[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2021 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 50
Wildlife and Fisheries
________________________
Parts 228 to 599
Revised as of October 1, 2021
Containing a codification of documents of general
applicability and future effect
As of October 1, 2021
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter II--National Marine Fisheries Service,
National Oceanic and Atmospheric Administration,
Department of Commerce (Continued) 3
Chapter III--International Fishing and Related
Activities 153
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 351
Chapter V--Marine Mammal Commission 427
Finding Aids:
Table of CFR Titles and Chapters........................ 453
Alphabetical List of Agencies Appearing in the CFR...... 473
List of CFR Sections Affected........................... 483
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 50 CFR 228.1 refers
to title 50, part 228,
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, 2021), 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
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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
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
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for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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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.
What if the material incorporated by reference cannot be found? If
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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 Authorities
and Rules. A list of CFR titles, chapters, subchapters, 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.
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The Federal Register Index is issued monthly in cumulative form.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2021
[[Page ix]]
THIS TITLE
Title 50--Wildlife and Fisheries is composed of thirteen volumes.
The parts in these volumes are arranged in the following order: Parts 1-
16; part 17 (17.1 to 17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to
(e)), part 17 (17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part
17 (17.99(a) to (h)), part 17 (17.99(i) to end of part 17), parts 18-
199, parts 200-227, parts 228-599, parts 600-659, and part 660 to end.
The first nine volumes consist of parts 1-16, part 17 (17.1 to
17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to (e)), part 17
(17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 (17.99(a)
to 17.99(h)), part 17 (17.99(i) to end of part 17), and parts 18-199 and
contain the current regulations issued under chapter I--United States
Fish and Wildlife Service, Department of the Interior. The tenth volume
(parts 200-227) contains the current regulations issued under chapter
II--National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce. The eleventh volume (parts 228-
599) contains the remaining current regulations issued under chapter
II--National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce; and the current regulations
issued under 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 twelfth and thirteenth volumes (parts 600-
659 and part 660 to end) contain 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, 2021.
Alphabetical listings of endangered and threatened wildlife and
plants appear in Sec. Sec. 17.11 and 17.12.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
For this volume, Ann Worley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum
Martinez, assisted by Stephen J. Frattini.
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TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 228 to 599)
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Part
chapter ii--National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of
Commerce (Continued)...................................... 228
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
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CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE (CONTINUED)
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SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C--MARINE MAMMALS
Part Page
228 Notice and hearing on section 103(d)
regulations............................. 5
229 Authorization for commercial fisheries under
the Marine Mammal Protection Act of 1972 11
SUBCHAPTER D--WHALING
230 Whaling provisions.......................... 75
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
SUBCHAPTER F--AID TO FISHERIES
253 Fisheries assistance programs............... 78
259 Capital construction fund tax regulations... 94
SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF,
AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260 Inspection and certification................ 102
261 United States standards for grades.......... 132
SUBCHAPTER H--FISH AND SEAFOOD PROMOTION
270 Species-specific Seafood Marketing Councils. 134
SUBCHAPTERS I-J [RESERVED]
SUBCHAPTER K--CONTINENTAL SHELF
296 Fishermen's Contingency Fund................ 146
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297-299
[Reserved]
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SUBCHAPTER C_MARINE MAMMALS
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:
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(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less
than 60 days after publication of notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) The proposed regulations and waiver, where applicable, and a
summary of the statements required by section 103(d) of the Act (16
U.S.C. 1373(d));
(5) Issues of fact which may be involved in the hearing;
(6) If a draft Environmental Impact Statement is required, the date
of publication of the draft and the place(s) where the draft and
comments thereon may be viewed and copied;
(7) Any written advice received from the Marine Mammal Commission;
(8) The place(s) where records and submitted direct testimony will
be kept for public inspection;
(9) The final date for filing with the Assistant Administrator a
notice of intent to participate in the hearing pursuant to Sec. 228.5;
(10) The final date for submission of direct testimony on the
proposed regulations and waiver, if applicable, and the number of copies
required;
(11) The docket number assigned to the case which shall be used in
all subsequent proceedings; and
(12) The place and date of the pre-hearing conference.
Sec. 228.5 Notification by interested persons.
Any person desiring to participate as a party shall notify the
Assistant Administrator, by certified mail, on or before the date
specified in the notice.
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.
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Sec. 228.7 Direct testimony submitted as written documents.
(a) Unless otherwise specified, all direct testimony, including
accompanying exhibits, must be submitted to the presiding officer in
writing no later than the dates specified in the notice of the hearing
(Sec. 228.4), the final hearing agenda (Sec. 228.12), or within 15
days after the conclusion of the prehearing conference (Sec. 228.14) as
the case may be. All direct testimony shall be in affidavit form and
exhibits constituting part of such testimony, referred to in the
affidavit and made a part thereof, must be attached to the affidavit.
Direct testimony submitted with exhibits must state the issue to which
the exhibit relates; if no such statement is made, the presiding officer
shall determine the relevance of the exhibit to the issues published in
the Federal Register.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding
and his position regarding the issues presented. If the direct testimony
is presented by a witness who is not a party, the witness shall state
the witness' relationship to the party; and
(2) Facts that are relevant and material.
(c) The direct testimony may propose issues of fact not defined in
the notice of the hearing and the reason(s) why such issues should be
considered at the hearing.
(d) Ten copies of all direct testimony must be submitted unless the
notice of the hearing specifies otherwise.
(e) Upon receipt, direct testimony shall be assigned a number and
stamped with that number and the docket number.
(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
[[Page 8]]
of fact which may be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made
available at the place or places provided in the notice of the hearing
(Sec. 228.4(b)(8)) at least 5 days before the prehearing conference.
(c) The purpose of the prehearing conference shall be to enable the
presiding officer to determine, on the basis of the direct testimony
submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of
issues of fact for the hearing has omitted any significant issues;
(2) What facts are not in dispute;
(3) Which witnesses may appear at the hearing; and
(4) The nature of the interest of each party and which parties'
interests are adverse.
(d) Only parties may participate in the hearing conference and a
party may appear in person or be represented by counsel.
(e) Parties who do not appear at the prehearing conference shall be
bound by the conference's determinations.
Sec. 228.12 Final agenda of the hearing.
(a) After the prehearing conference, the presiding officer shall
prepare a final agenda which shall be published in the Federal Register
within 10 days after the conclusion of the conference. A copy of the
final agenda shall be mailed to all parties.
(b) The final agenda shall list:
(1) All the issues which the hearing shall address, the order in
which those issues shall be presented, and the direct testimony
submitted which bears on the issues; and
(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
[[Page 9]]
(2) Additional written direct testimony concerning such issues may
be submitted within the time provided in the final agenda. Such direct
testimony will comply with the requirements of Sec. 228.7.
Sec. 228.15 Waiver of right to participate.
Persons who fail to notify the Assistant Administrator pursuant to
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
[[Page 10]]
adequate notice, by the presiding officer, at the hearing, of matters so
noticed and shall be given adequate opportunity to show that such facts
are inaccurate or are erroneously noticed.
Sec. 228.18 Cross-examination.
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the
cross-examination;
(2) Prohibit parties from cross-examining witnesses unless the
presiding officer has determined that the cross-examiner has an adverse
interest on the facts at issue to the party-witness or the party
presenting the witness. For the purposes of this subsection, the
Assistant Administrator's or his or her representative's interest shall
be considered adverse to all parties;
(3) Limit the number of times any party or parties having a common
interest may cross-examine an ``adverse'' witness on the same matter;
and
(4) Exclude cross-examination questions that are immaterial,
irrelevant or unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or
counsel shall state his or her name, address and occupation. If counsel
cross-examines the witness, counsel shall state for the record the
authority to act as counsel. Cross-examiners shall be assumed to be
familiar with the direct testimony.
(c) Any party or party's counsel who fails to appear at the hearing
to cross-examine an ``adverse'' witness shall be deemed to have waived
the right to cross-examine that witness.
(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
[[Page 11]]
submission of comments. The recommended decision may be reviewed and/or
copied in the office of the Assistant Administrator, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
(d) Within 20 days after the notice of receipt of the recommended
decision has been published in the Federal Register, any interested
person may file with the Assistant Administrator any written comments on
the recommended decision. All comments, including recommendations from
or consultation with the Marine Mammal Commission, must be submitted
during the 20-day period to the Assistant Administrator at the
previously mentioned address.
Sec. 228.21 Assistant Administrator's decision.
(a) Upon receipt of the recommended decision and transcript and
after the 20-day period for receiving written comments on the
recommended decision has passed, the Assistant Administrator shall make
a final decision on the proposed regulations and waiver, where
applicable. The Assistant Administrator's decision may affirm, modify,
or set aside, in whole or in part, the recommended findings, conclusions
and decision of the presiding officer. The Assistant Administrator may
also remand the hearing record to the presiding officer for a fuller
development of the record.
(b) The Assistant Administrator's decision shall include:
(1) A statement containing a description of the history of the
proceeding;
(2) Findings on the issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(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 Regulations--New England.
229.34 Harbor Porpoise Take Reduction Plan--Mid-Atlantic.
229.35 Bottlenose Dolphin Take Reduction Plan.
229.36 Atlantic Pelagic Longline Take Reduction Plan (PLTRP).
Figure 1 to Part 229--Drift Gillnet Pinger Configuration and Extender
Requirements
229.37 False Killer Whale Take Reduction Plan.
Authority: 16 U.S.C. 1361 et seq.; Sec. 229.32(f) also issued under
16 U.S.C. 1531 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)
[[Page 12]]
and 1387) that provide for exceptions for the taking of marine mammals
incidental to certain commercial fishing operations from the Act's
general moratorium on the taking of marine mammals.
(b) Section 118 of the Act, rather than sections 103 and 104,
governs the incidental taking of marine mammals in the course of
commercial fishing operations by persons using vessels of the United
States, other than vessels fishing for yellowfin tuna in the eastern
tropical Pacific Ocean purse seine fishery, and vessels that have valid
fishing permits issued in accordance with section 204(b) of the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1824(b)).
(c) The regulations of Subpart B also govern the incidental taking
by commercial fishers of marine mammals from species or stocks
designated under the Act as depleted on the basis of their listing as
threatened species or endangered species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).
(d) The regulations of this part do not apply to the incidental
taking of California sea otters or to Northwest treaty Indian tribal
members exercising treaty fishing rights.
(e) Authorizations under subpart A of this part are exemptions only
from the taking prohibitions under the Act and not those under the
Endangered Species Act of 1973. To be exempt from the taking
prohibitions under the Endangered Species Act, specific authorization
under subpart B of this part is required.
(f) Authorizations under this part do not apply to the intentional
lethal taking of marine mammals in the course of commercial fishing
operations except as provided for under 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 otherwise defined in this chapter, the terms
in this chapter have the following meaning:
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 an anchored float
gillnet, 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.
Bitter end means the end of a line that detaches from a weak link.
Bottom portion of the line means, for buoy lines, the portion of the
line in the water column that is closest to the fishing gear.
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
[[Page 13]]
more of any stock's potential biological removal level.
Category II fishery means a commercial fishery determined by the
Assistant Administrator to have occasional incidental mortality and
serious injury of marine mammals. A commercial fishery that occasionally
causes mortality or serious injury of marine mammals is one that,
collectively with other fisheries, is responsible for the annual removal
of more than 10 percent of any marine mammal stock's potential
biological removal level and that is by itself responsible for the
annual removal of between 1 and 50 percent, exclusive, of any stock's
potential biological removal level. In the absence of reliable
information indicating the frequency of incidental mortality and serious
injury of marine mammals by a commercial fishery, the Assistant
Administrator will determine whether the incidental serious injury or
mortality is ``occasional'' by evaluating other factors such as fishing
techniques, gear used, methods used to deter marine mammals, target
species, seasons and areas fished, qualitative data from logbooks or
fisher reports, stranding data, and the species and distribution of
marine mammals in the area, or at the discretion of the Assistant
Administrator. Eligible commercial fisheries not specifically identified
in the list of fisheries are deemed to be Category II fisheries until
the next list of fisheries is published.
