47264, Aug. 8, 2003]



Sec. 300.66  Prohibitions.

    In addition to the general prohibitions specified in 50 CFR 300.4, 
it is unlawful for any person to do any of the following:
    (a) Fish for halibut except in accordance with the annual management 
measures published pursuant to 50 CFR 300.62.
    (b) Fish for halibut except in accordance with the catch sharing 
plans and domestic management measures implemented under 50 CFR 300.63 
and 50 CFR 300.65.
    (c) Fish for halibut in Sitka Sound in violation of the Sitka Sound 
LAMP implemented under 50 CFR 300.65(d).
    (d) Fish for halibut or anchor a vessel with halibut on board within 
the Sitka Pinnacles Marine Reserve defined at 50 CFR 300.65(e).
    (e) Fish for subsistence halibut in and off Alaska unless the person 
is qualified to do so under 50 CFR 300.65(f), has in his or her 
possession a valid subsistence halibut registration certificate pursuant 
to 50 CFR 300.65(h), and makes this certificate available for inspection 
by an authorized officer on request.
    (f) Fish for subsistence halibut in and off Alaska with gear other 
than that described at 50 CFR 300.65(g)(1) and retain more halibut than 
specified at 50 CFR 300.65(g)(2).
    (g) Fish for subsistence halibut in and off Alaska in a non-rural 
area specified at 50 CFR 300.65(g)(3).
    (h) Retain, on board the harvesting vessel, halibut harvested from 
subsistence fishing with halibut harvested from commercial fishing or 
from sport fishing, as defined at 50 CFR 300.61(b), except that persons 
who land their total annual harvest of halibut in Commission regulatory 
area 4D or 4E may retain, with harvests of CDQ halibut, halibut 
harvested in Commission regulatory areas 4D or 4E that are smaller than 
the size limit specified in the annual management measures published 
pursuant to 50 CFR 300.62.
    (i) Retain subsistence halibut that were harvested using a charter 
vessel.
    (j) Retain or possess subsistence halibut for commercial purposes, 
cause subsistence halibut to be sold, bartered or otherwise enter 
commerce or solicit exchange of subsistence halibut for commercial 
purposes, except that a person who qualified to conduct subsistence 
fishing for halibut under 50 CFR 300.65(f), and who holds a subsistence 
halibut registration certificate in the person's name under 50 CFR 
300.65(h) may engage in the customary trade of subsistence halibut 
through monetary exchange of no more than $400 per year.
    (k) Fillet, mutilate, or otherwise disfigure subsistence halibut in 
any manner that prevents the determination of the number of fish caught, 
possessed, or landed.

[68 FR 18156, Apr. 15, 2003]

[[Page 408]]

         Figure 1 to Subpart E--Sitka Local Area Management Plan
[GRAPHIC] [TIFF OMITTED] TR15AP03.074


[[Page 409]]



             Figure 2 to Subpart E--Ketchikan Non-Rural Area
[GRAPHIC] [TIFF OMITTED] TR15AP03.075


[[Page 410]]



              Figure 3 to Subpart E--Juneau Non-Rural Area
[GRAPHIC] [TIFF OMITTED] TR15AP03.076


[[Page 411]]



       Figure 4 to Subpart E--Anchorage-Matsu-Kenai Non-Rural Area
[GRAPHIC] [TIFF OMITTED] TR15AP03.077


[[Page 412]]



              Figure 5 to Subpart E--Valdez Non-Rural Area
[GRAPHIC] [TIFF OMITTED] TR15AP03.078


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

        Subpart F_Fraser River Sockeye and Pink Salmon Fisheries

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



Sec. 300.90  Purpose and scope.

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



Sec. 300.91  Definitions.

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

[[Page 413]]

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

[[Page 414]]

    (4) The Fraser River Panel Area (U.S.) includes Puget Sound 
Management and Catch Reporting Areas 4B, 5, 6, 6A, 6B, 6C, 6D, 7, 7A, 
7B, 7C, 7D, and 7E as defined in the Washington State Administrative 
Code at Chapter 220-22 as of June 27, 1986.
    Fraser River Panel regulations means regulations applicable to the 
Fraser River Panel Area that are recommended by the Commission (on the 
basis of proposals made by the Fraser River Panel) and approved by the 
Secretary of State.
    Mesh size means the distance between the inside of one knot to the 
outside of the opposite (vertical) knot in one mesh of a net.
    Pink salmon means Oncorhynchus gorbuscha.
    Sockeye salmon means the anadromous form of Oncorhynchus nerka.
    Treaty fishing places (of an Indian tribe) means locations within 
the Fraser River Panel Area (U.S.) as determined in or in accordance 
with Final Decision No. 1 and subsequent orders in United States v. 
Washington, 384 F. Supp. 312 (W.D. Wash. 1974), to be places at which 
that treaty Indian tribe may take fish under rights secured by treaty 
with the United States.
    Treaty Indian means any member of a treaty Indian tribe whose treaty 
fishing place is in the Fraser River Panel Area (U.S.) or any assistant 
to a treaty Indian authorized to assist in accordance with Sec. 
300.95(d).
    Treaty Indian tribe means any of the federally recognized Indian 
tribes of the State of Washington having fishing rights secured by 
treaty with the United States to fish for salmon stocks subject to the 
Pacific Salmon Treaty in treaty fishing places within the Fraser River 
Panel Area (U.S.). Currently these tribes are the Makah, Tribe, Lower 
Elwha Klallam Tribe, Port Gamble Klallam Tribe, Jamestown Klallam Tribe, 
Suquamish Tribe, Lummi Tribe, Nooksack Tribe, the Swinomish Indian 
Tribal Community, and the Tulalip Tribe.



Sec. 300.92  Relation to other laws.

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



Sec. 300.93  Reporting requirements.

    Any person fishing for sockeye or pink salmon within the Fraser 
River Panel Area (U.S.) and any person receiving or purchasing fish 
caught by such persons are subject to State of Washington reporting 
requirements at Washington Administrative Code,

[[Page 415]]

Chapter 220-69. Treaty Indian fishermen are subject also to tribal 
reporting requirements. No separate Federal reports are required.



Sec. 300.94  Prohibitions and restrictions.

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



Sec. 300.95  Treaty Indian fisheries.

    (a) Any treaty Indian must comply with this section when fishing for 
sockeye and pink salmon at the treaty Indian tribe's treaty fishing 
places in the Fraser River Panel Area (U.S.) during the time the 
Commission or the Secretary exercises jurisdiction over these fisheries. 
Fishing by a treaty Indian outside the applicable Indian tribe's

[[Page 416]]

treaty fishing places will be subject to the Fraser River Panel 
regulations and inseason orders applicable to all citizens, as well as 
to the restrictions set forth in this section.
    (b) Nothing in this section will relieve a treaty Indian from any 
applicable law or regulation imposed by a treaty Indian tribe, or from 
requirements lawfully imposed by the United States or the State of 
Washington in accordance with the requirements of Final Decision No. 1 
and subsequent orders in United States v. Washington, 384 F. Supp. 312 
(W.D. Wash., 1974).
    (c) Identification. (1) Any treaty Indian fishing under the 
authority of this subpart must have in his or her possession at all 
times while fishing or engaged in any activity related to fishing the 
treaty Indian identification required by 25 CFR 249.3 or by applicable 
tribal law.
    (2) Any person assisting a treaty Indian under the authority of 
paragraph (d) of this section must have in his or her possession at all 
such times a valid identification card issued by the Bureau of Indian 
Affairs or by a treaty Indian tribe, identifying the holder as a person 
qualified to assist a treaty Indian. The identification card must 
include the name of the issuing tribe, the name, address, date of birth, 
and photograph of the assistant, and the name and identification number 
of the treaty Indian whom the assistant is authorized to assist.
    (3) Identification described in paragraph (c) (1) or (2) of this 
section must be shown on demand to an authorized officer by the treaty 
Indian or authorized assistant.
    (4) Any treaty Indian fishing under this subpart must comply with 
the treaty Indian vessel and gear identification requirements of Final 
Decision No. 1 and subsequent orders in United States v. Washington, 384 
F. Supp. 312 (W.D. Wash., 1974).
    (d) Fishing assistance. (1) Any member of a treaty Indian tribe 
fishing under this subpart may, if authorized by the treaty Indian's 
tribe, receive fishing assistance from, and only from, the treaty Indian 
tribal member's spouse, forebears, children, grandchildren, and 
siblings, as authorized by the U.S. District Court for the Western 
District of Washington in United States v. Washington, 384 F. Supp. 312 
(W.D. Wash., 1974). For purposes of this section, the treaty Indian 
tribal member whom the assistant is authorized to assist must be present 
aboard the fishing vessel at all times while engaged in the exercise of 
treaty Indian fishing rights subject to this subpart.
    (2) No treaty Indian may, while fishing at a treaty fishing place in 
accordance with treaty-secured fishing rights, permit any person 16 
years of age or older other than the authorized holder of a currently 
valid identification card issued in accordance with the requirements of 
paragraphs (c) (1) and (2) of this section to fish for said treaty 
Indian, assist said treaty Indian in fishing, or use any gear or fishing 
location identified as said treaty Indian's gear or location.
    (3) Treaty Indians are prohibited from participating in a treaty 
Indian fishery under this section at any time persons who are not treaty 
Indians are aboard the fishing vessel or in contact with fishing gear 
operated from the fishing vessel, unless such persons are authorized 
employees or officers of a treaty Indian tribe or tribal fisheries 
management organization, the Northwest Indian Fisheries Commission, the 
Commission, or a fisheries management agency of the United States or the 
State of Washington.



Sec. 300.96  Penalties.

    Any treaty Indian who commits any act that is unlawful under this 
subpart normally will be referred to the applicable tribe for 
prosecution and punishment. If such tribe fails to prosecute such 
persons in a diligent manner for the offense(s) referred to the tribe, 
or if other good cause exists, such treaty Indian may be subject to the 
penalties and procedures described in the Magnuson Act.



Sec. 300.97  Inseason orders.

    (a) During the fishing season, the Secretary may issue orders that 
establish fishing times and areas consistent with the annual Commission 
regime and inseason orders of the Fraser River Panel. Inseason orders 
will be consistent with domestic legal obligations.

[[Page 417]]

Violation of such inseason orders is violation of this subpart.
    (b) Notice of inseason orders. (1) Official notice of such inseason 
orders is available from NMFS (for orders applicable to all-citizen 
fisheries) and from the Northwest Indian Fisheries Commission (for 
orders applicable to treaty Indian fisheries) through the following Area 
Code 206 toll-free telephone hotlines: All-citizen fisheries: 1-800-562-
6513; Treaty Indian fisheries: 1-800-562-6142.
    (2) Notice of inseason orders of the Secretary and other applicable 
tribal regulations may be published and released according to tribal 
procedures in accordance with Final Decision No. 1 and subsequent orders 
in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974).
    (3) Inseason orders may also be communicated through news releases 
to radio and television stations and newspapers in the Fraser River 
Panel Area (U.S.).
    (4) Inseason orders of the Secretary will also be published in the 
Federal Register as soon as practicable after they are issued.

               Subpart G_Antarctic Marine Living Resources

    Authority: 16 U.S.C. 2431 et seq.



Sec. 300.100  Purpose and scope.

    (a) This subpart implements the Antarctic Marine Living Resources 
Convention Act of 1984 (Act).
    (b) This subpart regulates--
    (1) The harvesting of Antarctic marine living resources or other 
associated activities by any person subject to the jurisdiction of the 
United States or by any vessel of the United States.
    (2) The importation into the United States of any Antarctic marine 
living resource.



Sec. 300.101  Definitions.

    In addition to the terms defined in Sec. 300.2, in the Act, and in 
the Convention on the Conservation of Antarctic Marine Living Resources, 
done at Canberra, Australia, May 7, 1980 (Convention). Convention, the 
terms used in this subpart have the following meanings. If a term is 
defined differently in Sec. 300.2, such Act, or such Convention, the 
definition in this section shall apply.
    ACA means the Antarctic Conservation Act of 1978 (16 U.S.C. 2401 et 
seq.).
    Antarctic convergence means a line joining the following points 
along the parallels of latitude and meridians of longitude:

Lat.                              Long.
50[deg] S.                        0.
50[deg] S.                        30[deg] E.
45[deg] S.                        30[deg] E.
45[deg] S.                        80[deg] E.
55[deg] S.                        80[deg] E.
55[deg] S.                        150[deg] E.
60[deg] S.                        150[deg] E.
60[deg] S.                        50[deg] W.
50[deg] S.                        50[deg] W.
50[deg] S.                        0.
 

    Antarctic finfishes include the following:

------------------------------------------------------------------------
              Scientific name                        Common name
------------------------------------------------------------------------
Gobionotothen gibberifrons................  Humped rockcod.
Notothenia rossii.........................  Marbled rockcod.
Lepidorhirus squamifrons..................  Grey rockcod.
Lepidonotothen kempi......................  Striped-eyed rockcod.
Dissostichus eleginoides..................  Patagonian toothfish.
Dissostichus mawsoni......................  Antarctic toothfish.
Electrona carlsbergi......................  Lanternfish.
Patagonothen brevicauda guntheri..........  Patagonian rockcod.
Pleuragramma antarcticum..................  Antarctic silverfish.
Trematomus spp............................  Antarctic cods.
Chaenocephalus aceratus...................  Blackfin icefish.
Chaenodraco wilsoni.......................  Spiny icefish.
Champsocephalus gunnari...................  Mackerel icefish.
Chionodraco rastrospinosus................  Ocellated icefish.
Pseudochaenichthys georgianus.............  South Georgia icefish.
------------------------------------------------------------------------

    Antarctic marine living resources or AMLR(s) means:
    (1) The populations of finfish, mollusks, crustaceans, and all other 
species of living organisms, including birds, found south of the 
Antarctic Convergence;
    (2) All species of Dissostichus, wherever found; and
    (3) All parts or products of those populations and species set forth 
in paragraphs (1) and (2) of this definition.
    Commission means the Commission for the Conservation of Antarctic 
Marine Living Resources established under Article VII of the Convention.
    Convention waters means all waters south of the Antarctic 
Convergence.
    Dealer means the person who first receives AMLRs from a harvesting 
vessel or transshipment vessel or who imports

[[Page 418]]

AMLRs into, or re-exports AMLRs from, the United States.
    Directed fishing, with respect to any species or stock of fish, 
means any fishing that results in such fish comprising more than 1 
percent by weight, at any time, of the catch on board the vessel.
    Dissostichus catch document (DCD) means the uniquely numbered catch 
documentation form approved by the Commission and issued by a flag state 
to its vessels authorized to harvest Dissostichus species.
    Dissostichus species means Patagonian toothfish and/or Antarctic 
toothfish and their parts or products.
    Fish means finfish, mollusks, and crustaceans.
    Fishery means:
    (1) One or more stocks of fish that can be treated as a unit for 
purposes of conservation and management and that are identified on the 
basis of geographical, scientific, technical, recreational, and economic 
characteristics.
    (2) Any fishing for such stocks.
    Harvesting vessel means any vessel of the United States (this 
includes any boat, ship, or other craft), that is used for, equipped to 
be used for, or of a type that is normally used for harvesting.
    Individual permit means an NSF permit issued under 45 CFR part 670; 
or an NSF award letter (demonstrating that the individual has received 
an award from NSF to do research in the Antarctic); or a marine mammal 
permit issued under Sec. 216.31 of this chapter; or an endangered 
species permit issued under Sec. 222.21 of this chapter.
    Inspection vessel means a vessel carrying a CCAMLR inspector and 
displaying the pennant approved by the Commission to identify such 
vessel.
    Land or landing means to begin offloading any fish, to arrive in 
port with the intention of offloading any fish, or to cause any fish to 
be offloaded.
    NSF means National Science Foundation, 4201 Wilson Boulevard, 
Arlington, VA 22230.
    Recreational fishing means fishing with hook and line for personal 
use and not for sale.
    Scientific research activity means any activity for which a person 
has a permit from NMFS under Sec. 216.31 of this title or an award 
letter from NSF or a permit from the NSF under 45 CFR part 670. 
Scientific research activities may also include harvesting or other 
associated activities if such activities are designated as scientific 
research activities by the Assistant Administrator.
    Specially Validated Dissostichus Catch Document (SVDCD) means a 
Dissostichus catch document that has been specially issued by a State to 
accompany seized or confiscated catch of Dissostichus spp. offered for 
sale or otherwise disposed of by the State.
    Transship means the transfer of fish or fish products from one 
vessel to another.
    Vessel Monitoring System (VMS) means a system that allows a Flag 
State, through the installation of satellite-tracking devices on board 
its fishing vessels to receive automatic transmission of certain 
information.

[61 FR 35550, July 5, 1996, as amended at 65 FR 30015, May 10, 2000; 68 
FR 23227, May 1, 2003]



Sec. 300.102  Relationship to other treaties, conventions, laws, and 
          regulations.

    (a) Other conventions and treaties to which the United States is a 
party and other Federal statutes and implementing regulations may impose 
additional restrictions on the harvesting and importation into the 
United States of AMLRs.
    (b) The ACA implements the Antarctic Treaty Agreed Measures for the 
Conservation of Antarctic Fauna and Flora (12 U.S.T. 794). The ACA and 
its implementing regulations (45 CFR part 670) apply to certain defined 
activities of U.S. citizens south of 60[deg] S. lat.
    (c) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et 
seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the 
Migratory Bird Treaty Act (16 U.S.C. 701 et seq.), and their 
implementing regulations also apply to the harvesting and importation of 
AMLRs.



Sec. 300.103  Procedure for according protection to CCAMLR Ecosystem 
          Monitoring Program Sites.

    (a) General. (1) Any person subject to the jurisdiction of the 
United States

[[Page 419]]

must apply for and be granted an entry permit authorizing specific 
activities prior to entering a CCAMLR Ecosystem Monitoring Program 
(CEMP) Protected Site designated in accordance with the CCAMLR 
Conservation Measure describing the Procedures for According Protection 
for CEMP Sites.
    (2) If a CEMP Protected Site is also a site specially protected 
under the Antarctic Treaty (or the Protocol on Environmental Protection 
to the Antarctic Treaty and its Annexes, when it enters into force), an 
applicant seeking to enter such a Protected Site must apply to the 
Director of the NSF for a permit under applicable provisions of the ACA 
or any superseding legislation. The permit granted by NSF shall 
constitute a joint CEMP/ACA Protected Site permit and any person holding 
such a permit must comply with the appropriate CEMP Protected Site 
Management Plan. In all other cases, an applicant seeking a permit to 
enter a CEMP Protected Site must apply to the Assistant Administrator 
for a CEMP permit in accordance with the provisions of this section.
    (b) Responsibility of CEMP permit holders and persons designated as 
agents under a CEMP permit. (1) The CEMP permit holder and person 
designated as agents under a CEMP permit are jointly and severally 
responsible for compliance with the Act, this subpart, and any permit 
issued under this subpart.
    (2) The CEMP permit holder and agents designated under a CEMP permit 
are responsible for the acts of their employees and agents constituting 
violations, regardless of whether the specific acts were authorized or 
forbidden by the CEMP permit holder or agents, and regardless of 
knowledge concerning their occurrence.
    (c) Prohibitions regarding the Antarctic Treaty System and other 
applicable treaties and statutes. Holders of permits to enter CEMP 
Protected Sites are not permitted to undertake any activities within a 
CEMP Protected Site that are not in compliance with the provisions of:
    (1) The Antarctic Treaty, including the Agreed Measures for the 
Conservation of Antarctic Fauna and Flora (including the Protocol on the 
Environmental Protection to the Antarctic Treaty and its Annexes when it 
enters into force), as implemented under by the ACA and any superseding 
legislation. (Persons interested in conducting activities subject to the 
Antarctic Treaty or the Protocol should contact the Office of Polar 
Programs, NSF).
    (2) The Convention for the Conservation of Antarctic Seals.
    (3) The Convention and its Conservation Measures in force, 
implemented under the Act.
    (d) Prohibitions on takings. Permits issued under this section do 
not authorize any takings as defined in the applicable statutes and 
implementing regulations governing the activities of persons in 
Antarctica.
    (e) Issuance criteria. Permits designated in this section may be 
issued by the Assistant Administrator upon a determination that:
    (1) The specific activities meet the requirements of the Act.
    (2) There is sufficient reason, established in the permit 
application, that the scientific purpose for the intended entry cannot 
be served elsewhere.
    (3) The actions permitted will not violate any provisions or 
prohibitions of the Protected Site's Management Plan submitted in 
compliance with the CCAMLR Conservation Measure describing the 
Procedures for According Protection to CEMP Sites.
    (f) Application process. An applicant seeking a CEMP permit from the 
Assistant Administrator to enter a CEMP Protected Site shall include the 
following in the application.
    (1) A detailed justification that the scientific objectives of the 
applicant cannot be accomplished elsewhere and a description of how said 
objectives will be accomplished within the terms of the Protected Site's 
Management Plan.
    (2) A statement signed by the applicant that the applicant has read 
and fully understands the provisions and prohibitions of the Protected 
Site's Management Plan. Prospective applicants may obtain copies of the 
relevant Management Plans and the CCAMLR Conservation Measure describing 
the Procedures for According Protection to CEMP Sites by requesting them 
from the Assistant Administrator.

[[Page 420]]

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

[[Page 421]]

boundary markers indicate the limits of the SSSI or protected site. The 
boundaries are defined by natural features and include the entire area 
of the Cape Shirreff peninsula north of the glacier ice tongue margin, 
and most of the San Telmo Island group. For the purposes of the 
protected site, the entire area of Cape Shirreff and the San Telmo 
Island group is defined as any land or rocks exposed at mean low tide 
within the area delimited by the map of SSSI No. 32 and available from 
the Assistant Administrator.

[61 FR 35550, July 5, 1996, as amended at 68 FR 23227, May 1, 2003]



Sec. 300.104  Scientific research.

    (a) The management measures issued pursuant to the procedures at 
Sec. 300.111 do not apply to catches of less than 5 tons taken by any 
vessel for research purposes, unless otherwise indicated.
    (b) Catches taken by any vessel for research purposes will be 
considered as part of any catch limit.
    (c) The catch reporting procedure identified in management measures 
issued pursuant to the procedures at Sec. 300.111 applies whenever the 
catch within any 5-day reporting period exceeds 5 tons, unless more 
specific reporting requirements apply to the species being fished.
    (d) Any person, organization or institution planning to use a vessel 
for research purposes, when the estimated catch is expected to be less 
than 50 tons, must provide the following vessel and research 
notification to the Assistant Administrator at least 2 months in advance 
of the planned research:
    (1) Name and registration number of vessel.
    (2) Division and subarea in which research is to be carried out.
    (3) Estimated dates of entering and leaving CCAMLR Convention Area.
    (4) Purposes of research.
    (5) Fishing equipment to be used (bottom trawl, midwater trawl, 
longline, crab pots, other).
    (e) The following measures apply to any person planning to use any 
vessel for research purposes, when the estimated catch is expected to be 
more than 50 tons:
    (1) The person must use the CCAMLR Format for Reporting Plans for 
Finfish Surveys in the Convention Area when the Total Catch is Expected 
to be More Than 50 Tons to report the details of the research plan to 
the Assistant Administrator at least 7 months in advance of the planned 
starting date for the research. A copy of the format is available from 
the Assistant Administrator.
    (2) The format requires:
    (i) The name of the CCAMLR Member.
    (ii) Survey details.
    (iii) Description of the vessel.
    (iv) Description of the fishing gear to be used.
    (v) Description of acoustic gear to be used.
    (vi) Survey design and methods of data analyses.
    (vii) Data to be collected.
    (3) A summary of the results of any research fishing subject to 
these provisions must be provided to the Assistant Administrator within 
150 days of the completion of the research fishing and a full report 
must be provided within 11 months.
    (4) Catch and effort data resulting from the research fishing must 
be reported to the Assistant Administrator using the CCAMLR C4 haul-by-
haul reporting format for research vessels.



Sec. 300.105  Initiating a new fishery.

    (a) A new fishery, for purposes of this section, is a fishery on a 
species using a particular method in a statistical subarea for which:
    (1) Information on distribution, abundance, demography, potential 
yield and stock identity from comprehensive research/surveys or 
exploratory fishing has not been submitted to CCAMLR;
    (2) Catch and effort data have never been submitted to CCAMLR; or
    (3) Catch and effort data from the two most recent seasons in which 
fishing occurred have not been submitted to CCAMLR.
    (b) An individual subject to these regulations intending to develop 
a new fishery shall notify the Assistant Administrator no later than 
July 1 of the year in which he or she intends to initiate the fishery 
and shall not initiate the fishery pending CCAMLR review.
    (c) The notification shall be accompanied by information on:

[[Page 422]]

    (1) The nature of the proposed fishery, including target species, 
methods of fishing, proposed region and any minimum level of catches 
that would be required to develop a viable fishery.
    (2) Biological information from comprehensive research/survey 
cruises, such as distribution, abundance, demographic data and 
information on stock identity.
    (3) Details of dependent and associated species and the likelihood 
of them being affected by the proposed fishery.
    (4) Information from other fisheries in the region or similar 
fisheries elsewhere that may assist in the valuation of potential yield.



Sec. 300.106  Exploratory fisheries.

    (a) An exploratory fishery, for purposes of this section, is a 
fishery that was previously defined as a new fishery under Sec. 
300.105.
    (b) A fishery will continue to be classified as an exploratory 
fishery until sufficient information is available to:
    (1) Evaluate the distribution, abundance, and demography of the 
target species, leading to an estimate of the fishery's potential yield.
    (2) Review the fishery's potential impacts on dependent and related 
species.
    (3) Allow the CCAMLR Scientific Committee to formulate and provide 
advice to the Commission on appropriate harvest catch levels and fishing 
gear.
    (c) Each vessel participating in an exploratory fishery must carry a 
scientific observer.
    (d) The operator of any vessel engaging in an exploratory fishery 
must submit, by the date specified in the operator's harvesting permit, 
catch, effort, and related biological, ecological, and environmental 
data as required by a data collection plan for the fishery formulated by 
the CCAMLR Scientific Committee.
    (e) In addition to the requirements in Sec. 300.112, any individual 
planning to enter an exploratory fishery must notify the Assistant 
Administrator no later than 4 months in advance of the annual meeting of 
CCAMLR. The Assistant Administrator will not issue a permit to enter an 
exploratory fishery until after the requirements of Sec. 300.112 have 
been met and the meeting of CCAMLR, which receives and considers the 
notice made to the Assistant Administrator, has been concluded.



Sec. 300.107  Reporting and recordkeeping requirements.

    (a) Vessels. The operator of any vessel required to have a 
harvesting permit under this subpart must:
    (1) Accurately maintain on board the vessel all CCAMLR reports and 
records required by its permit.
    (2) Make such reports and records available for inspection upon the 
request of an authorized officer or CCAMLR inspector.
    (3) Within the time specified in the permit, submit a copy of such 
reports and records to NMFS at an address designated by NMFS.
    (4) Install a NMFS-approved VMS unit on board the vessel and operate 
the VMS unit whenever the vessel enters Convention waters.
    (b) Dealers. Dealers of AMLRs required to have a permit under this 
subpart must:
    (1) Accurately maintain all reports and records required by their 
permits;
    (2) Make such reports and records available for inspection upon the 
request of an authorized officer or CCAMLR inspector; and
    (3) Within the time specified in the permit, submit a copy of such 
reports and records to NMFS at an address designated by NMFS.
    (c) Catch documentation--(1) General. (i) The CCAMLR DCD must 
accompany all shipments of Dissostichus species as required in this 
paragraph (c).
    (ii) No shipment of Dissostichus species shall be released for entry 
into the United States unless accompanied by a complete and validated 
CCAMLR DCD.
    (iii) No shipment of Dissostichus species identified as originating 
from a high seas area designated by the Food and Agriculture 
Organization of the United Nations as Statistical Area 51 or Statistical 
Area 57 in the eastern and western Indian Ocean outside and north of the 
Convention Area shall be issued a preapproval.
    (2) Harvesting vessels. (i) In addition to any harvesting permit or 
authorization previously issued, a U.S. vessel harvesting or attempting 
to harvest Dissostichus species must possess a DCD

[[Page 423]]

issued by NMFS which is non-transferrable. The master of the harvesting 
vessel must ensure that the catch information specified on the DCD is 
accurately recorded.
    (ii) Prior to offloading of Dissostichus species, the master of the 
harvesting vessel must:
    (A) electronically convey by the most rapid means possible catch 
information to NMFS and record on the DCD a confirmation number received 
from NMFS;
    (B) Obtain on the DCD (or copies thereof) the signature(s) of the 
following persons: if catch is offloaded for transshipment, the master 
of the vessel(s) to which the catch is transferred; or if catch is 
offloaded for landing, the signature of both the responsible official(s) 
designated by NMFS in the harvesting permit, and the dealer(s) that 
receives the catch at the port(s) of landing; and
    (C) Sign the DCD (or copies thereof), electronically convey by the 
most rapid means possible each copy to NMFS, and provide a copy to each 
recipient of the catch.
    (iii) The master of the harvesting vessel must submit the original 
DCD (or all copies thereof with original signatures) to NMFS no later 
than 30 days after the end of the fishing season as authorized for that 
vessel on its harvesting permit.
    (3) Transshipment vessels. (i) The master of a U.S. vessel issued a 
permit to transship Dissostichus species must, upon receipt of 
Dissostichus species, sign each DCD provided by the master of the 
harvesting vessel.
    (ii) Prior to landing Dissostichus species, the master of the 
transshipping vessel must:
    (A) Obtain on each DCD (or copies thereof) the signature(s) of both 
the responsible official(s) designated by NMFS in the permit, and the 
dealer(s) that receives the catch at the port(s) of landing and
    (B) Sign each DCD (or copies thereof), and electronically convey by 
the most rapid means possible each copy to NMFS and to the flag state(s) 
of the harvesting vessel(s) and provide a copy to each dealer receiving 
Dissostichus species.
    (iii) The master of the transshipping vessel must submit all DCDs 
with original signatures to NMFS no later than 30 days after offloading 
and retain copies for a period of 2 years.
    (4) Receivers upon landing. Any dealer who receives Dissostichus 
species from a harvesting vessel or from a transshipment vessel must 
sign the DCD(s) provided by the master of the vessel.
    (5) Import. (i) Any dealer who imports Dissostichus species must:
    (A) Obtain the DCD and stamp on the DCD showing that NMFS has 
certified that preapproval has been granted for importation (and 
Dissostichus re-export document if applicable) with a unique export 
reference number that accompanies the import shipment,
    (B) Ensure that the quantity of toothfish listed on the DCD (or 
Dissostichus re-export document if product is to be re-exported) matches 
the quantity listed on the preapproval application within a variance of 
10 percent,
    (C) Express mail or fax the catch documentation described in 
paragraphs (c)(5)(i)(A) and (B) of this section to an address designated 
by NMFS so that NMFS receives the documentation at least 15 working days 
prior to import, and
    (D) Retain a copy of the DCD for his/her records and provide copies 
to exporters as needed.
    (ii) Dealers must retain at their place of business a copy of the 
DCD for a period of 2 years from the date on the DCD.
    (iii) Exception. For shipments of Dissostichus species which are 
fresh and less than 2,000 kilograms in quantity, the application for 
approval of catch documents of toothfish must be submitted to NMFS 
within 24 hours of import.
    (6) Re-export. (i) Any dealer who re-exports Dissostichus species 
must complete a Dissostichus re-export document by indicating:
    (A) The amount from the original DCD(s) that is exported in the 
particular export shipment;
    (B) The number of the original DCD(s);
    (C) The name of the importer and point of import; and

[[Page 424]]

    (D) The exporter's name, address and permit number.
    (ii) The dealer must then sign the re-export document and obtain 
validation by a responsible official(s) designated by NMFS.
    (iii) The original validated Dissostichus re-export document and 
copies of the original DCD(s) must accompany the export shipment.
    (iv) The dealer must retain a copy of the re-export document and 
copies of the DCD(s)at his/her place of business for a period of 2 years 
from the date on the DCD.

[65 FR 30016, May 10, 2000, as amended at 68 FR 23228, May 1, 2003]



Sec. 300.108  Vessel and gear identification.

    (a) Vessel identification. (1) The operator of each harvesting 
vessel assigned an IRCS must display that call sign amidships on both 
the port and starboard sides of the deckhouse or hull, so that it is 
visible from an enforcement or inspection vessel, and on an appropriate 
weather deck so that it is visible from the air.
    (2) The operator of each harvesting vessel not assigned an IRCS, 
such as a small trawler associated with a mothership or one of a pair of 
trawlers, must display the IRCS of the associated vessel, followed by a 
numerical suffix specific for the non-assigned vessel.
    (3) The vessel identification must be in a color in contrast to the 
background and must be permanently affixed to the harvesting vessel in 
block roman alphabet letters and arabic numerals at least 1 m in height 
for harvesting vessels over 20 m in length, and at least 0.5 m in height 
for all other harvesting vessels.
    (b) Navigational lights and shapes. Each harvesting vessel must 
display the lights and shapes prescribed by the International 
Regulations for Preventing Collisions at Sea, 1972 (TIAS 8587, and 1981 
amendment TIAS 10672), for the activity in which the harvesting vessel 
is engaged (as described at 33 CFR part 81).
    (c) Gear identification. (1) The operator of each harvesting vessel 
must ensure that all deployed fishing gear that is not physically and 
continuously attached to a harvesting vessel is clearly marked at the 
surface with a buoy displaying the vessel identification of the 
harvesting vessel (see paragraph (a) of this section) to which the gear 
belongs, a light visible for 2 miles at night in good visibility, and a 
radio buoy. Trawl codends passed from one vessel to another are 
considered continuously attached gear and do not have to be marked.
    (2) The operator of each harvesting vessel must ensure that deployed 
longlines, strings of traps or pots, and gillnets are marked at the 
surface at each terminal end with a buoy displaying the vessel 
identification of the harvesting vessel to which the gear belongs (see 
paragraph (a) of this section), a light visible for 2 miles at night in 
good visibility, and a radio buoy.
    (3) Unmarked or incorrectly identified fishing gear may be 
considered abandoned and may be disposed of in accordance with 
applicable Federal regulations by any authorized officer or CCAMLR 
inspector.
    (d) Maintenance. The operator of each harvesting vessel must:
    (1) Keep the vessel and gear identification clearly legible and in 
good repair.
    (2) Ensure that nothing on the harvesting vessel obstructs the view 
of the markings from an enforcement or inspection vessel or aircraft.
    (3) Ensure that the proper navigational lights and shapes are 
displayed for the harvesting vessel's activity and are properly 
functioning.



Sec. 300.109  Gear disposal.

    (a) The operator of a harvesting vessel may not dump overboard, 
jettison or otherwise discard any article or substance that may 
interfere with other fishing vessels or gear, or that may catch fish or 
cause damage to any marine resource, including marine mammals and birds, 
except in cases of emergency involving the safety of the ship or crew, 
or as specifically authorized by communication from the appropriate USCG 
commander or authorized officer. These articles and substances include, 
but are not limited to, fishing gear, net scraps, bale straps, plastic 
bags, oil drums, petroleum containers,

[[Page 425]]

oil, toxic chemicals or any manmade items retrieved in a harvesting 
vessel's gear.
    (b) The operator of a harvesting vessel may not abandon fishing gear 
in Convention waters.
    (c) The operator of a harvesting vessel must provide a copy of the 
CCAMLR information brochure ``Marine Debris--A Potential Threat to 
Antarctic Marine Mammals'' to each member of the crew of the harvesting 
vessel and must display copies of the CCAMLR placard ``Avoidance of 
Incidental Mortality of Antarctic Marine Mammals'' in the wheelhouse and 
crew quarters of the harvesting vessels. Copies of the brochure and 
placard will be provided to each holder of a harvesting permit by NMFS 
when issuing the permit.



Sec. 300.110  Mesh size.