Category III fishery means a commercial fishery determined by the
Assistant Administrator to have a remote likelihood of, or no known
incidental mortality and serious injury of marine mammals. A commercial
fishery that has a remote likelihood of causing incidental mortality and
serious injury of marine mammals is one that collectively with other
fisheries is responsible for the annual removal of:
(1) Ten percent or less of any marine mammal stock's potential
biological removal level, or
(2) More than 10 percent of any marine mammal stock's potential
biological removal level, yet that fishery by itself is responsible for
the annual removal of 1 percent or less of that stock's potential
biological removal level. In the absence of reliable information
indicating the frequency of incidental mortality and serious injury of
marine mammals by a commercial fishery, the Assistant Administrator will
determine whether the incidental serious injury or mortality is
``remote'' by evaluating other factors such as fishing techniques, gear
used, methods used to deter marine mammals, target species, seasons and
areas fished, qualitative data from logbooks or fisher reports,
stranding data, and the species and distribution of marine mammals in
the area or at the discretion of the Assistant Administrator.
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 or to fish means any commercial fishing operation activity
that involves:
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity
[[Page 14]]
described in paragraphs (1), (2), or (3) of this definition.
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., anchored float
gillnets, stab, and set nets), and drift gillnets. Gillnets may or may
not be attached to a vessel.
Groundline, with reference to trap/pot gear, means a line connecting
traps in a trap trawl, and, with reference to gillnet gear, means a line
connecting a gillnet or gillnet bridle to an anchor.
Hard lay lines mean lines that are at least as stiff as \5/16\ inch
(0.8 cm) diameter line composed of polyester wrapped around a blend of
polypropylene and polyethylene and 42 visible twists of strands per foot
of line.
Incidental means, with respect to an act, a non-intentional or
accidental act that results from, but is not the purpose of, carrying
out an otherwise lawful action.
Injury means a wound or other physical harm. Signs of injury to a
marine mammal include, but are not limited to, visible blood flow, loss
of or damage to an appendage or jaw, inability to use one or more
appendages, asymmetry in the shape of the body or body position,
noticeable swelling or hemorrhage, laceration, puncture or rupture of
eyeball, listless appearance or inability to defend itself, inability to
swim or dive upon release from fishing gear, or signs of equilibrium
imbalance. Any animal that ingests fishing gear, or any animal that is
released with fishing gear entangling, trailing or perforating any part
of the body will be considered injured regardless of the absence of any
wound or other evidence of an injury.
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
[[Page 15]]
of marine mammals during commercial fishing operations.
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.
Modified pound net leader means a pound net leader that is affixed
to or resting on the sea floor and made of a lower portion of mesh and
an upper portion of only vertical lines such that the mesh size is equal
to or less than 8 inches (20.3 cm) stretched mesh; at any particular
point along the leader, the height of the mesh from the seafloor to the
top of the mesh must be no more than one-third the depth of the water at
mean lower low water directly above that particular point; the mesh is
held in place by a bottom chain that forms the lowermost part of the
pound net leader; the vertical lines extend from the top of the mesh up
to a top line, which is a line that forms the uppermost part of the
pound net leader; the vertical lines are equal to or greater than \5/16\
inch (0.8 cm) in diameter and strung vertically at a minimum of every 2
feet (61 cm); and the vertical lines are hard lay lines.
Nearshore pound net means a pound net with every part of the leader
(from the most offshore pole at the pound end of the leader to the most
inshore pole of the leader) in less than 14 feet (4.3 m) of water at any
tidal condition.
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.
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.
Offshore pound net means a pound net with any part of the leader
(from the most offshore pole at the pound end of the leader to the most
inshore pole of the leader) in water greater than or equal to 14 feet
(4.3 m) at any tidal condition.
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.
Pound net means a fixed entrapment gear attached to posts or stakes
with three continuous sections from offshore to inshore consisting of:
(1) A pound made of mesh netting that entraps the fish;
(2) At least one heart made of a mesh netting that is generally in
the shape of a heart and aids in funneling fish into the pound; and
(3) A leader, which is a long, straight element consisting of mesh
or vertical
[[Page 16]]
lines that directs the fish offshore towards the pound.
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.
Seine means a net that fishes vertically in the water, is pulled by
hand or by power, and captures fish by encirclement and confining fish
within itself or against another net, the shore or bank as a result of
net design, construction, mesh size, webbing diameter, or method in
which it is used. In some regions, the net is typically constructed with
a capture bag in the center of the net which concentrates the fish as
the net is closed.
Serious injury means any injury that will likely result in
mortality.
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, for both groundlines and buoy lines, line that
has a specific gravity greater than or equal to 1.030, and, for
groundlines only, does not float at any point in the water column.
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).
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 traps/pots and gillnets that are unavailable for
immediate use and further, all gillnets are stored in accordance with
the following:
(1) All nets are covered with canvas or other similar material and
lashed or otherwise securely fastened to the deck, rail, or drum, and
all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and
anchors are disconnected; and
(2) Any other method of stowage authorized in writing by the
Regional Administrator and subsequently published in the Federal
Register.
Strategic stock means a marine mammal stock:
(1) For which the level of direct human-caused mortality exceeds the
potential biological removal level;
(2) Which, based on the best available scientific information, is
declining and is likely to be listed as a threatened species under the
Endangered Species Act of 1973 within the foreseeable future;
(3) Which is listed as a threatened species or endangered species
under the Endangered Species Act of 1973; or
(4) Which is designated as depleted under the Marine Mammal
Protection Act of 1972, as amended.
Sunrise means the time of sunrise as determined for the date and
location in The Nautical Almanac, prepared by the U.S. Naval
Observatory.
Sunset means the time of sunset as determined for the date and
location in The Nautical Almanac, prepared by the U.S. Naval
Observatory.
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
[[Page 17]]
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.
Tie loops means the loops on a gillnet panel used to connect net
panels to the buoy line, groundline, bridle or each other.
Trap/Pot means any structure or other device, other than a net or
longline, that is placed, or designed to be placed, on the ocean bottom
and is designed for or is capable of, catching species including but not
limited to lobster, crab (red, Jonah, rock, and blue), hagfish, finfish
(black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean
perch), and white hake), conch/whelk, and shrimp.
Trap/pot trawl means two or more trap/pots attached to a single
groundline.
Up and down line means the line that connects the float-line and
lead-line at the end of each gillnet net panel.
U.S. waters means both state and Federal waters to the outer
boundaries of the U.S. exclusive economic zone along the east coast of
the United States from the Canadian/U.S. border southward to a line
extending eastward from the southernmost tip of Florida on the Florida
shore.
Vessel owner or operator means the owner or operator of:
(1) A fishing vessel that engages in a commercial fishing operation;
or
(2) Fixed or other commercial fishing gear that is used in a
nonvessel fishery.
Vessel of the United States has the same meaning as in section 3 of
the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).
Weak link means a breakable 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; 71 FR 24796, Apr. 26, 2006; 72 FR 34642, June 25, 2007; 72 FR
57180, Oct. 5, 2007; 73 FR 51241, Oct. 2, 2008; 75 FR 7396, Feb. 19,
2010; 79 FR 36610, June 27, 2014; 80 FR 6929, Feb. 9, 2015]
Effective Date Note: At 86 FR 52011, Sept. 17, 2021, Sec. 229.2 was
amended by adding definitions for ``Lobster Management Area,'' ``Greater
Atlantic Regional Administrator'' and ``Surface system'' in alphabetical
order, effective Oct. 18, 2021. For the convenience of the user, the
added text is set forth as follows:
Sec. 229.2 Definitions.
* * * * *
Lobster Management Area as used in this part means the management
areas defined in the American Lobster Fishery regulations found at 50
CFR 697.18.
* * * * *
Greater Atlantic Regional Administrator as used in this part, means
the Regional Administrator for the regional fisheries office of the
National Oceanic and Atmospheric Administration for the large marine
ecosystem from Maine to Cape Hatteras, North Carolina directed from the
Regional Office in Gloucester, Massachusetts.
* * * * *
Surface system, with reference to trap/pot and fixed gillnet gear,
includes the components at the sea surface to identify the presence of
stationary bottom fishing gear, and includes buoys, radar reflectors,
and high flyers.
* * * * *
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.
[[Page 18]]
(d) It is prohibited to tamper with or destroy observer equipment in
any way.
(e) It is prohibited to retain any marine mammal incidentally taken
in commercial fishing operations unless authorized by NMFS personnel, by
designated contractors or an official observer, or by a scientific
research permit that is in the possession of the vessel operator.
(f) It is prohibited to intentionally lethally take any marine
mammal in the course of commercial fishing operations unless imminently
necessary in self-defense or to save the life of a person in immediate
danger, and such taking is reported in accordance with the requirements
of Sec. 229.6.
(g) It is prohibited to violate any regulation in this part or any
provision of section 118 of the Act.
(h) It is prohibited to own, operate, or be on board a vessel
subject to the Atlantic Large Whale Take Reduction Plan except if that
vessel and all fishing gear comply with all applicable provisions of
Sec. 229.32.
(i) It is prohibited to fish for, catch, take, harvest or possess
fish or wildlife while on board a vessel subject to the Atlantic Large
Whale Take Reduction Plan, except if that vessel and all fishing gear is
in compliance with all applicable provisions of Sec. 229.32.
(j) Any person or vessel claiming the benefit of any exemption or
exception under Sec. 229.32 has the burden of proving that the
exemption or exception, is applicable.
(k)-(l) [Reserved]
(m) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, 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), (a)(3),
(a)(6), and (a)(8). This prohibition also applies to areas where pingers
are required, unless the vessel owner or operator complies with the
pinger provisions specified in Sec. 229.33 (a)(2) through (a)(5) and
(a)(7). This prohibition does not apply to vessels fishing with a single
pelagic gillnet (as described and used as set forth in Sec.
648.81(f)(2)(ii) of this title).
(n) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, or fail to remove
gillnet gear from the areas and for the times as specified in Sec.
229.34 (b)(1)(i), (b)(2)(i), (b)(3)(i), or (b)(4)(i).
(o) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, or fail to remove
any large mesh or small mesh gillnet gear from the areas and for the
times specified in Sec. 229.34(b) unless the gear complies with the
specified gear restrictions set forth in the provisions of paragraphs
(b)(1)(ii) or (iii), (b)(2)(ii) or (iii), (b)(3)(ii) or (iii), or
(b)(4)(ii) or (iii) of Sec. 229.34.
(p) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, or fail to remove
sink gillnet gear or gillnet gear capable of catching multispecies in
areas where pingers are required, as specified under Sec. 229.33 (a)(2)
through (a)(5) and (a)(7), unless the operator on board the vessel
during fishing operations possesses and retains on board the vessel a
valid pinger training authorization issued by NMFS as specified under
Sec. 229.33(c).
(q)-(r) [Reserved]
(s) General Bottlenose Dolphin Take Reduction Plan. (1) It is
prohibited to set, fish with, or possess on board a vessel unless
stowed, or fail to remove, any gillnet or pound net from the waters
specified in Sec. 229.35(c) unless the gear complies with the specified
restrictions set forth in Sec. 229.35(d).
(2) It is prohibited to set, fish with, or fail to remove a modified
pound net leader in the Bottlenose Dolphin Pound Net Regulated Area
unless the fisherman has on board the vessel a valid modified pound net
leader compliance training certificate issued by NMFS.
(t) It is prohibited to deploy or fish with pelagic longline gear in
the Mid-Atlantic Bight unless the vessel:
(1) Complies with the placard posting requirement specified in Sec.
229.36(c); and
(2) Complies with the gear restrictions specified in Sec.
229.36(e).
(u) It is prohibited to deploy or fish with pelagic longline gear in
the Cape Hatteras Special Research Area unless
[[Page 19]]
the vessel is in compliance with the observer and research requirements
specified in Sec. 229.36(d).
(v) It is prohibited to deep-set from a vessel registered for use
under a Hawaii longline limited access permit unless the vessel complies
with the gear requirements specified in Sec. 229.37(c)(1) and (c)(2) .
(w) It is prohibited to fish with longline gear in the Main Hawaiian
Islands Longline Fishing Prohibited Area, as defined in Sec.
229.37(d)(1).
(x) It is prohibited to deep-set in the Southern Exclusion Zone, as
defined in Sec. 229.37(d)(2), during the time the area is closed to
deep-set longline fishing pursuant to Sec. 229.37(e).
(y) It is prohibited to fish with longline gear from a vessel
registered for use under a Hawaii longline limited access permit in
violation of the marine mammal handling and release requirements at
Sec. 229.37(f).
[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; 71 FR 24796, Apr. 26, 2006; 72 FR 57180, Oct. 5,
2007; 74 FR 23357, May 19, 2009; 75 FR 7396, Feb. 19, 2010; 77 FR 71284,
Nov. 29, 2012; 79 FR 36610, June 27, 2014; 80 FR 6929, Feb. 9, 2015]
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
[[Page 20]]
amount of this fee will be based on recovering the administrative costs
incurred in granting an authorization. The Assistant Administrator may
waive the fee requirement for good cause upon the recommendation of the
Regional Director.
(3) If a notice is published in the Federal Register announcing an
integrated registration program, the owner of a vessel, or for nonvessel
fishery, the owner of the gear may register by following the directions
provided in that notice. If a person receives a registration to which he
or she is not entitled or if the registration contains incorrect,
inaccurate or incomplete information, the person shall notify NMFS
within 10 days following receipt. If a fisher participating in a
Category I or II fishery who expects to receive automatic registration
does not receive that registration within the time specified in the
notice announcing the integrated registration program, the person shall
notify NMFS as directed in the notice or may apply for registration by
submitting the information required under paragraph (b)(1)(i) through
(b)(1)(vi) of this section.
(c) Address. Unless the granting and administration of
authorizations under this part 229 is integrated and coordinated with
existing fishery licenses, registrations, or related programs pursuant
to paragraph (a) of this section, requests for registration forms and
completed registration and renewal forms should be sent to the NMFS
Regional Offices as follows:
(1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street,
Juneau, AK 99802; telephone: 907-586-7235;
(2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA
98115-0070; telephone: 206-526-4353;
(3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long
Beach, CA 90802-4213; telephone: 562-980-4001;
(4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930;
telephone: 978-281-9254; or
(5) Southeast Region, NMFS, 9721 Executive Center Drive North, St.
Petersburg, FL 33702; telephone: 727-570-5312.
(d) Issuance. (1) For integrated fisheries, an Authorization
Certificate or other proof of registration will be issued annually to
each fisher registered for that fishery.
(2) For all other fisheries (i.e., non-integrated fisheries), NMFS
will issue an Authorization Certificate and, if necessary, a decal to an
owner or authorized representative who:
(i) Submits a completed registration form and the required fee.
(ii) Has complied with the requirements of this section and
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 calendar 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.
[[Page 21]]
(4) An Authorization Certificate holder must notify the issuing
office in writing:
(i) If the vessel or nonvessel fishing gear will engage in any
Category I or II fishery not listed on the initial registration form at
least 30 days prior to engaging in that fishery; and,
(ii) If there are any changes in the mailing address or vessel
ownership within 30 days of such change.
(f) Reporting. Any Authorization Certificate holders must comply
with the reporting requirements specified under Sec. 229.6.
(g) Disposition of marine mammals. Any marine mammal incidentally
taken must be immediately returned to the sea with a minimum of further
injury, unless directed otherwise by NMFS personnel, a designated
contractor or an official observer, or authorized otherwise by a
scientific research permit that is in the possession of the operator.
(h) Monitoring. Authorization Certificate holders must comply with
the observer or other monitoring requirements specified under Sec.
229.7.
(i) Deterrence. When necessary to deter a marine mammal from
damaging fishing gear, catch, or other private property, or from
endangering personal safety, vessel owners and crew members engaged in a
Category I or II fishery must comply with all deterrence provisions set
forth in the Act and all guidelines and prohibitions published
thereunder.
(j) Self defense. When imminently necessary in self-defense or to
save the life of a person in immediate danger, a marine mammal may be
lethally taken if such taking is reported to NMFS in accordance with the
requirements of Sec. 229.6.
(k) Take reduction plans and emergency regulations. Authorization
Certificate holders must comply with any applicable take reduction plans
and emergency regulations.
(l) Expiration. Authorization Certificates expire at the end of each
calendar year.
[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997; 64 FR
9086, Feb. 24, 1999]
Sec. 229.5 Requirements for Category III fisheries.
(a) General. Vessel owners and crew members of such vessels engaged
only in Category III fisheries may incidentally take marine mammals
without registering for or receiving an Authorization Certificate.
(b) Reporting. Vessel owners engaged in a Category III fishery must
comply with the reporting requirements specified in Sec. 229.6.
(c) Disposition of marine mammals. Any marine mammal incidentally
taken must be immediately returned to the sea with a minimum of further
injury unless directed otherwise by NMFS personnel, a designated
contractor, or an official observer, or authorized otherwise by a
scientific research permit in the possession of the operator.
(d) Monitoring. Vessel owners engaged in a Category III fishery must
comply with the observer requirements specified under Sec. 229.7(d).
(e) Deterrence. When necessary to deter a marine mammal from
damaging fishing gear, catch, or other private property, or from
endangering personal safety, vessel owners and crew members engaged in
commercial fishing operations must comply with all deterrence provisions
set forth in the Act and all guidelines and prohibitions published
thereunder.
(f) Self-defense. When imminently necessary in self-defense or to
save the life of a person in immediate danger, a marine mammal may be
lethally taken if such taking is reported to NMFS in accordance with the
requirements of Sec. 229.6.
(g) Emergency regulations. Vessel owners engaged in a Category III
fishery must comply with any applicable emergency regulations.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.6 Reporting requirements.
(a) Vessel owners or operators engaged in any commercial fishery
must report all incidental mortality and injury of marine mammals in the
course of commercial fishing operations to the Assistant Administrator,
or appropriate Regional Office, by mail or other means, such as fax or
overnight mail
[[Page 22]]
specified by the Assistant Administrator. Reports must be sent within 48
hours after the end of each fishing trip during which the incidental
mortality or injury occurred, or, for nonvessel fisheries, within 48
hours of an occurrence of an incidental mortality or injury. Reports
must be submitted on a standard postage-paid form as provided by the
Assistant Administrator. The vessel owner or operator must provide the
following information on this form:
(1) The vessel name, and Federal, state, or tribal registration
numbers of the registered vessel;
(2) The name and address of the vessel owner or operator;
(3) The name and description of the fishery, including gear type and
target species; and
(4) The species and number of each marine mammal incidentally killed
or injured, and the date, time, and approximate geographic location of
such occurrence. A description of the animal(s) killed or injured must
be provided if the species is unknown.
(b) Participants in nonvessel fisheries must provide all of the
information in paragraphs (a)(1) through (a)(4) of this section except,
instead of providing the vessel name and vessel registration number,
participants in nonvessel fisheries must provide the gear permit number.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.7 Monitoring of incidental mortalities and serious injuries.
(a) Purpose. The Assistant Administrator will establish a program to
monitor incidental mortality and serious injury of marine mammals during
the course of commercial fishing operations in order to:
(1) Obtain statistically reliable estimates of incidental mortality
and serious injury;
(2) Determine the reliability of reports of incidental mortality and
injury under Sec. 229.6; and
(3) Identify changes in fishing methods or technology that may
increase or decrease incidental mortality and serious injury.
(b) Observer program. Pursuant to paragraph (a) of this section, the
Assistant Administrator may observe Category I and II vessels as
necessary. Observers may, among other tasks:
(1) Record incidental mortality and injury, and bycatch of other
nontarget species;
(2) Record numbers of marine mammals sighted; and
(3) Perform other scientific investigations, which may include, but
are not limited to, sampling and photographing incidental mortalities
and serious injuries.
(c) Observer requirements for participants in Category I and II
fisheries. (1) If requested by NMFS or by a designated contractor
providing observer services to NMFS, a vessel owner/operator must take
aboard an observer to accompany the vessel on fishing trips.
(2) After being notified by NMFS, or by a designated contractor
providing observer services to NMFS, that the vessel is required to
carry an observer, the vessel owner/operator must comply with the
notification by providing information requested within the specified
time on scheduled or anticipated fishing trips.
(3) NMFS, or a designated contractor providing observer services to
NMFS, may waive the observer requirement based on a finding that the
facilities for housing the observer or for carrying out observer
functions are so inadequate or unsafe that the health or safety of the
observer or the safe operation of the vessel would be jeopardized.
(4) The vessel owner/operator and crew must cooperate with the
observer in the performance of the observer's duties including:
(i) Providing, at no cost to the observer, the United States
government, or the designated observer provider, food, toilet, bathing,
sleeping accommodations, and other amenities that are equivalent to
those provided to the crew, unless other arrangements are approved in
advance by the Regional Administrator;
(ii) Allowing for the embarking and debarking of the observer as
specified by NMFS personnel or designated contractors. The operator of a
vessel must ensure that transfers of observers at sea are accomplished
in a safe manner, via small boat or raft, during daylight hours if
feasible, as weather and sea
[[Page 23]]
conditions allow, and with the agreement of the observer involved;
(iii) Allowing the observer access to all areas of the vessel
necessary to conduct observer duties;
(iv) Allowing the observer access to communications equipment and
navigation equipment, when available on the vessel, as necessary to
perform observer duties;
(v) Providing true vessel locations by latitude and longitude,
accurate to the minute, or by loran coordinates, upon request by the
observer;
(vi) Sampling, retaining, and storing of marine mammal specimens,
other protected species specimens, or target or non-target catch
specimens, upon request by NMFS personnel, designated contractors, or
the observer, if adequate facilities are available and if feasible;
(vii) Notifying the observer in a timely fashion of when all
commercial fishing operations are to begin and end;
(viii) Not impairing or in any way interfering with the research or
observations being carried out; and
(ix) Complying with other guidelines or regulations that NMFS may
develop to ensure the effective deployment and use of observers.
(5) Marine mammals or other specimens identified in paragraph
(c)(4)(vi) of this section, which are readily accessible to crew
members, must be brought on board the vessel and retained for the
purposes of scientific research if feasible and requested by NMFS
personnel, designated contractors, or the observer. Specimens so
collected and retained must, upon request by NMFS personnel, designated
contractors, or the observer, be retained in cold storage on board the
vessel, if feasible, until removed at the request of NMFS personnel,
designated contractors, or the observer, retrieved by authorized
personnel of NMFS, or released by the observer for return to the ocean.
These biological specimens may be transported on board the vessel during
the fishing trip and back to port under this authorization.
(d) Observer requirements for participants in Category III
fisheries. (1) The Assistant Administrator may place observers on
Category III vessels if the Assistant Administrator:
(i) Believes that the incidental mortality and serious injury of
marine mammals from such fishery may be contributing to the immediate
and significant adverse impact on a species or stock listed as a
threatened species or endangered species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.); and
(ii) Has complied with Sec. 229.9(a)(3)(i) and (ii); or
(iii) Has the consent of the vessel owner.
(2) If an observer is placed on a Category III vessel, the vessel
owner and/or operator must comply with the requirements of Sec.
229.7(c).
(e) Alternative observer program. The Assistant Administrator may
establish an alternative observer program to provide statistically
reliable information on the species and number of marine mammals
incidentally taken in the course of commercial fishing operations. The
alternative observer program may include direct observation of fishing
activities from vessels, airplanes, or points on shore.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.8 Publication of List of Fisheries.