    (a) The use of pelagic and bottom trawls having the mesh size in any 
part of a trawl less than indicated is prohibited for any directed 
fishing for the following Antarctic finfishes:
    (1) Notothenia rossii and Dissostichus eleginoides--120 mm.
    (2) Champsocephalus gunnari--90 mm.
    (3) Gobionotothen gibberifrons, Notothenia kempi and Lepidorhirus 
squamifrons--80 mm.
    (b) Any means or device that would reduce the size or obstruct the 
opening of the meshes is prohibited.
    (c) The following procedure will be used for determining compliance 
with mesh size requirements.
    (1) Description of gauges. (i) Gauges for determining mesh sizes 
will be 2 mm thick, flat, of durable material and capable of retaining 
their shape. They may have either a series of parallel-edged sides 
connected by intermediate tapering edges with a taper of one to eight on 
each side, or only tapering edges with the taper defined above. They 
will have a hole at the narrowest extremity.
    (ii) Each gauge will be inscribed on its face with the width in 
millimeters both on the parallel-sided section, if any, and on the 
tapering section. In the case of the latter, the width will be inscribed 
every 1 mm interval, but the indication of the width may appear at 
regular intervals other than 1 mm.
    (2) Use of the gauge. (i) The net will be stretched in the direction 
of the long diagonal of the meshes.
    (ii) A gauge as described in paragraph (c)(1) of this section will 
be inserted by its narrowest extremity into the mesh opening in a 
direction perpendicular to the plane of the net.
    (iii) The gauge may be inserted into the mesh opening either with a 
manual force or using a weight or dynamometer, until it is stopped at 
the tapering edges by the resistance of the mesh.
    (3) Selection of meshes to be measured. (i) Meshes to be measured 
will form a series of 20 consecutive meshes chosen in the direction of 
the long axis of the net, except that the meshes to be measured need not 
be consecutive if the application of paragraph (c)(3)(ii) of this 
section prevents it.
    (ii) Meshes less than 50 cm from lacings, ropes, or codline will not 
be measured. This distance will be measured perpendicular to the 
lacings, ropes or codline with the net stretched in the direction of 
that measurement. No mesh will be measured which has been mended or 
broken or has attachments to the net fixed at that mesh.
    (iii) Nets will be measured only when wet and unfrozen.
    (4) The measurement of each mesh will be the width of the gauge at 
the point where the gauge is stopped, when using this gauge in 
accordance with paragraph (c)(2) of this section.
    (5) Determination of the mesh size of the net will be the 
arithmetical mean in millimeters of the measurements of the total number 
of meshes selected and measured as provided for in paragraphs (c) (3) 
and (4) of this section, the arithmetical mean being rounded up to the 
next millimeter.
    (6) Inspection procedure. (i) One series of 20 meshes, selected in 
accordance with paragraph (c)(3) of this section, will be measured by 
inserting the gauge manually without using a weight or dynamometer. The 
mesh size of the net will then be determined in accordance with 
paragraph (c)(5) of this section. If the calculation of the mesh size 
shows that the mesh size does not appear to comply with the rules in 
force, then two additional series of 20 meshes selected in accordance 
with paragraph (c)(3) of this section will be measured.

[[Page 426]]

The mesh size will then be recalculated in accordance with paragraph 
(c)(5) of this section, taking into account the 60 meshes already 
measured; this recalculation will be the mesh size of the net.
    (ii) If the captain of the vessel contests the mesh size determined 
in accordance with paragraph (c)(6)(i) of this section, such measurement 
will not be considered for the determination of the mesh size and the 
net will be remeasured.
    (A) A weight or dynamometer attached to the gauge will be used for 
remeasurement. The choice of weight or dynamometer is at the discretion 
of the inspectors. The weight will be fixed to the hole in the narrowest 
extremity of the gauge using a hook. The dynamometer may either be fixed 
to the hole in the narrowest extremity of the gauge or be applied at the 
largest extremity of the gauge.
    (B) The accuracy of the weight or dynamometer must be certified by 
the appropriate national authority.
    (C) For nets of a mesh size of 35 mm or less as determined in 
accordance with paragraph (c)(6)(i) of this section, a force of 19.61 
newtons (equivalent to a mass of 2 kg) will be applied, and for other 
nets, a force of 49.03 newtons (equivalent to a mass of 5 kg).
    (D) For the purposes of determining the mesh size in accordance with 
paragraph (c)(5) of this section, when using a weight or dynamometer, 
one series of 20 meshes only will be measured.



Sec. 300.111  Framework for annual management measures.

    (a) Introduction. New management measures may be added and others 
modified through publication of a regulatory action in the Federal 
Register. The following framework process authorizes the implementation 
of measures that may affect the operation of the commercial or 
exploratory fisheries, gear, area restrictions, or changes in catch and/
or effort.
    (b) Preliminary notice. The Secretary of State shall publish 
preliminary notice in the Federal Register of the management measures 
adopted by the parties to the Convention.
    (c) Procedure. At its annual meeting, usually in October or 
November, the Commission may recommend new measures and that established 
measures be modified, removed, or re-instituted. After public notice of 
those recommendations by the Secretary of State and opportunity for 
public comment, and after considering the impact of instituting the 
measures and any public comment received by the Secretary of State, the 
Assistant Administrator may implement the management measures by notice 
in the Federal Register, with immediate force and effect. The 
notification in the Federal Register will summarize new management 
measures, and respond to any public comments received by the Secretary 
of State on the preliminary notice.
    (d) Types of management measures to be frameworked. Management 
measures that may be implemented by regulatory notice rather than by 
codified regulation are those that generally will not remain in effect 
for more than 12 months and include catch restrictions, time and area 
closures, and gear restrictions.
    (e) The fishing season for all Convention Area species isDecember 1 
through November 30 of the following year, unless otherwise set in 
specific CCAMLR conservation measures.

[61 FR 35550, July 5, 1996, as amended at 68 FR 23228, May 1, 2003]



Sec. 300.112  Harvesting permits.

    (a) General. (1) Every vessel subject to the jurisdiction of the 
United States that attempts to reduce or reduces any AMLR to possession 
must have a harvesting permit authorizing the attempt or reduction, 
unless the attempt or reduction occurs during recreational fishing or is 
covered by an individual permit. Boats launched from a vessel issued a 
harvesting permit do not require a separate permit, but are covered by 
the permit issued the launching vessel. Any enforcement action that 
results from the activities of a launched boat will be taken against the 
launching vessel.
    (2) Permits issued under this section do not authorize vessels or 
persons subject to the jurisdiction of the United States to harass, 
capture, harm, kill, harvest, or import marine mammals. No marine 
mammals may be taken in

[[Page 427]]

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

[[Page 428]]

in writing any change in previously submitted information other than a 
proposed change in the location, manner, or amount of harvesting within 
15 days of the change. Based on such reported information, the Assistant 
Administrator may revise the permit effective upon notification to the 
permit holder. As soon as possible, the vessel owner or operator must 
revise any harvesting vessel certificate evidencing the permit, 
accordingly.
    (ii) Requested changes in the location, manner, or amount of 
harvesting. Any changes in the manner or amount of harvesting must be 
proposed in writing to the Assistant Administrator and may not be 
undertaken unless authorized by the Assistant Administrator through a 
permit revision or issuance of a new permit. If a requested change in 
the location, manner, or amount of harvesting could significantly affect 
the status of any Antarctic marine living resource, the Assistant 
Administrator will treat the requested change as an application for a 
new permit and so notify the holder.
    (i) Additional conditions and restrictions. The Assistant 
Administrator may revise the harvesting permit, effective upon 
notification to the permit holder, to impose additional conditions and 
restrictions on the harvesting vessel as necessary to achieve the 
purposes of the Convention or the Act. The permit holder must, as soon 
as possible, direct the vessel operator to revise the harvesting vessel 
certificate, if any, accordingly.
    (j) Revision, suspension, or revocation for violations. A harvesting 
permit may be revised, suspended, or revoked if the harvesting vessel is 
involved in the commission of any violation of its permit, the Act, or 
this subpart. Failure to report a change in the information contained in 
an application within 15 days of the change is a violation of this 
subpart and voids the application or permit, as applicable. If a change 
in vessel ownership is not reported, the violation is chargeable to the 
previous owner. Title 15 CFR part 904 governs permit sanctions under 
this subpart.
    (k) Transshipment vessels. Any U.S. flagged vessel that receives or 
attempts to receive Dissostichus species from a harvesting vessel at 
sea, regardless of whether such transshipment occurs in waters under the 
jurisdiction of CCAMLR, must obtain from NMFS a harvesting permit 
authorizing transshipment. Transshipment vessels must comply with the 
permitting provisions of this section with respect to harvesting 
vessels.

[61 FR 35550, July 5, 1996, as amended at 65 FR 30017, May 10, 2000]



Sec. 300.113  Dealer permits and preapproval.

    (a) General. (1) A dealer intending to import or re-export AMLR must 
obtain an AMLR dealer permit valid for one year. Preapproval from NMFS 
is required for each shipment of Dissostichus species. Only those 
specific activities stipulated by the permit are authorized for the 
permit holder.
    (2) An AMLR may be imported into the United States if its harvest 
has been authorized by a U.S.-issued individual permit issued under 
Sec. 300.112 (a)(1) or its importation has been authorized by a NMFS-
issued dealer permit and preapproval issued under paragraph (a) of this 
section. AMLRs may not be released for entry into the United States 
unless accompanied by the harvesting permit or the individual permit and 
the DCD for that shipment which has been stamped by NMFS certifying that 
preapproval has been granted to allow import.
    (3) In no event may a marine mammal be imported into the United 
States unless authorized and accompanied by an import permit issued 
under the Marine Mammal Protection Act and/or the Endangered Species 
Act.
    (4) A dealer permit or preapproval issued under this section does 
not authorize the harvest or transshipment of any AMLR by or to a vessel 
of the United States.
    (b) Application. Application forms for AMLR dealer permits and 
preapproval are available from NMFS. A complete and accurate application 
must be received by NMFS for each preapproval at least 15 working days 
before the anticipated date of the first receipt, importation, or re-
export.
    (c) Fees. A fee to recover the administrative expenses associated 
with processing preapproval applications will be charged. The amount of 
the fee will be

[[Page 429]]

determined in accordance with procedures specified in the NOAA Finance 
Handbook for calculating administrative costs of special products and 
services. The fee is specified with the preapproval application form. 
The appropriate fee must accompany each application and be paid by 
check, draft, or money order.
    (d) Issuance. NMFS may issue a dealer permit or preapproval if it 
determines that the activity proposed by the dealer meets the 
requirements of the Act and that the resources were not or will not be 
harvested in violation of any conservation measure in force with respect 
to the United States or in violation of any regulation in this subpart.
    (e) Duration. A permit issued under this section is valid from its 
date of issuance to its date of expiration unless it is revoked or 
suspended. A preapproval is valid until the product is imported (and re-
exported, if applicable).
    (f) Transfer. A permit issued under this section is not transferable 
or assignable.
    (g) Changes in information--(1) Pending applications. Applicants for 
permits and preapproval under this section must report in writing to 
NMFS any change in the information submitted in their permit and 
preapproval applications. The processing period for the application may 
be extended as necessary to review and consider the change.
    (2) Issued permits and preapprovals. Any entity issued a permit or 
preapproval under this section must report in writing to NMFS any 
changes in previously submitted information. Any changes that would 
result in a change in the receipt or importation authorized by the 
preapproval, such as harvesting vessel or country of origin, type and 
quantity of the resource to be received or imported, and Convention 
statistical subarea from which the resource was harvested, must be 
proposed in writing to NMFS and may not be undertaken unless authorized 
by NMFS through issuance of a revised or new preapproval.
    (h) Revision, suspension, or revocation. A permit or preapproval 
issued under this section may be revised, suspended, or revoked, based 
upon a violation of the permit, the Act, or this subpart. Failure to 
report a change in the information contained in a permit or preapproval 
application voids the application, permit, or preapproval as applicable. 
Title 15 CFR part 904 governs permit sanctions under this subpart.
    (i) Exception. For shipments of Dissostichus species which are fresh 
and less than 2,000 kilograms in quantity, the application for approval 
of catch documents of toothfish must be submitted to NMFS within 24 
hours of import.
    (j) SVDCD. Dealer permits will not be issued for Dissostichus spp. 
offered for sale or other disposition under a Specially Validated DCD.
    (k) Registered agent. Foreign entities shall, as a condition of 
possessing a dealer permit, designate and maintain a registered agent 
within the United States that is authorized to accept service of process 
on behalf of that entity. Foreign based importers of record may identify 
to NMFS the registered agent identified for Customs Service purposes.

[68 FR 23228, May 1, 2003]



Sec. 300.114  Appointment of a designated representative.

    (a) All holders of permits authorizing fishing in subarea 48.3 must 
appoint a designated representative in the United States.
    (b) The designated representative will be notified of closures under 
Sec. 300.111 and must transmit this information to the vessel on the 
grounds.
    (c) The designated representative may receive catch reports from the 
vessel and transmit the reports to NMFS in writing.



Sec. 300.115  Prohibitions.

    In addition to the prohibitions in Sec. 300.4, it is unlawful for 
any person to:
    (a) Reduce to possession or attempt to reduce to possession any 
AMLRs without a permit for such activity as required by Sec. 300.112.
    (b) Import into or export from the United States any AMLRs taken by 
vessels without a permit to harvest those resources as required by Sec. 
300.112 (a)(1), or without applicable catch documentation as required by 
Sec. 300.107

[[Page 430]]

(c)(1), or without a dealer permit as required by Sec. 300.113 (a)(1), 
or in violation of the terms and conditions for such import or export as 
specified on the permit.
    (c) Engage in harvesting or other associated activities in violation 
of the provisions of the Convention or in violation of a conservation 
measure in force with respect to the United States under Article IX of 
the Convention.
    (d) Ship, transport, offer for sale, sell, purchase, import, export 
or have custody, control or possession of, any AMLR that he or she 
knows, or reasonably should have known, was harvested in violation of a 
conservation measure in force with respect to the United States under 
article IX of the Convention or in violation of any regulation 
promulgated under this subpart, without regard to the citizenship of the 
person that harvested, or vessel that was used in the harvesting of, the 
AMLR.
    (e) Refuse to allow any CCAMLR inspector to board a vessel of the 
United States or a vessel subject to the jurisdiction of the United 
States for the purpose of conducting an inspection authorized by the 
Act, this subpart, or any permit issued under the Act.
    (f) Refuse to provide appropriate assistance, including access as 
necessary to communications equipment, to CCAMLR inspectors.
    (g) Refuse to sign a written notification of alleged violations of 
Commission measures in effect prepared by a CCAMLR inspector.
    (h) Assault, resist, oppose, impede, intimidate, or interfere with a 
CCAMLR inspector in the conduct of any boarding or inspection authorized 
by the Act, this subpart, or any permit issued under the Act.
    (i) Use any vessel to engage in harvesting after the revocation, or 
during the period of suspension, of an applicable permit issued under 
the Act.
    (j) Fail to identify, falsely identify, fail to properly maintain, 
or obscure the identification of a harvesting vessel or its gear as 
required by this subpart.
    (k) Fish in a closed area.
    (l) Trawl with a mesh size in any part of the trawl net smaller than 
that allowed for any directed fishing for Antarctic finfishes as 
specified in management measures issued pursuant to Sec. 300.111.
    (m) Use any means or device that would reduce the size or obstruct 
the opening of the trawl meshes specified in management measures issued 
pursuant to Sec. 300.111.
    (n) Possess fish in violation of the catch limit specified in 
management measures issued pursuant to Sec. 300.111.
    (o) Discard netting or other substances in the Convention Area in 
violation of Sec. 300.109.
    (p) Violate or attempt to violate any provision of this subpart, the 
Act, any other regulation promulgated under the Act or any permit issued 
under the Act.
    (q) Provide incomplete or inaccurate information about the harvest, 
transshipment, landing, import or re-export of applicable species on any 
document required under this subpart.
    (r) Receive AMLRs from a vessel without a dealer or harvesting 
permit issued under this subpart.
    (s) Import Dissostichus spp. with a Specially Validated DCD.
    (t) Import shipments of fresh Dissostichus spp. in quantities of 
2,000 kilograms or more, or frozen Dissostichus spp., without a 
preapproval issued under Sec. 300.113.

[61 FR 35550, July 5, 1996, as amended at 65 FR 30017, May 10, 2000; 68 
FR 23229, May 1, 2003]



Sec. 300.116  Facilitation of enforcement and inspection.

    In addition to the facilitation of enforcement provisions of Sec. 
300.5, the following requirements apply to this subpart.
    (a) Access and records. (1) The owners and operator of each 
harvesting vessel must provide authorized officers and CCAMLR inspectors 
access to all spaces where work is conducted or business papers and 
records are prepared or stored, including but not limited to personal 
quarters and areas within personal quarters. If inspection of a 
particular area would interfere with specific on-going scientific 
research, and if the operator of the harvesting vessel makes such 
assertion and produces an individual permit that covers that specific 
research, the authorized officer or CCAMLR inspector

[[Page 431]]

will not disturb the area, but will record the information pertaining to 
the denial of access.
    (2) The owner and operator of each harvesting vessel must provide to 
authorized officers and CCAMLR inspectors all records and documents 
pertaining to the harvesting activities of the vessel, including but not 
limited to production records, fishing logs, navigation logs, transfer 
records, product receipts, cargo stowage plans or records, draft or 
displacement calculations, customs documents or records, and an accurate 
hold plan reflecting the current structure of the vessel's storage and 
factory spaces.
    (3) Before leaving vessels that have been inspected, the CCAMLR 
inspector will give the master of the vessel a Certificate of Inspection 
and a written notification of any alleged violations of Commission 
measures in effect and will afford the master the opportunity to comment 
on it. The ship's master must sign the notification to acknowledge 
receipt and the opportunity to comment on it.
    (b) Reports by non-inspectors. All scientists, fishermen, and other 
non-inspectors present in the Convention area and subject to the 
jurisdiction of the United States are encouraged to report any violation 
of Commission conservation and management measures observed in the 
Convention area to the Office of Ocean Affairs (CCAMLR Violations), 
Department of State, Room 5801, Washington, DC 20520.
    (c) Storage of AMLRs. The operator of each harvesting vessel storing 
AMLRs in a storage space on board the vessel must ensure that non-
resource items are neither stowed beneath nor covered by resource items, 
unless required to maintain the stability and safety of the vessel. Non-
resource items include, but are not limited to, portable conveyors, 
exhaust fans, ladders, nets, fuel bladders, extra bin boards, or other 
moveable non-resource items. These non-resource items may be in a 
resource storage space when necessary for the safety of the vessel or 
crew or for the storage of the items. Lumber, bin boards, or other 
dunnage may be used for shoring or bracing of product to ensure the 
safety of crew and to prevent shifting of cargo within the space.
    (d) Disposition of resources denied entry. [Reserved]

[61 FR 35550, July 5, 1996, as amended at 65 FR 30017, May 10, 2000]



Sec. 300.117  Penalties.

    Any person or harvesting vessel found to be in violation of the Act, 
this subpart, or any permit issued under this subpart will be subject to 
the civil and criminal penalty provisions and forfeiture provisions 
prescribed in the Act, 15 CFR part 904, and other applicable laws.

[[Page 432]]

 Figure 1 to Subpart G--Boundaries of the Statistical Reporting Area in 
                           the Southern Ocean
[GRAPHIC] [TIFF OMITTED] TC01JY91.072


[[Page 433]]



    Figure 2 to Subpart G--The Use of Streamer Lines To Minimize the 
 Incidental Mortality of Seabirds in the Course of Longline Fishing or 
       Longline Fishing Research Operations in the Convention Area
[GRAPHIC] [TIFF OMITTED] TC01JY91.073


[[Page 434]]



   Subpart H_Vessels of the United States Fishing in Colombian Treaty 
                                 Waters

    Authority: 16 U.S.C. 1801 et seq.



Sec. 300.120  Purpose.

    This subpart implements fishery conservation and management measures 
as provided in fishery agreements pursuant to the Treaty Between the 
Government of the United States of America and the Government of the 
Republic of Colombia Concerning the Status of Quita Sueno, Roncador and 
Serrana (TIAS 10120) (Treaty).



Sec. 300.121  Definitions.

    In addition to the terms defined in Sec. 300.2, the Magnuson Act, 
and Sec. 600.10 of this title, and in the Treaty, the terms used in 
this subpart have the following meanings. If a term is defined 
differently in Sec. 300.2, the Magnuson Act, or the Treaty, the 
definition in this section shall apply.
    Conch means Strombus gigas.
    Factory vessel means a vessel that processes, transforms, or 
packages aquatic biological resources on board.
    Lobster means one or both of the following:
    (1) Smoothtail lobster, Panulirus laevicauda.
    (2) Spiny lobster, Panulirus argus.
    Regional Administrator means the Director, Southeast Region, or a 
designee.
    Science and Research Director means the Director, Southeast 
Fisheries Science Center.
    Treaty waters means the waters of one or more of the following:
    (1) Quita Sueno, enclosed by latitudes 13[deg]55[min]N. and 
14[deg]43[min]N. between longitudes 80[deg]55[min]W. and 
81[deg]28[min]W.
    (2) Serrana, enclosed by arcs 12 nautical miles from the low water 
line of the cays and islands in the general area of 14[deg]22[min]N. 
lat., 80[deg]20[min]W. long.
    (3) Roncador, enclosed by arcs 12 nautical miles from the low water 
line of Roncador Cay, in approximate position 13[deg]35[min]N. lat., 
80[deg]05[min]W. long.



Sec. 300.122  Relation to other laws.

    (a) The relation of this subpart to other laws is set forth in Sec. 
600.705 of this title and paragraph (b) of this section. Particular note 
should be made to the reference in Sec. 600.705 to the applicability of 
title 46 U.S.C., under which a Certificate of Documentation is invalid 
when the vessel is placed under the command of a person who is not a 
citizen of the United States.
    (b) Minimum size limitations for certain species, such as reef fish 
in the Gulf of Mexico, may apply to vessels transiting the EEZ with such 
species aboard.



Sec. 300.123  Certificates and permits.

    (a) Applicability. An owner of a vessel of the United States that 
fishes in treaty waters is required to obtain an annual certificate 
issued by the Republic of Colombia and an annual vessel permit issued by 
the Regional Administrator.
    (b) Application for certificate/permit. (1) An application for a 
permit must be submitted and signed by the vessel's owner. An 
application may be submitted at any time, but should be submitted to the 
Regional Administrator not less than 90 days in advance of its need. 
Applications for the ensuing calendar year should be submitted to the 
Regional Administrator by October 1.
    (2) An applicant must provide the following:
    (i) A copy of the vessel's valid USCG certificate of documentation 
or, if not documented, a copy of its valid state registration 
certificate.
    (ii) Vessel name and official number.
    (iii) Name, address, telephone number, and other identifying 
information of the vessel owner or, if the owner is a corporation or 
partnership, of the responsible corporate officer or general partner.
    (iv) Principal port of landing of fish taken from treaty waters.
    (v) Type of fishing to be conducted in treaty waters.
    (vi) Any other information concerning the vessel, gear 
characteristics, principal fisheries engaged in, or fishing areas, as 
specified on the application form.
    (vii) Any other information that may be necessary for the issuance 
or administration of the permit, as specified on the application form.

[[Page 435]]

    (c) Issuance. (1) The Regional Administrator will request a 
certificate from the Republic of Colombia if:
    (i) The application is complete.
    (ii) The applicant has complied with all applicable reporting 
requirements of Sec. 300.124 during the year immediately preceding the 
application.
    (2) Upon receipt of an incomplete application, or an application 
from a person who has not complied with all applicable reporting 
requirements of Sec. 300.124 during the year immediately preceding the 
application, the Regional Administrator will notify the applicant of the 
deficiency. If the applicant fails to correct the deficiency within 30 
days of the Regional Administrator's notification, the application will 
be considered abandoned.
    (3) The Regional Administrator will issue a permit as soon as the 
certificate is received from the Republic of Colombia.
    (d) Duration. A certificate and permit are valid for the calendar 
year for which they are issued, unless the permit is revoked, suspended, 
or modified under subpart D of 15 CFR part 904.
    (e) Transfer. A certificate and permit issued under this section are 
not transferable or assignable. They are valid only for the fishing 
vessel and owner for which they are issued.
    (f) Display. A certificate and permit issued under this section must 
be carried aboard the fishing vessel while it is in treaty waters. The 
operator of a fishing vessel must present the certificate and permit for 
inspection upon request of an authorized officer or an enforcement 
officer of the Republic of Colombia.
    (g) Sanctions and denials. Procedures governing enforcement-related 
permit sanctions and denials are found at subpart D of 15 CFR part 904.
    (h) Alteration. A certificate or permit that is altered, erased, or 
mutilated is invalid.
    (i) Replacement. A replacement certificate or permit may be issued 
upon request. Such request must clearly state the reason for a 
replacement certificate or permit.
    (j) Change in application information. The owner of a vessel with a 
permit must notify the Regional Administrator within 30 days after any 
change in the application information required by paragraph (b)(2) of 
this section. The permit is void if any change in the information is not 
reported within 30 days.



Sec. 300.124  Recordkeeping and reporting.

    (a) Arrival and departure reports. The operator of each vessel of 
the United States for which a certificate and permit have been issued 
under Sec. 300.123 must report by radio to the Port Captain, San Andres 
Island, voice radio call sign ``Capitania de San Andres,'' the vessel's 
arrival in and departure from treaty waters. Radio reports must be made 
on 8222.0 kHz or 8276.5 kHz between 8:00 a.m. and 12 noon, local time 
(1300-1700, Greenwich mean time) Monday through Friday.
    (b) Catch and effort reports. Each vessel of the United States must 
report its catch and effort on each trip into treaty waters to the 
Science and Research Director on a form available from the Science and 
Research Director. These forms must be submitted to the Science and 
Research Director so as to be received no later than 7 days after the 
end of each fishing trip.



Sec. 300.125  Vessel identification.

    (a) Official number. A vessel with a permit issued pursuant to Sec. 
300.123, when in treaty waters, must display its official number on the 
port and starboard sides of the deckhouse or hull, and on an appropriate 
weather deck, so as to be clearly visible from an enforcement vessel or 
aircraft. The official number must be permanently affixed to or painted 
on the vessel and must be in block arabic numerals in contrasting color 
to the background at least 18 inches (45.7 cm) in height for fishing 
vessels over 65 ft (19.8 m) in length, and at least 10 inches (25.4 cm) 
in height for all other vessel.
    (b) Duties of operator. The operator of each fishing vessel must--
    (1) Keep the official number clearly legible and in good repair.
    (2) Ensure that no part of the fishing vessel, its rigging, fishing 
gear, or any other material aboard obstructs the view of the official 
number from an enforcement vessel or aircraft.

[[Page 436]]



Sec. 300.126  Prohibitions.

    In addition to the general prohibitions specified in Sec. 600.725 
of this title and the prohibited acts specified in Sec. 300.4, it is 
unlawful for any person to do any of the following:
    (a) Fish in treaty waters without the certificate and permit aboard, 
or fail to display the certificate and permit, as specified in Sec. 
300.123(a) and (f).
    (b) Fail to notify the Regional Administrator of a change in 
application information, as specified in Sec. 300.123(j).
    (c) Fail to report a vessel's arrival in and departure from treaty 
waters, as required by Sec. 300.124(a).
    (d) Falsify or fail to display and maintain vessel identification, 
as required by Sec. 300.125.
    (e) Fail to comply immediately with instructions and signals issued 
by an enforcement officer of the Republic of Colombia, as specified in 
Sec. 300.127.
    (f) Operate a factory vessel in treaty waters, as specified in Sec. 
300.130(a).
    (g) Use a monofilament gillnet in treaty waters, as specified in 
Sec. 300.130(b).
    (h) Use autonomous or semi-autonomous diving equipment in treaty 
waters, as specified in Sec. 300.130(c).
    (i) Use or possess in treaty waters a lobster trap or fish trap 
without a degradable panel, as specified in Sec. 300.130(d).
    (j) Possess conch smaller than the minimum size limit, as specified 
in Sec. 300.131(a).
    (k) Fish for or possess conch in the closed area or during the 
closed season, as specified in Sec. 300.131(b) and (c).
    (l) Retain on board a berried lobster or strip eggs from or 
otherwise molest a berried lobster, as specified in Sec. 300.132(a).
    (m) Possess a lobster smaller than the minimum size, as specified in 
Sec. 300.132(b).
    (n) Fail to return immediately to the water unharmed a berried or 
undersized lobster, as specified in Sec. 300.132(a) and (b).



Sec. 300.127  Facilitation of enforcement.

    (a) The provisions of Sec. 600.730 of this title and paragraph (b) 
of this section apply to vessels of the United States fishing in treaty 
waters.
    (b) The operator of, or any other person aboard, any vessel of the 
United States fishing in treaty waters must immediately comply with 
instructions and signals issued by an enforcement officer of the 
Republic of Colombia to stop the vessel and with instructions to 
facilitate safe boarding and inspection of the vessel, its gear, 
equipment, fishing record, and catch for purposes of enforcing this 
subpart.



Sec. 300.128  Penalties.

    Any person committing or fishing vessel used in the commission of a 
violation of the Magnuson Act or any regulation issued under the 
Magnuson Act, is subject to the civil and criminal penalty provisions 
and civil forfeiture provisions of the Magnuson Act, to part 600 of this 
title, to 15 CFR part 904, and to other applicable law. In addition, 
Colombian authorities may require a vessel involved in a violation of 
this subpart to leave treaty waters.



Sec. 300.129  Fishing year.

    The fishing year for fishing in treaty waters begins on January 1 
and ends on December 31.



Sec. 300.130  Vessel and gear restrictions.

    (a) Factory vessels. Factory vessels are prohibited from operating 
in treaty waters.
    (b) Monofilament gillnets. A monofilament gillnet made from nylon or 
similar synthetic material are prohibited from being used in treaty 
waters.
    (c) Tanks and air hoses. Autonomous or semiautonomous diving 
equipment (tanks or air hoses) are prohibited from being used to take 
aquatic biological resources in treaty waters.
    (d) Trap requirements. A lobster trap or fish trap used or possessed 
in treaty waters that is constructed of material other than wood must 
have an escape panel located in the upper half of the sides or on top of 
the trap that, when removed, will leave an opening no smaller than the 
throat or entrance of the trap. Such escape panel must be constructed of 
or attached to the trap with wood, cotton, or other degradable material.
    (e) Poisons and explosives. [Reserved]

[[Page 437]]



Sec. 300.131  Conch harvest limitations.

    (a) Size limit. The minimum size limit for possession of conch in or 
from treaty waters is 7.94 oz (225 g) for an uncleaned meat and 3.53 oz 
(100 g) for a cleaned meat.
    (b) Closed area. The treaty waters of Quita Sueno are closed to the 
harvest or possession of conch.
    (c) Closed season. During the period July 1 through September 30 of 
each year, the treaty waters of Serrana and Roncador are closed to the 
harvest or possession of conch.



Sec. 300.132  Lobster harvest limitations.

    (a) Berried lobsters. A berried (egg-bearing) lobster in treaty 
waters may not be retained on board. A berried lobster must be returned 
immediately to the water unharmed. A berried lobster may not be 
stripped, scraped, shaved, clipped, or in any other manner molested to 
remove the eggs.
    (b) Size limit. The minimum size limit for possession of lobster in 
or from treaty waters is 5.5 inches (13.97 cm), tail length. Tail length 
means the measurement, with the tail in a straight, flat position, from 
the anterior upper edge of the first abdominal (tail) segment to the tip 
of the closed tail. A lobster smaller than the minimum size limit must 
be returned immediately to the water unharmed.

          Subpart I_United States-Canada Fisheries Enforcement

    Authority: 16 U.S.C. 1801 et seq.



Sec. 300.140  Purpose and scope.

    This subpart implements the Agreement Between the Government of the 
United States of America and the Government of Canada on Fisheries 
Enforcement executed at Ottawa, Canada, on September 26, 1990 
(Agreement), allowing each party to the Agreement to take appropriate 
measures, consistent with international law, to prevent its nationals, 
residents and vessels from violating those national fisheries laws and 
regulations of the other party. This subpart applies, except where 
otherwise specified in this subpart, to all persons and all places (on 
water and on land) subject to the jurisdiction of the United States 
under the Magnuson Act. This includes, but is not limited to, activities 
of nationals, residents and vessels of the United States (including the 
owners and operators of such vessels) within waters subject to the 
fisheries jurisdiction of Canada as defined in this subpart, as well as 
on the high seas and in waters subject to the fisheries jurisdiction of 
the United States.



Sec. 300.141  Definitions.

    In addition to the terms defined in Sec. 300.2 and those in the 
Magnuson Act and the Agreement, the terms used in this subpart have the 
following meanings. If a term is defined differently in Sec. 300.2, the 
Magnuson Act, or the Agreement, the definition in this section applies.
    Applicable Canadian fisheries law means any Canadian law, regulation 
or similar provision relating in any manner to fishing by any fishing 
vessel other than a Canadian fishing vessel in waters subject to the 
fisheries jurisdiction of Canada, including, but not limited to, any 
provision relating to stowage of fishing gear by vessels passing through 
such waters, and to obstruction or interference with enforcement of any 
such law or regulation.
    Authorized officer of Canada means any fishery officer, protection 
officer, officer of the Royal Canadian Mounted Police, or other employee 
authorized by the appropriate authority of any national or provincial 
agency of Canada to enforce any applicable Canadian fisheries law.
    Canadian fishing vessel means a fishing vessel:
    (1) That is registered or licensed in Canada under the Canada 
Shipping Act and is owned by one or more persons each of whom is a 
Canadian citizen, a person resident and domiciled in Canada, or a 
corporation incorporated under the laws of Canada or of a province, 
having its principal place of business in Canada; or
    (2) That is not required by the Canada Shipping Act to be registered 
or licensed in Canada and is not registered or licensed elsewhere but is 
owned as described in paragraph (1) of this definition.

[[Page 438]]

    Waters subject to the fisheries jurisdiction of Canada means the 
internal waters, territorial sea, and the zone that Canada has 
established, extending 200 nautical miles from its coasts, in which it 
exercises sovereign rights for the purpose of exploration, exploitation, 
conservation and management of living marine resources, to the extent 
recognized by the United States.



Sec. 300.142  Prohibitions.

    The prohibitions in this section apply within waters subject to the 
fisheries jurisdiction of Canada and during hot pursuit therefrom by an 
authorized officer of Canada. It is unlawful for any national or 
resident of the United States, or any person on board a vessel of the 
United States, or the owner or operator of any such vessel, to do any of 
the following:
    (a) Engage in fishing in waters subject to the fisheries 
jurisdiction of Canada without the express authorization of the 
Government of Canada.
    (b) Take or retain fish in waters subject to the fisheries 
jurisdiction of Canada without the express authorization of the 
Government of Canada.
    (c) Be on board a fishing vessel in waters subject to the fisheries 
jurisdiction of Canada, without stowing all fishing gear on board 
either:
    (1) Below deck, or in an area where it is not normally used, such 
that the gear is not readily available for fishing; or
    (2) If the gear cannot readily be moved, in a secured and covered 
manner, detached from all towing lines, so that it is rendered unusable 
for fishing; unless the vessel has been authorized by the Government of 
Canada to fish in the particular location within waters subject to the 
fisheries jurisdiction of Canada in which it is operating.
    (d) While on board a fishing vessel in waters subject to the 
fisheries jurisdiction of Canada, fail to respond to any inquiry from an 
authorized officer of Canada regarding the vessel's name, flag state, 
location, route or destination, and/or the circumstances under which the 
vessel entered such waters.
    (e) Violate the Agreement, any applicable Canadian fisheries law, or 
the terms or conditions of any permit, license or any other 
authorization granted by Canada under any such law.
    (f) Fail to comply immediately with any of the enforcement and 
boarding procedures specified in Sec. 300.143.
    (g) Destroy, stave, or dispose of in any manner, any fish, gear, 
cargo or other matter, upon any communication or signal from an 
authorized officer of Canada, or upon the approach of such an officer, 
enforcement vessel or aircraft, before the officer has had the 
opportunity to inspect same, or in contravention of directions from such 
an officer.
    (h) Refuse to allow an authorized officer of Canada to board a 
vessel for the purpose of conducting any inspection, search, seizure, 
investigation or arrest in connection with the enforcement of any 
applicable Canadian fisheries law.
    (i) Assault, resist, oppose, impede, intimidate, threaten, obstruct, 
delay, prevent, or interfere, in any manner, with an authorized officer 
of Canada in the conduct of any boarding, inspection, search, seizure, 
investigation or arrest in connection with the enforcement of any 
applicable Canadian fisheries law.
    (j) Make any false statement, oral or written, to an authorized 
officer of Canada in response to any inquiry by that officer in 
connection with enforcement of any applicable Canadian fisheries law.
    (k) Falsify, cover, or otherwise obscure, the name, home port, 
official number (if any), or any other similar marking or identification 
of any fishing vessel subject to this subpart such that the vessel 
cannot be readily identified from an enforcement vessel or aircraft.
    (l) Attempt to do any of the foregoing.



Sec. 300.143  Facilitation of enforcement.

    (a) General. Persons aboard fishing vessels subject to this subpart 
must immediately comply with instructions and/or signals issued by an 
authorized officer of the United States or Canada, or by an enforcement 
vessel or aircraft, to stop the vessel, and with instructions to 
facilitate safe boarding and inspection for the purpose of enforcing any 
applicable Canadian fisheries law, the Agreement, or this subpart. All 
of

[[Page 439]]

the provisions of Sec. 300.5 regarding communications, boarding, and 
signals apply to this subpart. For purposes of this subpart, authorized 
officer in Sec. 305 means an authorized officer of the United States or 
Canada. (See paragraph (b) of this section for specific requirements for 
complying with signals and instructions issued by an authorized officer 
of Canada.)
    (b) Canadian signals. In addition to signals set forth in Sec. 
300.5, persons aboard fishing vessels subject to this subpart must 
immediately comply with the following signals by an authorized officer 
of Canada.
    (1) Authorized officers of Canada use the following signals to 
require fishing vessels to stop or heave to:
    (i) The hoisting of a rectangular flag, known as the International 
Code Flag ``L'', which is divided vertically and horizontally into 
quarters and colored so that:
    (A) The upper quarter next to the staff and the lower quarter next 
to the fly are yellow; and
    (B) The lower quarter next to the staff and the upper quarter next 
to the fly are black;
    (ii) The flashing of a light to indicate the International Morse 
Code letter ``L'', consisting of one short flash, followed by one long 
flash, followed by two short flashes (. -- . .); or
    (iii) The sounding of a horn or whistle to indicate the 
International Morse Code letter ``L'', consisting of one short blast, 
followed by one long blast, followed by two short blasts (. -- . .).
    (2) Authorized officers of Canada use the following signals to 
require a fishing vessel to prepare to be boarded:
    (i) The hoisting of flags representing the International Code Flag 
``SQ3''; or
    (ii) The flashing of a light, or the sounding of a horn or whistle, 
to indicate the International Morse Code Signal ``SQ3'' (. . . -- -- . 
-- . . . -- --).