(a) The Assistant Administrator will publish in the Federal Register
a proposed revised List of Fisheries on or about July 1 of each year for
the purpose of receiving public comment. Each year, on or about October
1, the Assistant Administrator will publish a final revised List of
Fisheries, which will become effective January 1 of the next calendar
year.
(b) The proposed and final revised List of Fisheries will:
(1) Categorize each commercial fishery based on the definitions of
Category I, II, and III fisheries set forth in Sec. 229.2; and
(2) List the marine mammals that have been incidentally injured or
killed by commercial fishing operations and the estimated number of
vessels or persons involved in each commercial fishery.
(c) The Assistant Administrator may publish a revised List of
Fisheries at other times, after notification and opportunity for public
comment.
[[Page 24]]
(d) The revised final List of Fisheries will become effective no
sooner than 30 days after publication in the Federal Register.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.9 Emergency regulations.
(a) If the Assistant Administrator finds that the incidental
mortality or serious injury of marine mammals from commercial fisheries
is having, or is likely to have, an immediate and significant adverse
impact on a stock or species, the Assistant Administrator will:
(1) In the case of a stock or species for which a take reduction
plan is in effect--
(i) Prescribe emergency regulations that, consistent with such plan
to the maximum extent practicable, reduce incidental mortality and
serious injury in that fishery; and
(ii) Approve and implement on an expedited basis, any amendments to
such plan that are recommended by the Take Reduction Team to address
such adverse impact;
(2) In the case of a stock or species for which a take reduction
plan is being developed--
(i) Prescribe emergency regulations to reduce such incidental
mortality and serious injury in that fishery; and
(ii) Approve and implement, on an expedited basis, such plan, which
will provide methods to address such adverse impact if still necessary;
(3) In the case of a stock or species for which a take reduction
plan does not exist and is not being developed, or in the case of a
Category III fishery that the Assistant Administrator believes may be
contributing to such adverse impact,
(i) Prescribe emergency regulations to reduce such incidental
mortality and serious injury in that fishery, to the extent necessary to
mitigate such adverse impact;
(ii) Immediately review the stock assessment for such stock or
species and the classification of such commercial fishery under this
section to determine if a take reduction team should be established and
if recategorization of the fishery is warranted; and
(iii) Where necessary to address such adverse impact on a species or
stock listed as a threatened species or endangered species under the
Endangered Species Act (16 U.S.C. 1531 et seq.), place observers on
vessels in a Category III fishery if the Assistant Administrator has
reason to believe such vessels may be causing the incidental mortality
and serious injury to marine mammals from such stock.
(b) Prior to taking any action under Sec. 229.9(a)(1) through (3),
the Assistant Administrator will consult with the Marine Mammal
Commission, all appropriate Regional Fishery Management Councils, state
fishery managers, and the appropriate take reduction team, if
established.
(c) Any emergency regulations issued under this section:
(1) Shall be published in the Federal Register and will remain in
effect for no more than 180 days or until the end of the applicable
commercial fishing season, whichever is earlier, except as provided in
paragraph (d) of this section; and
(2) May be terminated by notification in the Federal Register at an
earlier date if the Assistant Administrator determines that the reasons
for the emergency regulations no longer exist.
(d) If the Assistant Administrator finds that incidental mortality
and serious injury of marine mammals in a commercial fishery is
continuing to have an immediate and significant adverse impact on a
stock or species, the Assistant Administrator may extend the emergency
regulations for an additional period of not more than 90 days or until
reasons for the emergency regulations no longer exist, whichever is
earlier.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.10 Penalties.
(a) Except as provided for in paragraphs (b) and (c) of this
section, any person who violates any regulation under this part or any
provision of section 118 of the MMPA shall be subject to all penalties
set forth in the Act.
(b) The owner or master of a vessel that fails to comply with a take
reduction plan shall be subject to the penalties of sections 105 and 107
of the Act,
[[Page 25]]
and may be subject to the penalties of section 106 of the Act.
(c) The owner of a vessel engaged in a Category I or II fishery who
fails to ensure that a decal, or other physical evidence of such
authorization issued by NMFS, is displayed on the vessel or is in
possession of the operator of the vessel shall be subject to a penalty
of not more than $100.
(d) Failure to comply with take reduction plans or emergency
regulations issued under this part may result in suspension or
revocation of an Authorization Certificate, and failure to comply with a
take reduction plan or emergency regulation is also subject to the
penalties of sections 105 and 107 of the Act, and may be subject to the
penalties of section 106 of the Act.
(e) For fishers operating in Category I or II fisheries, failure to
report all incidental injuries and mortalities within 48 hours of the
end of each fishing trip, or failure to comply with requirements to
carry an observer, will subject such persons to the penalties of
sections 105 and 107 and may subject them to the penalties of section
106 of the Act, which will result in suspension, revocation, or denial
of an Authorization Certificate until such requirements have been
fulfilled.
(f) For fishers operating in Category III fisheries, failure to
report all incidental injuries and mortalities within 48 hours of the
end of each fishing trip will subject such persons to the penalties of
sections 105 and 107, and may subject them to section 106, of the Act.
(g) Suspension, revocation or denial of Authorization Certificates.
(1) Until the Authorization Certificate holder complies with the
regulations under this part, the Assistant Administrator shall suspend
or revoke an Authorization Certificate or deny an annual renewal of an
Authorization Certificate in accordance with the provisions in 15 CFR
part 904 if the Authorization Certificate holder fails to report all
incidental mortality and injury of marine mammals as required under
Sec. 229.6; or fails to take aboard an observer if requested by NMFS or
its designated contractors.
(2) The Assistant Administrator may suspend or revoke an
Authorization Certificate or deny an annual renewal of an Authorization
Certificate in accordance with the provisions in 15 CFR part 904 if the
Authorization Certificate holder fails to comply with any applicable
take reduction plan, take reduction regulations, or emergency
regulations developed under this subpart or subparts B and C of this
part or if the Authorization Certificate holder fails to comply with
other requirements of these regulations;
(3) A suspended Authorization Certificate may be reinstated at any
time at the discretion of the Assistant Administrator provided the
Assistant Administrator has determined that the reasons for the
suspension no longer apply or corrective actions have been taken.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]
Sec. 229.11 Confidential fisheries data.
(a) Proprietary information collected under this part is
confidential and includes information, the unauthorized disclosure of
which could be prejudicial or harmful, such as information or data that
are identifiable with an individual fisher. Proprietary information
obtained under part 229 will not be disclosed, in accordance with NOAA
Administrative Order 216-100, except:
(1) To Federal employees whose duties require access to such
information;
(2) To state employees under an agreement with NMFS that prevents
public disclosure of the identity or business of any person;
(3) When required by court order; or
(4) In the case of scientific information involving fisheries, to
employees of Regional Fishery Management Councils who are responsible
for fishery management plan development and monitoring.
(5) To other individuals or organizations authorized by the
Assistant Administrator to analyze this information, so long as the
confidentiality of individual fishers is not revealed.
(b) Information will be made available to the public in aggregate,
summary, or other such form that does not disclose the identity or
business of any person in accordance with NOAA Administrative Order 216-
100. Aggregate
[[Page 26]]
or summary form means data structured so that the identity of the
submitter cannot be determined either from the present release of the
data or in combination with other releases.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]
Sec. 229.12 Consultation with the Secretary of the Interior.
The Assistant Administrator will consult with the Secretary of the
Interior prior to taking actions or making determinations under this
part that affect or relate to species or population stocks of marine
mammals for which the Secretary of the Interior is responsible under the
Act.
Subpart B_Takes of Endangered and Threatened Marine Mammals
Sec. 229.20 Issuance of permits.
(a) Determinations. During a period of up to 3 consecutive years,
NMFS will allow the incidental, but not the intentional, taking by
persons using vessels of the United States or foreign vessels that have
valid fishing permits issued by the Assistant Administrator in
accordance with section 204(b) of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1824(b)), while engaging in commercial fishing
operations, of marine mammals from a species or stock designated as
depleted because of its listing as an endangered species or threatened
species under the Endangered Species Act of 1973 if the Assistant
Administrator determines that:
(1) The incidental mortality and serious injury from commercial
fisheries will have a negligible impact on such species or stock;
(2) A recovery plan has been developed or is being developed for
such species or stock pursuant to the Endangered Species Act of 1973;
and
(3) Where required under regulations in subpart A of this part:
(i) A monitoring program has been established under Sec. 229.7;
(ii) Vessels engaged in such fisheries are registered in accordance
with Sec. 229.4; and
(iii) A take reduction plan has been developed or is being developed
for such species or stock in accordance with regulations at subpart C of
this part.
(b) Procedures for making determinations. In making any of the
determinations listed in paragraph (a) of this section, the Assistant
Administrator will publish an announcement in the Federal Register of
fisheries having takes of marine mammals listed under the Endangered
Species Act, including a summary of available information regarding the
fisheries interactions with listed species. Any interested party may,
within 45 days of such publication, submit to the Assistant
Administrator written data or views with respect to the listed
fisheries. As soon as practicable after the end of the 45 days following
publication, NMFS will publish in the Federal Register a list of the
fisheries for which the determinations listed in paragraph (a) of this
section have been made. This publication will set forth a summary of the
information used to make the determinations.
(c) Issuance of authorization. The Assistant Administrator will
issue appropriate permits for vessels in fisheries that are required to
register under Sec. 229.4 and for which determinations under the
procedures of paragraph (b) of this section can be made.
(d) Category III fisheries. Vessel owners engaged only in Category
III fisheries for which determinations are made under the procedures of
paragraph (b) of this section will not be subject to the penalties of
this Act for the incidental taking of marine mammals to which this
subpart applies, as long as the vessel owner or operator of such vessel
reports any incidental mortality or injury of such marine mammals in
accordance with the requirements of Sec. 229.6.
(e) Emergency authority. During the course of the commercial fishing
season, if the Assistant Administrator determines that the level of
incidental mortality or serious injury from commercial fisheries for
which such a determination was made under this section has resulted or
is likely to result in an impact that is more than negligible on the
endangered or threatened
[[Page 27]]
species or stock, the Assistant Administrator will use the emergency
authority of Sec. 229.9 to protect such species or stock, and may
modify any permit granted under this paragraph as necessary.
(f) Suspension, revocation, modification and amendment. The
Assistant Administrator may, pursuant to the provisions of 15 CFR part
904, suspend or revoke a permit granted under this section if the
Assistant Administrator determines that the conditions or limitations
set forth in such permit are not being complied with. The Assistant
Administrator may amend or modify, after notification and opportunity
for public comment, the list of fisheries published in accordance with
paragraph (b) of this section whenever the Assistant Administrator
determines there has been a significant change in the information or
conditions used to determine such a list.
(g) Southern sea otters. This subpart does not apply to the taking
of Southern (California) sea otters.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]
Subpart C_Take Reduction Plan Regulations and Emergency Regulations
Sec. 229.30 Basis.
Section 118(f)(9) of the Act authorizes the Director, NMFS, to
impose regulations governing commercial fishing operations, when
necessary, to implement a take reduction plan in order to protect or
restore a marine mammal stock or species covered by such a plan.
[64 FR 9088, Feb. 24, 1999]
Sec. 229.31 Pacific Offshore Cetacean Take Reduction Plan.
(a) Purpose and scope. The purpose of this section is to implement
the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b)
through (d) of this section apply to all U.S. drift gillnet fishing
vessels operating in waters seaward of the coast of California or
Oregon, including adjacent high seas waters. For purposes of this
section, the fishing season is defined as beginning May 1 and ending on
January 31 of the following year.
(b) Extenders. An extender is a line that attaches a buoy (float) to
a drift gillnet's floatline. The floatline is attached to the top of the
drift gillnet. All extenders (buoy lines) must be at least 6 fathoms (36
ft; 10.9 m) in length during all sets. Accordingly, all floatlines must
be fished at a minimum of 36 feet (10.9 m) below the surface of the
water.
(c) Pingers. (1) For the purposes of this paragraph (c), a pinger is
an acoustic deterrent device which, when immersed in water, broadcasts a
10 kHz (2 kHz) sound at 132 dB (4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds
(+ 15 milliseconds), and repeating every 4 seconds (+ .2 seconds); and
remains operational to a water depth of at least 100 fathoms (600 ft or
182.88 m).
(2) While at sea, operators of drift gillnet vessels with gillnets
onboard must carry enough pingers on the vessel to meet the requirements
set forth under paragraphs (c)(3) through(6) of this section.
(3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of
the floatline and spaced no more than 300 ft (91.44 m) apart.
(4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of
the leadline and spaced no more than 300 ft (91.44 m) apart.
(5) Staggered Configuration. Pingers attached within 30 ft (9.14 m)
of the floatline and within 36 ft (10.97 m) of the leadline shall be
staggered such that the horizontal distance between them is no more than
150 ft (45.5 m).
(6) Any materials used to weight pingers must not change its
specifications set forth under paragraph (c)(1) of this section.
(7) The pingers must be operational and functioning at all times
during deployment.
(8) If requested, NMFS may authorize the use of pingers with
specifications or pinger configurations differing from those set forth
in paragraphs (c)(1) and (c)(3) of this section for limited,
experimental purposes within a single fishing season.
(d) Skipper education workshops. After notification from NMFS,
vessel operators must attend a skipper education workshop before
commencing fishing
[[Page 28]]
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) Purpose and scope. The purpose of this section is to
implement the Atlantic Large Whale Take Reduction Plan to reduce
incidental mortality and serious injury of fin, humpback, and right
whales in specific Category I and Category II commercial fisheries from
Maine through Florida. Specific Category I and II commercial fisheries
within the scope of the Plan are identified and updated in the annual
List of Fisheries. The measures identified in the Atlantic Large Whale
Take Reduction Plan are also intended to benefit minke whales, which are
not designated as a strategic stock, but are known to be taken
incidentally in gillnet and trap/pot fisheries. The gear types affected
by this plan include gillnets (e.g., anchored, drift, and shark) and
traps/pots. The Assistant Administrator may revise the requirements set
forth in this section in accordance with paragraph (i) of this section.
(2) Regulated waters. (i) The regulations in this section apply to
all U.S. waters in the Atlantic except for the areas exempted in
paragraph (a)(3) of this section.
(ii) The six-mile line referred to in paragraph (c)(2)(iii) of this
section is a line connecting the following points (Machias Seal to Isle
of Shoals):
44[deg]31.98[min] N. lat., 67[deg]9.72[min] W. long (Machias Seal)
44[deg]3.42[min] N. lat., 68[deg]10.26[min] W. long (Mount Desert
Island)
43[deg]40.98[min] N. lat., 68[deg]48.84[min] W. long (Matinicus)
43[deg]39.24[min] N. lat., 69[deg]18.54[min] W. long (Monhegan)
43[deg]29.4[min] N. lat., 70[deg]5.88[min] W. long (Casco Bay)
42[deg]55.38[min] N. lat., 70[deg]28.68[min] W. long (Isle of Shoals)
(iii) The pocket waters referred to in paragraph (c)(2)(iii) of this
section are defined as follows:
West of Monhegan Island in the area north of the line 43[deg]42.17[min]
N. lat., 69[deg]34.27[min] W. long and 43[deg]42.25[min] N.
lat., 69[deg]19.3[min] W. long
East of Monhegan Island in the area located north of the line
43[deg]44[min] N. lat., 69[deg]15.08[min] W. long and
43[deg]48.17[min] N. lat., 69[deg]8.02[min] W. long
South of Vinalhaven Island in the area located west of the line
43[deg]52.31[min] N. lat., 68[deg]40[min] W. long and
43[deg]58.12[min] N. lat., 68[deg]32.95[min] W. long
South of Bois Bubert Island in the area located northwest of the line
44[deg]19.27[min] N. lat., 67[deg]49.5[min] W. long and
44[deg]23.67[min] N. lat., 67[deg]40.5[min] W. long
(3) Exempted waters. (i) The regulations in this section do not
apply to waters landward of the 72 COLREGS demarcation lines
(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 with the exception of the COLREGS lines for
Casco Bay (Maine), Portsmouth Harbor (New Hampshire), Gardiners Bay and
Long Island Sound (New York), and the state of Massachusetts.
(ii) Other exempted waters.
Maine
The regulations in this section do not apply to waters landward of a
line connecting the following points (Quoddy Narrows/US-Canada border to
Odiornes Pt., Portsmouth, New Hampshire):
44[deg]49.67[min] N. lat., 66[deg]57.77[min] W. long. (R N ``2'', Quoddy
Narrows)
44[deg]48.64[min] N. lat., 66[deg]56.43[min] W. long. (G ``1'' Whistle,
West Quoddy Head)
44[deg]47.36[min] N. lat., 66[deg]59.25[min] W. long. (R N ``2'', Morton
Ledge)
44[deg]45.51[min] N. lat., 67[deg]02.87[min] W. long. (R ``28M''
Whistle, Baileys Mistake)
44[deg]37.70[min] N. lat., 67[deg]09.75[min] W. long. (Obstruction,
Southeast of Cutler)
44[deg]27.77[min] N. lat., 67[deg]32.86[min] W. long. (Freeman Rock,
East of Great Wass Island)
44[deg]25.74[min] N. lat., 67[deg]38.39[min] W. long. (R ``2SR'' Bell,
Seahorse Rock, West of Great Wass Island)
44[deg]21.66[min] N. lat., 67[deg]51.78[min] W. long. (R N ``2'', Petit
Manan Island)
44[deg]19.08[min] N. lat., 68[deg]02.05[min] W. long. (R ``2S'' Bell,
Schoodic Island)
44[deg]13.55[min] N. lat., 68[deg]10.71[min] W. long. (R ``8BI''
Whistle, Baker Island)
44[deg]08.36[min] N. lat., 68[deg]14.75[min] W. long. (Southern Point,
Great Duck Island)
43[deg]59.36[min] N. lat., 68[deg]37.95[min] W. long. (R ``2'' Bell,
Roaring Bull Ledge, Isle Au Haut)
43[deg]59.83[min] N. lat., 68[deg]50.06[min] W. long. (R ``2A'' Bell,
Old Horse Ledge)
[[Page 29]]
43[deg]56.72[min] N. lat., 69[deg]04.89[min] W. long. (G ``5TB'' Bell,
Two Bush Channel)
43[deg]50.28[min] N. lat., 69[deg]18.86[min] W. long. (R ``2 OM''
Whistle, Old Man Ledge)
43[deg]48.96[min] N. lat., 69[deg]31.15[min] W. long. (GR C ``PL'',
Pemaquid Ledge)
43[deg]43.64[min] N. lat., 69[deg]37.58[min] W. long. (R ``2BR'' Bell,
Bantam Rock)
43[deg]41.44[min] N. lat., 69[deg]45.27[min] W. long. (R ``20ML'' Bell,
Mile Ledge)
43[deg]36.04[min] N. lat., 70[deg]03.98[min] W. long. (RG N ``BS'',
Bulwark Shoal)
43[deg]31.94[min] N. lat., 70[deg]08.68[min] W. long. (G ``1'', East Hue
and Cry)
43[deg]27.63[min] N. lat., 70[deg]17.48[min] W. long. (RW ``WI''
Whistle, Wood Island)
43[deg]20.23[min] N. lat., 70[deg]23.64[min] W. long. (RW ``CP''
Whistle, Cape Porpoise)
43[deg]04.06[min] N. lat., 70[deg]36.70[min] W. long. (R N ``2MR'',
Murray Rock)
43[deg]02.93[min] N. lat., 70[deg]41.47[min] W. long. (R ``2KR''
Whistle, Kittery Point)
43[deg]02.55[min] N. lat., 70[deg]43.33[min] W. long. (Odiornes Pt.,
Portsmouth, New Hampshire)
New Hampshire
New Hampshire state waters are exempt from the minimum number of
traps per trawl requirement in paragraph (c)(2)(iii) of this section.
Harbor waters landward of the following lines are exempt from all the
regulations in this section.
A line from 42[deg]53.691[min] N. lat., 70[deg]48.516[min] W. long. to
42[deg]53.516[min] N. lat., 70[deg]48.748[min] W. long.
(Hampton Harbor)
A line from 42[deg]59.986[min] N. lat., 70[deg]44.654[min] W. long. to
42[deg]59.956[min] N., 70[deg]44.737[min] W. long. (Rye
Harbor)
Rhode Island
Rhode Island state waters are exempt from the minimum number of
traps per trawl requirement in paragraph (c)(2)(iii) of this section.
Harbor waters landward of the following lines are exempt from all the
regulations in this section.
A line from 41[deg]22.441[min] N. lat., 71[deg]30.781[min] W. long. to
41[deg]22.447[min] N. lat., 71[deg]30.893[min] W. long. (Pt.
Judith Pond Inlet)
A line from 41[deg]21.310[min] N. lat., 71[deg]38.300[min] W. long. to
41[deg]21.300[min] N. lat., 71[deg]38.330[min] W. long.
(Ninigret Pond Inlet)
A line from 41[deg]19.875[min] N. lat., 71[deg]43.061[min] W. long. to
41[deg]19.879[min] N. lat., 71[deg]43.115[min] W. long.
(Quonochontaug Pond Inlet)
A line from 41[deg]19.660[min] N. lat., 71[deg]45.750[min] W. long. to
41[deg]19.660[min] N. lat., 71[deg]45.780[min] W. long.
(Weekapaug Pond Inlet)
A line from 41[deg]26.550[min] N. lat., 71[deg]26.400[min] W. long. to
41[deg]26.500[min] N. lat, 71[deg]26.505[min] W. long.
(Pettaquamscutt Inlet)
New York
The regulations in this section do not apply to waters landward of a
line that follows the territorial sea baseline through Block Island
Sound (Watch Hill Point, RI, to Montauk Point, NY).
Massachusetts
The regulations in this section do not apply to waters landward of
the first bridge over any embayment, harbor, or inlet in Massachusetts.
The following Massachusetts state waters are exempt from the minimum
number of traps per trawl requirement in paragraph (c)(2)(iii) of this
section:
From the New Hampshire border to 70[deg] W longitude south of Cape
Cod, waters in EEZ Nearshore Management Area 1 and the Outer Cape
Lobster Management Area (as defined in the American Lobster Fishery
regulations under Sec. 697.18 of this title), from the shoreline to 3
nautical miles from shore, and including waters of Cape Cod Bay
southeast of a straight line connecting 41[deg] 55.8[min] N lat.,
70[deg]8.4[min] W long. and 41[deg]47.2[min] N lat., 70[deg]19.5[min] W
long.
From 70[deg] W longitude south of Cape Cod to the Rhode Island
border, all Massachusetts state waters in EEZ Nearshore Management Area
2 and the Outer Cape Lobster Management Area (as defined in the American
Lobster Fishery regulations under Sec. 697.18 of this title), including
federal waters of Nantucket Sound west of 70[deg] W longitude.
South Carolina
The regulations in this section do not apply to waters landward of a
line connecting the following points from 32[deg]34.717[min] N. lat.,
80[deg]08.565[min] W. long. to 32[deg]34.686[min] N. lat.,
80[deg]08.642[min] W. long. (Captain Sams Inlet)
(4) Sinking groundline exemption. The fisheries regulated under this
section are exempt from the requirement to have groundlines composed of
sinking line if their groundline is at a depth equal to or greater than
280 fathoms (1,680 ft or 512.1 m).