Sec. 300.144  Penalties and sanctions.

    Any person, any fishing vessel, or the owner or operator of any such 
vessel, who violates any provision of the Agreement or this subpart, is 
subject to the civil and criminal fines, penalties, forfeitures, permit 
sanctions, or other sanctions provided in the Magnuson Act, part 600 of 
this title, 15 CFR part 904 (Civil Procedures), and any other applicable 
law or regulation.

          Subpart J_U.S. Nationals Fishing in Russian Fisheries

    Authority: 16 U.S.C. 1801 et seq.



Sec. 300.150  Purpose.

    This subpart regulates U.S. nationals fishing in the Russian 
fisheries and implements the Agreement between the Government of the 
United States of America and the Government of the Union of Soviet 
Socialist Republics on Mutual Fisheries Relations, signed May 31, 1988.



Sec. 300.151  Definitions.

    In addition to the terms defined in Sec. 300.2 and those in the 
Magnuson Act, the terms used in this subpart have the following 
meanings. If a term is defined differently in Sec. 300.2 or the 
Magnuson Act, the definition in this section shall apply.
    Affiliates means two persons (including individuals and entities) 
related in such a way that--
    (1) One indirectly or directly controls or has power to control the 
other; or
    (2) A third party controls or has power to control both. Indicia of 
control include, but are not limited to, interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a reorganized entity having 
the same or similar management, ownership, or employees as a former 
entity.
    Agreement means the Agreement Between the Government of the United 
States of America and the Government of the Union of Soviet Socialist 
Republics on Mutual Fisheries Relations, signed May 31, 1988.
    Embassy of the Russian Federation means the Fisheries Attache of the 
embassy located in Washington, D.C.
    Fishery resource means any fish, any stock of fish, any species of 
fish, and any habitat of fish.
    Fishing or to fish means any activity that does, is intended to, or 
can reasonably be expected to result in catching

[[Page 440]]

or removing from the water fishery resources. Fishing also includes the 
acts of scouting, processing, and support.
    Operator, with respect to any vessel, means the master or other 
individual on board and in charge of either the vessel, the vessel's 
fishing operation, or both.
    Owner, with respect to any vessel, means any person who owns that 
vessel in whole or in part, whether or not it is leased or chartered to 
or managed by another person, or any charterer, whether bareboat, time, 
or voyage, and any person who acts in the capacity of a charterer, or 
manager, including but not limited to parties to a management agreement, 
operating agreement, or any similar agreement that bestows control over 
the destination, function, or operation of the vessel, any officer, 
director, manager, controlling shareholder of any entity described in 
this definition, any agent designated as such by any person described in 
this definition, and any affiliate of any person described in this 
definition.
    Processing means any operation by a vessel to receive fish from a 
fishing vessel and/or the preparation of fish, including but not limited 
to cleaning, cooking, canning, smoking, salting, drying, or freezing, 
either on the vessel's behalf or to assist another vessel.
    Regional Administrator means Director, Alaska Region, or a designee.
    Relevant laws and regulations of the Russian Federation means those 
Russian laws and regulations that concern fishing for fishery resources 
over which Russia exercises sovereign rights or fishery management 
authority.
    Russian and Federation mean the Russian Federation, its government, 
or any organ or entity of its government.
    Russian continental shelf or continental shelf of Russia means the 
seabed and subsoil of the submarine areas over which, consistent with 
international law, Russia exercises sovereign rights.
    Russian Economic Zone or Russian EZ means a zone of waters off the 
coast of Russia beyond and adjacent to the Russian territorial sea 
extending a distance of up to 200 nautical miles from the baseline from 
which the territorial sea is measured, within which, consistent with 
international law, Russia has sovereign rights over the fishery 
resources.
    Russian Federation or Russia means the governing entity that 
succeeded the Union of Soviet Socialist Republics, and that is the 
successor party to the Agreement of May 31, 1988.
    Russian fisheries, Russian fishery resources, or fishery resources 
over which Russia exercises sovereign rights or fishery management 
authority means fishery resources within the Russian EZ, fishery 
resources of the Russian continental shelf, and anadromous species that 
originate in the waters of Russia, whether found in the Russian EZ or 
beyond any exclusive economic zone or its equivalent.
    Scouting means any operation by a vessel exploring (on behalf of the 
vessel or another vessel) for the presence of fish by any means that do 
not involve the catching of fish.
    Support means any operation by a vessel assisting fishing by another 
vessel, including--
    (1) Transferring or transporting fish or fish products; or
    (2) Supplying a fishing vessel with water, fuel, provisions, fishing 
equipment, fish processing equipment, or other supplies.



Sec. 300.152  Procedures.

    (a) Application for annual permits. U.S. vessel owners and operators 
must have a valid permit issued by the Russian Federation obtained 
pursuant to a complete application submitted through NMFS before fishing 
in the Russian EZ or for Russian fishery resources. Application forms 
and copies of applicable laws and regulations of the Russian Federation 
may be obtained from NMFS Headquarters.
    (b) Other application information. Applications for motherships, 
processing or transport vessels must identify the type of fishing gear 
to be employed or the fishing quotas if the vessel has received or is 
requesting a quota. To facilitate processing, NMFS requests that permit 
applications for more than 10 vessels be grouped by type and fishing 
area, and provide the name, address, telephone, and FAX number(s) of an 
individual who will be the official point of contact for an application.

[[Page 441]]

    (c) Review of Applications. NMFS will review each application, and, 
if it is complete, forward it to the Department of State for submission 
to the competent authorities of the Russian Federation. NMFS will notify 
the permit applicant when the permit is submitted to the Russian 
Federation. NMFS will return incomplete applications to the applicant.
    (d) Direct Communication. U.S. applicants may communicate directly 
with the Russian Federation with regard to the status of their 
applications or permits and are encouraged to do so. Owners and 
operators should make direct contact and work with Russian industry and 
government authorities.



Sec. 300.153  Permit issuance.

    (a) Acceptance. Once the Department of State has accepted the 
conditions and restrictions proposed by the Russian Federation and all 
fees have been paid, the competent authorities of the Russian Federation 
will approve the application. The Russian Federation will issue a permit 
to the vessel owner for each fishing vessel for which it has approved an 
application. That vessel will thereupon be authorized by the Russian 
Federation to fish in accordance with the Agreement and the terms and 
conditions set forth in the permit. The vessel owner is prohibited from 
transferring the permit to any other vessel or person. Any such 
transfer, or the sale or other transfer of the vessel, will immediately 
invalidate the permit. The vessel owner must notify NMFS of any change 
in the permit application information submitted to NMFS Headquarters 
under Sec. 300.152 within 7 calendar days of the change.
    (b) Copies. The vessel owner and operator must mail a copy of each 
permit and any conditions and restrictions issued for that vessel by the 
Russian Federation within 7 calendar days of its receipt to NMFS 
Headquarters.
    (c) Validity. Any permit issued by the Russian Federation with 
respect to a vessel subject to this subpart will be deemed to be a valid 
permit only if:
    (1) A completed permit application has been forwarded to the 
competent authorities of the Russian Federation as provided in Sec. 
300.152(b)(1).
    (2) Such application has been approved and a permit issued by the 
competent authorities of the Russian Federation as provided in paragraph 
(a) of this section.
    (3) The U.S. Department of State has notified the competent 
authorities of the Russian Federation that it has accepted the 
conditions and restrictions as provided in paragraph (a) of this 
section. The permit will be rendered invalid by: The transfer or sale of 
the permit specified in paragraph (a) of this section; the failure to 
submit to NMFS any changes in permit application information as required 
by paragraph (a) of this section; failure to submit to NMFS any permit 
copy required by paragraph (b) of this section or any other information 
or report required by any other provision of this subpart; or the 
failure to pay required permit fees.
    (d) Russian-imposed sanctions. (1) The Russian Federation will 
impose appropriate fines, penalties, or forfeitures in accordance with 
its laws, for violations of its relevant laws or regulations.
    (2) In the case of arrest and seizure of a U.S. vessel by Russian 
authorities, notification will be given promptly through diplomatic 
channels informing the United States of the facts and actions taken.
    (3) The Russian Federation will release U.S. vessels and their crews 
promptly, subject to the posting of reasonable bond or other security.
    (4) The sanctions for violations of limitations or restrictions on 
fishing operations will be appropriate fines, penalties, forfeitures, or 
revocations or suspensions of fishing privileges.



Sec. 300.154  Recordkeeping and reporting.

    (a) General. The owner and operator of a vessel subject to this 
subpart are responsible for complying with all recordkeeping and 
reporting requirements in this part in a timely and accurate manner. 
Reports and records required by this subpart must be in English, in the 
formats specified, and unless otherwise specified, based on Greenwich 
mean time (GMT).
    (b) Vessel permit abstract report. (1) The owner and operator of a 
vessel subject to this subpart must submit to NMFS Headquarters a permit 
abstract

[[Page 442]]

report containing the following information:
    (i) Vessel name.
    (ii) Russian Federation permit number.
    (iii) Duration of permit (e.g., 1/1/91-12/31/91).
    (iv) Authorized areas of fishing operations in geographic 
coordinates.
    (v) Authorized catch quota in tons.
    (vi) Authorized fishing gear.
    (vii) Type of permit (e.g., catcher).
    (2) The report must be telefaxed to (301) 713-0596 within 5 calendar 
days of receipt of the Russian permit.
    (c) Activity reports. The owner and operator of a vessel subject to 
this subpart must submit to the Regional Administrator by telefax to 
(907) 586-7313, the following reports:
    (1) Depart Report (Action code DEPART). At least 24 hours before the 
vessel departs from the EEZ for the Russian EZ, NMFS must receive the 
following information:
    (i) The date (month and day), and time (hour and minute GMT), and 
position (latitude and longitude to the nearest degree and minute), at 
which the vessel will depart the EEZ for the Russian EZ.
    (ii) The weight in metric tons (to the nearest hundredth of a metric 
ton) of all fish and fish product (listed by species and product codes) 
on board the vessel at the time it will depart the EEZ.
    (2) Return Report (Action code RETURN). At least 24 hours before a 
vessel that has been in the Russian EZ enters the EEZ, NMFS must receive 
the following information:
    (i) The date (month and day), time (hour and minute GMT), and 
position (latitude and longitude to the nearest degree and minute), at 
which the vessel will enter the EEZ.
    (ii) The weight in metric tons (to the nearest hundredth of a metric 
ton) of all fish and fish products (listed by species and product codes) 
on board the vessel at the time it will enter the EEZ, and the areas 
(Russian EZ, U.S. EEZ, or other) in which such fish products were 
harvested or received.
    (3) All reports must specify: The appropriate action code 
(``DEPART'' or ``RETURN''); the vessel's name and international radio 
call sign (IRCS); the sender's name and telephone number, and FAX, 
TELEX, and COMSAT numbers; the date (month and day) and time (hour and 
minute GMT) that the report is submitted to NMFS; and the intended date 
and U.S. port of landing. A list of species and product codes may be 
obtained from the Regional Administrator.
    (d) Recordkeeping. The owner and operator of a vessel subject to 
this subpart must retain all copies of all reports required by this 
subpart on board the vessel for 1 year after the end of the calendar 
year in which the report was generated. The owner and operator must 
retain and make such records available for inspection upon the request 
of an authorized officer at any time for 3 years after the end of the 
calendar year in which the report was generated, whether or not such 
records on board the vessel.



Sec. 300.155  Requirements.

    (a) Compliance with permit requirements. (1) U.S. nationals and 
vessels subject to this subpart must have a valid permit, as specified 
in Sec. 300.153(c) in order to fish for Russian fishery resources.
    (2) U.S. nationals and vessels subject to this subpart that are 
fishing for Russian fishery resources must comply with all provisions, 
conditions, and restrictions of any applicable permit.
    (b) Compliance with Russian law. U.S. nationals and vessels fishing 
for Russian fishery resources must comply with the relevant laws and 
regulations of the Russian Federation.
    (c) Protection of marine mammals. U.S. nationals and vessels fishing 
for Russian fishery resources may not harass, hunt, capture, or kill any 
marine mammal within the Russian EZ, attempt to do so, except as may be 
provided for by an international agreement to which both the United 
States and Russia are parties, or in accordance with specific 
authorization and controls established by the Russian Federation. The 
provisions of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et 
seq. also apply to any person or vessel subject to the jurisdiction of 
the United States while in the Russian EZ, and it shall not be a defense 
to any violation of the MMPA that the person or vessel

[[Page 443]]

was acting in accordance with any permit or authorization issued by the 
Russian Federation.
    (d) Cooperation with enforcement procedures. (1) The operator of, or 
any person aboard, any U.S. vessel subject to this subpart must 
immediately comply with instructions and signals issued by an authorized 
officer of the Russian Federation to stop the vessel and with 
instructions to facilitate safe boarding and inspection of the vessel, 
its gear, equipment, fishing record, and catch for purposes of enforcing 
the relevant laws and regulations of Russia.
    (2) The operator of, and any person aboard, any U.S. vessel subject 
to this subpart, must comply with directions issued by authorized 
officers of the Russian Federation in connection with the seizure of the 
vessel for violation of the relevant laws or regulations of the Russian 
Federation.
    (3) U.S. nationals and vessels subject to this subpart must pay all 
fines and penalties and comply with forfeiture sanctions imposed by the 
Russian Federation for violations of its relevant laws and regulations.
    (4) The operator of, and any person aboard, any U.S. vessel subject 
to this subpart must immediately comply with instructions and signals 
issued by an authorized officer of the United States to stop the vessel 
and with instructions to facilitate safe boarding and inspection of the 
vessel, its gear, equipment, fishing records, and catch for purposes of 
enforcing the Magnuson Act, the Agreement, and this subpart.
    (e) Compliance with observer requirements. The owner of, operator 
of, and any person aboard, any U.S. vessel fishing in the Russian EZ or 
for Russian fishery resources to which a Russian observer is assigned 
must--
    (1) Allow and facilitate, on request, boarding of a U.S. vessel by 
the observer.
    (2) Provide to the observer, at no cost to the observer or the 
Russian Federation, the courtesies and accommodations provided to ship's 
officers.
    (3) Cooperate with the observer in the conduct of his or her 
official duties.
    (4) Reimburse the Russian Federation for the costs of providing an 
observer aboard the vessel.



Sec. 300.156  Prohibited acts.

    In addition to the prohibited acts specified at Sec. 300.4, it 
shall be unlawful for any U.S. national or vessel, or the owner or 
operator of any such vessel:
    (a) To fish for Russian fishery resources without a valid permit 
issued by the competent authorities of the Russian Federation.
    (b) To violate the provisions, conditions, and restrictions of an 
applicable permit.
    (c) To violate the relevant laws and regulations of Russia.
    (d) To harass, hunt, capture, or kill any marine mammal within the 
Russian EZ, or while fishing for Russian fishery resources, except as 
provided in Sec. 300.155 (c).
    (e) To fail to comply immediately with enforcement and boarding 
procedures specified in Sec. 300.155 (d).
    (f) To refuse to allow an authorized officer of the Russian 
Federation to board and inspect a vessel subject to this subpart for 
purposes of conducting any search, inspection, arrest, or seizure in 
connection with the enforcement of the relevant laws and regulations of 
the Russian Federation.
    (g) To assault, resist, oppose, impede, intimidate, threaten, or 
interfere with, in any manner, any authorized officer of the Russian 
Federation in the conduct of any search, inspection, seizure, or arrest 
in connection with enforcement of the relevant laws and regulations of 
the Russian Federation.
    (h) To fail to pay fines or penalties or comply with forfeitures 
imposed for a violation of the relevant laws and regulations of the 
Russian Federation.
    (i) To refuse or fail to allow a Russian observer to board a vessel 
subject to this subpart while fishing in the Russian EZ, or for Russian 
fishery resources.
    (j) To fail to provide to a Russian observer aboard a vessel fishing 
in the Russian EZ or for Russian fishery resources, the courtesies and 
accommodations provided to ship's officers.
    (k) To assault, resist, oppose, impede, intimidate, threaten, 
interfere with, harass, or fail to cooperate, in any manner, with a 
Russian observer placed aboard a vessel subject to this subpart.

[[Page 444]]

    (l) To fail to reimburse the Russian Federation for the costs 
incurred in the utilization of Russian observers placed aboard such 
vessel.
    (m) To possess, have custody or control of, ship, transport, offer 
for sale, sell, purchase, transship, import, export, or traffic in any 
manner, any fish or parts thereof taken or retained, landed, purchased, 
sold, traded, acquired, or possessed, in any manner, in violation of the 
relevant laws and regulations of the Russian Federation, the Magnuson 
Act, or this subpart.
    (n) To enter the Russian EZ to fish unless a permit application has 
been submitted through NMFS to the competent authorities of the Russian 
Federation by the U.S. Department of State for such vessel as provided 
in this subpart.
    (o) To fish for Russian fisheries or to possess fish taken in 
Russian fisheries on board a vessel subject to this subpart without a 
valid permit or other valid form of authorization issued by the 
competent authorities of the Russian Federation on board the vessel.
    (p) To falsify, or fail to report to NMFS, any change in the 
information contained in a permit application subject to this subpart 
within 7 calendar days of such change.
    (q) To attempt to do, cause to be done, or aid and abet in doing, 
any of the foregoing.
    (r) To violate any other provision of this subpart.



Sec. 300.157  Penalties.

    In addition to any fine, penalty, or forfeiture imposed by the 
Russian Federation, nationals and vessels of the United States violating 
the prohibitions of Sec. 300.156 are subject to the fines, penalties, 
and forfeitures and the adjudicative procedures provided in the Magnuson 
Act, 16 U.S.C. 1858, 1860, 1861, and any other applicable laws and 
regulations of the United States.

        Subpart K_Transportation and Labeling of Fish or Wildlife

    Authority: 16 U.S.C. 3371-3378.



Sec. 300.160  Requirement for marking of containers or packages.

    Except as otherwise provided in this subpart, all persons are 
prohibited from importing, exporting, or transporting in interstate 
commerce any container or package containing any fish or wildlife 
(including shellfish) unless each container or package is conspicuously 
marked on the outside with both the name and address of the shipper and 
consignee and an accurate list of its contents by species and number of 
each species.



Sec. 300.161  Alternatives and exceptions.

    (a) The requirements of Sec. 300.160 may be met by complying with 
one of the following alternatives to the marking requirement:
    (1)(i) Conspicuously marking the outside of each container or 
package containing fish or wildlife with the word ``fish'' or 
``wildlife'' as appropriate for its contents, or with the common name of 
its contents by species, and
    (ii) Including an invoice, packing list, bill of lading, or similar 
document to accompany the shipment that accurately states the name and 
address of the shipper and consignee, states the total number of 
packages or containers in the shipment, and for each species in the 
shipment specifies: The common name that identifies the species 
(examples include: chinook (or king) salmon; bluefin tuna; and whitetail 
deer); and the number of that species (or other appropriate measure of 
quantity such as gross or net weight). The invoice, packing list, bill 
of lading, or equivalent document must be securely attached to the 
outside of one container or package in the shipment or otherwise 
physically accompany the shipment in a manner that makes it readily 
accessible for inspection; or
    (2) Affixing the shipper's wildlife import/export license number 
preceded by ``FWS'' on the outside of each container or package 
containing fish or wildlife if the shipper has a valid wildlife import/
export license issued under authority of part 14 of this title. For each 
shipment marked in accordance with this paragraph (a)(2), the records 
maintained under Sec. 14.93(d) of this title must include a copy of the 
invoice, packing list, bill of lading, or other

[[Page 445]]

similar document that accurately states the information required by 
paragraph (a)(1)(ii) of this section.
    (3) In the case of subcontainers or packages within a larger packing 
container, only the outermost container must be marked in accordance 
with this section, provided, that for live fish or wildlife that are 
packed in subcontainers within a larger packing container, if the 
subcontainers are numbered or labeled, the packing list, invoice, bill 
of lading, or other similar document, must reflect that number or label.
    (4) A conveyance (truck, plane, boat, etc.) is not considered a 
container for purposes of requiring specific marking of the conveyance 
itself, provided that:
    (i) The fish or wildlife within the conveyance is carried loosely or 
is readily identifiable, and is accompanied by the document required by 
paragraph (a)(1)(ii) of this section; or
    (ii) The fish or wildlife is otherwise packaged and marked in 
accordance with this subpart.
    (b) The requirements of Sec. 300.160 of chapter III of this title 
do not apply to containers or packages containing--
    (1) Fox, nutria, rabbit, mink, chinchilla, marten, fisher, muskrat, 
and karakul that have been bred and born in captivity, or their 
products, if a signed statement certifying that the animals were bred 
and born in captivity accompanies the shipping documents;
    (2) Fish or shellfish contained in retail consumer packages labeled 
pursuant to the Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.; or
    (3) Fish or shellfish that are landed by, and offloaded from, a 
fishing vessel (whether or not the catch has been carried by the fishing 
vessel interstate), as long as the fish or shellfish remain at the place 
where first offloaded.

                Subpart L_Pacific Albacore Tuna Fisheries

    Authority: Sec. 401, Pub. L. 108-219, 118 Stat. 616 (16 U.S.C. 1821 
note).

    Source: 69 FR 31535, June 4, 2004, unless otherwise noted.



Sec. 300.170  Purpose and scope.

    The regulations in this subpart govern fishing by U.S. vessels in 
waters under the fisheries jurisdiction of Canada pursuant to the 1981 
Treaty Between the Government of the United States of America and the 
Government of Canada on Pacific Coast Albacore Tuna Vessels and Port 
Privileges as amended in 2002. Regulations governing fishing by Canadian 
vessels in waters under the fisheries jurisdiction of the United States 
pursuant to this Treaty as amended in 2002 are found at Sec. 600.530 of 
chapter VI of this title.



Sec. 300.171  Definitions.

    In addition to the definitions in the Magnuson-Stevens Fishery 
Conservation and Management Act and Sec. 600.10 of Chapter VI of this 
title, the terms used in this subpart have the following meanings:
    Fishing under the Treaty as amended in 2002 means to engage in 
fishing for albacore tuna in waters under the fisheries jurisdiction of 
Canada seaward of 12 nautical miles from the baseline from which the 
territorial sea is measured.
    Regional Administrator means the Regional Administrator, Southwest 
Region, NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-
4213, or a designee.
    Reporting Office means the office designated by the Regional 
Administrator to take hail-in and hail-out reports from U.S. and 
Canadian vessel operators.
    Treaty means the 1981 Treaty Between the Government of the United 
States of America and the Government of Canada on Pacific Coast Albacore 
Tuna Vessels and Port Privileges as amended in 2002.



Sec. 300.172  Vessel list.

    The ``vessel list'' is the list of U.S. vessels that are authorized 
to fish under the Treaty as amended in 2002. Only a vessel on the list 
for at least 7 days may engage in fishing in Canadian waters under the 
Treaty as amended in 2002. At least 7 (seven) days prior to the first 
day on which any fishing in Canadian waters may begin, the owner of any 
U.S. vessel that wishes to be eligible to fish for albacore tuna under 
the

[[Page 446]]

Treaty as amended in 2002 must provide the Regional Administrator or his 
designee with the vessel name, the owner's name and address, phone 
number where the owner can be reached, the U.S. Coast Guard 
documentation number (or state registration number if not documented), 
and vessel operator (if different from the owner) and his or her address 
and phone number. NMFS will then place the vessel on the vessel list.



Sec. 300.173  Vessel identification.

    A U.S. vessel fishing under the Treaty as amended in 2002 must be 
marked with its name and vessel identification prominently displayed 
where they will be clearly visible both from the air and from a surface 
vessel. Vessel identification means the U.S. Coast Guard Documentation 
number (or if not documented, the state registration number) followed by 
the letter U in the same height and size as the numerals. Numerals and 
the letter U must meet thesize requirements of Sec. 660.704 of chapter 
VI of this title.



Sec. 300.174  Logbook reports.

    The owner of any U.S. vessel that fishes for albacore tuna in 
Canadian waters under the Treaty as amended in 2002 must maintain and 
submit to the Regional Administrator a logbook of catch and effort of 
such fishing. The logbook form will be provided to the vessel owner as 
soon as practicable after the request to be placed on the list of 
vessels. The logbook must be submitted to the Regional Administrator 
within 15 days of the end of a trip, regardless of whether the trip ends 
by reentry to U.S. waters or entry to Canada's territorial sea, other 
Canadian waters in which fishing is not permitted, or a Canadian port. 
If the departure is due to exit to the high seas, the vessel operator 
must submit the logbook within 7 days of its next landing.



Sec. 300.175  Hail-in and hail-out reports.

    (a) The operator of any U.S. vessel that wishes to engage in fishing 
in waters under the fisheries jurisdiction of Canada must file a hail-in 
report to the Reporting Office at least 24 hours prior to engaging in 
fishing in such waters.
    (b) The operator of a U.S. vessel that has been fishing under the 
Treaty as amended in 2002 must file a hail-out report to the Reporting 
Office within 24 hours of departing waters under the fisheries 
jurisdiction of Canada.



Sec. 300.176  Prohibitions.

    It is prohibited for the owner or operator of a U.S. fishing vessel 
to:
    (a) Engage in fishing in waters under the fisheries jurisdiction of 
Canada if:
    (1) The vessel has not been on the list of fisheries pursuant to 
Sec. 300.172 for at least 7 days;
    (2) The vessel is not clearly marked as required under Sec. 
300.173;
    (3) The vessel operator has not filed a hail-in report with the 
Reporting Office as required under Sec. 300.175(a); or
    (4) The Regional Administrator has announced that the U.S. limit on 
fishing under the Treaty as amended in 2002 has been reached.
    (b) Fail to maintain and submit logbook records of catch and effort 
statistics as required under Sec. 300.174;
    (c) Fail to report an exit from waters under the fisheries 
jurisdiction of Canada as required by Sec. 300.175(b).

[[Page 447]]



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




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

                              SUBCHAPTER A
Part                                                                Page
401             Anadromous fisheries conservation, 
                    development and enhancement.............         449
402             Interagency cooperation--Endangered Species 
                    Act of 1973, as amended.................         452
403             Transfer of marine mammal management 
                    authority to States.....................         470
424             Listing endangered and threatened species 
                    and designating critical habitat........         478
                         SUBCHAPTER B [RESERVED]
           SUBCHAPTER C--ENDANGERED SPECIES EXEMPTION PROCESS
450             General provisions..........................         487
451             Application procedure.......................         488
452             Consideration of application by the 
                    Secretary...............................         490
453             Endangered Species Committee................         493

[[Page 449]]



                              SUBCHAPTER A





PART 401_ANADROMOUS FISHERIES CONSERVATION, DEVELOPMENT AND ENHANCEMENT
--Table of Contents




Sec.
401.1 Administration.
401.2 Definitions.
401.3 Submission of documents.
401.4 Activities prohibited.
401.5 Coordination with States.
401.6 Prosecution of work.
401.7 General information for the Secretary.
401.8 Availability of funds.
401.9 Payments to cooperators.
401.10 Request for payment.
401.11 Property as matching funds.
401.12 Ownership of property.
401.13 Personnel.
401.14 Inspection.
401.15 Record retention.
401.16 Records and reporting.
401.17 Safety and accident prevention.
401.18 Contracts.
401.19 Statements and payrolls.
401.20 Officials not to benefit.
401.21 Patents and inventions.
401.22 Civil rights.
401.23 Audits.

    Authority: Anadromous Fish Conservation Act (79 Stat. 1125, as 
amended, 84 Stat. 214, 88 Stat. 398), 16 U.S.C. 757a-757f.

    Source: 40 FR 26678, June 25, 1975, unless otherwise noted.



Sec. 401.1  Administration.

    The Director of the U.S. Fish and Wildlife Service and the Director 
of the National Marine Fisheries Service shall jointly administer the 
Anadromous Fish Conservation Act for the Secretaries.



Sec. 401.2  Definitions.

    As used in this part, terms shall have the meanings ascribed in this 
section.
    (a) Secretary. The Secretary of Commerce, the Secretary of the 
Interior, or their authorized representatives.
    (b) Act. The Anadromous Fish Conservation Act, 16 U.S.C. 757a 
through 757f.
    (c) Eligible states. Any coastal State of the United States, the 
State of Vermont, and the States bordering the Great Lakes. The area 
within the Columbia River basin is excluded.
    (d) State fishery agency. Any department(s), division(s), commis- 
sion(s), or official(s) of a State empowered under its laws to regulate 
a commercial or sport fishery.
    (e) Non-Federal interest. Any organization, association, 
institution, business, school, individual, or group of individuals, 
municipality and others outside the Federal Government, in addition to 
State fishery agencies, which desire to cooperate within the terms of 
the Act.
    (f) Cooperator. One or more States acting jointly or severally or 
other non-Federal interests, participating in a project agreement or 
grant-in-aid award with the Secretary.
    (g) Anadromous fish. Aquatic, gill breathing, vertebrate animals 
bearing paired fins which migrate to and spawn in fresh water, but which 
spend part of their life in an oceanic environment; also fish in the 
Great Lakes that ascend streams to spawn.
    (h) Application for Federal assistance. A description of work to be 
accomplished, including objectives and needs, expected results and 
benefits, approach, cost, location and time required for completion.
    (i) Project agreement. The formal document executed between the 
Secretary of the Interior and the Cooperator, committing the Cooperator 
to the performance of described activities and the Federal Government to 
participation in the financing of those activities.
    (j) Grant-in-Aid award. The formal document executed between the 
Secretary of Commerce and the Cooperator, committing the Cooperator to 
the performance of described activities and the Federal Government to 
participation in the financing of those activities.



Sec. 401.3  Submission of documents.

    Applications for Federal assistance and other documents for projects 
relating generally to recreational fisheries shall be submitted to the 
concerned Regional Office of the U.S. Fish and Wildlife Service, or for 
projects relating generally to commercial fisheries of the concerned 
Regional Office of the National Marine Fisheries Service.

[[Page 450]]



Sec. 401.4  Activities prohibited.

    Law enforcement, public relations, harvesting, marketing and 
processing activities, construction of fisherman use facilities, and 
activities concerned with landlocked anadromous fish populations (except 
fish in the Great Lakes that ascend streams to spawn) may not be 
financed under the Act.



Sec. 401.5  Coordination with States.

    The Secretary will approve an Application For Federal Assistance 
only after he has coordinated the application with the State office 
established to review applications under Executive Order 12372 (if the 
State has established such an office and wishes to review these 
applications) and other non-Federal entities which have management 
authority over the resource to be affected.

[48 FR 29137, June 24, 1983]



Sec. 401.6  Prosecution of work.

    (a) Project work shall be carried through to a state of completion 
acceptable to the Secretary with reasonable promptness. Failure to 
render satisfactory performance reports or failure to complete the 
project to the satisfaction of the Secretary shall be cause for 
suspension of Federal assistance for the project until the project 
provisions are satisfactorily met. Federal assistance may be terminated 
upon determination by the Secretary that satisfactory progress has not 
been maintained. The Secretary shall have the right to inspect and 
review work at any time.
    (b) Research and development work shall be continuously coordinated 
by the Cooperator with studies conducted by others to avoid unnecessary 
duplication.
    (c) All work shall be performed in accordance with applicable local 
laws, except when in conflict with Federal laws or regulations, in which 
case Federal laws or regulations shall prevail.



Sec. 401.7  General information for the Secretary.

    Before any Federal funds may be obligated for any project an 
applicant shall furnish to the Secretary, upon his request, information 
regarding the laws affecting anadromous fish and the au thority of the 
applicant to participate in the benefits of the Act.
    (a) Document signature. Individuals authorized to sign project 
documents under the Commercial Fisheries Research and Development Act of 
1964 (78 Stat. 197, as amended), 16 U.S.C. 779 through 779f, or the 
Federal Aid in Sport Fish Restoration Act (64 Stat. 430, as amended), 16 
U.S.C. 777 through 777f, may likewise sign project documents 
contemplated in this part.
    (b) Program information. The Secretary may, from time to time, 
request, and the Cooperators shall furnish, information relating to the 
administration and maintenance of any project established under the Act.



Sec. 401.8  Availability of funds.

    The period of availability of funds to the States or other non-
Federal interests for obligation shall be established by the 
administering Federal agency.



Sec. 401.9  Payments to cooperators.

    Payments shall be made to Cooperators in accordance with provisions 
of grant-in-aid awards or project agreements.



Sec. 401.10  Request for payment.

    Request for payment shall be on forms provided by the Secretary, 
certified as therein prescribed, and submitted to the Regional Director 
by the Cooperator.



Sec. 401.11  Property as matching funds.

    The non-Federal share of the cost of projects may be in the form of 
real or personal property. Specific procedures to be used by grantees in 
placing the value on real or personal property for matching funds are 
set forth in Attachment F of Federal Management Circular 74-7.



Sec. 401.12  Ownership of property.

    When real property is acquired pursuant to the provisions of the 
Act, title to such property, or interests therein, shall be vested in 
the United States, and the conveying instrument shall recite the United 
States of America as the grantee. However, if the Secretary determines 
that under the terms of the application for Federal assistance and

[[Page 451]]

grant-in-aid award or project agreement, the intent and purpose of the 
Act may be better served by other ownership of such property, an 
appropriate transfer may be made. When real or personal property is 
utilized as matching funds, title to such property shall be in the 
Cooperator unless otherwise specified in the grant-in-aid award or 
project agreement.



Sec. 401.13  Personnel.

    The Cooperator shall maintain an adequate and competent force of 
employees to initiate and carry approved work to satisfactory 
completion.



Sec. 401.14  Inspection.

    Cooperator supervision of each project shall include adequate and 
continuous inspection. The project will be subject at all times to 
Federal inspection.



Sec. 401.15  Record retention.

    All records of accounts and reports with supporting documentation 
thereto, as set forth in Attachment C of Federal Management Circular 74-
7, will be retained by the Cooperator for a period of 3 years after 
submission of the final expenditure report on the project. Record 
retention for a period longer than 3 years is required if audit findings 
have not been resolved.



Sec. 401.16  Records and reporting.

    Performance reports and other reports shall be furnished as 
requested by the Secretary. Cost records shall be maintained separately 
for each proj ect. The accounts and records maintained by the 
Cooperator, together with all supporting documents, shall be open at all 
times to the inspection of authorized representatives of the United 
States, and copies thereof shall be furnished when requested.

(Approved by the Office of Management and Budget under control number 
0648-0102)

[40 FR 26678, June 25, 1975, as amended at 48 FR 57302, Dec. 29, 1983]



Sec. 401.17  Safety and accident prevention.

    In the performance of each project, the Cooperator shall comply with 
all applicable Federal, State, and local laws governing safety, health 
and sanitation.



Sec. 401.18  Contracts.

    A Cooperator may use its own regulations or guidelines in obtaining 
services by contract or otherwise, provided that they adhere to 
applicable Federal laws, regulations, policies, guidelines, and 
requirements, as set forth in Attachment 0 of Federal Management 
Circular 74-7. However, the Cooperator is the responsible authority, 
without recourse to the Federal agency, regarding the settlement of such 
contractual issues.



Sec. 401.19  Statements and payrolls.

    The regulations of the Secretary of Labor applicable to contractors 
and subcontractors (29 CFR part 3), made pursuant to the Copeland 
``Anti-Kickback'' Act (18 U.S.C. 874), as amended, are made a part of 
the regulations in this part by reference. The Cooperator will comply 
with the regulations in this part and any amendments or modifications 
thereof, and the Cooperator's prime contractor will be responsible for 
the submission of statements required of subcontractors thereunder. The 
foregoing shall apply except as the Secretary of Labor may specifically 
provide for reasonable limitation, variations, tolerances, and 
exemptions.



Sec. 401.20  Officials not to benefit.

    No Member of, or Delegate to, Congress, or resident Commissioner, 
shall be admitted to any share or any part of any project agreement made 
under the Act, or to any benefit that may arise therefrom. This 
provision shall not be construed to extend to this agreement if made 
with a corporation for its general benefit.



Sec. 401.21  Patents and inventions.

    Determination of the patent rights in any inventions or discoveries 
resulting from work under project agreements entered into pursuant to 
the Act shall be consistent with the ``Government Patent Policy'' 
(President's memorandum for Heads of Executive Departments and Agencies, 
August 23, 1971, and statement of Government Patent Policy as printed in 
36 FR 16889).

[[Page 452]]



Sec. 401.22  Civil rights.

    Each application for Federal assistance, grant-in-aid award, or 
project agreement shall be supported by a statement of assurances 
executed by the Cooperator providing that the proj ect will be carried 
out in accordance with title VI, Nondiscrimination in federally Assisted 
Programs of the Civil Rights Act of 1964 and with the Secretary's 
regulations promulgated thereunder.



Sec. 401.23  Audits.

    The State is required to conduct an audit at least every two years 
in accordance with the provisions of Attachment P OMB Circular A-102. 
Failure to conduct audits as required may result in withholding of grant 
payments or such other sanctions as the Secretary may deem appropriate.