(5) Net panel weak link and anchoring exemption. The anchored
gillnet fisheries regulated under this section are exempt from the
requirement to install weak links in the net panel and anchor each end
of the net string if the float-line is at a depth equal to or greater
than 280 fathoms (1,680 ft or 512.1 m).
(6) Island buffer. Those fishing in waters within \1/4\ nautical
miles of the following Maine islands are exempt from the minimum number
of traps per trawl requirement in paragraph (c)(2)(iii) of this section:
Monhegan Island, Matinicus Island Group (Metinic Island, Small Green
Island, Large Green Island, Seal Island, Wooden Ball
[[Page 30]]
Island, Matinicus Island, Ragged Island) and Isles of Shoals Island
Group (Duck Island, Appledore Island, Cedar Island, Smuttynose Island).
(b) Gear marking requirements--(1) Specified areas. The following
areas are specified for gear marking purposes: Northern Inshore State
Trap/Pot Waters, Cape Cod Bay Restricted Area, Massachusetts Restricted
Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, Northern Nearshore
Trap/Pot Waters Area, Great South Channel Restricted Trap/Pot Area,
Great South Channel Restricted Gillnet Area, Great South Channel Sliver
Restricted Area, Southern Nearshore Trap/Pot Waters Area, Offshore Trap/
Pot Waters Area, Other Northeast Gillnet Waters Area, Mid/South Atlantic
Gillnet Waters Area, Other Southeast Gillnet Waters Area, Southeast U.S.
Restricted Areas, and Southeast U.S. Monitoring Area.
(i) Jordan Basin. The Jordan Basin Restricted Area is bounded by the
following points connected by straight lines in the order listed:
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
JBRA1......................................... 43[deg]15[m 68[deg]50[m
in] in]
JBRA2......................................... 43[deg]35[m 68[deg]20[m
in] in]
JBRA3......................................... 43[deg]25[m 68[deg]05[m
in] in]
JBRA4......................................... 43[deg]05[m 68[deg]20[m
in] in]
JBRA5......................................... 43[deg]05[m 68[deg]35[m
in] in]
JBRA1......................................... 43[deg]15[m 68[deg]50[m
in] in]
------------------------------------------------------------------------
(ii) Jeffreys Ledge Restricted Area--The Jeffreys Ledge Restricted
Area is bounded by the following points connected by a straight line in
the order listed:
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
JLRA1......................................... 43[deg]15[m 70[deg]25[m
in] in]
JLRA2......................................... 43[deg]15[m 70[deg]00[m
in] in]
JLRA3......................................... 42[deg]50[m 70[deg]00[m
in] in]
JLRA4......................................... 42[deg]50[m 70[deg]25[m
in] in]
JLRA1......................................... 43[deg]15[m 70[deg]25[m
in] in]
------------------------------------------------------------------------
(2) Markings. All specified gear in specified areas must be marked
with the color code shown in paragraph (b)(3) of this section. The color
of the color code must be permanently marked on or along the line or
lines specified below under paragraphs (b)(2)(i) and (ii) of this
section. Each color mark of the color codes must be clearly visible when
the gear is hauled or removed from the water, including if the color of
the rope is the same as or similar to the respective color code. The
rope must be marked at least three times (top, middle, bottom) and each
mark must total 12-inch (30.5 cm) in length. If the mark consists of two
colors then each color mark may be 6-inch (15.25 cm) for a total mark of
12-inch (30.5 cm). In marking or affixing the color code, the line may
be dyed, painted, or marked with thin colored whipping line, thin
colored plastic, or heat-shrink tubing, or other material; or a thin
line may be woven into or through the line; or the line may be marked as
approved in writing by the Assistant Administrator. A brochure
illustrating the techniques for marking gear is available from the
Regional Administrator, NMFS, Greater Atlantic Region upon request.
(i) Buoy line markings. All buoy lines must be marked as stated
above. Shark gillnet gear in the Southeast U.S. Restricted Area S,
Southeast U.S. Monitoring Area and Other Southeast Gillnet Waters,
greater than 4 feet (1.22 m) long must be marked within 2 feet (0.6 m)
of the top of the buoy line (closest to the surface), midway along the
length of the buoy line, and within 2 feet (0.6 m) of the bottom of the
buoy line.
(ii) Net panel markings. Shark gillnet gear net panels in the
Southeast U.S. Restricted Area S, Southeast U.S. Monitoring Area and
Other Southeast Gillnet Waters is required to be marked. The net panel
must be marked along both the floatline and the leadline at least once
every 100 yards (91.4 m).
(iii) Surface buoy markings. Trap/pot and gillnet gear regulated
under this section must mark all surface buoys to identify the vessel or
fishery with one of the following: The owner's motorboat registration
number, the owner's U.S. vessel documentation number, the Federal
commercial fishing permit number, or whatever positive identification
marking is required by the vessel's home-port state. When marking of
surface buoys is not already required by state or Federal regulations,
the letters and numbers used to mark the gear to identify the vessel or
fishery must be at least 1 inch (2.5 cm) in
[[Page 31]]
height in block letters or arabic numbers in a color that contrasts with
the background color of the buoy. A brochure illustrating the techniques
for marking gear is available from the Regional Administrator, NMFS,
Greater Atlantic Region upon request.
(3) Color code. Gear must be marked with the appropriate colors to
designate gear types and areas as follows:
Color Code Scheme
------------------------------------------------------------------------
Plan management area Color
------------------------------------------------------------------------
Trap/Pot Gear
------------------------------------------------------------------------
Massachusetts Restricted Area.......... Red.
Northern Nearshore..................... Red.
Northern Inshore State................. Red.
Stellwagen Bank/Jeffreys Ledge Red.
Restricted Area.
Great South Channel Restricted Area Red.
overlapping with LMA 2 and/or Outer
Cape.
Exempt RI state waters (single traps).. Red and Blue.
Exempt MA state waters in LMA 1 (single Red and White.
traps).
Exempt MA state waters in LMA 2 (single Red and Black.
traps).
Exempt MA state waters in Outer Cape Red and Yellow.
(single traps).
Isles of Shoals, ME (single traps)..... Red and Orange.
Southern Nearshore..................... Orange.
Southeast Restricted Area North (State Blue and Orange.
Waters).
Southeast Restricted Area North Green and Orange.
(Federal Waters).
Offshore............................... Black.
Great South Channel Restricted Area Black.
overlapping with LMA 2/3 and/or LMA 3.
Jordan Basin........................... Black and Purple (LMA 3); Red
and and Purple (LMA 1).
Jeffreys Ledge......................... Red and Green.
------------------------------------------------------------------------
Gillnet excluding shark gillnet
------------------------------------------------------------------------
Cape Cod Bay Restricted Area........... Green.
Stellwagen Bank/Jeffreys Ledge Green.
Restricted Area.
Great South Channel Restricted Area.... Green.
Great South Channel Restricted Sliver Green.
Area.
Other Northeast Gillnet Waters......... Green.
Jordan Basin........................... Green and Yellow.
Jeffreys Ledge......................... Green and Black.
Mid/South Atlantic Gillnet Waters...... Blue.
Southeast US Restricted Area South..... Yellow.
Other Southeast Gillnet Waters......... Yellow.
------------------------------------------------------------------------
Shark Gillnet (with webbing of 5 or greater)
------------------------------------------------------------------------
Southeast US Restricted Area South..... Green and Blue.
Southeast Monitoring Area.............. Green and Blue.
Other Southeast Waters................. Green and Blue.
------------------------------------------------------------------------
(c) Restrictions applicable to trap/pot gear in regulated waters--
(1) Universal trap/pot gear requirements. In addition to the gear
marking requirements listed in paragraph (b) and the area-specific
measures listed in paragraphs (c)(2) through (10) of this section, all
trap/pot gear in regulated waters, including the Northern Inshore State
Trap/Pot Waters Area, must comply with the universal gear requirements
listed below.\1\
---------------------------------------------------------------------------
\1\ Fishermen are also encouraged to maintain their buoy lines to be
as knot-free as possible. Splices are considered to be less of an
entanglement threat and are thus preferable to knots.
---------------------------------------------------------------------------
(i) No buoy line floating at the surface. No person or vessel may
fish with trap/pot gear that has any portion of the buoy line floating
at the surface at any time when the buoy line is directly connected to
the gear at the ocean bottom. 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. Trap/pot gear must be hauled out of the
water at least once every 30 days.
(iii) Groundlines. All groundlines must be composed entirely of
sinking line. The attachment of buoys, toggles, or other floatation
devices to groundlines is prohibited.
(2) Area specific gear requirements. Trap/pot gear must be set
according to the requirements outlined below and in the table in
paragraph (c)(2)(iii) of this section.
(i) Single traps and multiple-trap trawls. All traps must be set
according to the configuration outlined in the Table (c)(2)(iii) of this
section. Trawls up to and including 5 or fewer traps must only have one
buoy line unless specified otherwise in Table (c)(2)(iii) of this
section.
(ii) Buoy line weak links. All buoys, flotation devices and/or
weights (except traps/pots, anchors, and leadline woven into the buoy
line), such as surface buoys, high flyers, sub-surface buoys, toggles,
window weights, etc., must be attached to the buoy line with a weak link
placed as close to each individual buoy, flotation device and/or weight
as operationally feasible and that meets the following specifications:
[[Page 32]]
(A) The breaking strength of the weak links must not exceed the
breaking strength listed in paragraph (c)(2)(iii) of this section for a
specified management area.
(B) The weak link must be chosen from the following list approved by
NMFS: 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. A brochure
illustrating the techniques for making weak links is available from the
Regional Administrator, NMFS, Greater Atlantic Region upon request.
(C) Weak links must break cleanly leaving behind the bitter end of
the line. The bitter end of the line must be free of any knots when the
weak link breaks. Splices are not considered to be knots for the
purposes of this provision.
(iii) Table of Area Specific Gear Requirements
----------------------------------------------------------------------------------------------------------------
Minimum number traps/
Location Mgmt area trawl Weak link strength
----------------------------------------------------------------------------------------------------------------
ME State and Pocket Waters \1\..... Northern Inshore State..... 2 (1 endline)......... <=600 lbs.
ME Zones A-G (3-6 miles) \1\....... Northern Nearshore......... 3 (1 endline)......... <=600 lbs.
ME Zones A-C (6-12 miles) \1\...... Northern Nearshore......... 5 (1 endline)......... <=600 lbs.
ME Zones D-G (6-12 miles) \1\...... Northern Nearshore......... 10.................... <=600 lbs.
ME Zones A-E (12 + miles).......... Northern Nearshore and 15.................... <=600 lbs (<=1500 lbs
Offshore. in offshore, 2,000
lbs if red crab trap/
pot).
ME Zones F-G (12 + miles).......... Northern Nearshore and 15 (Mar 1-Oct 31) 20 <=600 lbs (<=1500 lbs
Offshore. (Nov 1-Feb 28/29). in offshore, 2,000
lbs if red crab trap/
pot).
MA State Waters \2\................ Northern Inshore State and No minimum number of <=600 lbs.
Massachusetts Restricted traps per trawl.
Area. Trawls up to and
including 3 or fewer
traps must only have
one buoy line.
Other MA State Waters.............. Northern Inshore State and 2 (1 endline) Trawls <=600 lbs.
Massachusetts Restricted up to and including 3
Area. or fewer traps must
only have one buoy
line.
NH State Waters.................... Northern Inshore State..... No minimum trap/trawl. <=600 lbs.
LMA 1 (3-12 miles)................. Northern Nearshore and 10.................... <=600 lbs.
Massachusetts Restricted
Area and Stellwagen Bank/
Jeffreys Ledge Restricted
Area.
LMA 1 (12 + miles)................. Northern Nearshore......... 20.................... <=600 lbs.
LMA1/OC Overlap (0-3 miles)........ Northern Inshore State and No minimum number of <=600 lbs.
Massachusetts Restricted traps per trawl.
Area.
OC (0-3 miles)..................... Northern Inshore State and No minimum number of <=600 lbs.
Massachusetts Restricted traps per trawl.
Area.
OC (3-12 miles).................... Northern Nearshore and 10.................... <=600 lbs.
Massachusetts Restricted
Area.
OC (12 + miles).................... Northern Nearshore and 20.................... <=600 lbs.
Great South Channel
Restricted Area.
RI State Waters.................... Northern Inshore State..... No minimum number of <=600 lbs.
traps per trawl..
LMA 2 (3-12 miles)................. Northern Nearshore......... 10.................... <=600 lbs.
LMA 2 (12 + miles)................. Northern Nearshore and 20.................... <=600 lbs.
Great South Channel
Restricted Area.
LMA 2/3 Overlap (12 + miles)....... Offshore and Great South 20.................... <=1500 lbs (2,000 lbs
Channel Restricted Area. if red crab trap/
pot).
LMA 3 (12 + miles)................. Offshore waters North of 20.................... <=1500 lbs (2,000 lbs
40[deg] and Great South if red crab trap/
Channel Restricted Area. pot).
LMA 4,5,6.......................... Southern Nearshore......... ...................... <=600 lbs.
FL State Waters.................... Southeast US Restricted 1..................... <=200 lbs.
Area North \i\.
GA State Waters.................... Southeast US Restricted 1..................... <=600 lbs.
Area North \3\.
SC State Waters.................... Southeast US Restricted 1..................... <=600 lbs.
Area North \3\.
Federal Waters off FL, GA, SC...... Southeast US Restricted 1..................... <=600 lbs.
Area North \3\.
----------------------------------------------------------------------------------------------------------------
\1\ The pocket waters and 6-mile line as defined in paragraphs (a)(2)(ii)-(a)(2)(iii) of this section.
\2\ MA State waters as defined as paragraph (a)(3)(iii) of this section.
\3\ See Sec. 229.32(f)(1) for description of area.
[[Page 33]]
(3) Massachusetts Restricted Area--(i) Area. The Massachusetts
restricted area is bounded by the following points connected by straight
lines in the order listed, and bounded on the west by the shoreline of
Cape Cod, Massachusetts.
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
MRA1........................... 42[deg]12[min] 70[deg]44[min]
MRA2........................... 42[deg]12[min] 70[deg]30[min]
MRA3........................... 42[deg]30[min] 70[deg]30[min]
MRA4........................... 42[deg]30[min] 69[deg]45[min]
MRA5........................... 41[deg]56.5[min] 69[deg]45[min]
MRA6........................... 41[deg]21.5[min] 69[deg]16[min]
MRA7........................... 41[deg]15.3[min] 69[deg]57.9[min]
MRA8........................... 41[deg]20.3[min] 70[deg]00[min]
MRA9........................... 41[deg]40.2[min] 70[deg]00[min]
------------------------------------------------------------------------
(ii) Closure. From February 1 to April 30, it is prohibited to fish
with, set, or possess trap/pot gear in this area unless stowed in
accordance with Sec. 229.2.
(iii) Area-specific gear or vessel requirements. From May 1 through
January 31, no person or vessel may fish with or possess trap/pot gear
in the Massachusetts Restricted Area unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section,
the universal trap/pot gear requirements specified in paragraph (c)(1)
of this section, and the area-specific requirements listed in (c)(2) of
this section, or unless the gear is stowed as specified in Sec. 229.2.
(4) Great South Channel Restricted Trap/Pot Area--(i) Area. The
Great South Channel Restricted Trap/Pot Area consists of the area
bounded by the following points.
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
GSC1........................... 41[deg]40[min] 69[deg]45[min]
GSC2........................... 41[deg]0[min] 69[deg]05[min]
GSC3........................... 41[deg]38[min] 68[deg]13[min]
GSC4........................... 42[deg]10[min] 68[deg]31[min]
------------------------------------------------------------------------
(ii) Closure. From April 1 through June 30, it is prohibited to fish
with, set, or possess trap/pot gear in this area unless stowed in
accordance with Sec. 229.2.
(iii) Area-specific gear or vessel requirements. From July 1 through
March 31, no person or vessel may fish with or possess trap/pot gear in
the Great South Channel Restricted Trap/Pot Area unless that gear
complies with the gear marking requirements specified in paragraph (b)
of this section, the universal trap/pot gear requirements specified in
paragraph (c)(1) of this section, and the area-specific requirements
listed in (c)(2) of this section, or unless the gear is stowed as
specified in Sec. 229.2.
(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 the
Massachusetts Restricted Area in paragraph (c)(3) of this section, that
lie south of 43[deg]15[min] N. lat. and west of 70[deg]00[min] W. long.
(ii) Year round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot 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 trap/pot gear requirements specified in paragraph (c)(1) of
this section, and the area-specific requirements listed in paragraph
(c)(2) of this section, or unless the gear is stowed as specified in
Sec. 229.2.
(6) Offshore Trap/Pot \4\ Waters Area--(i) Area. The Offshore Trap/
Pot Waters Area includes all Federal waters of the EEZ Offshore
Management Area 3, including the area known as the Area 2/3 Overlap and
Area 3/5 Overlap as defined in the American Lobster Fishery regulations
at Sec. 697.18 of this title, with the exception of the Great South
Channel Restricted Trap/Pot Area and Southeast Restricted Area, and
extending south along the 100-fathom (600-ft or 182.9-m) depth contour
from 35[deg]14[min] N. lat. south to 27[deg]51[min] N. lat., and east to
the eastern edge of the EEZ.
---------------------------------------------------------------------------
\4\ Fishermen using red crab trap/pot gear should refer to Sec.
229.32(c)(10) for the restrictions applicable to red crab trap/pot
fishery.
---------------------------------------------------------------------------
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Offshore Trap/
Pot Waters Area that overlaps an area from the U.S./Canada border south
to a straight line from 41[deg]18.2[min] N. lat., 71[deg]51.5[min] W.
long. (Watch Hill Point, RI) south to 40[deg]00[min] N. lat., and then
east to the eastern edge of the EEZ, unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section,
the universal trap/pot gear requirements specified in paragraph (c)(1)
[[Page 34]]
of this section, and the area-specific requirements listed in (c)(2) of
this section, or unless the gear is stowed as specified in Sec. 229.2.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess
trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area
bounded on the north by a straight line from 41[deg]18.2[min] N. lat.,
71[deg]51.5[min] W. long. (Watch Hill Point, RI) south to 40[deg]00[min]
N. lat. and then east to the eastern edge of the EEZ, and bounded on the
south by a line at 32[deg]00[min] N. lat., and east to the eastern edge
of the EEZ, unless that gear complies with the gear marking requirements
specified in paragraph (b) of this section, the universal trap/pot gear
requirements specified in paragraph (c)(1) of this section, and area-
specific requirements in (c)(2) or unless the gear is stowed as
specified in Sec. 229.2.
(iv) Seasonal area-specific gear or vessel requirements. From
November 15 to April 15, no person or vessel may fish with or possess
trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area
from 32[deg]00[min] N. lat. south to 29[deg]00[min] N. lat. and east to
the eastern edge of the EEZ, unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) of this
section or unless the gear is stowed as specified in Sec. 229.2.
(v) Seasonal area-specific gear or vessel requirements. From
December 1 to March 31, no person or vessel may fish with or possess
trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area
from 29[deg]00[min] N. lat. south to 27[deg]51[min] N. lat. and east to
the eastern edge of the EEZ, unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) in this
section, or unless the gear is stowed as specified in Sec. 229.2.
(vi) [Reserved]
(7) Northern Inshore State Trap/Pot Waters Area--(i) Area. The
Northern Inshore State Trap/Pot Waters Area includes the state waters of
Rhode Island, Massachusetts, New Hampshire, and Maine, with the
exception of Massachusetts Restricted Area and those waters exempted
under paragraph (a)(3) of this section. Federal waters west of
70[deg]00[min] N. lat. in Nantucket Sound are also included in the
Northern Inshore State Trap/Pot Waters Area.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Northern Inshore
State Trap/Pot Waters Area unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in (c)(2) of this section
or unless the gear is stowed as specified in Sec. 229.2.
(8) Northern Nearshore Trap/Pot Waters Area--(i) Area. The Northern
Nearshore Trap/Pot 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 of this title), with the exception of the Great South
Channel Restricted Trap/Pot Area, Massachusetts Restricted Area,
Stellwagen Bank/Jeffreys Ledge Restricted Area, and Federal waters west
of 70[deg]00[min] N. lat. in Nantucket Sound (included in the Northern
Inshore State Trap/Pot Waters Area) and those waters exempted under
paragraph (a)(3) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Northern
Nearshore Trap/Pot Waters Area unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) of this
section, or unless the gear is stowed as specified in Sec. 229.2.
[[Page 35]]
(9) Southern Nearshore \5\ Trap/Pot Waters Area--(i) Area. The
Southern Nearshore Trap/Pot Waters Area includes all state and Federal
waters which fall within EEZ Nearshore Management Area 4, EEZ Nearshore
Management Area 5, and EEZ Nearshore Management Area 6 (as defined in
the American Lobster Fishery regulations in 50 CFR 697.18, and excluding
the Area 3/5 Overlap), and inside the 100-fathom (600-ft or 182.9-m)
depth contour line from 35[deg]30[min] N. lat. south to 27[deg]51[min]
N. lat. and extending inshore to the shoreline or exemption line, with
the exception of those waters exempted under paragraph (a)(3) of this
section and those waters in the Southeast Restricted Area defined in
paragraph (f)(1) of this section.
---------------------------------------------------------------------------
\5\ Fishermen using red crab trap/pot gear should refer to Sec.
229.32(c)(10) for the restrictions applicable to red crab trap/pot
fishery.
---------------------------------------------------------------------------
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Southern
Nearshore Trap/Pot Waters Area that is east of a straight line from
41[deg]18.2[min] N. lat., 71[deg]51.5[min] W. long. (Watch Hill Point,
RI) south to 40[deg]00[min] N. lat., unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section,
the universal trap/pot gear requirements specified in paragraph (c)(1)
of this section, the area-specific requirements in paragraph (c)(2) of
this section or unless the gear is stowed as specified in Sec. 229.2.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess
trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that
overlaps an area bounded on the north by a straight line from
41[deg]18.2[min] N. lat., 71[deg]51.5[min] W. long. (Watch Hill Point,
RI) south to 40[deg]00[min] N. lat. and then east to the eastern edge of
the EEZ, and bounded on the south by 32[deg]00[min] N. lat., and east to
the eastern edge of the EEZ, unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements in paragraph (c)(1) of this
section, the area-specific requirements in paragraph (c)(2) of this
section or unless the gear is stowed as specified in Sec. 229.2.
(iv) Seasonal area-specific gear or vessel requirements. From
November 15 to April 15, no person or vessel may fish with or possess
trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that
overlaps an area from 32[deg]00[min] N. lat. south to 29[deg]00[min] N.
lat. and east to the eastern edge of the EEZ, unless that gear complies
with the gear marking requirements specified in paragraph (b) of this
section, the universal trap/pot gear requirements specified in paragraph
(c)(1) of this section, the area-specific requirements in paragraph
(c)(2) of this section or unless the gear is stowed as specified in
Sec. 229.2.
(v) Seasonal area-specific gear or vessel requirements. From
December 1 to March 31, no person or vessel may fish with or possess
trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that
overlaps an area from 29[deg]00[min] N. lat. south to 27[deg]51[min] N.
lat. and east to the eastern edge of the EEZ, unless that gear complies
with the gear marking requirements specified in paragraph (b) of this
section, the universal trap/pot gear requirements specified in paragraph
(c)(1) of this section, the area-specific requirements in (c)(2) of this
section or unless the gear is stowed as specified in Sec. 229.2.