[49 FR 30074, July 26, 1984]



PART 402_INTERAGENCY COOPERATION_ENDANGERED SPECIES ACT OF 1973, AS AMENDED
--Table of Contents




                            Subpart A_General

Sec.
402.01 Scope.
402.02 Definitions.
402.03 Applicability.
402.04 Counterpart regulations.
402.05 Emergencies.
402.06 Coordination with other environmental reviews.
402.07 Designation of lead agency.
402.08 Designation of non-Federal representative.
402.09 Irreversible or irretrievable commitment of resources.

                    Subpart B_Consultation Procedures

402.10 Conference on proposed species or proposed critical habitat.
402.11 Early consultation.
402.12 Biological assessments.
402.13 Informal consultation.
402.14 Formal consultation.
402.15 Responsibilities of Federal agency following issuance of a 
          biological opinion.
402.16 Reinitiation of formal consultation.

  Subpart C_Counterpart Regulations For Implementing the National Fire 
                                  Plan

402.30 Definitions.
402.31 Purpose.
402.32 Scope.
402.33 Procedures.
402.34 Oversight.

    Subpart D_Counterpart Regulations Governing Actions by the U.S. 
Environmental Protection Agency Under the Federal Insecticide, Fungicide 
                           and Rodenticide Act

402.40 Definitions.
402.41 Purpose.
402.42 Scope and applicability
402.43 Interagency exchanges of information.
402.44 Advance coordination for FIFRA actions.
402.45 Alternative consultation on FIFRA actions that are not likely to 
          adversely affect listed species or critical habitat.
402.46 Optional formal consultation procedure for FIFRA actions.
402.47 Special consultation procedures for complex FIFRA actions.
402.48 Conference on proposed species or proposed critical habitat.

    Authority: 16 U.S.C. 1531 et seq.

    Source: 51 FR 19957, June 3, 1986, unless otherwise noted.



                            Subpart A_General



Sec. 402.01  Scope.

    (a) This part interprets and implements sections 7(a)-(d) [16 U.S.C. 
1536(a)-(d)] of the Endangered Species Act of 1973, as amended 
(``Act''). Section 7(a) grants authority to and imposes requirements 
upon Federal agencies regarding endangered or threatened species of 
fish, wildlife, or plants (``listed species'') and habitat of such 
species that has been designated as critical (``critical habitat''). 
Section 7(a)(1) of the Act directs Federal agencies, in consultation 
with and with the assistance of the Secretary of the Interior or of 
Commerce, as appropriate, to utilize their authorities to further the 
purposes of the Act by carrying out conservation programs for listed 
species. Such affirmative conservation programs must comply with 
applicable permit requirements (50 CFR parts 17, 220, 222, and 227) for 
listed species and should be coordinated with the appropriate Secretary. 
Section 7(a)(2) of the Act requires every Federal agency, in 
consultation with and with the assistance of the Secretary, to insure 
that

[[Page 453]]

any action it authorizes, funds, or carries out, in the United States or 
upon the high seas, is not likely to jeopardize the continued existence 
of any listed species or results in the destruction or adverse 
modification of critical habitat. Section 7(a)(3) of the Act authorizes 
a prospective permit or license applicant to request the issuing Federal 
agency to enter into early consultation with the Service on a proposed 
action to determine whether such action is likely to jeopardize the 
continued existence of listed species or result in the destruction or 
adverse modification of critical habitat. Section 7(a)(4) of the Act 
requires Federal agencies to confer with the Secretary on any action 
that is likely to jeopardize the continued existence of proposed species 
or result in the destruction or adverse modification of proposed 
critical habitat. Section 7(b) of the Act requires the Secretary, after 
the conclusion of early or formal consultation, to issue a written 
statement setting forth the Secretary's opinion detailing how the agency 
action affects listed species or critical habitat Biological assessments 
are required under section 7(c) of the Act if listed species or critical 
habitat may be present in the area affected by any major construction 
activity as defined in Sec. 404.02. Section 7(d) of the Act prohibits 
Federal agencies and applicants from making any irreversible or 
irretrievable commitment of resources which has the effect of 
foreclosing the formulation or implementation of reasonable and prudent 
alternatives which would avoid jeopardizing the continued existence of 
listed species or resulting in the destruction or adverse modification 
of critical habitat. Section 7(e)-(o)(1) of the Act provide procedures 
for granting exemptions from the requirements of section 7(a)(2). 
Regulations governing the submission of exemption applications are found 
at 50 CFR part 451, and regulations governing the exemption process are 
found at 50 CFR parts 450, 452, and 453.
    (b) The U.S. Fish and Wildlife Service (FWS) and the National Marine 
Fisheries Service (NMFS) share responsibilities for administering the 
Act. The Lists of Endangered and Threatened Wildlife and Plants are 
found in 50 CFR 17.11 and 17.12 and the designated critical habitats are 
found in 50 CFR 17.95 and 17.96 and 50 CFR part 226. Endangered or 
threatened species under the jurisdiction of the NMFS are located in 50 
CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 
222.23(a) or 227.4, the Federal agency shall contact the NMFS. For all 
other listed species the Federal Agency shall contact the FWS.



Sec. 402.02  Definitions.

    Act means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    Action means all activities or programs of any kind authorized, 
funded, or carried out, in whole or in part, by Federal agencies in the 
United States or upon the high seas. Examples include, but are not 
limited to:
    (a) actions intended to conserve listed species or their habitat;
    (b) the promulgation of regulations;
    (c) the granting of licenses, contracts, leases, easements, rights-
of-way, permits, or grants-in-aid; or
    (d) actions directly or indirectly causing modifications to the 
land, water, or air.
    Action area means all areas to be affected directly or indirectly by 
the Federal action and not merely the immediate area involved in the 
action.
    Applicant refers to any person, as defined in section 3(13) of the 
Act, who requires formal approval or authorization from a Federal agency 
as a prerequisite to conducting the action.
    Biological assessment refers to the information prepared by or under 
the direction of the Federal agency concerning listed and proposed 
species and designated and proposed critical habitat that may be present 
in the action area and the evaluation potential effects of the action on 
such species and habitat.
    Biological opinion is the document that states the opinion of the 
Service as to whether or not the Federal action is likely to jeopardize 
the continued existence of listed species or result in the destruction 
or adverse modification of critical habitat.
    Conference is a process which involves informal discussions between 
a Federal agency and the Service under section

[[Page 454]]

7(a)(4) of the Act regarding the impact of an action on proposed species 
or proposed critical habitat and recommendations to minimize or avoid 
the adverse effects.
    Conservation recommendations are suggestions of the Service 
regarding discretionary measures to minimize or avoid adverse effects of 
a proposed action on listed species or critical habitat or regarding the 
development of information.
    Critical habitat refers to an area designated as critical habitat 
listed in 50 CFR parts 17 or 226.
    Cumulative effects are those effects of future State or private 
activities, not involving Federal activities, that are reasonably 
certain to occur within the action area of the Federal action subject to 
consultation.
    Designated non-Federal representative refers to a person designated 
by the Federal agency as its representative to conduct informal 
consultation and/or to prepare any biological assessment.
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat for 
both the survival and recovery of a listed species. Such alterations 
include, but are not limited to, alterations adversely modifying any of 
those physical or biological features that were the basis for 
determining the habitat to be critical.
    Director refers to the Assistant Administrator for Fisheries for the 
National Oceanic and Atmospheric Administration, or his authorized 
representative; or the Fish and Wildlife Service regional director, or 
his authorized representative, for the region where the action would be 
carried out.
    Early consultation is a process requested by a Federal agency on 
behalf of a prospective applicant under section 7(a)(3) of the Act.
    Effects of the action refers to the direct and indirect effects of 
an action on the species or critical habitat, together with the effects 
of other activities that are interrelated or interdependent with that 
action, that will be added to the environmental baseline. The 
environmental baseline includes the past and present impacts of all 
Federal, State, or private actions and other human activities in the 
action area, the anticipated impacts of all proposed Federal projects in 
the action area that have already undergone formal or early section 7 
consultation, and the impact of State or private actions which are 
contemporaneous with the consultation in process. Indirect effects are 
those that are caused by the proposed action and are later in time, but 
still are reasonably certain to occur. Interrelated actions are those 
that are part of a larger action and depend on the larger action for 
their justification. Interdependent actions are those that have no 
independent utility apart from the action under consideration.
    Formal consultation is a process between the Service and the Federal 
agency that commences with the Federal agency's written request for 
consultation under section 7(a)(2) of the Act and concludes with the 
Service's issuance of the biological opinion under section 7(b)(3) of 
the Act.
    Incidental take refers to takings that result from, but are not the 
purpose of, carrying out an otherwise lawful activity conducted by the 
Federal agency or applicant.
    Informal consultation is an optional process that includes all 
discussions, correspondence, etc., between the Service and the Federal 
agency or the designated non-Federal representative prior to formal 
consultation, if required.
    Jeopardize the continued existence of means to engage in an action 
that reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a listed 
species in the wild by reducing the reproduction, numbers, or 
distribution of that species.
    Listed species means any species of fish, wildlife, or plant which 
has been determined to be endangered or threatened under section 4 of 
the Act. Listed species are found in 50 CFR 17.11-17.12.
    Major construction activity is a construction project (or other 
undertaking having similar physical impacts) which is a major Federal 
action significantly affecting the quality of the human environment as 
referred to in the National Environmental Policy Act [NEPA, 42 U.S.C. 
4332(2)(C)].

[[Page 455]]

    Preliminary biological opinion refers to an opinion issued as a 
result of early consultation.
    Proposed critical habitat means habitat proposed in the Federal 
Register to be designated or revised as critical habitat under section 4 
of the Act for any listed or proposed species.
    Proposed species means any species of fish, wildlife, or plant that 
is proposed in the Federal Register to be listed under section 4 of the 
Act.
    Reasonable and prudent alternatives refer to alternative actions 
identified during formal consultation that can be implemented in a 
manner consistent with the intended purpose of the action, that can be 
implemented consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that is economically and technologically 
feasible, and that the Director believes would avoid the likelihood of 
jeopardizing the continued existence of listed species or resulting in 
the destruction or adverse modification of critical habitat.
    Reasonable and prudent measures refer to those actions the Director 
believes necessary or appropriate to minimize the impacts, i.e., amount 
or extent, of incidental take.
    Recovery means improvement in the status of listed species to the 
point at which listing is no longer appropriate under the criteria set 
out in section 4(a)(1) of the Act.
    Service means the U.S. Fish and Wildlife Service or the National 
Marine Fisheries Service, as appropriate.



Sec. 402.03  Applicability.

    Section 7 and the requirements of this part apply to all actions in 
which there is discretionary Federal involvement or control.



Sec. 402.04  Counterpart regulations.

    The consultation procedures set forth in this part may be superseded 
for a particular Federal agency by joint counterpart regulations among 
that agency, the Fish and Wildlife Service, and the National Marine 
Fisheries Service. Such counterpart regulations shall be published in 
the Federal Register in proposed form and shall be subject to public 
comment for at least 60 days before final rules are published.



Sec. 402.05  Emergencies.

    (a) Where emergency circumstances mandate the need to consult in an 
expedited manner, consultation may be conducted informally through 
alternative procedures that the Director determines to be consistent 
with the requirements of sections 7(a)-(d) of the Act. This provision 
applies to situations involving acts of God, disasters, casualties, 
national defense or security emergencies, etc.
    (b) Formal consultation shall be initiated as soon as practicable 
after the emergency is under control. The Federal agency shall submit 
information on the nature of the emergency action(s), the justification 
for the expedited consultation, and the impacts to endangered or 
threatened species and their habitats. The Service will evaluate such 
information and issue a biological opinion including the information and 
recommendations given during the emergency consultation.



Sec. 402.06  Coordination with other environmental reviews.

    (a) Consultation, conference, and biological assessment procedures 
under section 7 may be consolidated with interagency cooperation 
procedures required by other statutes, such as the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq., implemented at 
40 CFR Parts 1500-1508) or the Fish and Wildlife Coordination Act (FWCA) 
(16 U.S.C. 661 et seq.). Satisfying the requirements of these other 
statutes, however, does not in itself relieve a Federal agency of its 
obligations to comply with the procedures set forth in this part or the 
substantive requirements of section 7. The Service will attempt to 
provide a coordinated review and analysis of all environmental 
requirements.
    (b) Where the consultation or conference has been consolidated with 
the interagency cooperation procedures required by other statutes such 
as NEPA or FWCA, the results should be included in the documents 
required by those statutes.

[[Page 456]]



Sec. 402.07  Designation of lead agency.

    When a particular action involves more than one Federal agency, the 
consultation and conference responsibilities may be fulfilled through a 
lead agency. Factors relevant in determining an appropriate lead agency 
include the time sequence in which the agencies would become involved, 
the magnitude of their respective involvement, and their relative 
expertise with respect to the environmental effects of the action. The 
Director shall be notified of the designation in writing by the lead 
agency.



Sec. 402.08  Designation of non-Federal representative.

    A Federal agency may designate a non-Federal representative to 
conduct informal consultation or prepare a biological assessment by 
giving written notice to the Director of such designation. If a permit 
or license applicant is involved and is not the designated non-Federal 
representative, then the applicant and Federal agency must agree on the 
choice of the designated non-Federal representative. If a biological 
assessment is prepared by the designated non-Federal representative, the 
Federal agency shall furnish guidance and supervision and shall 
independently review and evaluate the scope and contents of the 
biological assessment. The ultimate responsibility for compliance with 
section 7 remains with the Federal agency.



Sec. 402.09  Irreversible or irretrievable commitment of resources.

    After initiation or reinitiation of consultation required under 
section 7(a)(2) of the Act, the Federal agency and any applicant shall 
make no irreversible or irretrievable commitment of resources with 
respect to the agency action which has the effect of foreclosing the 
formulation or implementation of any reasonable and prudent alternatives 
which would avoid violating section 7(a)(2). This prohibition is in 
force during the consultation process and continues until the 
requirements of section 7(a)(2) are satisfied. This provision does not 
apply to the conference requirement for proposed species or proposed 
critical habitat under section 7(a)(4) of the Act.



                    Subpart B_Consultation Procedures



Sec. 402.10  Conference on proposed species or proposed critical habitat.

    (a) Each Federal agency shall confer with the Service on any action 
which is likely to jeopardize the continued existence of any proposed 
species or result in the destruction or adverse modification of proposed 
critical habitat. The conference is designed to assist the Federal 
agency and any applicant in identifying and resolving potential 
conflicts at an early stage in the planning process.
    (b) The Federal agency shall initiate the conference with the 
Director. The Service may request a conference if, after a review of 
available information, it determines that a conference is required for a 
particular action.
    (c) A conference between a Federal agency and the Service shall 
consist of informal discussions concerning an action that is likely to 
jeopardize the continued existence of the proposed species or result in 
the destruction or adverse modification of the proposed critical habitat 
at issue. Applicants may be involved in these informal discussions to 
the greatest extent practicable. During the conference, the Service will 
make advisory recommendations, if any, on ways to minimize or avoid 
adverse effects. If the proposed species is subsequently listed or the 
proposed critical habitat is designated prior to completion of the 
action, the Federal agency must review the action to determine whether 
formal consultation is required.
    (d) If requested by the Federal agency and deemed appropriate by the 
Service, the conference may be conducted in accordance with the 
procedures for formal consultation in Sec. 402.14. An opinion issued at 
the conclusion of the conference may be adopted as the biological 
opinion when the species is listed or critical habitat is designated, 
but only if no significant new information is developed (including that 
developed during the rulemaking process on the proposed listing or 
critical habitat designation) and no significant changes to the Federal 
action are made that would alter the content of the opinion. An 
incidental take statement provided with

[[Page 457]]

a conference opinion does not become effective unless the Service adopts 
the opinion once the listing is final.
    (e) The conclusions reached during a conference and any 
recommendations shall be documented by the Service and provided to the 
Federal agency and to any applicant. The style and magnitude of this 
document will vary with the complexity of the conference. If formal 
consultation also is required for a particular action, then the Service 
will provide the results of the conference with the biological opinion.



Sec. 402.11  Early consultation.

    (a) Purpose. Early consultation is designed to reduce the likelihood 
of conflicts between listed species or critical habitat and proposed 
actions and occurs prior to the filing of an application for a Federal 
permit or license. Although early consultation is conducted between the 
Service and the Federal agency, the prospective applicant should be 
involved throughout the consultation process.
    (b) Request by prospective applicant. If a prospective applicant has 
reason to believe that the prospective action may affect listed species 
or critical habitat, it may request the Federal agency to enter into 
early consultation with the Service. The prospective applicant must 
certify in writing to the Federal agency that (1) it has a definitive 
proposal outlining the action and its effects and (2) it intends to 
implement its proposal, if authorized.
    (c) Initiation of early consultation. If the Federal agency receives 
the prospective applicant's certification in paragraph (b) of this 
section, then the Federal agency shall initiate early consultation with 
the Service. This request shall be in writing and contain the 
information outlined in Sec. 402.14(c) and, if the action is a major 
construction activity, the biological assessment as outlined in Sec. 
402.12.
    (d) Procedures and responsibilities. The procedures and 
responsibilities for early consultation are the same as outlined in 
Sec. 402.14(c)-(j) for formal consultation, except that all references 
to the ``applicant'' shall be treated as the ``prospective applicant'' 
and all references to the ``biological opinion'' or the ``opinion'' 
shall be treated as the ``preliminary biological opinion'' for the 
purpose of this section.
    (e) Preliminary biological opinion. The contents and conclusions of 
a preliminary biological opinion are the same as for a biological 
opinion issued after formal consultation except that the incidental take 
statement provided with a preliminary biological opinion does not 
constitute authority to take listed species.
    (f) Confirmation of preliminary biological opinion as final 
biological opinion. A preliminary biological opinion may be confirmed as 
a biological opinion issued after formal consultation if the Service 
reviews the proposed action and finds that there have been no 
significant changes in the action as planned or in the information used 
during the early consultation. A written request for confirmation of the 
preliminary biological opinion should be submitted after the prospective 
applicant applies to the Federal agency for a permit or license but 
prior to the issuance of such permit or license. Within 45 days of 
receipt of the Federal agency's request, the Service shall either:
    (1) Confirm that the preliminary biological opinion stands as a 
final biological opinion; or
    (2) If the findings noted above cannot be made, request that the 
Federal agency initiate formal consultation.



Sec. 402.12  Biological assessments.

    (a) Purpose. A biological assessment shall evaluate the potential 
effects of the action on listed and proposed species and designated and 
proposed critical habitat and determine whether any such species or 
habitat are likely to be adversely affected by the action and is used in 
determining whether formal consultation or a conference is necessary.
    (b) Preparation requirement. (1) The procedures of this section are 
required for Federal actions that are ``major construction activities''; 
provided that a contract for construction was not entered into or actual 
construction was not begun on or before November 10, 1978. Any person, 
including those who may wish to apply for an exemption from section 
7(a)(2) of the Act, may prepare a biological assessment under

[[Page 458]]

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

[[Page 459]]

the biological assessment requirement for the proposed action by 
incorporating by reference the earlier biological assessment, plus any 
supporting data from other documents that are pertinent to the 
consultation, into a written certification that:
    (1) The proposed action involves similar impacts to the same species 
in the same geographic area;
    (2) No new species have been listed or proposed or no new critical 
habitat designated or proposed for the action area; and
    (3) The biological assessment has been supplemented with any 
relevant changes in information.
    (h) Permit requirements. If conducting a biological assessment will 
involve the taking of a listed species, a permit under section 10 of the 
Act (16 U.S.C. 1539) and part 17 of this title (with respect to species 
under the jurisdiction of the FWS) or parts 220, 222, and 227 of this 
title (with respect to species under the jurisdiction of the NMFS) is 
required.
    (i) Completion time. The Federal agency or the designated non- 
Federal representative shall complete the biological assessment within 
180 days after its initiation (receipt of or concurrence with the 
species list) unless a different period of time is agreed to by the 
Director and the Federal agency. If a permit or license applicant is 
involved, the 180-day period may not be extended unless the agency 
provides the applicant, before the close of the 180-day period, with a 
written statement setting forth the estimated length of the proposed 
extension and the reasons why such an extension is necessary.
    (j) Submission of biological assessment. The Federal agency shall 
submit the completed biological assessment to the Director for review. 
The Director will respond in writing within 30 days as to whether or not 
he concurs with the findings of the biological assessment. At the option 
of the Federal agency, formal consultation may be initiated under Sec. 
402.14(c) concurrently with the submission of the assessment.
    (k) Use of the biological assessment. (1) The Federal agency shall 
use the biological assessment in determining whether formal consultation 
or a conference is required under Sec. 402.14 or Sec. 402.10, 
respectively. If the biological assessment indicates that there are no 
listed species or critical habitat present that are likely to be 
adversely affected by the action and the Director concurs as specified 
in paragraph (j) of this section, then formal consultation is not 
required. If the biological assessment indicates that the action is not 
likely to jeopardize the continued existence of proposed species or 
result in the destruction or adverse modification of proposed critical 
habitat, and the Director concurs, then a conference is not required.
    (2) The Director may use the results of the biological assessment in 
(i) determining whether to request the Federal agency to initiate formal 
consultation or a conference, (ii) formulating a biological opinion, or 
(iii) formulating a preliminary biological opinion.



Sec. 402.13  Informal consultation.

    (a) Informal consultation is an optional process that includes all 
discussions, correspondence, etc., between the Service and the Federal 
agency or the designated non-Federal representative, designed to assist 
the Federal agency in determining whether formal consultation or a 
conference is required. If during informal consultation it is determined 
by the Federal agency, with the written concurrence of the Service, that 
the action is not likely to adversely affect listed species or critical 
habitat, the consultation process is terminated, and no further action 
is necessary.
    (b) During informal consultation, the Service may suggest 
modifications to the action that the Federal agency and any applicant 
could implement to avoid the likelihood of adverse effects to listed 
species or critical habitat.



Sec. 402.14  Formal consultation.

    (a) Requirement for formal consultation. Each Federal agency shall 
review its actions at the earliest possible time to determine whether 
any action may affect listed species or critical habitat. If such a 
determination is made, formal consultation is required, except as noted 
in paragraph (b) of this section. The Director may request a Federal 
agency to enter into consultation if he

[[Page 460]]

identifies any action of that agency that may affect listed species or 
critical habitat and for which there has been no consultation. When such 
a request is made, the Director shall forward to the Federal agency a 
written explanation of the basis for the request.
    (b) Exceptions. (1) A Federal agency need not initiate formal 
consultation if, as a result of the preparation of a biological 
assessment under Sec. 402.12 or as a result of informal consultation 
with the Service under Sec. 402.13, the Federal agency determines, with 
the written concurrence of the Director, that the proposed action is not 
likely to adversely affect any listed species or critical habitat.
    (2) A Federal agency need not initiate formal consultation if a 
preliminary biological opinion, issued after early consultation under 
Sec. 402.11, is confirmed as the final biological opinion.
    (c) Initiation of formal consultation. A written request to initiate 
formal consultation shall be submitted to the Director and shall 
include:
    (1) A description of the action to be considered;
    (2) A description of the specific area that may be affected by the 
action;
    (3) A description of any listed species or critical habitat that may 
be affected by the action;
    (4) A description of the manner in which the action may affect any 
listed species or critical habitat and an analysis of any cumulative 
effects;
    (5) Relevant reports, including any environmental impact statement, 
environmental assessment, or biological assessment prepared; and
    (6) Any other relevant available information on the action, the 
affected listed species, or critical habitat.

Formal consultation shall not be initiated by the Federal agency until 
any required biological assessment has been completed and submitted to 
the Director in accordance with Sec. 402.12. Any request for formal 
consultation may encompass, subject to the approval of the Director, a 
number of similar individual actions within a given geographical area or 
a segment of a comprehensive plan. This does not relieve the Federal 
agency of the requirements for considering the effects of the action as 
a whole.
    (d) Responsibility to provide best scientific and commercial data 
available. The Federal agency requesting formal consultation shall 
provide the Service with the best scientific and commercial data 
available or which can be obtained during the consultation for an 
adequate review of the effects that an action may have upon listed 
species or critical habitat. This information may include the results of 
studies or surveys conducted by the Federal agency or the designated 
non-Federal representative. The Federal agency shall provide any 
applicant with the opportunity to submit information for consideration 
during the consultation.
    (e) Duration and extension of formal consultation. Formal 
consultation concludes within 90 days after its initiation unless 
extended as provided below. If an applicant is not involved, the Service 
and the Federal agency may mutually agree to extend the consultation for 
a specific time period. If an applicant is involved, the Service and the 
Federal agency may mutually agree to extend the consultation provided 
that the Service submits to the applicant, before the close of the 90 
days, a written statement setting forth:
    (1) The reasons why a longer period is required,
    (2) The information that is required to complete the consultation, 
and
    (3) The estimated date on which the consultation will be completed.

A consultation involving an applicant cannot be extended for more than 
60 days without the consent of the applicant. Within 45 days after 
concluding formal consultation, the Service shall deliver a biological 
opinion to the Federal agency and any applicant.
    (f) Additional data. When the Service determines that additional 
data would provide a better information base from which to formulate a 
biological opinion, the Director may request an extension of formal 
consultation and request that the Federal agency obtain additional data 
to determine how or to what extent the action may affect listed species 
or critical habitat. If formal consultation is extended by mutual 
agreement according to Sec. 402.14(e), the

[[Page 461]]

Federal agency shall obtain, to the extent practicable, that data which 
can be developed within the scope of the extension. The responsibility 
for conducting and funding any studies belongs to the Federal agency and 
the applicant, not the Service. The Service's request for additional 
data is not to be construed as the Service's opinion that the Federal 
agency has failed to satisfy the information standard of section 7(a)(2) 
of the Act. If no extension of formal consultation is agreed to, the 
Director will issue a biological opinion using the best scientific and 
commercial data available.
    (g) Service responsibilities. Service responsibilities during formal 
consultation are as follows:
    (1) Review all relevant information provided by the Federal agency 
or otherwise available. Such review may include an on-site inspection of 
the action area with representatives of the Federal agency and the 
applicant.
    (2) Evaluate the current status of the listed species or critical 
habitat.
    (3) Evaluate the effects of the action and cumulative effects on the 
listed species or critical habitat.
    (4) Formulate its biological opinion as to whether the action, taken 
together with cumulative effects, is likely to jeopardize the continued 
existence of listed species or result in the destruction or adverse 
modification of critical habitat.
    (5) Discuss with the Federal agency and any applicant the Service's 
review and evaluation conducted under paragraphs (g)(1) through (3) of 
this section, the basis for any finding in the biological opinion, and 
the availability of reasonable and prudent alternatives (if a jeopardy 
opinion is to be issued) that the agency and the applicant can take to 
avoid violation of section 7(a)(2). The Service will utilize the 
expertise of the Federal agency and any applicant in identifying these 
alternatives. If requested, the Service shall make available to the 
Federal agency the draft biological opinion for the purpose of analyzing 
the reasonable and prudent alternatives. The 45-day period in which the 
biological opinion must be delivered will not be suspended unless the 
Federal agency secures the written consent of the applicant to an 
extension to a specific date. The applicant may request a copy of the 
draft opinion from the Federal agency. All comments on the draft 
biological opinion must be submitted to the Service through the Federal 
agency, although the applicant may send a copy of its comments directly 
to the Service. The Service will not issue its biological opinion prior 
to the 45-day or extended deadline while the draft is under review by 
the Federal agency. However, if the Federal agency submits comments to 
the Service regarding the draft biological opinion within 10 days of the 
deadline for issuing the opinion, the Service is entitled to an 
automatic 10-day extension on the deadline.
    (6) Formulate discretionary conservation recommendations, if any, 
which will assist the Federal agency in reducing or eliminating the 
impacts that its proposed action may have on listed species or critical 
habitat.
    (7) Formulate a statement concerning incidental take, if such take 
may occur.
    (8) In formulating its biological opinion, any reasonable and 
prudent alternatives, and any reasonable and prudent measures, the 
Service will use the best scientific and commercial data available and 
will give appropriate consideration to any beneficial actions taken by 
the Federal agency or applicant, including any actions taken prior to 
the initiation of consultation.
    (h) Biological opinions. The biological opinion shall include:
    (1) A summary of the information on which the opinion is based;
    (2) A detailed discussion of the effects of the action on listed 
species or critical habitat; and
    (3) The Service's opinion on whether the action is likely to 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of critical habitat (a ``jeopardy 
biological opinion''); or, the action is not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of critical habitat (a ``no jeopardy'' biological 
opinion). A ``jeopardy'' biological opinion shall include reasonable and 
prudent alternatives, if any. If the Service is unable to develop such 
alternatives, it will indicate that

[[Page 462]]

to the best of its knowledge there are no reasonable and prudent 
alternatives.
    (i) Incidental take. (1) In those cases where the Service concludes 
that an action (or the implementation of any reasonable and prudent 
alternatives) and the resultant incidental take of listed species will 
not violate section 7(a)(2), and, in the case of marine mammals, where 
the taking is authorized pursuant to section 101(a)(5) of the Marine 
Mammal Protection Act of 1972, the Service will provide with the 
biological opinion a statement concerning incidental take that:
    (i) Specifies the impact, i.e., the amount or extent, of such 
incidental taking on the species;
    (ii) Specifies those reasonable and prudent measures that the 
Director considers necessary or appropriate to minimize such impact;
    (iii) In the case of marine mammals, specifies those measures that 
are necessary to comply with section 101(a)(5) of the Marine Mammal 
Protection Act of 1972 and applicable regulations with regard to such 
taking;
    (iv) Sets forth the terms and conditions (including, but not limited 
to, reporting requirements) that must be complied with by the Federal 
agency or any applicant to implement the measures specified under 
paragraphs (i)(1)(ii) and (i)(1)(iii) of this section; and
    (v) Specifies the procedures to be used to handle or dispose of any 
individuals of a species actually taken.
    (2) Reasonable and prudent measures, along with the terms and 
conditions that implement them, cannot alter the basic design, location, 
scope, duration, or timing of the action and may involve only minor 
changes.
    (3) In order to monitor the impacts of incidental take, the Federal 
agency or any applicant must report the progress of the action and its 
impact on the species to the Service as specified in the incidental take 
statement. The reporting requirements will be established in accordance 
with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 220.45 and 228.5 for 
NMFS.
    (4) If during the course of the action the amount or extent of 
incidental taking, as specified under paragraph (i)(1)(i) of this 
Section, is exceeded, the Federal agency must reinitiate consultation 
immediately.
    (5) Any taking which is subject to a statement as specified in 
paragraph (i)(1) of this section and which is in compliance with the 
terms and conditions of that statement is not a prohibited taking under 
the Act, and no other authorization or permit under the Act is required.
    (j) Conservation recommendations. The Service may provide with the 
biological opinion a statement containing discretionary conservation 
recommendations. Conservation recommendations are advisory and are not 
intended to carry any binding legal force.
    (k) Incremental steps. When the action is authorized by a statute 
that allows the agency to take incremental steps toward the completion 
of the action, the Service shall, if requested by the Federal agency, 
issue a biological opinion on the incremental step being considered, 
including its views on the entire action. Upon the issuance of such a 
biological opinion, the Federal agency may proceed with or authorize the 
incremental steps of the action if:
    (1) The biological opinion does not conclude that the incremental 
step would violate section 7(a)(2);
    (2) The Federal agency continues consultation with respect to the 
entire action and obtains biological opinions, as required, for each 
incremental step;
    (3) The Federal agency fulfills its continuing obligation to obtain 
sufficient data upon which to base the final biological opinion on the 
entire action;
    (4) The incremental step does not violate section 7(d) of the Act 
concerning irreversible or irretrievable commitment of resources; and
    (5) There is a reasonable likelihood that the entire action will not 
violate section 7(a)(2) of the Act.
    (l) Termination of consultation. (1) Formal consultation is 
terminated with the issuance of the biological opinion.
    (2) If during any stage of consultation a Federal agency determines 
that its proposed action is not likely to occur, the consultation may be 
terminated by written notice to the Service.
    (3) If during any stage of consultation a Federal agency determines, 
with the concurrence of the Director, that

[[Page 463]]

its proposed action is not likely to adversely affect any listed species 
or critical habitat, the consultation is terminated.

[51 FR 19957, June 3, 1986, as amended at 54 FR 40350, Sept. 29, 1989]



Sec. 402.15  Responsibilities of Federal agency following issuance of a 
biological opinion.

    (a) Following the issuance of a biological opinion, the Federal 
agency shall determine whether and in what manner to proceed with the 
action in light of its section 7 obligations and the Service's 
biological opinion.
    (b) If a jeopardy biological opinion is issued, the Federal agency 
shall notify the Service of its final decision on the action.
    (c) If the Federal agency determines that it cannot comply with the 
requirements of section 7(a)(2) after consultation with the Service, it 
may apply for an exemption. Procedures for exemption applications by 
Federal agencies and others are found in 50 CFR part 451.



Sec. 402.16  Reinitiation of formal consultation.

    Reinitiation of formal consultation is required and shall be 
requested by the Federal agency or by the Service, where discretionary 
Federal involvement or control over the action has been retained or is 
authorized by law and:
    (a) If the amount or extent of taking specified in the incidental 
take statement is exceeded;
    (b) If new information reveals effects of the action that may affect 
listed species or critical habitat in a manner or to an extent not 
previously considered;
    (c) If the identified action is subsequently modified in a manner 
that causes an effect to the listed species or critical habitat that was 
not considered in the biological opinion; or
    (d) If a new species is listed or critical habitat designated that 
may be affected by the identified action.



  Subpart C_Counterpart Regulations for Implementing the National Fire 
                                  Plan

    Source: 68 FR 68264, Dec. 8, 2003, unless otherwise noted.



Sec. 402.30  Definitions.

    The definitions in Sec. 402.02 are applicable to this subpart. In 
addition, the following definitions are applicable only to this subpart.
    Action Agency refers to the Department of Agriculture Forest Service 
(FS) or the Department of the Interior Bureau of Indian Affairs (BIA), 
Bureau of Land Management (BLM), Fish and Wildlife Service (FWS), or 
National Park Service (NPS).
    Alternative Consultation Agreement (ACA) is the agreement described 
in Sec. 402.33 of this subpart.
    Fire Plan Project is an action determined by the Action Agency to be 
within the scope of the NFP as defined in this section.
    National Fire Plan (NFP) is the September 8, 2000, report to the 
President from the Departments of the Interior and Agriculture entitled 
``Managing the Impact of Wildfire on Communities and the Environment'' 
outlining a new approach to managing fires, together with the 
accompanying budget requests, strategies, plans, and direction, or any 
amendments thereto.
    Service Director refers to the FWS Director or the Assistant 
Administrator for Fisheries for the National Oceanic and Atmospheric 
Administration.



Sec. 402.31  Purpose.

    The purpose of these counterpart regulations is to enhance the 
efficiency and effectiveness of the consultation process under section 7 
of the ESA for Fire Plan Projects by providing an optional alternative 
to the procedures found in Sec. Sec. 402.13 and 402.14(b) of this part. 
These regulations permit an Action Agency to enter into an Alternative 
Consultation Agreement (ACA) with the Service, as described in Sec. 
402.33, which will allow the Action Agency to determine that a Fire Plan

[[Page 464]]

Project is ``not likely to adversely affect'' (NLAA) a listed species or 
designated critical habitat without formal or informal consultation with 
the Service or written concurrence from the Service. An NLAA 
determination for a Fire Plan Project made under an ACA, as described in 
Sec. 402.33, completes the Action Agency's statutory obligation to 
consult with the Service for that Project. In situations where the 
Action Agency does not make an NLAA determination under the ACA, the 
Action Agency would still be required to conduct formal consultation 
with the Service when required by Sec. 402.14. This process will be as 
protective to listed species and designated critical habitat as the 
process established in subpart B of this part. The standards and 
requirements for formal consultation under subpart B for Fire Plan 
Projects that do not receive an NLAA determination are unchanged.



Sec. 402.32  Scope.

    (a) Section 402.33 establishes a process by which an Action Agency 
may determine that a proposed Fire Plan Project is not likely to 
adversely affect any listed species or designated critical habitat 
without conducting formal or informal consultation or obtaining written 
concurrence from the Service.
    (b) Section 402.34 establishes the Service's oversight 
responsibility and the standard for review under this subpart.
    (c) Nothing in this subpart C precludes an Action Agency at its 
discretion from initiating early, informal, or formal consultation as 
described in Sec. Sec. 402.11, 402.13, and 402.14, respectively.
    (d) The authority granted in this subpart is applicable to an Action 
Agency only where the Action Agency has entered into an ACA with the 
Service. An ACA entered into with one Service is valid with regard to 
listed species and designated critical habitat under the jurisdiction of 
that Service whether or not the Action Agency has entered into an ACA 
with the other Service.



Sec. 402.33  Procedures.

    (a) The Action Agency may make an NLAA determination for a Fire Plan 
Project without informal consultation or written concurrence from the 
Director if the Action Agency has entered into and implemented an ACA. 
The Action Agency need not initiate formal consultation on a Fire Plan 
Project if the Action Agency has made an NLAA determination for the 
Project under this subpart. The Action Agency and the Service will use 
the following procedures in establishing an ACA.
    (1) Initiation: The Action Agency submits a written notification to 
the Service Director of its intent to enter into an ACA.
    (2) Development and Adoption of the Alternative Consultation 
Agreement: The Action Agency enters into an ACA with the Service 
Director. The ACA will, at a minimum, include the following components:
    (i) A list or description of the staff positions within the Action 
Agency that will have authority to make NLAA determinations under this 
subpart C.
    (ii) Procedures for developing and maintaining the skills necessary 
within the Action Agency to make NLAA determinations, including a 
jointly developed training program based on the needs of the Action 
Agency.
    (iii) A description of the standards the Action Agency will apply in 
assessing the effects of the action, including direct and indirect 
effects of the action and effects of any actions that are interrelated 
or interdependent with the proposed action.
    (iv) Provisions for incorporating new information and newly listed 
species or designated critical habitat into the Action Agency's effects 
analysis of proposed actions.
    (v) A mutually agreed upon program for monitoring and periodic 
program evaluation to occur at the end of the first year following 
signature of the ACA and periodically thereafter.
    (vi) Provisions for the Action Agency to maintain a list of Fire 
Plan Projects for which the Action Agency has made NLAA determinations. 
The Action Agency will also maintain the necessary records to allow the 
Service to complete the periodic program evaluations.

[[Page 465]]

    (3) Training: Upon completion of the ACA, the Action Agency and the 
Service will implement the training program outlined in the ACA to the 
mutual satisfaction of the Action Agency and the Service.
    (b) The Action Agency may, at its discretion, allow any subunit of 
the Action Agency to implement this subpart as soon as the subunit has 
fulfilled the training requirements of the ACA, upon written 
notification to the Service. The Action Agency shall at all times have 
responsibility for the adequacy of all NLAA determinations it makes 
under this subpart.
    (c) The ACA and any related oversight or monitoring reports shall be 
made available to the public through a notice of availability in the 
Federal Register.



Sec. 402.34  Oversight.

    (a) Through the periodic program evaluation set forth in the ACA, 
the Service will determine whether the implementation of this subpart by 
the Action Agency is consistent with the best available scientific and 
commercial information, the ESA, and section 7 regulations.
    (b) The Service Director may use the results of the periodic program 
evaluation described in the ACA to recommend changes to the Action 
Agency's implementation of the ACA. If and as appropriate, the Service 
Director may suspend any subunit participating in the ACA or exclude any 
subunit from the ACA.
    (c) The Service Director retains discretion to terminate the ACA if 
the Action Agency fails to comply with the requirements of this subpart, 
section 7 of the ESA, or the terms of the ACA. Termination, suspension, 
or modification of an ACA does not affect the validity of any NLAA 
determinations made previously under the authority of this subpart.



    Subpart D_Counterpart Regulations Governing Actions by the U.S. 
Environmental Protection Agency Under the Federal Insecticide, Fungicide 
                           and Rodenticide Act

    Source: 69 FR 47759, Aug. 5, 2004, unless otherwise noted.



Sec. 402.40  Definitions.

    The definitions in Sec. 402.02 are applicable to this subpart. In 
addition, the following definitions are applicable only to this subpart.
    (a) Alternative consultation agreement is the agreement described in 
Sec. 402.45.
    (b) Effects determination is a written determination by the U.S. 
Environmental Protection Agency (EPA) addressing the effects of a FIFRA 
action on listed species or critical habitat. The contents of an effects 
determination will depend on the nature of the action. An effects 
determination submitted under Sec. 402.46 or Sec. 402.47 shall contain 
the information described in Sec. 402.14(c)(1)-(6) and a summary of the 
information on which the determination is based, detailing how the FIFRA 
action affects the listed species or critical habitat. EPA may consider 
the following additional sections for inclusion in an effects 
determination:
    (1) A conclusion whether or not the FIFRA action is likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of critical habitat and a 
description of any reasonable and prudent alternatives that may be 
available;
    (2) A description of the impact of any anticipated incidental taking 
of such listed species resulting from the FIFRA action, reasonable and 
prudent measures considered necessary or appropriate to minimize such 
impact, and terms and conditions necessary to implement such measures; 
and
    (3) A summary of any information or recommendations from an 
applicant. An effects determination shall be based

[[Page 466]]

on the best scientific and commercial data available.
    (c) FIFRA action is an action by EPA to approve, permit or authorize 
the sale, distribution or use of a pesticide under sections 136-136y of 
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et 
seq. (FIFRA). In any consultation under this subpart, EPA shall 
determine the nature and scope of a FIFRA action.
    (d) Listed species is a species listed as endangered or threatened 
under section 4 of the Act.
    (e) Partial biological opinion is the document provided under Sec. 
402.47(a), pending the conclusion of consultation under Sec. 402.47(b), 
stating the opinion of the Service as to whether or not a FIFRA action 
is likely to jeopardize the continued existence of one or more listed 
species or result in the destruction or adverse modification of one or 
more critical habitats, and describing the impact of any anticipated 
incidental taking of such listed species resulting from the FIFRA 
action, reasonable and prudent measures considered necessary or 
appropriate to minimize such impact, and terms and conditions necessary 
to implement such measures.
    (f) Service Director refers to the Director of the U.S. Fish and 
Wildlife Service or the Assistant Administrator for Fisheries for the 
National Oceanic and Atmospheric Administration.
    (g) Service Representative is the person or persons designated to 
participate in advance coordination as provided in this subpart.



Sec. 402.41  Purpose.

    The purpose of these counterpart regulations is to enhance the 
efficiency and effectiveness of the existing consultation process under 
section 7 of the Endangered Species Act (Act), 16 U.S.C. 1531 et seq., 
by providing Fish and Wildlife Service and the National Marine Fisheries 
Service (referred to jointly as ``Services'' and individually as 
``Service'') and EPA with additional means to satisfy the requirements 
of section 7(a)(2) of the Act for certain regulatory actions under 
FIFRA. These additional means will permit the Services and EPA to more 
effectively use the scientific and commercial data generated through the 
FIFRA regulatory process as part of the best scientific and commercial 
data available to protect listed species and critical habitat. The 
procedures authorized by these counterpart regulations will be as 
protective of listed species and critical habitat as the process 
established in subpart B of this part.



Sec. 402.42  Scope and applicability.

    (a) Available consultation procedures. This subpart describes 
consultation procedures available to EPA to satisfy the obligations of 
section 7(a)(2) of the Act in addition to those in subpart B of this 
part for FIFRA actions authorized, funded, or carried out by EPA in 
which EPA has discretionary Federal involvement or control. EPA retains 
discretion to initiate early, informal, or formal consultation as 
described in Sec. Sec. 402.11, 402.13, and 402.14 for any FIFRA action. 
The procedures in this subpart may be employed for FIFRA actions as 
follows:
    (1) Interagency exchanges of information under Sec. 402.43 and 
advance coordination under Sec. 402.44 are available for any FIFRA 
action.
    (2) Alternative consultation under Sec. 402.45 is available for a 
listed species or critical habitat if EPA determines the FIFRA action is 
not likely to adversely affect the listed species or critical habitat.
    (3) Optional formal consultation under Sec. 402.46 is available for 
any FIFRA action with respect to any listed species or critical habitat.
    (4) The special procedures in Sec. 402.47 are available for 
consultations on FIFRA actions that will be unusually complex due to 
factors such as the geographic area or number of species that may be 
affected by the action.
    (5) EPA shall engage in consultation as to all listed species and 
critical habitat that may be affected by a FIFRA action, and may in its 
discretion employ more than one of the available consultation procedures 
for a FIFRA action that may affect more than one listed species or 
critical habitat.
    (6) EPA shall engage in consultation on actions involving requests 
for emergency exemptions under section 18 of FIFRA that may affect 
listed species or critical habitat, and may choose to

[[Page 467]]

do so under Sec. 402.05 or other provisions of this subpart or subpart 
B of this part. Any required formal consultation shall be initiated as 
soon as practicable after the emergency is under control. For the 
purposes of Sec. 402.05(b) the definition of formal consultation in 
Sec. 402.02 includes the procedures in Sec. 402.46.
    (7) EPA must prepare a biological assessment for a FIFRA action to 
the extent required by Sec. 402.12.
    (8) EPA must comply with Sec. 402.15 for all FIFRA actions.
    (9) After a consultation under this subpart has been concluded, EPA 
shall reinitiate consultation as required by Sec. 402.16 as soon as 
practicable after a circumstance requiring reinitiation occurs, and may 
employ the procedures in this subpart or subpart B of this part in any 
reinitiated consultation.
    (b) Exchanges of scientific information. As part of any of the 
additional consultation procedures provided in this subpart, EPA and the 
Services shall establish mutually-agreeable procedures for regular and 
timely exchanges of scientific information to achieve accurate and 
informed decision-making under this subpart and to ensure that the FIFRA 
process considers the best scientific and commercial data available on 
listed species and critical habitat in a manner consistent with the 
requirements of FIFRA and ESA.



Sec. 402.43  Interagency exchanges of information.

    EPA may convey to the Service a written request for a list of any 
listed species or critical habitat that may be present in any area that 
may be affected by a FIFRA action. Within 30 days of receipt of such a 
request the Service shall advise EPA in writing whether, based on the 
best scientific and commercial data available, any listed species or 
critical habitat may be present in any such area. EPA may thereafter 
request the Service to provide available information (or references 
thereto) describing the applicable environmental baseline for each 
species or habitat that EPA determines may be affected by a FIFRA 
action, and the Service shall provide such information within 30 days of 
the request.



Sec. 402.44  Advance coordination for FIFRA actions.

    (a) Advance coordination. EPA may request the Service to designate a 
Service Representative to work with EPA in the development of an effects 
determination for one or more listed species or critical habitat. EPA 
shall make such a request in writing and shall provide sufficient detail 
as to a FIFRA action planned for consultation to enable the Service to 
designate a representative with appropriate training and experience who 
shall normally be available to complete advance coordination with EPA 
within 60 days of the date of designation. Within 14 days of receiving 
such a request, the Service shall advise EPA of the designated Service 
Representative.
    (b) Participation of Service Representative in preparation of 
effects determination. The Service Representative designated under 
paragraph (a) of this section shall participate with EPA staff in the 
preparation of the effects determination identified under paragraph (a) 
of this section. EPA shall use its best efforts to include the 
designated Service Representative in all relevant discussions on the 
effects determination, to provide the designated Service Representative 
with access to all documentation used to prepare the effects 
determination, and to provide the designated Service Representative 
office and staff support sufficient to allow the Service Representative 
to participate meaningfully in the preparation of the effects 
determination. EPA shall consider all information timely identified by 
the designated Service Representative during the preparation of the 
effects determination.



Sec. 402.45  Alternative consultation on FIFRA actions that are not likely 
to adversely affect listed species or critical habitat.

    (a) Consultation obligations for FIFRA actions that are not likely 
to adversely affect listed species or critical habitat when alternative 
consultation agreement is in effect. If EPA and the Service have entered 
into an alternative consultation agreement as provided below, EPA may 
make a determination that a FIFRA action is not likely to adversely 
affect a listed species or critical habitat

[[Page 468]]

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

[[Page 469]]

shall be made available to the public to the extent provided by law.
    (c) Oversight of alternative consultation agreement implementation. 
Through the program evaluations set forth in the alternative 
consultation agreement, the Service will determine whether the 
implementation of this section by EPA is consistent with the best 
scientific and commercial information available, the ESA, and applicable 
implementing regulations. The Service Director may use the results of 
the program evaluations described in the alternative consultation 
agreement to recommend changes to EPA's implementation of the 
alternative consultation agreement. The Service Director retains 
discretion to terminate or suspend the alternative consultation 
agreement if, in using the procedures in this subpart, EPA fails to 
comply with the requirements of this subpart, section 7 of the ESA, or 
the terms of the alternative consultation agreement. Termination, 
suspension, or modification of an alternative consultation agreement 
does not affect the validity of any NLAA determinations made previously 
under the authority of this subpart.



Sec. 402.46  Optional formal consultation procedure for FIFRA actions.

    (a) Initiation of consultation. EPA may initiate consultation on a 
FIFRA action under this section by delivering to the Service a written 
request for consultation. The written request shall be accompanied by an 
effects determination as defined in Sec. 402.40(b) and a list or 
summary of all references and data relied upon in the determination. All 
such references and data shall be made available to the Service on 
request and shall constitute part of the Service's administrative record 
for the consultation. The time for conclusion of the consultation under 
section 7(b)(1) of the Act is calculated from the date the Service 
receives the written request from EPA. Any subsequent interchanges 
regarding EPA's submission, including interchanges about the 
completeness of the effects determination, shall occur during 
consultation and do not extend the time for conclusion of the 
consultation unless EPA withdraws the request for consultation.
    (b) Additional information determination. For an effects 
determination prepared without advance coordination under Sec. 402.44, 
the Service may determine that additional available information would 
provide a better information base for the effects determination, in 
which case the Service Director shall notify the EPA Administrator 
within 45 days of the date the Service receives the effects 
determination. The notification shall describe such additional 
information in detail, and shall identify a means for obtaining that 
information within the time period available for consultation. EPA shall 
provide a copy of the Service Director's notification to any applicant. 
EPA may thereafter revise its effects determination, and may resubmit 
the revised effects determination to the Service. If EPA advises the 
Service it will not resubmit a revised effects determination to the 
Service, its initiation of consultation on the effects determination is 
deemed withdrawn.
    (c) Service responsibilities. (1) Within the later of 90 days of the 
date the Service receives EPA's written request for consultation or 45 
days of the date the Service receives an effects determination 
resubmitted under paragraph (b) of this section, and consistent with 
section 7(b)(1) of the Act, the Service shall take one of the following 
actions:
    (i) If the Service finds that the effects determination contains the 
information required by Sec. 402.40(b) and satisfies the requirements 
of section 7(b)(4) of the Act, and the Service concludes that the FIFRA 
action that is the subject of the consultation complies with section 
7(a)(2) of the Act, the Service will issue a written statement adopting 
the effects determination; or
    (ii) The Service will provide EPA a draft of a written statement 
modifying the effects determination, which shall meet the requirements 
of Sec. 402.14(i), and as modified adopting the effects determination, 
and shall provide a detailed explanation of the scientific and 
commercial data and rationale supporting any modification it makes; or
    (iii) The Service will provide EPA a draft of a biological opinion 
finding that the FIFRA action is likely to jeopardize the continued 
existence of a

[[Page 470]]

listed species or result in the destruction or adverse modification of 
critical habitat, and describing any reasonable and prudent alternatives 
if available.
    (2) If the Service acts under paragraphs (c)(1)(ii) or (c)(1)(iii) 
of this section, EPA shall, on request from an applicant, provide the 
applicant a copy of the draft written statement or draft biological 
opinion received from the Service. The Service shall at the request of 
EPA or an applicant discuss with EPA and the applicant the Service's 
review and evaluation under this section, and the basis for its 
findings. EPA and any applicant may submit written comments to the 
Service within 30 days after EPA receives the draft written statement or 
opinion from the Service unless the Service, EPA and any applicant agree 
to an extended deadline consistent with section 7(b)(1) of the Act.
    (3) The Service will issue a final written statement or final 
biological opinion within 45 days after EPA receives the draft statement 
or opinion from the Service unless the deadline is extended under 
section 7(b)(1) of the Act.
    (d) Opinion of the Secretary. The written statement or opinion by 
the Service under paragraphs (c)(1) or (c)(3) of this section shall 
constitute the opinion of the Secretary and the incidental take 
statement, reasonable and prudent measures, and terms and conditions 
under section 7(b) of the Act.
    (e) Delegation of Authority for Service decisions. Any written 
statement modifying an effects determination or any biological opinion 
issued under this section shall be signed by the Service Director and 
such authority may not be delegated below the level of Assistant 
Director for Endangered Species (FWS) or Director of Office of Protected 
Resources (NOAA Fisheries).



Sec. 402.47  Special consultation procedures for complex FIFRA actions.

    (a) Successive effects determinations. If EPA determines after 
conferring with the Service that consultation on a FIFRA action will be 
unusually complex due to factors such as the geographic area or number 
of species that may be affected by the action, EPA may address the 
effects of the action through successive effects determinations under 
this subpart addressing groupings or categories of species or habitats 
as established by EPA. EPA may initiate consultation based upon each 
such effects determination using the procedure in Sec. 402.46(a), and 
the provisions of Sec. 402.46(b) and (c) shall apply to any such 
consultation. When consultation is conducted under this section, the 
written statement or opinion provided by the Service under Sec. 
402.46(c) constitutes a partial biological opinion as to the species or 
habitats that are the subject of the consultation. While not 
constituting completion of consultation under section 7(a)(2), EPA 
retains authority to use such a partial biological opinion along with 
other available information in making a finding under section 7(d) of 
the Act.
    (b) Opinion of the Secretary. After conclusion of all consultation 
on the FIFRA action, the partial biological opinions issued under 
paragraph (a) of this section shall then collectively constitute the 
opinion of the Secretary and the incidental take statement, reasonable 
and prudent measures, and terms and conditions under section 7(b) of the 
Act except to the extent a partial biological opinion is modified by the 
Service in accordance with the procedures in Sec. 402.46(c). The 
Service shall so advise EPA in writing upon issuance of the last partial 
biological opinion for the consultation.



Sec. 402.48  Conference on proposed species or proposed critical habitat.

    EPA may employ the procedures described in Sec. 402.10 to confer on 
any species proposed for listing or any habitat proposed for designation 
as critical habitat. For the purposes of Sec. 402.10(d), the procedures 
in Sec. 402.46 are a permissible form of formal consultation.



PART 403_TRANSFER OF MARINE MAMMAL MANAGEMENT AUTHORITY TO STATES
--Table of Contents




Sec.
403.01 Purpose and scope of regulations.
403.02 Definitions.
403.03 Review and approval of State request for management authority.
403.04 Determinations and hearings under section 109(c) of the MMPA.
403.05 State and Federal responsibilities after transfer of management 
          authority.

[[Page 471]]

403.06 Monitoring and review of State management program.
403.07 Revocation and return of State management authority.
403.08 List of States to which management has been transferred.

    Authority: 16 U.S.C. 1361 et seq., as amended by Pub. L. 97-58.

    Source: 48 FR 22456, May 18, 1983, unless otherwise noted.



Sec. 403.01  Purpose and scope of regulations.

    The regulations contained in this part implement section 109 of the 
Act which, upon a finding by the Secretary of compliance with certain 
requirements, provides for the transfer of marine mammal management 
authority to the states.
    (a) The regulations of this part apply the procedures for the 
transfer of marine mammal management authority to a state, the form and 
minimum requirements of a state application for the transfer of 
management authority, the relationship between Federal and state 
wildlife agencies both prior and subsequent to the transfer of 
management authority, and the revocation and return of management 
authority to the Federal Government.
    (b) Nothing in this part shall prevent:
    (1) The taking of a marine mammal by or on behalf of a Federal, 
state or local government official, in accordance with Sec. 18.22 or 
Sec. 216.22 of this Title and section 109(h) of the Act, or (2) the 
adoption or enforcement of any state law or regulation relating to any 
marine mammal taken before December 21, 1972.
    (c) The information collection requirements contained in Sec. Sec. 
403.03, 403.06, and 403.07 of this part do not require approval by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq., because 
there are fewer than 10 respondents annually.



Sec. 403.02  Definitions.

    The following definitions apply to this part:
    (a) The term species includes any population stock.
    (b) Optimum Sustainable Population or OSP means 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.
    (c) State management program means existing and proposed state 
statutes, regulations, policies and other authorities which form the 
framework for the conservation of a species of marine mammals.
    (d) State regulation means the whole or part of a state agency 
statement of general or particular applicability and future effect 
designed to implement, interpret, or prescribe law or policy or 
describing the organization, procedure, or practice requirements of a 
state agency and which is duly promulgated in accordance with 
established procedure.
    (e) The Act means the Marine Mammal Protection Act (MMPA) of 1972, 
16 U.S.C. 1361 et seq., as amended by Pub. L. 97-58.
    (f) The Secretary means the Secretary of the Interior or the 
Secretary of Commerce, depending on the species involved. Under section 
3(11) of the Act, the Secretary of Commerce has jurisdiction over 
members of the order Cetacea and members, other than walruses, of the 
order Pinnipedia; the Secretary of the Interior has jurdisdiction over 
all other mammals. These secretarial authorities have been delegated to 
the National Marine Fisheries Service and the Fish and Wildlife Service, 
respectively.
    (g) The Service or Services means the Fish and Wildlife Service 
(FWS) and the National Marine Fisheries Service (NMFS), as appropriate 
depending on the species involved. Any determination or finding required 
by this part to be made by the ``Service'' must be made by the Director 
of the FWS or by the Assistant Administrator of the NMFS, or their 
delegees, as appropriate.

[[Page 472]]



Sec. 403.03  Review and approval of State request for management authority.

    (a) Any state may request the transfer of management authority for a 
species of marine mammals by submitting a written request to the 
Director of the Fish and Wildlife Service (``Director'') for species of 
marine mammals under the jurisdiction of the FWS, or to the Assistant 
Administrator for Fisheries of the National Marine Fisheries Service 
(``Assistant Administrator'') for species of marine mammals under the 
jurisdiction of the NMFS. The request must include:
    (1) Copies of existing and proposed statutes, regulations, policies 
and other authorities of state law which comprise those aspects of the 
state management program outlined in paragraph (b) of this section, and, 
in the case of Alaska, paragraphs (d) (1) through (3) of this section;
    (2) A narrative discussion of the statutes, regulations, policies 
and other authorities which comprise those aspects of the state 
management program outlined in paragraph (b) of this section, and, in 
the case of Alaska, paragraph (d) of this section, which explains the 
program in terms of the requirements of the Act and the regulations of 
this part; and
    (3) Supplementary information as required by paragraph (c) of this 
section.
    (b) A request for transfer of marine mammal management authority 
will not be approved unless it contains the following:
    (1) The scientific and common names and estimated range of the 
species of marine mammals subject to the state management program.
    (2) Provisions of state law concerning the take of marine mammals 
that--
    (i) Require that the taking of marine mammals be humane as defined 
by section 3(4) of the Act;
    (ii) Do not permit the taking of marine mammals until the following 
have occurred:
    (A) The state, pursuant to the requirements of Sec. 403.04 of this 
part, has determined that the species is at its Optimum Sustainable 
Population (OSP) and determined the maximum number of animals that may 
be taken without reducing the species below its OSP, and, in the case of 
Alaska, when a species is below OSP, the maximum numbers that can be 
taken for subsistence uses while allowing the species to increase toward 
its OSP;
    (B) The determination as to OSP and maximum take are final and 
implemented under state law; and
    (C) A cooperative allocation agreement, if required under Sec. 
403.05(a) of this part, is implemented;
    (iii) Do not permit take in excess of the maximum number of animals 
that may be taken as determined pursuant to Sec. 403.04 of this part; 
provided that for Alaska, subsistence take may be allowed in accordance 
with paragraph (d) of this section, and if the species is below OSP, any 
level of take allowed for subsistence use shall permit the species to 
increase toward OSP;
    (iv) Do not permit take that is for scientific research or public 
display purposes except such take by or on behalf of the state, or 
pursuant to a Federal permit issued under Sec. 18.31 or Sec. 216.31 of 
this title; and
    (v) Regulate the incidental taking of the species in a manner 
consistent with section 101(a) (2), (4) and (5) of the Act.
    (3) Provisions for annually acquiring and evaluating data and other 
new evidence relating to OSP of the species and the maximum allowable 
take, and if warranted on the basis of such evaluation, for requiring 
reevaluations of OSP and maximum allowable take determinations pursuant 
to Sec. 403.04.
    (4) Procedures for the resolution of differences between the state 
and the appropriate Service that might arise during the development of a 
cooperative allocation agreement pursuant to Sec. 403.05(a) of this 
part.
    (5) Procedures for the submission of an annual report meeting the 
requirements of Sec. 403.06(b) of this part to the appropriate Service 
regarding the administration of the state management program during the 
reporting period.
    (6) A description of--
    (i) The organization of state offices involved in the administration 
and enforcement of the state management program;
    (ii) Any permit system relating to the marine mammals, the laws that 
apply to such permits, and the procedures to be used in granting or 
withholding such permits;

[[Page 473]]

    (iii) State laws relating to judicial review of administrative 
decisions as they relate to the state management program;
    (iv) State laws relating to administrative rulemaking as they relate 
to the state management program;
    (c) In addition to the aspects of the state management program 
required to be submitted by paragraph (b) of this section, the state 
shall submit information, in summary form, relating to:
    (1) The anticipated staffing and funding of state offices involved 
in the administration and enforcement of the state management program;
    (2) Anticipated research and enforcement activities relating to 
conservation of the species for which management authority is sought; 
and
    (3) Such other materials and information as the Service may request 
or which the state may deem necessary or advisable to demonstrate the 
compatibility of the state management program with the policy and 
purposes of the Act and the rules and regulations issued under the Act.
    (d) In addition to the requirements contained in paragraphs (b) and 
(c) of this section, a request for the transfer of marine mammal 
management authority by the State of Alaska must contain the following 
concerning subsistence use of the species--
    (1) A statute and regulations concerning the take of marine mammals 
that ensure that
    (i) The taking of marine mammals species for subsistence uses will 
be the priority consumptive uses of the species;
    (ii) If restrictions on subsistence uses of the species are 
required, such restrictions shall be based upon the customary and direct 
dependence upon the species as the mainstay of livelihood, local 
residency, and the availability of alternative resources; and
    (iii) The taking of marine mammal species for subsistence uses is 
accomplished in a non-wasteful manner;
    (2) Statutes or regulations that ensure that the appropriate state 
agency will--
    (i) Authorize nonsubsistence consumptive uses of a marine mammal 
species only if such uses will have no significant adverse impact on 
subsistence uses of the species;
    (ii) Regulate nonsubsistence consumptive uses in a manner which, to 
the maximum extent practicable, provides economic opportunities, 
including, but not limited to, licensing of marine mammal hunting guides 
and the assignment of guiding areas, for residents of rural coastal 
villages of Alaska who engage in subsistence uses of the species; and
    (iii) Make written findings supporting the authorizations and 
regulations described in this paragraph based solely on the 
administrative record before the agency;
    (3) A narrative discussion of the statutes or regulations required 
under paragraph (d)(2) of this section, and any additional policies or 
procedures concerning the regulation of nonsubsistence consumptive uses 
of marine mammals. This discussion must explain how the State's program 
satisfies the requirements of section 109(f) of the Act, namely that the 
regulation of nonsubsistence consumptive uses of marine mammals 
provides, to the maximum extent praticable, economic opportunities for 
the residents of rural coastal villages of Alaska who engage in 
subsistence uses of the species.
    (e) To assist states in preparing the state management program for 
submission, the Service will also, at the written request of any state, 
make a preliminary review of any aspects of the state management 
program. This review will be advisory in nature and shall not be binding 
upon the Services. Notwithstanding preliminary review by the Service, 
once any proposed aspect of the state management program has been 
prepared and submitted in final form, it shall be subject to final 
review and approval under paragraphs (f) through (h) of this section.
    (f)(1) After receiving the state's request, for management 
authority, the Service shall make an initial determination on whether 
the state's management program meets the requirements of the Act and 
these regulations.
    (2) Within 45 days after receiving the state's request, unless the 
state and the Service agree to another time period, the Service shall 
publish a general notice of its initial determination

[[Page 474]]

in the Federal Register together with, in the case of a positive 
determination, the text of a proposed rule to transfer management 
authority to the state. The general notice shall contain a summary of 
the major components of the state's management program and shall 
indicate where the full text of the management program may be inspected 
or copied. The public shall be allowed to submit written comments and to 
request an informal public hearing on the Service's initial 
determination and the state's management program within 60 days of 
publication of the general notice.
    (g) If requested, the Service may conduct an informal public hearing 
after publishing 30 days' advance notice of the date, location, and time 
of such hearing in the Federal Register.
    (h) After considering all comments and other relevant information, 
the Service shall publish in the Federal Register its final 
determination on whether the state has developed and will implement a 
management program that meets the requirement of the Act and these 
regulations. In the case of a positive final determination, the Service 
shall publish with the notice a final regulation transferring management 
authority for the species to the state after the following requirements 
are satisfied:
    (1) The state's determinations pursuant to Sec. 403.04 of this part 
are final and implemented under state law;
    (2) Any cooperative allocation agreement required under Sec. 
403.05(a) of this part is implemented; and
    (3) The state has enacted and submitted to the Service laws and 
policies that are substantially the same as those provided pursuant to 
Sec. 403.03(a) in proposed form in the state's management program.



Sec. 403.04  Determinations and hearings under section 109(c) of the MMPA.

    (a) Introduction. In order to gain approval of its marine mammal 
management program the state must provide for a process, consistent with 
section 109(c) of the Act, to determine the optimum sustainable 
population of the species and the maximum number of animals that may be 
taken from populations it manages without reducing the species below 
OSP. The state process must be completed before the state may exercise 
any management authority over the subject marine mammals, and it must 
include the elements set forth below.
    (b) Basis, purpose, and scope. The process set forth in this section 
is applicable to and required for only the determination of the OSP of 
the species and maximum number that may be taken without reducing it 
below its OSP and, in the case of Alaska if the species is below OSP, 
the maximum number of animals that may be taken, if any, for subsistence 
uses without preventing the species from increasing toward its OSP. The 
state need not allow the maximum take, as determined in accordance with 
this process, that is biologically permissible. The state may change 
regulations establishing bag limits, quotas, seasons, areas, manner of 
take, etc. within the maximum biologically permissible take pursuant to 
its other rulemaking criteria, authority, and procedures. Compliance 
with the process set forth in this section would not be required again 
unless the state proposes to modify its determinations of the status of 
the species with respect to its OSP or the maximum permissible take from 
that species.
    (c) Initial determination by the State. The state agency with 
responsibility for managing the species in the event management 
authority is transferred to the state shall make initial determinations 
on the basis of the best scientific evidence available of:
    (1) Whether or not it is at its OSP; (2) if so, the maximum number 
of that species that nay be taken without reducing it below its OSP; and 
(3) if not, in the case of Alaska, the maximum number of animals that 
may be taken, if any, for subsistence uses without preventing the 
species from increasing toward its OSP.
    (d) Notice and review of initial determinations and request for 
hearing. The state agency shall provide notice of its initial 
determinations to the Service and the public and shall provide access to 
or copies of the documentation supporting its determinations to the 
Service and the public. The state agency

[[Page 475]]

shall indicate, in the notice of its initial determinations, the 
location(s) and hours during which such documentation may be inspected, 
and the costs, if any of copies of such documentation. The state agency 
shall also indicate in the notice that any interested person may request 
a hearing regarding the initial determinations, and the state shall 
provide a reasonable time, not less than 30 days, for making the 
request, taking into account the time required to advise the public of 
the initial determinations and to make the supporting documentation 
readily available to interested persons for their consideration. If a 
request for a hearing is not made within the prescribed time period, the 
initial determinations shall be treated as final.
    (e) Notice of hearing. If a request for a hearing is made within the 
prescribed time period by any interested person, the state agency shall 
provide notice of the hearing to the Service and the public not less 
than 30 days in advance of the scheduled date(s) of the hearing(s). The 
notice shall include the date(s), location(s), and purpose of the 
hearing, a recitation of the initial determinations, the name(s) of the 
person(s) who will preside at the hearing, and the manner and date by 
which interested persons must notify the state agency or presiding 
officer(s) of their desire to participate in the hearing. The state 
shall also make available and distribute upon request a list of 
witnesses and description of the documentation and other evidence that 
will be relied upon by the state's witnesses in support of its initial 
determinations sufficiently in advance of the hearing date so as to 
allow interested persons to prepare questions and supporting or rebuttal 
testimony for the hearing.
    (f) Conduct of the hearing. (1) The hearing shall be publicly 
conducted and reported verbatim by an official reporter.
    (2) The state shall sponsor all written documentation in support of 
its determinations with witnesses who are able, by virtue of training 
and experience, to respond fully to cross-examination regarding the 
facts and conclusions contained therein provided that, except by 
agreement of the parties, the state agency may not call any witnesses or 
introduce any documentation into the record unless the advance notice 
requirements of paragraph (e) of this section are met with respect to 
such witnesses or documentation.
    (3) Any interested person who has notificed the state agency of his 
desire to participate in the hearing pursuant to paragraph (e) of this 
section may participate in the hearing by presenting oral or written 
testimony or cross-examining the witnesses or other parties with respect 
to matters relevant to the state's initial determinations, provided that 
any such written documentation must be sponsored by a witness who is 
able, by virtue of training and experience, to respond fully to cross-
examination regarding the facts and conclusions contained therein.
    (4) The presiding officer(s) shall conduct the hearing in accordance 
with such other rules of evidence, criteria, and procedures as are 
necessary and appropriate for the expeditious and effective 
determination of the issues. The presiding officer(s) may provide for 
oral argument and/or written briefs at the end of the hearing.
    (5) Final determinations on the issues specified in paragraph (c) of 
this section must be supported by the best available scientific 
information so as to insure that any taking will be consistent with the 
maintenance of OSP.
    (g) Review of the hearing record and final determinations. (1) The 
state agency shall provide for either:
    (i) Review and evaluation of the hearing record by the presiding 
officer(s) and transmittal by the presiding officer(s) of recommended 
final determinations to the decision-maker(s) in the state agency; or
    (ii) Review and evaluation of the hearing record and final 
determinations by the state agency without benefit of any 
recommendations by the presiding officer(s). In any event, the final 
determinations by the state agency must be made solely on the basis of 
the record developed at the hearing. The state agency in making its 
final determinations, and/or presiding officer(s) in making his (their) 
recommended determinations, may not rely on oral or written evidence 
which was not presented at the hearing and made available to the parties 
for cross-

[[Page 476]]

examination and rebuttal testimony. Any such oral or written information 
transmitted to the presiding officer(s) or other members of the state 
agency responsible for the final determinations shall be treated as ex 
parte communications and may not be considered part of the record for 
decision.
    (2) The state agency shall make final determinations of the issues 
set forth in paragraph (c) of this section and shall include in its 
statement of final determinations a statement of findings and 
conclusions and the reasons or basis therefor.
    (3) The state agency shall advise the Service and the public of its 
final determinations and shall provide access to or copies of its 
decision document and Hearing Record.
    (h) Judicial review. The state agency's final determinations after a 
hearing must be supported by substantial evidence in the record of the 
hearing. Opportunity for judicial review of the state agency's final 
determinations must be available under state law. The scope of judicial 
review shall be equivalent to that provided for in 5 U.S.C. 706(2) (A) 
through (E).



Sec. 403.05  State and Federal responsibilities after transfer of 
management authority.

    (a) After determinations required by section 403.04 of this part 
have been made in respect to a species whose range extends beyond the 
territorial waters of the state, the state shall not exercise management 
authority until a cooperative allocation agreement with the Secretary 
has been signed and the Service has transferred management authority 
pursuant to Sec. 403.03(h). The cooperative allocation agreement shall 
provide procedures for allocating, on a timely basis, the maximum amount 
of take as determined by the state pursuant to Sec. 403.04 of this 
part. Such allocation shall give first priority to incidental take 
within the zone described in section 3(14)(B) of the Act as provided for 
under section 101(a) of the Act, except that in the case of Alaska, 
first priority shall be given to subsistence use.
    (b) For those species to which paragraph (a) of this section 
applies, the state may request the Service to regulate the taking of the 
species within the zone described in section 3(14)(B) of the Act for 
subsistence uses and/or hunting in a manner consistent with the 
regulation by the state of such taking within the state. If such a 
request is made, the Service shall adopt and enforce within such zone, 
such of the state's regulatory provisions as the Service considers to be 
consistent with the administration within such zone of section 101(a) of 
the Act.
    (c) If management authority for a species has been transferred to a 
state pursuant to this subpart, the Service shall provide to the state 
an opportunity to review all requests for permits to remove live animals 
from habitat within the state for scientific research or public display 
purposes. If the state finds that issuance of the permit would not be 
consistent with its management program for the species:
    (1) The state shall so inform the Service, together with the reasons 
for such finding, within 30 days of its receipt of the application, and 
the Service shall not issue the permit; and
    (2) The Service shall provide to the permit applicant and the state 
an opportunity to adjust the permit application or otherwise reconcile 
it with the state management program for the species.
    (d) After management of a species has been transferred to the state, 
state and Federal authorities shall cooperate to the maximum extent 
practicable in conserving the species of marine mammals.



Sec. 403.06  Monitoring and review of State management program.

    (a) The Service has responsibility to monitor and review 
implementation of all state management programs approved pursuant to 
this part.
    (b) In order to facilitate such review, each state to which 
management authority has been transferred shall submit an annual report, 
not later than 120 days after the close of such state's first full 
fiscal or calendar year following the effective date of the Service's 
approval of the State management program, and at the same time each 
following year, or at such other time as may be agreed upon. The repot

[[Page 477]]

shall contain the following information current for each reporting 
period:
    (1) Any changes in the state laws which comprise those aspects of 
the state management program submitted pursuant to Sec. 403.03(b), and, 
in the case of Alaska, Sec. 403.03(d), of this part;
    (2) Pertinent new data on the marine mammal species or the marine 
ecosystems in question including a summary of the status, trend and 
general health of the species;
    (3) A summary of available information relating to takings under the 
state management program;
    (4) A summary of state actions to protect species' habitat;
    (5) A summary of all state research activity on the species;
    (6) Any significant changes in the information provided with the 
original request for transfer of management authority;
    (7) A summary of enforcement activity;
    (8) A summary of budget and staffing levels for the marine mammal 
activities in the categories of research, management and enforcement;
    (9) Any other information which the Service may request, consistent 
with the Act as amended, or which the state deems necessary or advisable 
to facilitate review by the Service of state management of the species.
    (c) Each state having an approved management program shall file a 
report, in a timely manner, not to exceed 45 days from the occurrence of 
any of the following:
    (1) Any change in a relevant state law (amendments, repealers, or 
new legislation or regulations or judicial precedent) as submitted 
pursuant to paragraphs (b)(2) through (b)(5), and in the case of Alaska, 
paragraph (d), of Sec. 403.03 of this part that may impair the State's 
ability to implement the program;
    (2) Any significant natural or manmade occurrence or any new 
scientific information that may warrant reconsideration of the 
determinations made pursuant to Sec. 403.04 of this part.
    (d) All components of the state request for transfer of management 
authority, as well as annual reports submitted under paragraph (b) of 
this section and any reports submitted under paragraph (c) of this 
section, shall be available for inspection and copying at the Office of 
the Chief, Division of Wildlife Management, U.S. Fish and Wildlife 
Service, Department of the Interior, Washington, DC 20240, or, as 
appropriate, at the Office of Protected Species and Habitat 
Conservation, National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Department of Commerce, Washington, DC 
20235, and at the appropriate Service's regional office.



Sec. 403.07  Revocation and return of State management authority.

    (a) Revocation of management. The Service shall have responsibility 
to review management of a species transferred to a state under this part 
and to determine whether or not the implementation of the state 
management program continues to comply with the requirements of the Act, 
this part and the state's approved management program.
    (1) Upon receipt of any substantial factual information suggesting 
that the state management program is not being implemented or is being 
implemented in a manner inconsistent with the Act, this part, or the 
state's approved management program, the Service shall, as soon as 
practicable but not later than 30 days after receipt, determine whether 
or not the state continues to comply with the requirements of the Act, 
this part and the state's approved management program.
    (2) Whenever pursuant to a review as specified in paragraph (a)(1) 
of this section, the Service determines that any substantial aspect of 
the state management program is not in compliance with the requirements 
of the Act, this part or the state's approved management program, it 
shall provide written notice to the state of its intent to revoke 
management authority, together with a statement, in detail, of those 
actions or failures to act upon which such intent to revoke is based. 
The Service shall publish notice of such intent to revoke in the Federal 
Register and invite public comment thereon, and shall conduct an 
informal public hearing on the matter if requested by the state or if 
the Service otherwise

[[Page 478]]

determines it to be necessary. The Service shall provide to the state an 
opportunity for consultation between the Service and the state 
concerning such actions or failures and necessary remedial actions to be 
taken by the state.
    (3) If within 90 days after notice is provided under paragraph 
(a)(2) of this section, the state has not taken such remedial measures 
as are necessary, in the judgment of the Service, to bring the state 
management program into compliance with the provision of the Act, this 
part and the state's approved management program, the Service shall 
revoke the transfer of management authority by written notice to the 
state and publication in the Federal Register.
    (b) Voluntary return of management authority to the Service. (1) If 
a state desires to return management of a species of marine mammals to 
the Service, it shall provide the Service notice of intent to return 
management. The Service shall accept the return of management, and such 
return shall become effective, upon publication of a notice in the 
Federal Register to this effect no sooner than 30 days (except in an 
emergency as determined by the Service) nor longer than 60 days after 
the state has provided notice of its intent to return management or 
unless otherwise agreed upon.
    (2) If implementation of any aspect of the state management program 
is enjoined by court order, the state shall advise the Service of such 
injunction and its effect on the state management program. If the state 
determines that the effect of the injunction is to preclude effective 
conservation and management of the species under the terms of the state 
management program, it shall so notify the Service and such notification 
shall be treated as a notice of intent to return management as provided 
in paragraph (b)(1) of this section. If the state determines that the 
injunction does not preclude effective conservation and management of 
marine mammals under the terms of the state management program, it shall 
so notify the Service together with the basis for the state's 
determination and such notice shall be treated as a report submitted 
pursuant to the terms of Sec. 403.06(c)(1) of this part. In either 
case, the state shall provide notice to the Service as soon as 
practicable but not more than 30 days after issuance of the injunction. 
Management authority returned to the Service pursuant to this paragraph 
may be re-transferred to the state, notwithstanding the requirements of 
Sec. 403.03, when, in the judgment of the Service, the cause for return 
of management authority to the Service has been alleviated in such a way 
as to allow effective conservation and management of the species 
consistent with the requirements of the Act and this part.
    (c) When revocation of a management authority pursuant to paragraph 
(a) of this section becomes final, or when a state returns management 
pursuant to paragraph (b) of this section, the Service shall resume such 
management authority and provide for the conservation of the species 
within the state in accordance with the provisions of the Act.



Sec. 403.08  List of States to which management has been transferred.

    The following states have received management authority pursuant to 
this part for the species listed and, where appropriate, cooperative 
allocation agreements pursuant to Sec. 403.05(c) are in force: 
[Reserved]



PART 424_LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING CRITICAL 
HABITAT--Table of Contents




                      Subpart A_General Provisions

Sec.
424.01 Scope and purpose.
424.02 Definitions.

                     Subpart B_Revision of the Lists

424.10 General.
424.11 Factors for listing, delisting, or reclassifying species.
424.12 Criteria for designating critical habitat.
424.13 Sources of information and relevant data.
424.14 Petitions.
424.15 Notices of review.
424.16 Proposed rules.
424.17 Time limits and required actions.
424.18 Final rules--general.
424.19 Final rules--impact analysis of critical habitat.

[[Page 479]]

424.20 Emergency rules.
424.21 Periodic review.

    Authority: Pub. L. 93-205, 87 Stat. 884; Pub. L. 95-632, 92 Stat. 
3751; Pub. L. 96-159, 93 Stat. 1225; Pub. L. 97-304, 96 Stat. 1411 (16 
U.S.C. 1531 et seq.).

    Source: 49 FR 38908, Oct. 1, 1984, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 424.01  Scope and purpose.

    (a) Part 424 provides rules for revising the Lists of Endangered and 
Threatened Wildlife and Plants and, where appropriate, designating or 
revising their critical habitats. Criteria are provided for determining 
species to be endangered or threatened and for designating critical 
habitats. Procedures for receiving and considering petitions to revise 
the lists and for conducting periodic reviews of listed species also are 
established.
    (b) The purpose of these rules is to interpret and implement those 
portions of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), that pertain to the listing of species and the 
determination of critical habitats.



Sec. 424.02  Definitions.

    (a) The definitions of terms in 50 CFR 402.02 shall apply to this 
part 424, except as otherwise stated.
    (b) Candidate means any species being considered by the Secretary 
for listing as an endangered or a threatened species, but not yet the 
subject of a proposed rule.
    (c) Conservation, conserve, and conserving mean to use and the use 
of all methods and procedures that are necessary to bring any endangered 
or threatened species to the point at which the measures provided 
pursuant to the Act are no longer necessary. Such methods and procedures 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    (d) Critical habitat means (1) the specific areas within the 
geographical area currently occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features (i) essential to the conservation of the species and 
(ii) that may require special management considerations or protection, 
and (2) specific areas outside the geographical area occupied by a 
species at the time it is listed upon a determination by the Secretary 
that such areas are essential for the conservation of the species.
    (e) Endangered species means a species that is in danger of 
extinction throughout all or a significant portion of its range.
    (f) List or lists means the Lists of Endangered and Threatened 
Wildlife and Plants found at 50 CFR 17.11(h) or 17.12(h).
    (g) Plant means any member of the plant kingdom, including, without 
limitation, seeds, roots, and other parts thereof.
    (h) Public hearing means an informal hearing to provide the public 
with the opportunity to give comments and to permit an exchange of 
information and opinion on a proposed rule.
    (i) Secretary means the Secretary of the Interior or the Secretary 
of Commerce, as appropriate, or their authorized representatives.
    (j) Special management considerations or protection means any 
methods or procedures useful in protecting physical and biological 
features of the environment for the conservation of listed species.
    (k) Species includes any species or subspecies of fish, wildlife, or 
plant, and any distinct population segment of any vertebrate species 
that interbreeds when mature. Excluded is any species of the Class 
Insecta determined by the Secretary to constitute a pest whose 
protection under the provisions of the Act would present an overwhelming 
and overriding risk to man.
    (l) State agency means any State agency, department, board, 
commission, or other governmental entity that is responsible for the 
management and conservation of fish, plant, or wildlife resources within 
a State.

[[Page 480]]

    (m) Threatened species means any species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.
    (n) Wildlife or fish and wildlife means any member of the animal 
kingdom, including without limitation, any vertebrate, mollusk, 
crustacean, arthropod, or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or the dead body or parts thereof.



                     Subpart B_Revision of the Lists



Sec. 424.10  General.

    The Secretary may add a species to the lists or designate critical 
habitat, delete a species or critical habitat, change the listed status 
of a species, revise the boundary of an area designated as critical 
habitat, or adopt or modify special rules (see 50 CFR 17.40-17.48 and 
parts 222 and 227) applied to a threatened species only in accordance 
with the procedures of this part.



Sec. 424.11  Factors for listing, delisting, or reclassifying species.

    (a) Any species or taxonomic group of species (e.g., genus, 
subgenus) as defined in Sec. 424.02(k) is eligible for listing under 
the Act. A taxon of higher rank than species may be listed only if all 
included species are individually found to be endangered or threatened. 
In determining whether a particular taxon or population is a species for 
the purposes of the Act, the Secretary shall rely on standard taxonomic 
distinctions and the biological expertise of the Department and the 
scientific community concerning the relevant taxonomic group.
    (b) The Secretary shall make any determination required by 
paragraphs (c) and (d) of this section solely on the basis of the best 
available scientific and commercial information regarding a species' 
status, without reference to possible economic or other impacts of such 
determination.
    (c) A species shall be listed or reclassified if the Secretary 
determines, on the basis of the best scientific and commercial data 
available after conducting a review of the species' status, that the 
species is endangered or threatened because of any one or a combination 
of the following factors:
    (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (2) Over utilization for commercial, recreational, scientific, or 
educational purposes;
    (3) Disease or predation;
    (4) The inadequacy of existing regulatory mechanisms; or
    (5) Other natural or manmade factors affecting its continued 
existence.
    (d) The factors considered in delisting a species are those in 
paragraph (c) of this section as they relate to the definitions of 
endangered or threatened species. Such removal must be supported by the 
best scientific and commercial data available to the Secretary after 
conducting a review of the status of the species. A species may be 
delisted only if such data substantiate that it is neither endangered 
nor threatened for one or more of the following reasons:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service is to return listed 
species to a point at which protection under the Act is no longer 
required. A species may be delisted on the basis of recovery only if the 
best scientific and commercial data available indicate that it is no 
longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error.
    (e) The fact that a species of fish, wildlife, or plant is protected 
by the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (see part 23 of this title 50) or a similar 
international agreement on such species, or has been identified as 
requiring protection from unrestricted commerce by any foreign nation, 
or to

[[Page 481]]

be in danger of extinction or likely to become so within the foreseeable 
future by any State agency or by any agency of a foreign nation that is 
responsible for the conservation of fish, wildlife, or plants, may 
constitute evidence that the species is endangered or threatened. The 
weight given such evidence will vary depending on the international 
agreement in question, the criteria pursuant to which the species is 
eligible for protection under such authorities, and the degree of 
protection afforded the species. The Secretary shall give consideration 
to any species protected under such an international agreement, or by 
any State or foreign nation, to determine whether the species is 
endangered or threatened.
    (f) The Secretary shall take into account, in making determinations 
under paragraph (c) or (d) of this section, those efforts, if any, being 
made by any State or foreign nation, or any political subdivision of a 
State or foreign nation, to protect such species, whether by predator 
control, protection of habitat and food supply, or other conservation 
practices, within any area under its jurisdiction, or on the high seas.



Sec. 424.12  Criteria for designating critical habitat.

    (a) Critical habitat shall be specified to the maximum extent 
prudent and determinable at the time a species is proposed for listing. 
If designation of critical habitat is not prudent or if critical habitat 
is not determinable, the reasons for not designating critical habitat 
will be stated in the publication of proposed and final rules listing a 
species. A final designation of critical habitat shall be made on the 
basis of the best scientific data available, after taking into 
consideration the probable economic and other impacts of making such a 
designation in accordance with Sec. 424.19.
    (1) A designation of critical habitat is not prudent when one or 
both of the following situations exist:
    (i) The species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species, or
    (ii) Such designation of critical habitat would not be beneficial to 
the species.
    (2) Critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    (b) In determining what areas are critical habitat, the Secretary 
shall consider those physical and biological features that are essential 
to the conservation of a given species and that may require special 
management considerations or protection. Such requirements include, but 
are not limited to the following:
    (1) Space for individual and population growth, and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, rearing of offspring, 
germination, or seed dispersal; and generally;
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological distributions 
of a species.

When considering the designation of critical habitat, the Secretary 
shall focus on the principal biological or physical constituent elements 
within the defined area that are essential to the conservation of the 
species. Known primary constituent elements shall be listed with the 
critical habitat description. Primary constituent elements may include, 
but are not limited to, the following: roost sites, nesting grounds, 
spawning sites, feeding sites, seasonal wetland or dryland, water 
quality or quantity, host species or plant pollinator, geological 
formation, vegetation type, tide, and specific soil types.
    (c) Each critical habitat will be defined by specific limits using 
reference points and lines as found on standard topographic maps of the 
area. Each area will be referenced to the State(s),

[[Page 482]]

county(ies), or other local governmental units within which all or part 
of the critical habitat is located. Unless otherwise indicated within 
the critical habitat descriptions, the names of the State(s) and 
county(ies) are provided for information only and do not constitute the 
boundaries of the area. Ephemeral reference points (e.g., trees, sand 
bars) shall not be used in defining critical habitat.
    (d) When several habitats, each satisfying the requirements for 
designation as critical habitat, are located in proximity to one 
another, an inclusive area may be designated as critical habitat.

    Example: Several dozen or more small ponds, lakes, and springs are 
found in a small local area. The entire area could be designated 
critical habitat if it were concluded that the upland areas were 
essential to the conservation of an aquatic species located in the ponds 
and lakes.

    (e) The Secretary shall designate as critical habitat areas outside 
the geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.
    (f) Critical habitat may be designated for those species listed as 
threatened or endangered but for which no critical habitat has been 
previously designated.
    (g) Existing critical habitat may be revised according to procedures 
in this section as new data become available to the Secretary.
    (h) Critical habitat shall not be designated within foreign 
countries or in other areas outside of United States jurisdiction.



Sec. 424.13  Sources of information and relevant data.

    When considering any revision of the lists, the Secretary shall 
consult as appropriate with affected States, interested persons and 
organizations, other affected Federal agencies, and, in cooperation with 
the Secretary of State, with the country or countries in which the 
species concerned are normally found or whose citizens harvest such 
species from the high seas. Data reviewed by the Secretary may include, 
but are not limited to scientific or commercial publications, 
administrative reports, maps or other graphic materials, information 
received from experts on the subject, and comments from interested 
parties.



Sec. 424.14  Petitions.

    (a) General. Any interested person may submit a written petition to 
the Secretary requesting that one of the actions described in Sec. 
424.10 be taken. Such a document must clearly identify itself as a 
petition and be dated. It must contain the name, signature, address, 
telephone number, if any, and the association, institution, or business 
affiliation, if any, of the petitioner. The Secretary shall acknowledge 
in writing receipt of such a petition within 30 days.
    (b) Petitions to list, delist, or reclassify species. (1) To the 
maximum extent practicable, within 90 days of receiving a petition to 
list, delist, or reclassify a species, the Secretary shall make a 
finding as to whether the petition presents substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted. For the purposes of this section, ``substantial information'' 
is that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted. The 
Secretary shall promptly publish such finding in the Federal Register 
and so notify the petitioner.
    (2) In making a finding under paragraph (b)(1) of this section, the 
Secretary shall consider whether such petition--
    (i) Clearly indicates the administrative measure recommended and 
gives the scientific and any common name of the species involved;
    (ii) Contains detailed narrative justification for the recommended 
measure, describing, based on available information, past and present 
numbers and distribution of the species involved and any threats faced 
by the species;
    (iii) Provides information regarding the status of the species over 
all or a significant portion of its range; and
    (iv) Is accompanied by appropriate supporting documentation in the 
form of bibliographic references, reprints of pertinent publications, 
copies of reports or letters from authorities, and maps.

[[Page 483]]


The petitioner may provide information that describes any recommended 
critical habitat as to boundaries and physical features, and indicates 
any benefits and/or adverse effects on the species that would result 
from such designation. Such information, however, will not be a basis 
for the determination of the substantiality of a petition.
    (3) Upon making a positive finding under paragraph (b)(1) of this 
section, the Secretary shall commence a review of the status of the 
species concerned and shall make, within 12 months of receipt of such 
petition, one of the following findings:
    (i) The petitioned action is not warranted, in which case the 
Secretary shall promptly publish such finding in the Federal Register 
and so notify the petitioner.
    (ii) The petitioned action is warranted, in which case the Secretary 
shall promptly publish in the Federal Register a proposed regulation to 
implement the action pursuant to Sec. 424.16 of this part, or
    (iii) The petitioned action is warranted, but that--
    (A) The immediate proposal and timely promulgation of a regulation 
to implement the petitioned action is precluded because of other pending 
proposals to list, delist, or reclassify species, and
    (B) Expeditious progress is being made to list, delist, or 
reclassify qualified species,

in which case, such finding shall be promptly published in the Federal 
Register together with a description and evaluation of the reasons and 
data on which the finding is based.
    (4) If a finding is made under paragraph (b)(3)(iii) of this section 
with regard to any petition, the Secretary shall, within 12 months of 
such finding, again make one of the findings described in paragraph 
(b)(3) with regard to such petition, but no further finding of 
substantial information will be required.
    (c) Petitions to revise critical habitat. (1) To the maximum extent 
practicable, within 90 days of receiving a petition to revise a critical 
habitat designation, the Secretary shall make a finding as to whether 
the petition presents substantial scienific information indicating that 
the revision may be warranted. The Secretary shall promptly publish such 
finding in the Federal Register and so notify the petitioner.
    (2) In making the finding required by paragraph (c)(1) of this 
section, the Secretary shall consider whether a petition contains--
    (i) Information indicating that areas petitioned to be added to 
critical habitat contain physical and biological features essential to, 
and that may require special management to provide for, the conservation 
of the species involved; or
    (ii) Information indicating that areas designated as critical 
habitat do not contain resources essential to, or do not require special 
management to provide for, the conservation of the species involved.
    (3) Within 12 months after receiving a petition found under 
paragraph (c)(1) of this section to present substantial information 
indicating that revision of a critical habitat may be warranted, the 
Secretary shall determine how he intends to proceed with the requested 
revision, and shall promptly publish notice of such intention in the 
Federal Register.
    (d) Petitions to designate critical habitat or adopt special rules. 
Upon receiving a petition to designate critical habitat or to adopt a 
special rule to provide for the conservation of a species, the Secretary 
shall promptly conduct a review in accordance with the Administrative 
Procedure Act (5 U.S.C. 553) and applicable Departmental regulations, 
and take appropriate action.



Sec. 424.15  Notices of review.

    (a) If the Secretary finds that one of the actions described in 
Sec. 424.10 may be warranted, but that the available evidence is not 
sufficiently definitive to justify proposing the action at that time, a 
notice of review may be published in the Federal Register. The notice 
will describe the measure under consideration, briefly explain the 
reasons for considering the action, and solicit comments and additional 
information on the action under consideration.

[[Page 484]]

    (b) The Secretary from time to time also may publish notices of 
review containing the names of species that are considered to be 
candidates for listing under the Act and indicating whether sufficient 
scientific or commercial information is then available to warrant 
proposing to list such species, the names of species no longer being 
considered for listing, or the names of listed species being considered 
for delisting or reclassification. However, none of the substantive or 
procedural provisions of the Act apply to a species that is designated 
as a candidate for listing.
    (c) Such notices of review will invite comment from all interested 
parties regarding the status of the species named. At the time of 
publication of such a notice, notification in writing will be sent to 
State agencies in any affected States, known affected Federal agencies, 
and, to the greatest extent practicable, through the Secretary of State, 
to the governments of any foreign countries in which the subject species 
normally occur.



Sec. 424.16  Proposed rules.

    (a) General. Based on the information received through Sec. Sec. 
424.13, 424.14, 424.15, and 424.21, or through other available avenues, 
the Secretary may propose revising the lists as described in Sec. 
424.10.
    (b) Contents. A notice of a proposed rule to carry out one of the 
actions described in Sec. 424.10 shall contain the complete text of the 
proposed rule, a summary of the data on which the proposal is based 
(including, as appropriate, citation of pertinent information sources), 
and shall show the relationship of such data to the rule proposed. If 
such a rule designates or revises critical habitat, such summary shall, 
to the maximum extent practicable, include a brief description and 
evaluation of those activities (whether public or private) that, in the 
opinion of the Secretary, if undertaken, may adversely modify such 
habitat, or may be affected by such designation. Any proposed rule to 
designate or revise critical habitat shall contain a map of such 
habitat. Any such notice proposing the listing, delisting, or 
reclassification of a species or the designation or revision of critical 
habitat shall also include a summary of factors affecting the species 
and/or critical habitat.
    (c) Procedures--(1) Notifications. In the case of any proposed rule 
to list, delist, or reclassify a species, or to designate or revise 
critical habitat, the Secretary shall--
    (i) Publish notice of the proposal in the Federal Register;
    (ii) Give actual notice of the proposed regulation (including the 
complete text of the regulation) to the State agency in each State in 
which the species is believed to occur, and to each county or equivalent 
jurisdiction therein in which the species is believed to occur, and 
invite the comment of each such agency and jurisdiction;
    (iii) Give notice of the proposed regulation to any Federal 
agencies, local authorities, or private individuals or organizations 
known to be affected by the rule;
    (iv) Insofar as practical, and in cooperation with the Secretary of 
State, give notice of the proposed regulation to list, delist, or 
reclassify a species to each foreign nation in which the species is 
believed to occur or whose citizens harvest the species on the high 
seas, and invite the comment of such nation;
    (v) Give notice of the proposed regulation to such professional 
scientific organizations as the Secretary deems appropriate; and
    (vi) Publish a summary of the proposed regulation in a newspaper of 
general circulation in each area of the United States in which the 
species is believed to occur.
    (2) Period of public comments. At least 60 days shall be allowed for 
public comment following publication in the Federal Register of a rule 
proposing the listing, delisting, or reclassification of a species, or 
the designation or revision of critical habitat. All other proposed 
rules shall be subject to a comment period of at least 30 days following 
publication in the Federal Register. The Secretary may extend or reopen 
the period for public comment on a proposed rule upon a finding that 
there is good cause to do so. A notice of any such extension or 
reopening shall be published in the Federal Register, and shall specify 
the basis for so doing.

[[Page 485]]

    (3) Public hearings. The Secretary shall promptly hold at least one 
public hearing if any person so requests within 45 days of publication 
of a proposed regulation to list, delist, or reclassify a species, or to 
designate or revise critical habitat. Notice of the location and time of 
any such hearing shall be published in the Federal Register not less 
than 15 days before the hearing is held.



Sec. 424.17  Time limits and required actions.

    (a) General. (1) Within 1 year of the publication of a rule 
proposing to determine whether a species is an endangered or threatened 
species, or to designate or revise critical habitat, the Secretary shall 
publish one of the following in the Federal Register:
    (i) A final rule to implement such determination or revision,
    (ii) A finding that such revision should not be made,
    (iii) A notice withdrawing the proposed rule upon a finding that 
available evidence does not justify the action proposed by the rule, or
    (iv) A notice extending such 1-year period by an additional period 
of not more than 6 months because there is substantial disagreement 
among scientists knowledgeable about the species concerned regarding the 
sufficiency or accuracy of the available data relevant to the 
determination or revision concerned.
    (2) If an extension is made under paragraph (a)(1)(iv) of this 
section, the Secretary shall, within the extended period, take one of 
the actions described in paragraphs (a)(1) (i), (ii), or (iii) of this 
section.
    (3) If a proposed rule is withdrawn under paragraph (a)(1)(iii) of 
this section, the notice of withdrawal shall set forth the basis upon 
which the proposed rule has been found not to be supported by available 
evidence. The Secretary shall not again propose a rule withdrawn under 
such provision except on the basis of sufficient new information that 
warrants a reproposal.
    (b) Critical habitat designations. A final rule designating critical 
habitat of an endangered or a threatened species shall to the extent 
permissible under Sec. 424.12 be published concurrently with the final 
rule listing such species, unless the Secretary deems that--
    (1) It is essential to the conservation of such species that it be 
listed promptly; or
    (2) Critical habitat of such species is not then determinable,

in which case, the Secretary, with respect to the proposed regulation to 
designate such habitat, may extend the 1-year period specified in 
paragraph (a) of this section by not more than one additional year. Not 
later than the close of such additional year the Secretary must publish 
a final regulation, based on such data as may be available at that time, 
designating, to the maximum extent prudent, such habitat.



Sec. 424.18  Final rules--general.

    (a) Contents. A final rule promulgated to carry out the purposes of 
the Act will be published in the Federal Register. This publication will 
contain the complete text of the rule, a summary of the comments and 
recommendations received in response to the proposal (including 
applicable public hearings), summaries of the data on which the rule is 
based and the relationship of such data to the final rule, and a 
description of any conservation measures available under the rule. 
Publication of a final rule to list, delist, or reclassify a species or 
designate or revise critical habitat shall also provide a summary of 
factors affecting the species. A rule designating or revising critical 
habitat will also contain a description of the boundaries and a map of 
such habitat and will, to the maximum extent practicable, be accompanied 
by a brief description and evaluation of those activities (whether 
public or private) that might occur in the area and which, in the 
opinion of the Secretary, may adversly modify such habitat or be 
affected by such designation.
    (b) Effective date. A final rule shall take effect--
    (1) Not less than 30 days after it is published in the Federal 
Register, except as otherwise provided for good cause found and 
published with the rule; and
    (2) Not less than 90 days after (i) publication in the Federal 
Register of the proposed rule, and (ii) actual notification of any 
affected State agencies

[[Page 486]]

and counties or equivalent jurisdictions in accordance with Sec. 
424.16(c)(1)(ii).
    (c) Disagreement with State agency. If a State agency, given notice 
of a proposed rule in accordance with Sec. 424.16(c)(1)(ii), submits 
comments disagreeing in whole or in part with a proposed rule, and the 
Secretary issues a final rule that is in conflict with such comments, or 
if the Secretary fails to adopt a regulation for which a State agency 
has made a petition in accordance with Sec. 424.14, the Secretary shall 
provide such agency with a written justification for the failure to 
adopt a rule consistent with the agency's comments or petition.



Sec. 424.19  Final rules--impact analysis of critical habitat.

    The Secretary shall identify any significant activities that would 
either affect an area considered for designation as critical habitat or 
be likely to be affected by the designation, and shall, after proposing 
designation of such an area, consider the probable economic and other 
impacts of the designation upon proposed or ongoing activities. The 
Secretary may exclude any portion of such an area from the critical 
habitat if the benefits of such exclusion outweigh the benefits of 
specifying the area as part of the critical habitat. The Secretary shall 
not exclude any such area if, based on the best scientific and 
commercial data available, he determines that the failure to designate 
that area as critical habitat will result in the extinction of the 
species concerned.



Sec. 424.20  Emergency rules.

    (a) Sections 424.16, 424.17, 424.18, and 424.19 notwithstanding, the 
Secretary may at any time issue a regulation implementing any action 
described in Sec. 424.10 in regard to any emergency posing a 
significant risk to the well-being of a species of fish, wildlife, or 
plant. Such rules shall, at the discretion of the Secretary, take effect 
immediately on publication in the Federal Register. In the case of any 
such action that applies to a resident species, the Secretary shall give 
actual notice of such regulation to the State agency in each State in 
which such species is believed to occur. Publication in the Federal 
Register of such an emergency rule shall provide detailed reasons why 
the rule is necessary. An emergency rule shall cease to have force and 
effect after 240 days unless the procedures described in Sec. Sec. 
424.16, 424.17, 424.18, and 424.19 (as appropriate) have been complied 
with during that period.
    (b) If at any time after issuing an emergency rule, the Secretary 
determines, on the basis of the best scientific and commercial data 
available, that substantial evidence does not then exist to warrant such 
rule, it shall be withdrawn.



Sec. 424.21  Periodic review.

    At least once every 5 years, the Secretary shall conduct a review of 
each listed species to determine whether it should be delisted or 
reclassified. Each such determination shall be made in accordance with 
Sec. Sec. 424.11, 424.16, and 424.17 of this part, as appropriate. A 
notice announcing those species under active review will be published in 
the Federal Register. Notwithstanding this section's provisions, the 
Secretary may review the status of any species at any time based upon a 
petition (see Sec. 424.14) or upon other data available to the Service.



                         SUBCHAPTER B [RESERVED]



[[Page 487]]



            SUBCHAPTER C_ENDANGERED SPECIES EXEMPTION PROCESS





PART 450_GENERAL PROVISIONS--Table of Contents




    Authority: Endangered Species Act of 1973, 16 U.S.C. 1531, et seq., 
as amended.



Sec. 450.01  Definitions

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

[[Page 488]]

the appropriate Federal agency pursuant to a Freedom of Information Act 
request.

[50 FR 8126, Feb. 28, 1985]



PART 451_APPLICATION PROCEDURE--Table of Contents




Sec.
451.01 Definitions.
451.02 Applications for exemptions.
451.03 Endangered Species Committee.

    Authority: Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., 
as amended.

    Source: 50 FR 8127, Feb. 28, 1985, unless otherwise noted.



Sec. 451.01  Definitions.

    All definitions contained in 50 CFR 450.01 are applicable to this 
part.



Sec. 451.02  Applications for exemptions.

    (a) Scope. This section prescribes the application procedures for 
applying for an exemption from the requirements of section 7(a)(2) of 
the Endangered Species Act, as amended.
    (b) Where to apply. Applications should be made to the appropriate 
Secretary(ies) by writing:
    (1) The Secretary, Attention: Endangered Species Committee, 
Department of the Interior, 18th and C Street, NW., Washington, DC 
20240.
    (2) The Secretary, Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20030.
    (c) Who may apply. (1) A Federal agency, (2) the Governor of the 
State in which an agency action will occur, if any, or (3) a permit or 
license applicant may apply to the Secretary for an exemption for an 
agency action if, after consultation under section 7(a)(2) of the Act, 
the Secretary's opinion indicates that the agency action would violate 
section 7(a)(2) of the Act.
    (d) When to apply. (1) Except in the case of agency action involving 
a permit or license application, an application for an exemption must be 
submitted to the Secretary within 90 days following the termination of 
the consultation process.
    (2) In the case of agency action involving a permit or license 
application, an application for an exemption may be submitted after the 
Federal agency concerned formally denies the permit or license. An 
applicant denied a permit or license may not simultaneously seek 
administrative review within the permitting or licensing agency and 
apply for an exemption. If administrative review is sought, an 
application for an exemption may be submitted if that review results in 
a formal denial of the permit or license. For an exemption application 
to be considered, it must be submitted within 90 days after the date of 
a formal denial of a permit or license.
    (e) Contents of the application when submitted. Exemption applicants 
must provide the following information at the time the application is 
submitted.
    (1) Name, mailing address, and phone number, including the name and 
telephone number of an individual to be contacted regarding the 
application.
    (2) If the applicant is a Federal agency:
    (i) A comprehensive description of the proposed agency action and if 
a license or permit denial is involved, a comprehensive description of 
the license or permit applicant's proposed action.
    (ii) In the case of a denial of a license or permit, a description 
of the permit or license sought, including a statement of who in the 
Federal agency denied the permit or license, the grounds for the denial, 
and a copy of the permit or license denial.
    (iii) A description of all permit(s), license(s) or other legal 
requirements which have been satisfied or obtained, or which must still 
be satisfied or obtained, before the proposed action can proceed.
    (iv) A description of the consultation process carried out pursuant 
to section 7(a) of the Act.
    (v) A copy of the biological assessment, if one was prepared.
    (vi) A copy of the biological opinion.
    (vii) A description of each alternative to the proposed action 
considered by the Federal agency, by the licensing or permitting agency, 
and by the permit or license applicant, to the extent known.

[[Page 489]]

    (viii) A statement describing why the proposed agency action cannot 
be altered or modified to avoid violating section 7(a)(2) of the Act.
    (ix) A description of resources committed by the Federal agency, or 
the permit or license applicant, if any, to the proposed action 
subsequent to the initiation of consultation.
    (3) If the applicant is a permit or license applicant other than a 
Federal agency:
    (i) A comprehensive description of the applicant's proposed action.
    (ii) A description of the permit or license sought from the Federal 
agency, including a statement of who in that agency denied the permit or 
license and the grounds for the denial.
    (iii) A description of all permit(s), license(s) or other legal 
requirements which have been satisfied or obtained, or which must still 
be satisfied or obtained, before it can proceed with the proposed 
action.
    (iv) A copy of the permit or license denial.
    (v) A copy of the biological assessment, if one was prepared.
    (vi) A copy of the biological opinion.
    (vii) A description of the consultation process carried out pursuant 
to section 7(a) of the Act, to the extent that such information is 
available to the applicant.
    (viii) A description of each alternative to the proposed action 
considered by the applicant, and to the extent that such information is 
available to the applicant, a description of each alternative to the 
proposed action considered by the Federal agency.
    (ix) A statement describing why the applicant's proposed action 
cannot be altered or modified to avoid violating section 7(a)(2) of the 
Act.
    (x) A description of resources committed to the proposed action by 
the permit or license applicant subsequent to the initiation of 
consultation.
    (4) If the applicant is the Governor of a State in which the 
proposed agency action may occur:
    (i) A comprehensive description of the proposed agency action and if 
a license or permit denial is involved, a comprehensive description of 
the license or permit applicant's proposed action.
    (ii) A description of the permit or license, if any, sought from the 
Federal agency, including a statement of who in that agency denied the 
permit or license and the grounds for the denial, to the extent that 
such information is available to the Governor.
    (iii) A description of all permit(s), license(s) or other legal 
requirements which have been satisfied or obtained, or which must still 
be satisfied or obtained before the agency can proceed with the proposed 
action, to the extent that such information is available to the 
Governor.
    (iv) A copy of the biological assessment, if one was prepared.
    (v) A copy of the biological opinion.
    (vi) A description of the consultation process carried out pursuant 
to section 7(a) of the Act, to the extent that such information is 
available to the Governor.
    (vii) A description of all alternatives considered by the Federal 
agency, by the licensing or permitting agency, and by the permit or 
license applicant, to the extent that such information is available to 
the Governor.
    (viii) A statement describing why the proposed agency action cannot 
be altered or modified to avoid violating section 7(a)(2) of the Act.
    (ix) A description of resources committed to the proposed action 
subsequent to the initiation of consultation, to the extent that such 
information is available to the Governor.
    (5) Each applicant, whether a Federal agency, a permit or license 
applicant, or a Governor, must also submit the following:
    (i) A complete statement of the nature and the extent of the 
benefits of the proposed action.
    (ii) A complete discussion of why the benefits of the proposed 
action clearly outweigh the benefits of each considered alternative 
course of action.
    (iii) A complete discussion of why none of the considered 
alternatives are reasonable and prudent.
    (iv) A complete statement explaining why the proposed action is in 
the public interest.
    (v) A complete explanation of why the action is of regional or 
national significance.

[[Page 490]]

    (vi) A complete discussion of mitigation and enhancement measures 
proposed to be undertaken if an exemption is granted.
    (6) When the exemption applicant is a license or permit applicant or 
a Governor, a copy of the application shall be provided by the exemption 
applicant at the time the application is filed, to the Federal agency 
which denied the license or permit.
    (f) Review of the application by the Secretary. (1) Upon receiving 
the application, the Secretary shall review the contents thereof and 
consider whether the application complies with the requirements set 
forth in paragraphs (c), (d) and (e) of this section.
    (2) The Secretary shall reject an application within 10 days of 
receiving it if he determines that it does not comply with paragraphs 
(c), (d) and (e) of this section. If the Secretary rejects an 
application because it does not contain the information required by 
paragraph (e) of this section, the applicant may resubmit a revised 
application so long as the applicant does so during the 90 day period 
specified in paragraph (d) of this section.
    (3) If the Secretary finds that the application meets the 
requirements of paragraphs (c), (d), and (e) of this section, he will 
consider the application in accordance with part 452.
    (g) Notification of the Secretary of State. The Secretary will 
promptly transmit to the Secretary of State a copy of all applications 
submitted in accordance with Sec. 451.02.
    (h) Public notification. Upon receipt of an application for 
exemption, the Secretary shall promptly publish a notice in the Federal 
Register (1) announcing that an application has been filed, (2) stating 
the applicant's name, (3) briefly describing the proposed agency action 
and the result of the consultation process, (4) summarizing the 
information contained in the application, (5) designating the place 
where copies of the application can be obtained and (6) specifying the 
name of the person to contact for further information. The Secretary 
will promptly notify each member of the Committee upon receipt of an 
application for exemption.
    (i) The information collection requirements contained in part 451 do 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq., because it is anticipated there will be fewer than 
ten respondents annually.



Sec. 451.03  Endangered Species Committee.

    (a) Scope. This section contains provisions governing the 
relationship between the Secretary and the Endangered Species Committee.
    (b) Appointment of State member. (1) Upon receipt of an application 
for exemption, the Secretary shall promptly notify the Governors of each 
affected State, if any, as determined by the Secretary, and request the 
Governors to recommend individuals to be appointed to the Endangered 
Species Committee for consideration of the application. Written 
recommendations of these Governors must be received by the Secretary 
within 10 days of receipt of notification. The Secretary will transmit 
the Governors' recommendations to the President and will request that 
the President appoint a State resident to the Endangered Species 
Committee from each affected State within 30 days after the application 
for exemption was submitted.
    (2) When no State is affected, the Secretary will submit to the 
President a list of individuals with expertise relevant to the 
application and will request the President to appoint, within 30 days 
after the application for exemption was submitted, an individual to the 
Endangered Species Committee.



PART 452_CONSIDERATION OF APPLICATION BY THE SECRETARY--Table of Contents




Sec.
452.01 Purpose and scope.
452.02 Definitions.
452.03 Threshold review and determinations.
452.04 Secretary's report.
452.05 Hearings.
452.06 Parties and intervenors.
452.07 Separation of functions and ex parte communications.
452.08 Submission of Secretary's report.
452.09 Consolidated and joint proceedings.

    Authority: Endangered Species Act of 1973, 16 U.S.C. 1531, et seq., 
as amended.

    Source: 50 FR 8129, Feb. 28, 1985, unless otherwise noted.

[[Page 491]]



Sec. 452.01  Purpose and scope.

    This part prescribes the procedures to be used by the Secretary when 
examining applications for exemption from section 7(a)(2) of the 
Endangered Species Act.



Sec. 452.02  Definitions.

    Definitions applicable to this part are contained in 50 CFR 450.01.



Sec. 452.03  Threshold review and determinations.

    (a) Threshold determinations. Within 20 days after receiving an 
exemption application, or a longer time agreed upon between the 
exemption applicant and the Secretary, the Secretary shall conclude his 
review and determine:
    (1) Whether any required biological assessment was conducted;
    (2) To the extent determinable within the time period provided, 
whether the Federal agency and permit or license applicant, if any, have 
refrained from making any irreversible or irretrievable commitment of 
resources; and
    (3) Whether the Federal agency and permit or license applicant, if 
any, have carried out consultation responsibilities in good faith and 
have made a reasonable and responsible effort to develop and fairly 
consider modifications or reasonable and prudent alternatives to the 
proposed action which would not violate section 7(a)(2) of the Act.
    (b) Burden of proof. The exemption applicant has the burden of 
proving that the requirements of Sec. 452.03(a) have been met.
    (c) Negative finding. If the Secretary makes a negative finding on 
any threshold determination, the Secretary shall deny the application 
and notify the exemption applicant in writing of his finding and grounds 
therefor. The exemption process shall terminate when the applicant 
receives such written notice. The Secretary's denial shall constitute 
final agency action for purposes of judicial review under chapter 7 of 
title 5 of the United States Code.
    (d) Positive finding. If the Secretary makes a positive finding on 
each of the threshold determinations, he shall notify the exemption 
applicant in writing that the application qualifies for consideration by 
the Endangered Species Committee.
    (e) Secretary of State opinion. The Secretary shall terminate the 
exemption process immediately if the Secretary of State, pursuant to his 
obligations under section 7(i) of the Act, certifies in writing to the 
Committee that granting an exemption and carrying out the proposed 
action would violate an international treaty obligation or other 
international obligation of the United States.



Sec. 452.04  Secretary's report.

    (a) Contents of the report. If the Secretary has made a positive 
finding on each of the threshold determinations, he shall proceed to 
gather information and prepare a report for the Endangered Species 
Committee:
    (1) Discussing the availability of reasonable and prudent 
alternatives to the proposed action;
    (2) Discussing the nature and extent of the benefits of the proposed 
action;
    (3) Discussing the nature and extent of the benefits of alternative 
courses of action consistent with conserving the species or the critical 
habitat;
    (4) Summarizing the evidence concerning whether the proposed action 
is of national or regional significance;
    (5) Summarizing the evidence concerning whether the proposed action 
is in the public interest;
    (6) Discussing appropriate and reasonable mitigation and enhancement 
measures which should be considered by the Committee in granting an 
exemption; and
    (7) Discussing whether the Federal agency and permit or license 
applicant, if any, have refrained from making any irreversible or 
irretrievable commitment of resources.
    (b) Preparation of the report. The report shall be prepared in 
accordance with procedures set out in Sec. 452.05 and Sec. 452.09.



Sec. 452.05  Hearings.

    (a) Hearings. (1) To develop the record for the report under Sec. 
452.04, the Secretary, in consultation with the members of the 
Committee, shall hold a hearing in accordance with 5 U.S.C. 554, 555, 
and 556.
    (2) The Secretary shall designate an Administrative Law Judge to 
conduct the hearing. The Secretary shall assign

[[Page 492]]

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

[[Page 493]]

    (h) Information collection. The information collection requirements 
contained in Sec. 452.05 do not require approval by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq., because it is 
anticipated there will be fewer than ten respondents annually.



Sec. 452.06  Parties and intervenors.

    (a) Parties. The parties shall consist of the exemption applicant, 
the Federal agency responsible for the agency action in question, the 
Service, and intervenors whose motions to intervene have been granted.
    (b) Intervenors. (1) The Administrative Law Judge shall provide an 
opportunity for intervention in the hearing. A motion to intervene must 
state the petitioner's name and address, identify its representative, if 
any, set forth the interest of the petitioner in the proceeding and show 
that the petitioner's participation would assist in the determination of 
the issues in question.
    (2) The Administrative Law Judge shall grant leave to intervene if 
he determines that an intervenor's participation would contribute to the 
fair determination of issues. In making this determination, the 
Administrative Law Judge may consider whether an intervenor represents a 
point of view not adequately represented by a party or another 
intervenor.



Sec. 452.07  Separation of functions and ex parte communications.

    (a) Separation of functions. (1) The Administrative Law Judge and 
the technical staff shall not be responsible for or subject to the 
supervision or direction of any person who participated in the 
endangered species consultation at issue;
    (2) The Secretary shall not allow an agency employee or agent who 
participated in the endangered species consultation at issue or a 
factually related matter to participate or advise in a determination 
under this part except as a witness or counsel in public proceedings.
    (b) Ex parte communications. The provisions of 5 U.S.C. 557(d) apply 
to the hearing and the preparation of the report.



Sec. 452.08  Submission of Secretary's report.

    (a) Upon closing of the record, the Administrative Law Judge shall 
certify the record and transmit it to the Secretary for preparation of 
the Secretary's report which shall be based on the record. The Secretary 
may direct the Administrative Law Judge to reopen the record and obtain 
additional information if he determines that such action is necessary.
    (b) The Secretary shall submit his report and the record of the 
hearing to the Committee within 140 days after making his threshold 
determinations under Sec. 452.03(a) or within such other period of time 
as is mutually agreeable to the applicant and the Secretary.



Sec. 452.09  Consolidated and joint proceedings.

    (a) When the Secretary is considering two or more related exemption 
applications, the Secretary may consider them jointly and prepare a 
joint report if doing so would expedite or simplify consideration of the 
issues.
    (b) When the Secretaries of the Interior and Commerce are 
considering two or more related exemption applications, they may 
consider them jointly and prepare a joint report if doing so would 
expedite or simplify consideration of the issues.



PART 453_ENDANGERED SPECIES COMMITTEE--Table of Contents




Sec.
453.01 Purpose.
453.02 Definitions.
453.03 Committee review and final determinations.
453.04 Committee information gathering.
453.05 Committee meetings.
453.06 Additional Committee powers.

    Authority: Endangered Species Act of 1973, 16 U.S.C. 1531, et seq., 
as amended.

    Source: 50 FR 8130, Feb. 28, 1985, unless otherwise noted.



Sec. 453.01  Purpose.

    This part prescribes the procedures to be used by the Endangered 
Species Committee when examining applications for exemption from section 
7(a)(2) of the Endangered Species Act of 1973, as amended.

[[Page 494]]



Sec. 453.02  Definitions.

    Definitions applicable to this part are contained in 50 CFR 450.01.



Sec. 453.03  Committee review and final determinations.

    (a) Final determinations. Within 30 days of receiving the 
Secretary's report and record, the Committee shall grant an exemption 
from the requirements of section 7(a)(2) of the Act for an agency action 
if, by a vote in which at least five of its members concur:
    (1) It determines that based on the report to the Secretary, the 
record of the hearing held under Sec. 452.05, and on such other 
testimony or evidence as it may receive:
    (i) There are no reasonable and prudent alternatives to the proposed 
action;
    (ii) The benefits of such action clearly outweigh the benefits of 
alternative courses of action consistent with conserving the species or 
its critical habitat, and such action is in the public interest;
    (iii) The action is of regional or national significance; and
    (iv) Neither the Federal agency concerned nor the exemption 
applicant made any irreversible or irretrievable commitment of resources 
prohibited by section 7(d) of the Act; and,
    (2) It establishes such reasonable mitigation and enhancement 
measures, including, but not limited to, live propagation, 
transplantation, and habitat acquisition and improvement, as are 
necessary and appropriate to minimize the adverse effects of the 
proposed action upon the endangered species, threatened species, or 
critical habitat concerned. Any required mitigation and enhancement 
measures shall be carried out and paid for by the exemption applicant.
    (b) Decision and order. The Committee's final determinations shall 
be documented in a written decision. If the Committee determines that an 
exemption should be granted, the Committee shall issue an order granting 
the exemption and specifying required mitigation and enhancement 
measures. The Committee shall publish its decision and order in the 
Federal Register as soon as practicable.
    (c) Permanent exemptions. Under section 7(h)(2) of the Act, an 
exemption granted by the Committee shall constitute a permanent 
exemption with respect to all endangered or threatened species for the 
purposes of completing such agency action--
    (1) Regardless of whether the species was identified in the 
biological assessment, and
    (2) Only if a biological assessment has been conducted under section 
7(c) of the Act with respect to such agency action. Notwithstanding the 
foregoing, an exemption shall not be permanent if--
    (i) The Secretary finds, based on the best scientific and commercial 
data available, that such exemption would result in the extinction of a 
species that was not the subject of consultation under section 7(a)(2) 
of the Act or was not identified in any biological assessment conducted 
under section 7(c) of the Act, and
    (ii) The Committee determines within 60 days after the date of the 
Secretary's finding that the exemption should not be permanent.

If the Secretary makes a finding that the exemption would result in the 
extinction of a species, as specified above, the Committee shall meet 
with respect to the matter within 30 days after the date of the finding. 
During the 60 day period following the Secretary's determination, the 
holder of the exemption shall refrain from any action which would result 
in extinction of the species.
    (d) Finding by the Secretary of Defense. If the Secretary of Defense 
finds in writing that an exemption for the agency action is necessary 
for reasons of national security, the Committee shall grant the 
exemption notwithstanding any other provision in this part.



Sec. 453.04  Committee information gathering.

    (a) Written submissions. When the Chairman or four Committee members 
decide that written submissions are necessary to enable the Committee to 
make its final determinations, the Chairman shall publish a notice in 
the Federal Register inviting written submissions from interested 
persons.

[[Page 495]]

The notice shall include: (1) The address to which such submissions are 
to be sent; (2) the deadline for such submissions; and (3) a statement 
of the type of information needed.
    (b) Public hearing. (1) When the Chairman or four Committee members 
decide that oral presentations are necessary to enable the Committee to 
make its final determinations, a public hearing shall be held.
    (2) The public hearing shall be conducted by (i) the Committee or 
(ii) a member of the Committee or other person, designated by the 
Chairman or by four members of the Committee.
    (3) Notice. The Chairman shall publish in the Federal Register a 
general notice of a public hearing, stating the time, place and nature 
of the public hearing.
    (4) Procedure. The public hearing shall be open to the public and 
conducted in an informal manner. All information relevant to the 
Committee's final determinations shall be admissible, subject to the 
imposition of reasonable time limitations on oral testimony.
    (5) Transcript. Public hearings will be recorded verbatim and a 
transcript thereof will be available for public inspection.



Sec. 453.05  Committee meetings.

    (a) The committee shall meet at the call of the Chairman or five of 
its members.
    (b) Five members of the Committee or their representatives shall 
constitute a quorum for the transaction of any function of the 
Committee, except that in no case shall any representative be considered 
in determining the existence of a quorum for the transaction of a 
Committee function which involves a vote by the Committee on the 
Committee's final determinations.
    (c) Only members of the Committee may cast votes. In no case shall 
any representative cast a vote on behalf of a member.
    (d) Committee members appointed from the affected States shall 
collectively have one vote. They shall determine among themselves how it 
will be cast.
    (e) All meetings and records of the Committee shall be open to the 
public.
    (f) The Chairman shall publish a notice of all Committee meetings in 
the Federal Register. The notice will ordinarily be published at least 
15 days prior to the meeting.



Sec. 453.06  Additional Committee powers.

    (a) Secure information. Subject to the Privacy Act, the Committee 
may secure information directly from any Federal agency when necessary 
to enable it to carry out its duties.
    (b) Subpoenas. For the purpose of obtaining information necessary 
for the consideration of an application for an exemption, the Committee 
may issue subpoenas for the attendance and testimony of witnesses and 
the production of relevant papers, books, and documents.
    (c) Rules and orders. The Committee may issue and amend such rules 
and orders as are necessary to carry out its duties.
    (d) Delegate authority. The Committee may delegate its authority 
under paragraphs (a) and (b) of this section to any member.

[[Page 497]]



                   CHAPTER V--MARINE MAMMAL COMMISSION




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

[[Page 499]]



PART 501_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents




Sec.
501.1 Purpose and scope.
501.2 Definitions.
501.3 Procedure for responding to requests regarding the existence of 
          records pertaining to an individual.
501.4 Requests for access--times, places and requirements for 
          identification of individuals.
501.5 Disclosure of requested information.
501.6 Requests for correction or amendment of a record.
501.7 Agency review of requests for amendment or correction of a record.
501.8 Appeal of initial denial of a request for amendment or correction.
501.9 Fees.

    Authority: Sec. 3, Privacy Act of 1974 (5 U.S.C. 552a(f)).

    Source: 40 FR 49276, Oct. 21, 1975, unless otherwise noted.



Sec. 501.1  Purpose and scope.

    (a) Purpose. The purpose of these rules is to fulfill the 
responsibilities of the Marine Mammal Commission (the ``Commission'') 
under section 3 of the Privacy Act of 1974, 5 U.S.C. 552a(f) (the 
``Act'') by establishing procedures whereby an individual will be 
notified if any system of records maintained by the Commission contains 
a record pertaining to him or her; by defining the times and places at 
which records will be made available and the identification requirements 
which must be met by any individual requesting access to them; by 
establishing procedures for disclosure to an individual, on request, of 
any record pertaining to him or her; and by establishing procedures for 
processing, reviewing, and making a final determination on requests of 
individuals to correct or amend a record pertaining to him or her, 
including a provision for administrative appeal of initial adverse 
determinations on such requests. These rules are promulgated with 
particular attention to the purposes and goals of the Act, and in 
accordance therewith provide for relative ease of access to records 
pertaining to an individual, and for maintenance by the Commission of 
only those records which are current, accurate, necessary, relevant and 
complete with respect to the purposes for which they were collected.
    (b) Scope. These rules apply only to ``record'' contained in 
``systems of rec ords,'' defined by the Act as follows:

    The term ``record'' means any item, collection, or grouping of 
information about an individual that is maintained by an agency, 
including, but not limited to, his education, financial transactions, 
medical history, and criminal or employment history and that contains 
his name, or the identifying number, symbol, or other identifying 
particular assigned to the individual, such as a finger or voice print 
or a photograph;
    The term ``system of records'' means of group of any record under 
the control of any agency from which information is retrieved by the 
name of the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.


Notices with respect to the systems maintained by the Commission have 
been published in the Federal Register, as required by the Act. These 
rules pertain only to the systems of records disclosed in such notices, 
and to any systems that may become the subject of a notice at any time 
in the future.
    (c) Nothing in these rules shall be construed as pertaining to 
requests made under the Freedom of Information Act, 5 U.S.C. 552.



Sec. 501.2  Definitions.

    (a) As used in this part:
    (1) The term Act means the Privacy Act of 1974, 5 U.S.C. 552a.
    (2) The term Commission means the Marine Mammal Commission.
    (3) The term Director means the Executive Director of the Marine 
Mammal Commission.
    (4) The term Privacy Officer means an individual designated by the 
Director to receive all requests regarding the existence of records, 
requests for access and requests for correction or amendment; to review 
and make initial determinations regarding all such requests; and to 
provide assistance to any individual wishing to exercise his or her 
rights under the Act.
    (b) Other terms shall be used in this part in accordance with the 
definitions contained in section 3 of the Privacy Act of 1974, 5 U.S.C. 
552a(a).

[[Page 500]]



Sec. 501.3  Procedure for responding to requests regarding the existence 
of records pertaining to an individual.

    Any individual may submit a request to be notified whether a system 
of records, with respect to which the Commission has published a notice 
in the Federal Register, contains a record pertaining to him or her. 
Requests may be made in writing to the Privacy Officer or by appearing 
in person at the Commission offices located at 1625 I Street, NW., Room 
307, Washington, DC 20006 between the hours of 9:00 a.m. and 5:00 p.m. 
on any working day. Systems of records that are the subject of a request 
should be identified by reference to the system name designated in the 
Notice of Systems of Records published in the Federal Register. In the 
event a system name is not known to the individual, a general request 
will suffice if it indicates reasons for the belief that a record 
pertaining to the named individual is maintained by the Commission. 
Receipt of inquiries submitted by mail will be acknowledged within 10 
days of receipt (excluding Saturdays, Sundays, and legal public 
holidays) unless a response can also be prepared and forwarded to the 
individual within that time.



Sec. 501.4  Requests for access--times, places and requirements for 
identification of individuals.

    Requests for access to a system of records pertaining to any 
individual may be made by that individual by mail addressed to the 
Privacy Officer, or by submitting a written request in person at the 
Commission offices located at 1625 I Street, NW., Room 307, Washington, 
DC 20006, between the hours of 9 a.m. and 5 p.m. on any working day. 
Assistance in gaining access under this section, securing an amendment 
or correction under Sec. 501.6, or preparing an appeal under Sec. Sec. 
501.5(d) and 501.8 shall be provided by the Privacy Officer on request 
directed to the Commission office. An individual appearing in person at 
the Commission offices will be granted immediate access to any records 
to which that individual is entitled under the Act upon satisfactory 
proof of identity by means of a document bearing the individual's 
photograph or signature. For requests made by mail, identification of 
the individual shall be adequate if established by means of submitting a 
certificate of a notary public, or equivalent officer empowered to 
administer oaths, substantially in accord with the following:

    City of ------------ County of --------------: ss (Name of 
individual) who affixed (his) (her) signature below in my presence, came 
before me, a (Title), in the aforesaid County and State, this ------ day 
of ------, 19--, and established (his)(her) identity to my satisfaction.
    My Commission expires --------------.


The certificate shall not be required, however, for written requests 
pertaining to non-sensitive information or to information which would be 
required to be made available under the Freedom of Information Act. The 
Privacy Officer shall determine the adequacy of any proof of identity 
offered by an individual.

[41 FR 5, Jan. 2, 1976]



Sec. 501.5  Disclosure of requested information.

    (a) Upon request and satisfactory proof of identity, an individual 
appearing at the Commission offices shall be given immediate access to 
and permission to review any record, contained in a system of records, 
pertaining to him or her, shall be allowed to have a person of his/her 
choosing accompany him/her, and shall be given a copy of all or any 
portion of the record. The individual to which access is granted shall 
be required to sign a written statement authorizing the presence of the 
person who accompanies him or her, and authorizing discussion of his or 
her record in the presence of the accompanying person.
    (b) Requests made by mail to the Privacy Officer at the Commission 
offices will be acknowledged within 10 days from date of receipt 
(excluding Saturdays, Sundays, and legal public holidays). This 
acknowledgement shall advise the individual whether access to the record 
will be granted and, if access is granted, copies of such records shall 
be enclosed.
    (c) If the Privacy Officer initially determines to deny access to 
all or any portion of a record, notice of denial

[[Page 501]]

shall be given to the individual in writing, within 30 days (excluding 
Saturdays, Sundays and holidays) after acknowledgement is given, and 
shall include the following:
    (1) The precise record to which access is being denied;
    (2) The reason for denial, including a citation to the appropriate 
provisions of the Act and of these Rules;
    (3) A statement that the denial may be appealed to the Director;
    (4) A statement of what steps must be taken to perfect an appeal to 
the Director; and,
    (5) A statement that the individual has a right to judicial review 
under 5 U.S.C. 552a(g)(1) of any final denial issued by the Director.
    (d) Administrative appeal of an initial denial, in whole or in part, 
of any request for access to a record, shall be available. An individual 
may appeal by submitting to the Director a written request for 
reconsideration stating therein specific reasons for reversal which 
address directly the reasons for denial stated in the initial notice of 
denial. If access is denied on appeal, a final notice of denial shall be 
sent to the individual within 30 days (excluding Saturdays, Sundays and 
holidays), and shall state with particularity the grounds for rejecting 
all reasons for reversal submitted by the individual. The denial shall 
then be deemed final for purposes of obtaining judicial review.

[40 FR 49276, Oct. 21, 1975, as amended at 41 FR 5, Jan. 2, 1976]



Sec. 501.6  Requests for correction or amendment of a record.

    (a) Any individual may request the correction or amendment of a 
record pertaining to him or her in writing addressed to the Privacy 
Officer at the Commission offices. Verification of identity required for 
such requests shall be the same as that specified in Sec. 501.4 of this 
part with respect to requests for access. Records sought to be amended 
must be identified with as much specificity as is practicable under the 
circumstances of the request, and at a minimum, should refer to the 
system name designated in the Notice of System Records published in the 
Federal Register, the type of record in which the information thought to 
be improperly maintained or incorrect is contained, and the precise 
information that is the subject of the request (for example, system 
name, description of record, paragraph, sentence, line, words). 
Assistance in identifying a record, and in otherwise preparing a 
request, may be obtained by contacting the Privacy Officer at the 
Commission offices.
    (b) A request should, in addition to identifying the individual and 
the record sought to be amended or corrected, include:
    (1) The specific wording or other information to be deleted, if any;
    (2) The specific wording or other information to be inserted, if 
any, and the exact place in the record at which it is to be inserted, 
and,
    (3) A statement of the basis for the requested amendment or 
correction (e.g. that the record is inaccurate, unnecessary, irrelevant, 
untimely, or incomplete), together with supporting documents, if any, 
which substantiate the statement.



Sec. 501.7  Agency review of requests for amendment or correction of a 
record.

    (a) Where possible, each request for amendment or correction shall 
be reviewed, and a determination on the request made, by the Privacy 
Officer within 10 days of receipt (excluding Saturdays, Sundays and 
holidays). Requests shall be acknowledged within that period where 
insufficient information has been provided to enable action to be taken. 
An acknowledgement shall inform the individual making the request of the 
estimated time within which a disposition of the request is expected to 
be made, and shall prescribe such further information as may be 
necessary to process the request. The request shall be granted, or an 
initial decision to deny shall be made, within ten days of receipt of 
all information specified in the acknowledgement (excluding Saturdays, 
Sundays and holidays).
    (b) Within 30 days (excluding Saturdays, Sundays and holidays) after 
arriving at a decision on a request, the Privacy Officer shall either:

[[Page 502]]

    (1) Make the requested amendment or correction, in whole or in part, 
and advise the individual in writing of such action; or,
    (2) Advise the individual in writing that the request has been 
initially denied, in whole or in part, stating, with respect to those 
portions denied;
    (i) The date of the denial;
    (ii) The reasons for the denial, including a citation to an 
appropriate section of the Act and these Rules; and,
    (iii) The right of the individual to prosecute an appeal and to 
obtain judicial review should a final denial result from the appeal.
    (c) In reviewing a request for amendment or correction of a record, 
the Privacy Officer shall consider the following criteria:
    (1) The sufficiency of the evidence submitted by the individual;
    (2) The factual accuracy of the information sought to be amended or 
corrected;
    (3) The relevance and necessity of the information sought to be 
amended or corrected in terms of the purposes for which it was 
collected;
    (4) The timeliness and currency of the information sought to be 
amended or corrected in terms of the purposes for which it was 
collected;
    (5) The completeness of the information sought to be amended or 
corrected in terms of the purposes for which it was collected;
    (6) The degree of possibility that denial of the request could 
unfairly result in determinations adverse to the individual;
    (7) The character of the record sought to be corrected or amended; 
and,
    (8) The propriety and feasibility of complying with the specific 
means of correction or amendment requested by the individual. If an 
amendment or correction is otherwise permissible under the Act and other 
relevant statutes, a request shall be denied only if the individual has 
failed to establish, by a preponderance of the evidence, the propriety 
of the amendment or correction in light of these criteria.

[40 FR 49276, Oct. 21, 1975, as amended at 41 FR 5, Jan. 2, 1976]



Sec. 501.8  Appeal of initial denial of a request for amendment or 
correction.

    (a) The initial denial of a request for amendment or correction may 
be appealed by submitting to the Director the following appeal papers:
    (1) A copy of the original request for amendment or correction;
    (2) A copy of the initial denial; and
    (3) A precise statement of the reasons for the individual's belief 
that the denial is in error, referring specifically to the criteria 
contained in Sec. 501.7(c)(1) through (8).

The appeal must be signed by the individual. While these papers normally 
will constitute the entire Record on Appeal, the Director may add 
additional information, from sources other than the individual, where 
necessary to facilitate a final determination. Any such additional 
information added to the record shall promptly be disclosed to the 
individual to the greatest extent possible, and an opportunity for 
comment thereon shall be afforded prior to the final determination. 
Appeals should be submitted to the Director within 90 days after the 
date of the initial denial.
    (b) The Director shall issue a final determination on appeal within 
thirty days (excluding Saturdays, Sundays, and legal public holidays) 
from the date on which a completed Record on Appeal (including any 
additional information deemed necessary) is received. Review, and final 
determination by the Director, shall be based upon the criteria 
specified in Sec. 501.7(c)(1) through (8).
    (c) If the appeal is resolved favorably to the individual, the final 
determination shall specify the amendments or corrections to be made. 
Copies of the final determination shall be transmitted promptly to the 
individual and to the Privacy Officer. The Privacy Officer shall make 
the requested amendment or correction and advise the individual in 
writing of such action.
    (d) If the appeal is denied, the final determination shall state, 
with particularity, the reasons for denial, including a citation to an 
appropriate section of the Act and of these Rules. The final 
determination shall be forwarded promptly to the individual, together 
with a notice which shall inform

[[Page 503]]

the individual of his or her right to submit to the Privacy Officer, for 
inclusion in the record, a concise statement of grounds for disagreement 
with the final determination. Receipt of any such statement shall be 
acknowledged by the Privacy Officer, and all subsequent and prior users 
of the record shall be provided copies of the statement. The notice 
shall also inform the individual of his or her right, under 5 U.S.C. 
552a(g)(1), to obtain judicial review of the final determination.

[40 FR 49276, Oct. 21, 1975, as amended at 41 FR 5, Jan. 2, 1976]



Sec. 501.9  Fees.

    A fee of $0.10 shall be charged for each copy of each page of a 
record made, by photocopy or similar process, at the request of an 
individual. No fee shall be charged for copies made at the initiative of 
the Commission incident to granting access to a record. A total copying 
fee of $2.00 or less may be waived by the Privacy Officer, but fees for 
all requests made contemporaneously by an individual shall be aggregated 
to determine the total fee.

[41 FR 5, Jan. 2, 1976]



PART 510_IMPLEMENTATION OF THE FEDERAL ADVISORY COMMITTEE ACT
--Table of Contents




Sec.
510.1 Purpose.
510.2 Scope.
510.3 Definitions.
510.4 Calling of meetings.
510.5 Notice of meetings.
510.6 Public participation.
510.7 Closed meetings.
510.8 Minutes.
510.9 Uniform pay guidelines.

    Authority: Sec. 8(a), Federal Advisory Committee Act, 5 U.S.C. App. 
I.

    Source: 41 FR 3306, Jan. 22, 1976, unless otherwise noted.



Sec. 510.1  Purpose.

    The regulations prescribed in this part set forth the administrative 
guidelines and management controls for advisory committees reporting to 
the Marine Mammal Commission. These regulations are authorized by 
section 8(a) of the Federal Advisory Committee Act, 5 U.S.C. appendix I. 
Guidelines and controls are prescribed for calling of meetings, notice 
of meetings, public participation, closing of meetings, keeping of 
minutes, and compensation of committee members, their staff and 
consultants.



Sec. 510.2  Scope.

    These regulations shall apply to the operation of advisory 
committees reporting to the agency.



Sec. 510.3  Definitions.

    For the purposes of this part,
    (a) The term Act means the Federal Advisory Committee Act, 5 U.S.C. 
appendix I;
    (b) The term Chairperson means each person selected to chair an 
advisory committee established by the Commission;
    (c) The term Commission means the Marine Mammal Commission, 
established by 16 U.S.C. 1401(a);
    (d) The term committee means any advisory committee reporting to the 
Commission; and
    (e) The term Designee means the agency official designated by the 
Chairman of the Commission (1) to perform those functions specified by 
sections 10(e) and (f) of the Act, and (2) to perform such other 
responsibilities as are required by the Act and applicable regulations 
to be performed by the ``agency head.''



Sec. 510.4  Calling of meetings.

    (a) No committee shall hold any meeting except with the advance 
approval of the Designee. Requests for approval may be made, and 
approval to hold meetings may be given orally or in writing, but if 
approval is given orally, the fact that approval has been given shall be 
stated in the public notice published pursuant to Sec. 510.5 of these 
regulations.
    (b) An agenda shall be submitted to, and must be approved by, the 
Designee in advance of each committee meeting, and that meeting shall be 
conducted in accordance with the approved agenda. The agenda shall list 
all matters to be considered at the meeting, and shall indicate when any 
part of the meeting will be closed to the public on the authority of 
exemptions contained in the

[[Page 504]]

Freedom of Information Act, 5 U.S.C. 552(b).

[41 FR 3306, Jan. 22, 1976; 41 FR 4020, Jan. 28, 1976]



Sec. 510.5  Notice of meetings.

    (a) Notice of each committee meeting shall be timely published in 
the Federal Register. Publication shall be considered timely if made at 
least 15 days before the date of the meeting, except that shorter notice 
may be provided in emergency situations.
    (b) The notice shall state the time, place, schedule and purposes of 
the committee meeting, and shall include, whenever it is available, a 
summary of the agenda. The notice shall indicate the approximate times 
at which any portion of the meeting will be closed to the public and 
shall include an explanation for the closing of any portion of the 
meeting pursuant to Sec. 510.7.



Sec. 510.6  Public participation.

    (a) All committee meetings, or portions of meetings, that are open 
to the public shall be held at a reasonable time and at a place that is 
reasonably accessible to the public. A meeting room shall be selected 
which, within the bounds of the resources and facilities available, 
affords space to accommodate all members of the public who reasonably 
could be expected to attend.
    (b) Any member of the public shall be permitted to file a written 
statement with the committee, either by personally delivering a copy to 
the Chairperson, or by submitting the statement by mail to the Marine 
Mammal Commission Offices at the address indicated in the notice of 
meeting. Such statements should be received at least one week in advance 
of the scheduled meeting at which they are expected to be considered by 
the committee.
    (c) Opportunities will ordinarily be afforded to interested persons 
to speak to agenda items during that portion of the open meeting during 
which that item is to be considered by the committee, subject to such 
reasonable time limits as the committee may establish, and consideration 
of the extent to which the committee has received the benefit of 
comments by interested persons, the complexity and the importance of the 
subject, the time constraints under which the meeting is to be 
conducted, the number of persons who wish to speak during the meeting, 
and the extent to which the statement provides the committee with 
information which has not previously been available and is relevant to 
its decision or other action on that subject. Interested persons may be 
required to serve reasonable notice of their intentions to speak so that 
the committee may assess whether procedures and scheduling for the 
meeting can be adjusted to accommodate large numbers of participants.



Sec. 510.7  Closed meetings.

    (a) Whenever the committee seeks to have all or a portion of a 
meeting closed to the public on the basis of an exemption provided in 5 
U.S.C. 552(b), the Chairperson shall notify the Designee at least 30 
days before the scheduled date of the meeting. The notification shall be 
in writing and shall specify all the reasons for closing any part of the 
meeting.
    (b) If, after consultation with the General Counsel of the 
Commission, the Designee finds the request to be warranted and in 
accordance with the policy of the Act, the request shall be granted. The 
determination of the Designee to grant any such request shall be in 
writing and shall state the specific reasons for closing all or a part 
of the meeting. Copies of the determination shall be made available to 
the public upon request.



Sec. 510.8  Minutes.

    Detailed minutes shall be kept of each portion of each committee 
meeting. The minutes shall include: the time and place of the meeting; a 
list of the committee members and staff in attendance; a complete 
summary of matters discussed and conclusions reached; copies of all 
reports received, issued, or approved by the commit tee; a description 
of the extent to which the meeting was open to the pub lic; and a 
description of public participa tion, including a list of members of the 
public who presented oral or writ ten statements and an estimate of the 
number of members of the public who attended the open sessions. The 
Chairperson

[[Page 505]]

shall certify to the accuracy of the minutes.



Sec. 510.9  Uniform pay guidelines.

    (a) Compensation of members and staff of, and consultants to the 
Committee of Scientific Advisors on Marine Mammals is fixed in 
accordance with 16 U.S.C. 1401(e), 1403(b), and 1406.
    (b) Compensation for members and staff of, and consultants to all 
advisory committees reporting to the Commission except the Committee of 
Scientific Advisors on Marine Mammals shall be fixed in accordance with 
guidelines established by the Director of the Office of Management and 
Budget pursuant to section 7(d) of the Act, 5 U.S.C. appendix I.



PART 520_PUBLIC AVAILABILITY OF AGENCY MATERIALS--Table of Contents




Sec.
520.1 Purpose.
520.2 Scope.
520.3 Definitions.
520.4 Availability of materials.
520.5 Administrative appeal.
520.6 Extensions of time.
520.7 Fees.

    Authority: 5 U.S.C. 552.

    Source: 41 FR 3307, Jan. 22, 1976, unless otherwise noted.



Sec. 520.1  Purpose.

    These regulations implement the provisions of the ``Freedom of 
Information Act,'' 5 U.S.C. 552. They establish procedures under which 
the public may inspect and obtain copies of nonexempt material 
maintained by the Commission, provide for administrative appeal of 
initial determinations to deny requests for material, and prescribe 
uniform fees to be charged by the Commission to recover direct search 
and duplication costs.



Sec. 520.2  Scope.

    (a) These regulations shall apply to all final opinions, including 
concurring and dissenting opinions, as well as orders, made by the 
Commission in the adjudication of cases; to all statements of policy and 
interpretations which have been adopted by the Commission and are not 
published in the Federal Register; to the Commission's administrative 
staff manuals and instructions to staff that affect a member of the 
public; and to any other Commission records reasonably described and 
requested by a person in accordance with these regulations--except to 
the extent that such material is exempt in accordance with paragraph (b) 
of this section.
    (b) Requests for inspection and copies shall not be granted with 
respect to materials that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy, and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
the Commission;
    (3) Specifically exempted from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Investigatory records compiled for law enforcement purposes, but 
only to the extent that the production of such records would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;

[[Page 506]]

    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.



Sec. 520.3  Definitions.

    As used in these regulations:
    (a) The term Commission means the Marine Mammal Commission;
    (b) The term Director means the Executive Director of the Marine 
Mammal Commission;
    (c) The term exempt materials means those materials described in 
Sec. 520.2(b);
    (d) The term non-exempt materials refers to all materials described 
in Sec. 520.2(a), but not included in Sec. 520.2(b); and
    (e) The term General Counsel means the General Counsel of the Marine 
Mammal Commission.



Sec. 520.4  Availability of materials.

    (a) All non-exempt materials shall be available for inspection 
during normal business hours at the Commission offices, 1625 I Street, 
NW., Room 307, Washington, DC. Space shall be made available at that 
location for the use of any person who is granted permission to inspect 
such materials.
    (b) Requests to inspect, and obtain copies of, any material 
maintained by the Commission may be made in person at the Commission 
offices, or submitted in writing to the Executive Director, Marine 
Mammal Commission, 1625 I St., NW., Room 307, Washington, DC 20006. Each 
request should include a reasonable description of the material being 
sought, and should contain sufficient detail to facilitate retrieval of 
the material without undue delay. The Commission staff shall assist to 
the extent practicable in identifying material that is imprecisely 
described by the person requesting such material.
    (c) An initial determination whether, and to what extent, to grant 
each request shall be made by the General Counsel or his delegate within 
10 days (excepting Saturdays, Sundays, and legal public holidays) after 
receipt of that request. The person making the request shall be notified 
immediately of the determination made. In making such determinations, it 
shall first be considered whether the material requested is of a type 
described in Sec. 520.2(a); if it is, the request shall be granted 
unless the material is exempted by Sec. 520.2(b). If the material 
requested is not of a type described in Sec. 520.2(a), or is the 
subject of one or more exemptions, the request shall be denied.
    (d) If a determination is made to grant a request, the relevant 
material shall promptly be made available for inspection at the 
Commission offices. Copies of the material disclosed shall be furnished 
within a reasonable time after payment of the fee specified in Sec. 
520.7. Copies of less than 10 pages of material requested in person 
ordinarily will be furnished immediately following the determination to 
grant the request and payment of the fee. Larger numbers of copies may 
be furnished at the earliest convenience of the Commission staff, but 
must be furnished within a reasonable time following payment of the fee.
    (e) Whenever required to prevent a clearly unwarranted invasion of 
personal privacy, the General Counsel or his delegate shall determine 
that identifying details shall be deleted from an opinion, statement of 
policy, interpretation, or staff manual or instruction to which access 
is granted or of which copies are furnished. Where portions of the 
requested material are exempt under Sec. 520.2(b), and are reasonably 
segregable from the remainder of the material, those portions shall be 
excised from the material disclosed. Whenever details are deleted or 
portions are excised and not disclosed, the notification shall include 
the information specified in Sec. 520.4(f).
    (f) If a determination is made to deny a request, the notification 
shall include a statement of the reasons for such action, shall set 
forth the name and position of the person responsible for the denial, 
and shall advise the requester of the right, and the procedures required 
under Sec. 520.5, to appeal the denial to the Director.

[[Page 507]]



Sec. 520.5  Administrative appeal.

    (a) An appeal to the Director of any denial, in whole or in part, of 
a request for access to and copies of material may be made by submission 
of a written request for reconsideration. Such requests must state 
specific reasons for reconsideration that address directly the grounds 
upon which the denial was based. Requests should be addressed to the 
Director at the Commission offices.
    (b) The Director shall make a determination with respect to any 
appeal within 20 days (excepting Saturdays, Sundays, and legal public 
holidays) after receipt of the request for reconsideration. The person 
making such a request shall immediately be notified by mail of the 
determination.
    (c) If the initial denial is reversed by the Director, any material 
with which the reversal is concerned shall be made available for 
inspection, and copies shall be furnished, in accordance with Sec. 
520.4(d).
    (d) If the denial is upheld, in whole or in part, the Director shall 
include in the notification a statement of the requester's right of 
judicial review under 5 U.S.C. 552(a)(4), and the names and positions of 
the persons responsible for the denial.



Sec. 520.6  Extensions of time.

    (a) Whenever unusual circumstances exist, as set forth in Sec. 
520.6(b), the times within which determinations must be made by the 
General Counsel on requests for access (10 working days), and by the 
Director on requests for reconsideration (20 working days), may be 
extended by written notice to the requester. The notice shall set forth 
the reasons for such extension, and the date on which a determination is 
expected to be made. The maximum extension of time allowed under this 
section shall be 10 working days, but shall be utilized only to the 
extent reasonably necessary to the proper processing of the particular 
request.
    (b) As used in this section, ``unusual circumstances'' shall mean:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
Commission offices;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are the subject 
of a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.



Sec. 520.7  Fees.

    (a) The following standard charges for document search and 
duplication, based on the direct costs of such services, must be paid 
before access to, or copies of material will be granted under these 
regulations:
    (1) Search: $4.00 per person-hour for clerical time; $8.00 per 
person-hour for professional or supervisory time;
    (2) Duplication: $0.10 per page of photocopied material.
    (b) The Commission shall furnish without charge, or at a reduced 
charge, copies of any material disclosed pursuant to these regulations, 
whenever the General Counsel or the Director determines that waiver or 
reduction of the fee is in the public interest because furnishing the 
information can be considered as primarily benefiting the general 
public.

[41 FR 3307, Jan. 22, 1976; 41 FR 4020, Jan. 28, 1976]



PART 530_COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT
--Table of Contents




Sec.
530.1 Purpose.
530.2 Ensuring that environmental documents are actually considered in 
          agency decision-making.
530.3 Typical classes of action.
530.4 Environmental information.

    Authority: National Environmental Policy Act, Pub. L. 91-190; 42 
U.S.C. 4321 et seq.

    Source: 44 FR 52837, Sept. 11, 1979, unless otherwise noted.



Sec. 530.1  Purpose.

    The purpose of this part is to establish procedures which supplement 
the National Environmental Policy Act (NEPA) regulations and provide for 
the implementation of those provisions

[[Page 508]]

identified in Sec. 1507.3(b) of the regulations which are applicable to 
the activities of the Commission in light of its statutory functions and 
responsibilities.



Sec. 530.2  Ensuring that environmental documents are actually considered 
in agency decision-making.

    Section 1505.1 of the NEPA regulations contains requirements to 
ensure adequate consideration of environmental documents in agency 
decision-making. To implement these requirements, Commission officials 
shall:
    (a) Consider all relevant environmental documents in evaluating 
proposals for agency actions;
    (b) Ensure that all relevant environmental documents, comments, and 
responses accompany the proposal through existing agency review 
processes;
    (c) Consider only those alternatives encompassed by the range of 
alternatives discussed in the relevant environmental documents when 
evaluating any proposal for action by the Commission which is likely to 
significantly affect the quality of the human environment; and
    (d) Where an environmental impact statement (EIS) has been prepared, 
consider the specific alternatives analyzed in the EIS when evaluating 
the proposal which is the subject of the EIS. All Commission officials 
directly involved in developing, evaluating, and/or reaching decisions 
on proposed actions shall consider relevant environmental documents and 
comply with the applicable provisions of the NEPA process.



Sec. 530.3  Typical classes of action.

    Section 1507.3(b)(2), in conjunction with Sec. 1508.4, requires 
agencies to identify typical classes of action that warrant similar 
treatment under NEPA with respect to the preparation of EIS's or 
environmental assessments. As a general matter, the Commission's 
activities do not include actions for which EIS's or environmental 
assessments are required. Its activities involve:
    (a) Consultation with and recommendations to other Federal agencies 
for actions relating to marine mammal protection and conservation for 
which an EIS or environmental assessment is either not required by the 
NEPA regulations or for which an EIS or environmental assessment is 
prepared by another Federal agency; and
    (b) Research contracts relating to policy issues, biological-
ecological data needed to make sound management decisions, and better 
methods for collecting and analyzing data. These activities are not, by 
themselves, major Federal actions significantly affecting the quality of 
the human environment and the Commission's activities are therefore 
categorically excluded from the requirement to prepare an EIS or 
environmental assessment except for proposals for legislation which are 
initiated by the Commission, for which the Commission shall develop 
environmental assessments or EIS's, as appropriate, in accordance with 
the NEPA regulations. The Commission shall independently determine 
whether an EIS or an environmental assessment is required where:
    (1) A proposal for agency action is not covered by one of the 
typical classes of action above; or
    (2) For actions which are covered, the presence of extraordinary 
circum stances indicates that some other level of environmental review 
may be appropriate.



Sec. 530.4  Environmental information.

    Interested persons may contact the Office of the General Counsel for 
information regarding the Commission's compliance with NEPA.



PART 540_INFORMATION SECURITY--Table of Contents




Sec.
540.1 Policy.
540.2 Program.
540.3 Procedures.

    Authority: Executive Order 12356.



Sec. 540.1  Policy.

    It is the policy of the Marine Mammal Commission to act in 
accordance with Executive Order 12356 in matters relating to national 
security information.

[44 FR 55381, Sept. 26, 1979]

[[Page 509]]



Sec. 540.2  Program.

    The Executive Director is designated as the Commission's official 
responsible for implementation and oversight of information security 
programs and procedures. He acts as the recipient of questions, 
suggestions, and complaints regarding all elements of this program, and 
is solely responsible for changes to it and for insuring that it is at 
all times consistent with Executive Order 12356. The Executive Director 
also serves as the Commission's official contact for requests for 
declassification of materials submitted under the provisions of 
Executive Order 12356, regardless of the point of origin of such 
requests. He is responsible for assuring that requests submitted under 
the Freedom of Information Act are handled in accordance with that Act 
and that declassification requests submitted under the provisions of 
Executive Order 12356 are acted upon within 60 days of receipt.

[44 FR 55381, Sept. 26, 1979]



Sec. 540.3  Procedures.

    (a) Mandatory declassification review. All requests for mandatory 
review shall be handled by the Executive Director or his designee. Under 
no circumstances shall the Exective Director refuse to confirm the 
existence or non-existence of a document requested under the Freedom of 
Information Act or the mandatory review provisions of Executive Order 
12356, unless the fact of its existence or non-existence would itself be 
classified under Executive Order 12356. Requests for declassification 
shall be acted upon promptly providing that the request reasonably 
describes the information which is the subject of the request for 
declassification. In light of the fact that the Commission does not have 
original classification authority and national security information in 
its custody has been classified by another Federal agency, the Executive 
Director will refer all requests for national security information in 
its custody to the Federal agency that classified it or, if the agency 
that classified it has either ceased to exist or transferred the 
information in conjunction with a transfer of functions, to the 
appropriate federal agency exercising original classification authority 
with respect to the same subject, for review and disposition in 
accordance with Executive Order 12356 and that agency's regulations and 
guidelines.
    (b) Exceptional cases. When an employee or contractor of the 
Commission originates information that is believed to require 
classification, the Executive Director shall ensure that it is protected 
in accordance with Executive Order 12356 and shall promptly transmit it 
under appropriate safeguards to the agency with appropriate subject 
matter jurisdiction and classification authority for review and action 
in accordance with the Order and that agency's regulations and 
guidelines.
    (c) Derivative classification. Derivative classification markings 
shall be applied to information that is in substance the same as 
information that is already classified, in accordance with Executive 
Order 12356, Section 2-1, unless it is determined through inquiries made 
to the originators of the classified information or other appropriate 
persons that the paraphrasing, restating, or summarizing of the 
classified information obviates the need for its classification, in 
which case the information shall be issued as unclassified or shall be 
marked appropriately. After verifying the current level of 
classification so far as practicable, paper copies of such derivatively 
classified information shall be marked so as to indicate:
    (1) The source of the original classification;
    (2) The identity of the Commission employee originating the 
derivatively classified document;
    (3) The dates or events for declassification or review for 
declassification indicated on the classified source material; and
    (4) Any additional authorized markings appearing on the source 
material.
    (d) Handling. All classified documents shall be delivered to the 
Executive Director or his designee immediately upon receipt. All 
potential recipients of such documents shall be advised of the names of 
such designees and updated information as necessary. In the event that 
the Executive Director or his designee is not available to receive

[[Page 510]]

such documents, they shall be turned over to the Administrative Officer 
and secured, unopened, in the combination safe located in the Commission 
offices until the Executive Director or his designee is available. Under 
no circumstances shall classified materials that cannot be delivered to 
the Executive Director or his designee be stored other than in the 
designated safe.
    (e) Reproduction. Reproduction of classified material shall take 
place only in accordance with Executive Order 12356, its implementing 
directives, and any limitations imposed by the originator. Should copies 
be made, they are subject to the same controls as the original document. 
Records showing the number and distribution of copies shall be 
maintained, where required by the Executive Order, by the Administrative 
Officer and the log stored with the original documents. These measures 
shall not restrict reproduction for the purposes of mandatory review.
    (f) Storage. All classified documents shall be stored in the 
combination safe located in the Commission's offices. The combination 
shall be changed as required by ISOO Directive No. 1, dated June 23, 
1982. The combination shall be known only to the Executive Director and 
his designees with the appropriate security clearance.
    (g) Employee education. All employees who have been granted a 
security clearance and who have occasion to handle classified materials 
shall be advised of handling, reproduction, and storage procedures and 
shall be required to review Executive Order 12356 and appropriate ISOO 
directives. This shall be effected by a memorandum to all affected 
employees at the time these procedures are implemented. New employees 
will be instructed in procedures as they enter employment with the 
Commission.
    (h) Agency terminology. The use of the terms Top Secret, Secret, and 
Confidential shall be limited to materials classified for national 
security purposes.

[44 FR 55381, Sept. 26, 1979, as amended at 47 FR 55489, Dec. 10, 1982; 
48 FR 44834, Sept. 30, 1983]



PART 550_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY MARINE MAMMAL COMMISSION
--Table of Contents




Sec.
550.101 Purpose.
550.102 Application.
550.103 Definitions.
550.104-550.109 [Reserved]
550.110 Self-evaluation.
550.111 Notice.
550.112-550.129 [Reserved]
550.130 General prohibitions against discrimination.
550.131-550.139 [Reserved]
550.140 Employment.
550.141-550.148 [Reserved]
550.149 Program accessibility: Discrimination prohibited.
550.150 Program accessibility: Existing facilities.
550.151 Program accessibility: New construction and alterations.
550.152-550.159 [Reserved]
550.160 Communications.
550.161-550.169 [Reserved]
550.170 Compliance procedures.
550.171-550.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4579, Feb. 5, 1986, unless otherwise noted.



Sec. 550.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 550.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 550.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking

[[Page 511]]

skills to have an equal opportunity to participate in, and enjoy the 
benefits of, programs or activities conducted by the agency. For 
example, auxiliary aids useful for persons with impaired vision include 
readers, Brailled materials, audio recordings, telecommunications 
devices and other similar services and devices. Auxiliary aids useful 
for persons with impaired hearing include telephone handset amplifiers, 
telephones compatible with hearing aids, telecommunication devices for 
deaf persons (TDD's), interpreters, notetakers, written materials, and 
other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.

As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one of more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addition and alcholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 550.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as

[[Page 512]]

amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 
Stat. 1617), and the Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 
2955). As used in this part, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.

[51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec. 550.104-550.109  [Reserved]



Sec. 550.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 550.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 550.112-550.129  [Reserved]



Sec. 550.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of

[[Page 513]]

administration the purpose or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 550.131-550.139  [Reserved]



Sec. 550.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 550.141-550.148  [Reserved]



Sec. 550.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 550.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 550.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 550.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section

[[Page 514]]

through such means as redesign of equipment, reassignment of services to 
accessible buildings, assignment of aides to beneficiaries, home visits, 
delivery of services at alternate accessible sites, alteration of 
existing facilities and construction of new facilities, use of 
accessible rolling stock, or any other methods that result in making its 
programs or activities readily accessible to and usable by handicapped 
persons. The agency is nor required to make structural changes in 
existing facilities where other methods are effective in achieving 
compliance with this section. The agency, in making alterations to 
existing buildings, shall meet accessibility requirements to the extent 
compelled by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157), and any regulations implementing it. In choosing 
among available methods for meeting the requirements of this section, 
the agency shall give priority to those methods that offer programs and 
activities to qualified handicapped persons in the most integrated 
setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 550.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 550.152-550.159  [Reserved]



Sec. 550.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons

[[Page 515]]

with impaired vision or hearing, can obtain information as to the 
existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 550.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 550.161-550.169  [Reserved]



Sec. 550.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The General Counsel for the Commission shall be responsible for 
coordinating implementation of this section. Complaints may be sent to 
the General Counsel for the Commission, Marine Mammal Commission, Room 
307, 1625-I Street, NW., Washington, DC 20006.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 550.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant,

[[Page 516]]

he or she shall have 60 days from the date of receipt of the additional 
information to make his or her determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 4579, Feb. 5, 1986, as amended at 51 FR 4579, Feb. 5, 1986]



Sec. Sec. 550.171-550.999  [Reserved]



PART 560_IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT
--Table of Contents




Sec.
560.1 Purpose and scope.
560.2 Definitions.
560.3 Open meetings.
560.4 Notice of meetings.
560.5 Closed meetings.
560.6 Procedures for closing meetings.
560.7 Recordkeeping requirements.
560.8 Public availability of records.

    Authority: 5 U.S.C. 552b(g).

    Source: 50 FR 2571, Jan. 17, 1985, unless otherwise noted.



Sec. 560.1  Purpose and scope.

    This part contains the regulations of the Marine Mammal Commission 
implementing the Government in the Sunshine Act (5 U.S.C. 552b). 
Consistent with the Act, it is the policy of the Marine Mammal 
Commission that the public is entitled to the fullest practicable 
information regarding its decision making processes. The provisions of 
this part set forth the basic responsibilities of the Commission with 
regard to this policy and offer guidance to members of the public who 
wish to exercise the rights established by the Act. These regulations 
also fulfill the requirement of 5 U.S.C. 552b(g) that each agency 
subject to the Act promulgate regulations to implement the open meeting 
requirements of subsections (b) through (f) of section 552b.



Sec. 560.2  Definitions.

    For purposes of this part, the term--
    Administrative Officer means the Administrative Officer of the 
Marine Mammal Commission.
    Commission means the Marine Mammal Commission, a collegial body 
established under 16 U.S.C. 1401 that functions as a unit and is 
composed of three individual members, each of whom is appointed by the 
President, by and with the advice and consent of the Senate.
    Commissioner means an individual who is a member of the Marine 
Mammal Commission.
    Executive Director means the Executive Director of the Marine Mammal 
Commission.
    General Counsel means the General Counsel of the Marine Mammal 
Commission.
    Meeting means the deliberations of at least a majority of the 
members of the Commission where such deliberations determine or result 
in the joint conduct or disposition of official Commission business, but 
does not include an individual Commissioner's consideration of official 
Commission business circulated in writing for disposition either by 
notation or by separate, sequential consideration, and deliberations on 
whether to:
    (1) Hold a meeting with less than 7 days notice, as provided in 
Sec. 560.4(d) of this part;
    (2) Change the subject matter of a publicly announced meeting or the 
determination of the Commission to open or close a meeting or portions 
thereof to public observation, as provided in Sec. 560.4(e) of this 
part;
    (3) Change the time or place of an announced meeting, as provided in 
Sec. 560.4(f) of this part;
    (4) Close a meeting or portions of a meeting, as provided in Sec. 
560.5 of this part; or
    (5) Withhold from disclosure information pertaining to a meeting or 
portions of a meeting, as provided in Sec. 560.5 of this part.
    Public observation means attendance by one or more members of the 
public at a meeting of the Commission, but does not include 
participation in the meeting.

[[Page 517]]

    Public participation means the presentation or discussion of 
information, raising of questions, or other manner of involvement in a 
meeting of the Commission by one or more members of the public in a 
manner that contributes to the disposition of Commission business.



Sec. 560.3  Open meetings.

    (a) Except as otherwise provided in this part, every portion of 
every meeting of the Commission shall be open to public observation.
    (b) Meetings of the Commission, or portions thereof, shall be open 
to public participation only when an announcement to that effect is 
issued under Sec. 560.4(b)(4) of this part. Public participation shall 
be conducted in an orderly, nondisruptive manner and in accordance with 
such procedures as the chairperson of the meeting may establish. Public 
participation may be terminated at any time for any reason.
    (c) When holding open meetings, the Commission shall make a diligent 
effort to provide ample space, sufficient visibility, and adequate 
acoustics to accommodate the public attendance anticipated for the 
meeting.
    (d) Members of the public may record open meetings of the Commission 
by means of any mechanical or electronic device, unless the chairperson 
of the meeting determines that such recording would disrupt the orderly 
conduct of the meeting.



Sec. 560.4  Notice of meetings.

    (a) Except as otherwise provided in this section, the Commission 
shall make a public announcement at least 7 days prior to a meeting.
    (b) The public announcement shall include:
    (1) The time and place of the meeting;
    (2) The subject matter of the meeting;
    (3) Whether the meeting is to be open, closed, or portions thereof 
closed;
    (4) Whether public participation will be allowed; and
    (5) The name and telephone number of the person who will respond to 
requests for information about the meeting.
    (c) The public announcement requirement shall be implemented by:
    (1) Submitting the announcement for publication in the Federal 
Register;
    (2) Distributing the announcement to affected governmental entities;
    (3) Mailing the announcement to persons and organizations known to 
have an interest in the subject matter of the meeting; and
    (4) Other means that the Executive Director deems appropriate to 
inform interested parties.
    (d) A meeting may be held with less than 7 days notice if a majority 
of the members of the Commission determine by recorded vote that the 
business of the Commission so requires. The Commission shall make a 
public announcement to this effect at the earliest practicable time. The 
announcement shall include the information required by paragraph (b) of 
this section and shall be issued in accordance with those procedures set 
forth in paragraph (c) of this section that are practicable given the 
available period of time.
    (e) The subject matter of an announced meeting, or the determination 
of the Commission to open or close a meeting or portions thereof to 
public observation, may be changed if a majority of the members of the 
Commission determine by recorded vote that Commission business so 
requires and that no earlier announcement of the change was possible. 
The Commission shall make a public announcement of the changes made and 
the vote of each member on each change at the earliest practicable time. 
The announcement shall be issued in accordance with those procedures set 
forth in paragraph (c) of this section that are practicable given the 
available period of time.
    (f) The time or place of an announced meeting may be changed only if 
a public announcement of the change is made at the earliest practicable 
time. The announcement shall be issued in accordance with those 
procedures set forth in paragraph (c) of this section that are 
practicable given the available period of time.



Sec. 560.5  Closed meetings.

    (a) A meeting or portions thereof may be closed, and information 
pertaining to such meeting or portions

[[Page 518]]

thereof may be withheld from the public, only if the Commission 
determines that such meeting or portions thereof, or the disclosure of 
such information, is likely to:
    (1) Disclose matters that are (i) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interest of national defense or foreign policy and (ii) in fact properly 
classified pursuant to that Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act, 5 U.S.C. 552), 
provided that the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose the trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Involve either accusing any person of a crime or formally 
censuring any person;
    (6) Disclose information of a personal nature, if disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose either investigatory records compiled for law 
enforcement purposes or information which if written would be contained 
in such records, but only to the extent that the production of the 
records or information would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to either a fair trial or an 
impartial ajudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source or sources and, 
in the case of a record compiled either by a criminal law enforcement 
authority in the course of a criminal investigation or by an agency 
conducting a lawful national security intelligence investigation, 
confidential information furnished only by the confidential source or 
sources,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (9) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action of 
the Commission. This exception shall not apply in any instance where the 
Commission has already disclosed to the public the content or nature of 
the proposed action or where the Commission is required by law to make 
such disclosure on its own initiative prior to taking final action on 
the proposal; or
    (10) Specifically concern the issuance of a subpoena by the 
Commission, or the participation of the Commission in a civil action or 
proceeding, an action in a foreign court or international tribunal, or 
an arbitration, or the initiation, conduct, or disposition by the 
Commission of a particular case of formal adjudication pursuant to the 
procedures in 5 U.S.C. 554 or otherwise involving a determination on the 
record after opportunity for a hearing.
    (b) Before a meeting or portions thereof may be closed to public 
observation, the Commission shall determine, notwithstanding the 
exemptions set forth in paragraph (a) of this section, whether or not 
the public interest requires that the meeting or portions thereof be 
open. The Commission may open a meeting or portions thereof that could 
be closed under paragraph (a) of this section if the Commission finds it 
to be in the public interest to do so.



Sec. 560.6  Procedures for closing meetings.

    (a) A meeting or portions thereof may be closed and information 
pertaining to such meeting or portions thereof may be withheld under 
Sec. 560.5 of this part only when a majority of the members of the 
Commission vote to take such action.

[[Page 519]]

    (b) A separate vote of the members of the Commission shall be taken 
with respect to each meeting or portion thereof proposed to be closed 
and with respect to information which is proposed to be withheld. A 
single vote may be taken with respect to a series of meetings or 
portions thereof which are proposed to be closed, so long as each 
meeting or portion thereof in such series involves the same particular 
matter and is scheduled to be held no more than thirty days after the 
initial meeting in such series. The vote of each participating 
Commission member shall be recorded, and no proxies shall be allowed.
    (c) A person whose interests may be directly affected by a portion 
of a meeting may request in writing that the Commission close that 
portion of the meeting for any of the reasons referred to in Sec. 
560.5(a) (5), (6) or (7) of this part. Upon the request of a 
Commissioner, a recorded vote shall be taken whether to close such 
meeting or a portion thereof.
    (d) Before the Commission may hold a meeting that is closed, in 
whole or part, a certification shall be obtained from the General 
Counsel that, in his or her opinion, the meeting may properly be closed. 
The certification shall be in writing and shall state each applicable 
exemptive provision from Sec. 560.5(a) of this part.
    (e) Within one day of a vote taken pursuant to this section, the 
Commission shall make publicly available a written copy of such vote 
reflecting the vote of each Commissioner.
    (f) In the case of the closure of a meeting or portions thereof, the 
Commission shall make publicly available within one day of the vote on 
such action a full written explanation of the reasons for the closing 
together with a list of all persons expected to attend the meeting and 
their affiliation.



Sec. 560.7  Recordkeeping requirements.

    (a) Except as otherwise provided in this section, the Commission 
shall maintain either a complete transcript or electronic recording of 
the proceedings of each meeting, whether opened or closed.
    (b) In the case of either a meeting or portions of a meeting closed 
to the public pursuant to Sec. 560.5(a) (8) or (10) of this part, the 
Commission shall maintain a complete transcript, an electronic 
recording, or a set of minutes of the proceedings. If minutes are 
maintained, they shall fully and clearly describe all matters discussed 
and shall provide a full and accurate summary of any actions taken and 
the reasons for which such actions were taken, including a description 
of the views expressed on any item and a record reflecting the vote of 
each Commissioner. All documents considered in connection with any 
action shall be identified in the minutes.
    (c) The transcript, electronic recording, or copy of the minutes 
shall disclose the identity of each speaker.
    (d) The Commission shall maintain a complete verbatim copy of the 
transcript, a complete electronic recording, or a complete copy of the 
minutes of the proceedings of each meeting for at least two years, or 
for one year after the conclusion of any Commission proceeding with 
respect to which the meeting was held, whichever occurs later.



Sec. 560.8  Public availability of records.

    (a) The Commission shall make available to the public the 
transcript, electronic recording, or minutes of a meeting, except for 
items of discussion or testimony that relate to matters the Commission 
has determined to contain information which may be withheld under Sec. 
560.5 of this part.
    (b) The transcript, electronic recordings or minutes of a meeting 
shall be made available for public review as soon as practicable after 
each meeting at the Marine Mammal Commission, 1625 I Street NW., 
Washington, DC 20006.
    (c) Copies of the transcript, a transcription of the electronic 
recording, or the minutes of a meeting shall be furnished at cost to any 
person upon written request. Written requests should be addressed to the 
Administrative Officer, Marine Mammal Commission, 1625 I Street NW., 
Washington, DC 20006.

[[Page 521]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 523]]

            Material Approved for Incorporation by Reference

                     (Revised as of October 1, 2004)

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


50 CFR (PARTS 200-599)

NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC 
ADMINISTRATION, DEPARTMENT OF COMMERCE
                                                                  50 CFR


AOAC International (Association of Official Analytical Chemists)

  481 N. Frederick Ave., Suite 500, Gaithersburg, 
  MD 20877-2407 Telephone: (301) 924-7077
Official Methods of Analysis sections 18.004 (p.                 264.107
  331), 32.059 and 32.060 (p. 613), Fourteenth 
  Edition (1984).
Official Methods of Analysis sections 18.003 (p.                 264.107
  285), 32.050 and 32.051 (p. 543), Thirteenth 
  Edition (1980).


United States Geological Survey

  Map Sales, Box 25286, Denver, CO 80225
Department of the Interior (DOI), U.S. Geological                 226.22
  Survey (USGS), ''Hydrologic Unit Maps,'' Water 
  Supply Paper 2294, 1987; and DOI, USGS, 
  1974,1:500,000 Scale Hydrologic Unit Maps for 
  the States of Oregon, Washington, and Idaho.
Department of the Interior (DOI), U.S. Geological                226.205
  Survey (USGS), ''Hydrologic Unit Maps,'' Water 
  Supply Paper 2294, 1987; and DOI, USGS, 
  1:500,000 Scale Hydrologic Unit Maps for the 
  State of Oregon, 1974, and the States of 
  Washington and Idaho.
Department of the Interior (DOI), U.S. Geological                226.210
  Survey (USGS), ''Hydrologic Unit Maps,'' Water 
  Supply Paper 2294, 1987; and DOI, USGS, 
  1:500,000 Scale Hydrologic Unit Maps for the 
  State of Oregon, 1974, and the State of 
  California, 1978.

[[Page 525]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2004)

                      Title 1--General Provisions

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

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance 
                [Reserved]
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

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

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

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

[[Page 526]]

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

[[Page 527]]

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

                      Title 6--Homeland Security

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

                         Title 7--Agriculture

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

[[Page 528]]

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

                    Title 8--Aliens and Nationality

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

                 Title 9--Animals and Animal Products

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

                           Title 10--Energy

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

[[Page 529]]

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

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

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

               Title 13--Business Credit and Assistance

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

                    Title 14--Aeronautics and Space

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

[[Page 530]]

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

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

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

             Title 17--Commodity and Securities Exchanges

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

[[Page 531]]

          Title 18--Conservation of Power and Water Resources

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

                       Title 19--Customs Duties

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

                     Title 20--Employees' Benefits

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

                       Title 21--Food and Drugs

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

                      Title 22--Foreign Relations

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

[[Page 532]]

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

                          Title 23--Highways

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

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]

[[Page 533]]

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

                           Title 25--Indians

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

                      Title 26--Internal Revenue

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

           Title 27--Alcohol, Tobacco Products and Firearms

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

[[Page 534]]

                   Title 28--Judicial Administration

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

                            Title 29--Labor

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

                      Title 30--Mineral Resources

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

[[Page 535]]

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

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

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

               Title 33--Navigation and Navigable Waters

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

[[Page 536]]

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

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

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

[[Page 537]]

             Title 37--Patents, Trademarks, and Copyrights

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

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

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

                  Title 40--Protection of Environment

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

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)

[[Page 538]]

       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

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

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

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

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 539]]

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

                          Title 46--Shipping

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

                      Title 47--Telecommunication

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

[[Page 540]]

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

           Title 48--Federal Acquisition Regulations System

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

[[Page 541]]

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

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

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

[[Page 542]]

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

                      CFR Index and Finding Aids

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

[[Page 543]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2004)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

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

[[Page 544]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 545]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 546]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 547]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 548]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 549]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 550]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV

[[Page 551]]

Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 553]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

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

                                  2002

50 CFR
                                                                   67 FR
                                                                    Page
Chapter II
216.125 (b)(1) revised..............................................2824

[[Page 554]]

216.132 Revised....................................................70180
216.134 Removed....................................................70181
216.135 (i) removed................................................70181
216.136 (a) revised................................................70181
216.141--216.147 (Subpart M) Added.................................49874
216.180--216.191 (Subpart Q) Added.................................46785
222 Temporary regulations...................................20054, 21585
    Fishing restrictions....................................34622, 37723
    Fishery management measures.............................67793, 67795
222.102 Amended; interim...........................................13101
    Amended; interim........................................41203, 71899
222.305 (a)(1) revised; (a)(3) added; eff. 10-15-02................57973
223 Regulation at 64 FR 55864 confirmed............................18833
    Temporary regulations...................................20054, 21585
    Fishing restrictions....................................34622, 37723
    Authority citation revised.....................................41203
    Fishery management measures.............................67793, 67795
223.203 (a), (b)(1) and (c) revised; introductory text, (b)(14) 
        through (22) and Appendix A added...........................1129
    Corrected...............................................68725, 70809
223.205 (b)(14) and (15) revised; (b)(16) added; interim...........41203
223.206 (d) introductory text suspended; (d)(8) and (e) added; 
        interim....................................................13101
    Regulation at 64 FR 55863 confirmed............................18833
    (d)(2)(v) added; interim; OMB number pending...................41203
    (d)(7) revised.................................................56934
    (d) introductory text revised; (d)(8) added....................71899
    (d)(6) revised; interim........................................78392
    Comment period extended........................................78392
224.101 (a) revised................................................21598
229 Fishing restrictions....................................20699, 44092
    Fishery management measures......................71900, 75817, 79536
229.2 Amended.................................................1141, 1313
229.3 (k) revised...................................................1313
    (k) revised; eff. 10-23-02.....................................59477
229.32 (g)(3) added.................................................1141
    (g)(4) added; interim...........................................1159
    (c)(5)(ii)(A) introductory text heading, (2), (8)(ii), (9)(i), 
(iii), (iv), (d)(7) and (8) revised; note added.....................1313
    (d)(7)(ii) corrected...........................................15494
    (f) heading and (f)(3) revised; (f)(4) added; eff. 10-23-02....59477
    (g)(3)(iii) introductory text, (A) and (B) corrected; 
(g)(e)(iii)(C) correctly designated as (g)(3)(iii)(D); new 
(g)(3)(iii)(C) added; (g)(4) introductory text, (i)(B) and (ii) 
correctly revised..................................................65727
    Technical correction...........................................65723
230 Quotas.........................................................20055
Chapter III
300 Temporary regulations..........................................12885
    Quotas.........................................................14881
    Inseason adjustment.......................30604, 44778, 46420, 58731
    Fishery management measures.............................72110, 72394
300.17 (b)(1)(iv) revised..........................................64312

                                  2003

50 CFR
                                                                   68 FR
                                                                    Page
Chapter II
216.15 (h) added...................................................31983
216.151--216.158 (Subpart N) Added; eff. 10-2-03 through 10-2-08 
                                                                   52138
222.102 Amended..............................................8467, 17562
223 Authority citation revised.....................................69967
223.206 (d)(2)(ii)(B)(1), (iv) and (5) removed; (d)(2)(ii)(B)(2), 
        (3) and (v) redesignated as (d)(2)(ii)(B)(1), (2) and 
        (iv); (d)(2)(ii)(A)(2) and (4) revised; new 
        (d)(2)(ii)(A)(5) added......................................8467
    (d)(2)(v)(F) added; eff. 7-16-03 through 7-30-03...............41945
    (d)(6) revised.................................................69967
223.207 (a) introductory text, (3)(ii), (4) through (8), (b)(1), 
        (2), (d)(2), (3), (c)(1)(iv)(A) heading and (B) heading 
        revised; (c)(1)(iv)(A) and (B) amended......................8467
    (a) introductory text, (1), (7)(i) and (8)(i) revised; (d)(6) 
and (7) added......................................................51514
    (a)(7)(i)(B) corrected.........................................54934
223 Figures 1, 2, 11, 12a and 12b removed; Figure 12 added; Figure 
        15 revised..................................................8469
224.101 (a) amended................................................15680

[[Page 555]]

224.104 (c) removed; (d) redesignated as (c)........................8471
226 Tables 7 through 24 removed....................................55900
226.203 Heading and introductory text revised......................17562
226.212 Removed....................................................55900
226.214 Added......................................................13454
229 Temporary regulations...................................18143, 69967
    Fisheries list.................................................41725
    Fishery management measures....................................65409
229.32 (f)(4)(iv) revised..........................................19465
    (g)(3)(iii)(B) revised; (g)(4)(i)(B)(2)(ii) added..............51200
230 Fishery management measures....................................15680
Chapter III
300 Technical correction..............................1392, 14167, 22323
    Fishery management measures.........9902, 23901, 39024, 39315, 60862
    Temporary regulations...................................48572, 67607
300.61 Amended..............................................18156, 47264
300.63 (a)(3)(ii) revised..........................................11003
    Heading and (a) introductory text revised; (b) through (e) 
removed; (a)(1) through (5) redesignated as (b)(1) through (5).....18156
300.65 Redesignated as 300.66; new 300.65 added....................18156
    (i) added......................................................47264
300.66 Redesignated from 300.65; revised...........................18156
300.60--300.65 (Subpart E) Figure 1 revised; Figures 2 through 5 
        added......................................................18161
    Regulation at 68 FR 18162 corrected............................23361
300.101 Amended....................................................23227
300.103 (h) revised................................................23227
300.107 (a), (c)(1) and (5) revised; (c)(7) removed................23228
300.111 (e) added..................................................23228
300.113 Revised....................................................23228
300.115 (s) and (t) added..........................................23229
Chapter IV
402.30--402.34 (Subpart C) Added...................................68264

                                  2004

  (Regulations published from January 1, 2004, through October 1, 2004)

50 CFR
                                                                   69 FR
                                                                    Page
Chapter II
Title 50 Nomenclature change.......................................18803
Chapter II
216.3 Corrected.....................................................9760
216.15 (i) added...................................................31324
216.23 (f) added...................................................17980
216.24 Revised; eff. 10-13-04......................................55297
216.47 Added.......................................................41979
216.90 Revised; eff. 10-13-04......................................55307
216.91 Revised; eff. 10-13-04......................................55307
216.92 Revised; eff. 10-13-04......................................55307
216.93 Removed; eff. 10-13-04......................................55307
    Redesignated from 216.94 and revised; eff. 10-13-04............55307
216.94 Redesignated as 216.93; eff. 10-13-04.......................55307
    Redesignated from 216.95; eff. 10-13-04........................55307
216.95 Redesignated as 216.94; eff. 10-13-04.......................55307
    Redesignated from 216.96; eff. 10-13-04........................55307
216.96 Redesignated as 216.95; eff. 10-13-04.......................55307
216.120--216.128 (Subpart K) Added; eff. through 2-6-09.............5727
222 Temporary regulations..........................................32898
222.102 Amended....................................................25011
223 Temporary regulations..........................................32898
    Authority citation revised.....................................11545
223.205 (b)(15) revised............................................25012

[[Page 556]]

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


                                  [all]