(vi) [Reserved]
(10) Restrictions applicable to the red crab trap/pot fishery--(i)
Area. The red crab trap/pot fishery is regulated in the waters
identified in paragraphs (c)(6)(i) and (c)(9)(i) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess red crab trap/pot gear in the area
identified in paragraph (c)(10)(i) of this section that overlaps an area
from the U.S./Canada border south to a straight line from 41[deg]
18.2[min] N. lat., 71[deg]51.5[min] W. long. (Watch Hill Point, RI)
south to 40[deg]00[min] N. lat., and then east to the eastern edge of
the EEZ, unless that gear complies with the gear marking requirements
specified in paragraph (b) of this section, the universal trap/pot gear
requirements specified in paragraph (c)(1) of this section, the area-
specific requirements in paragraph (c)(2) of this section or unless the
gear is stowed as specified in Sec. 229.2.
[[Page 36]]
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess red
crab trap/pot gear in the area identified in paragraph (c)(10)(i) of
this section that overlaps an area bounded on the north by a straight
line from 41[deg]18.2[min] N. lat., 71[deg]51.5[min] W. long. (Watch
Hill Point, RI) south to 40[deg]00[min] N. lat. and then east to the
eastern edge of the EEZ, and bounded on the south by a line at
32[deg]00[min] N. lat., and east to the eastern edge of the EEZ, unless
that gear complies with the gear marking requirements specified in
paragraph (b) of this section, the universal trap/pot gear requirements
specified in paragraph (c)(1) of this section, the area-specific
requirements in (c)(2) of this section or unless the gear is stowed as
specified in Sec. 229.2.
(iv) Seasonal area-specific gear or vessel requirements. From
November 15 to April 15, no person or vessel may fish with or possess
red crab trap/pot gear in the area identified in paragraph (c)(11)(i) of
this section that overlaps an area from 32[deg]00[min] N. lat. south to
29[deg]00[min] N. lat. and east to the eastern edge of the EEZ, unless
that gear complies with the gear marking requirements specified in
paragraph (b) of this section, the universal trap/pot gear requirements
specified in paragraph (c)(1) of this section, the area-specific
requirements in paragraph (c)(2) of this section or unless the gear is
stowed as specified in Sec. 229.2.
(v) Seasonal area-specific gear or vessel requirements. From
December 1 to March 31, no person or vessel may fish with or possess red
crab trap/pot gear in the area identified in paragraph (c)(11)(i) of
this section that overlaps an area from 29[deg]00[min] N. lat. south to
27[deg]51[min] N. lat. and east to the eastern edge of the EEZ, unless
that gear complies with the gear marking requirements specified in
paragraph (b) of this section, the universal trap/pot gear requirements
specified in paragraph (c)(1) of this section, the area-specific
requirements in (c)(2) of this section or unless the gear is stowed as
specified in Sec. 229.2.
(vi) [Reserved]
(d) Restrictions applicable to anchored gillnet gear--(1) Universal
anchored gillnet gear requirements. In addition to the area-specific
measures listed in paragraphs (d)(3) through (d)(8) of this section, all
anchored gillnet gear in regulated waters must comply with the universal
gear requirements listed below.\6\
---------------------------------------------------------------------------
\6\ Fishermen are also encouraged to maintain their buoy lines to be
as knot-free as possible. Splices are considered to be less of an
entanglement threat and are thus preferable to knots.
---------------------------------------------------------------------------
(i) No buoy line floating at the surface. No person or vessel may
fish with anchored gillnet gear that has any portion of the buoy line
floating at the surface at any time when the buoy line is directly
connected to the gear at the ocean bottom. 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, sinking and/or neutrally buoyant line
must 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.
(iii) Groundlines. All groundlines must be composed entirely of
sinking line unless exempted from this requirement under paragraph
(a)(4) of this section. The attachment of buoys, toggles, or other
floatation devices to groundlines is prohibited.
(2) Area specific gear restrictions. No person or vessel may fish
with or possess anchored gillnet gear in Areas referenced in paragraphs
(d)(3) through (d)(8) of this section, unless that gear complies with
the gear requirements specified in paragraph (d)(1) of this section, and
the area specific requirements listed below, or unless the gear is
stowed as specified in Sec. 229.2.
(i) Buoy line weak links. All buoys, flotation devices and/or
weights (except gillnets, anchors, and leadline woven into the buoy
line), such as surface buoys, high flyers, sub-surface buoys, toggles,
window weights, etc., must be attached to the buoy line with a weak link
placed as close to each individual buoy, flotation device and/or weight
as operationally feasible and that meets the following specifications:
(A) The weak link must be chosen from the following list approved by
NMFS: Swivels, plastic weak links,
[[Page 37]]
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. A brochure illustrating the techniques for
making weak links is available from the Regional Administrator, NMFS,
Greater Atlantic Region upon request.
(B) The breaking strength of the weak links must not exceed 1,100 lb
(499.0 kg).
(C) Weak links must break cleanly leaving behind the bitter end of
the line. The bitter end of the line must be free of any knots when the
weak link breaks. Splices are not considered to be knots for the
purposes of this provision.
(ii) Net panel weak links. The breaking strength of each weak link
must not exceed 1,100 lb (499.0 kg). The weak link requirements apply to
all variations in panel size. All net panels in a string must contain
weak links that meet one of the following two configurations unless
exempted from this requirement under paragraph (a)(5) of this section:
(A) Configuration 1. (1) The weak link must be chosen from the
following list approved by NMFS: Plastic weak links or rope of
appropriate breaking strength. If rope of appropriate breaking strength
is used throughout the floatline or as the up and down line, or if no up
and down line is present, then individual weak links are not required on
the floatline or up and down line. A brochure illustrating the
techniques for making weak links is available from the Regional
Administrator, NMFS, Greater Atlantic Region upon request; and
(2) One weak link must be placed in the center of each of the up and
down lines at both ends of the net panel; and
(3) One weak link must be placed as close as possible to each end of
the net panels on the floatline; and
(4) For net panels of 50 fathoms (300 ft or 91.4 m) or less in
length, one weak link must be placed in the center of the floatline; or
(5) For net panels greater than 50 fathoms (300 ft or 91.4 m) in
length, one weak link must be placed at least every 25 fathoms (150 ft
or 45.7 m) along the floatline.
(B) Configuration 2. (1) The weak link must be chosen from the
following list approved by NMFS: Plastic weak links or rope of
appropriate breaking strength. If rope of appropriate breaking strength
is used throughout the floatline or as the up and down line, or if no up
and down line is present, then individual weak links are not required on
the floatline or up and down line. A brochure illustrating the
techniques for making weak links is available from the Regional
Administrator, NMFS, Greater Atlantic Region upon request; and
(2) One weak link must be placed in the center of each of the up and
down lines at both ends of the net panel; and
(3) One weak link must be placed between the floatline tie loops
between net panels; and
(4) One weak link must be placed where the floatline tie loops
attaches to the bridle, buoy line, or groundline at the end of a net
string; and
(5) For net panels of 50 fathoms (300 ft or 91.4 m) or less in
length, one weak link must be placed in the center of the floatline; or
(6) For net panels greater than 50 fathoms (300 ft or 91.4 m) in
length, one weak link must be placed at least every 25 fathoms (150 ft
or 45.7 m) along the floatline.
(iii) Anchoring systems. All anchored gillnets, regardless of the
number of net panels, must be secured at each end of the net string with
a burying anchor (an anchor that holds to the ocean bottom through the
use of a fluke, spade, plow, or pick) having the holding capacity equal
to or greater than a 22-lb (10.0-kg) Danforth-style anchor unless
exempted from this requirement under paragraph (a)(5) of this section.
Dead weights do not meet this requirement. A brochure illustrating the
techniques for rigging anchoring systems is available from the Regional
Administrator, NMFS, Greater Atlantic Region.
(3) Cape Cod Bay Restricted Area--(i) Area. The Cape Cod Bay
restricted area is bounded by the following points and on the south and
east by the interior shoreline of Cape Cod, Massachusetts.
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CCB1........................ 41[deg]46.8[min] 70[deg]30[min]
CCB2........................ 42[deg]12[min] 70[deg]30[min]
CCB3........................ 42[deg]12[min] 70[deg]15[min]
[[Page 38]]
CCB4........................ 42[deg]04.8[min] 70[deg]10[min]
------------------------------------------------------------------------
(ii) Closure. During January 1 through May 15 of each year, no
person or vessel may fish with or possess anchored gillnet gear in the
Cape Cod Bay Restricted Area unless the Assistant Administrator
specifies gear restrictions or alternative fishing practices in
accordance with paragraph (i) of this section and the gear or practices
comply with those specifications, or unless the gear is stowed as
specified in Sec. 229.2. The Assistant Administrator 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 restricted area and are unlikely to
return for the remainder of the season.
(iii) Area-specific gear or vessel requirements. From May 16 through
December 31 of each year, no person or vessel may fish with or possess
anchored gillnet gear in the Cape Cod Bay 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 paragraph (d)(1) of this section, and the area-specific
requirements listed in paragraph (d)(2) of this section, or unless the
gear is stowed as specified in Sec. 229.2.
(4) Great South Channel Restricted Gillnet Area--(i) Area. The Great
South Channel Restricted Gillnet Area consists of the area bounded by
lines connecting the following four points:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
GSC1........................... 41[deg]02.2[min] 69[deg]02[min]
GSC2........................... 41[deg]43.5[min] 69[deg]36.3[min]
GSC3........................... 42[deg]10[min] 68[deg]31[min]
GSC4........................... 41[deg]38[min] 68[deg]13[min]
------------------------------------------------------------------------
(ii) Closure. From April 1 through June 30 of each year, no person
or vessel may fish with or possess anchored gillnet gear in the Great
South Channel Restricted Gillnet Area unless the Assistant Administrator
specifies gear restrictions or alternative fishing practices in
accordance with paragraph (i) of this section and the gear or practices
comply with those specifications, or unless the gear is stowed as
specified in Sec. 229.2.
(iii) Area-specific gear or vessel requirements. From July 1 through
March 31 of each year, no person or vessel may fish with or possess
anchored gillnet gear in the Great South Channel Restricted Gillnet 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 paragraph (d)(1) of this section, and the
area-specific requirements listed in paragraph (d)(2) of this section or
unless the gear is stowed as specified in Sec. 229.2.
(5) Great South Channel Sliver Restricted Area--(i) Area. The Great
South Channel Sliver Restricted Area consists of the area bounded by
lines connecting the following points:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
GSCRA1......................... 41[deg]02.2[min] 69[deg]02[min]
GSCRA2......................... 41[deg]43.5[min] 69[deg]36.3[min]
GSCRA3......................... 41[deg]40[min] 69[deg]45[min]
GSCRA4......................... 41[deg]00[min] 69[deg]05[min]
------------------------------------------------------------------------
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess anchored gillnet gear in the Great
South Channel 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 paragraph
(d)(1) of this section, and the area-specific requirements listed in
paragraph (d)(2) of this section or unless the gear is stowed as
specified in Sec. 229.2.
(6) 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 the Cape Cod Bay
Restricted Area in paragraph (d)(3) of this section that lie south of
43[deg]15[min] N. lat. and west of 70[deg]00[min] W. long.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess 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
[[Page 39]]
anchored gillnet gear requirements specified in paragraph (d)(1) of this
section, and the area-specific requirements listed in paragraph (d)(2)
of this section or unless the gear is stowed as specified in Sec.
229.2.
(7) Other Northeast Gillnet Waters Area--(i) Area. The Other
Northeast Gillnet Waters Area consists of all state and Federal U.S.
waters from the U.S./Canada border to Long Island, NY, at 72[deg]30[min]
W. long. south to 36[deg]33.03[min] N. lat. and east to the eastern edge
of the EEZ, with the exception of the Cape Cod Bay Restricted Area,
Stellwagen Bank/Jeffreys Ledge Restricted Area, Great South Channel
Restricted Gillnet Area, Great South Channel Sliver Restricted Area, and
exempted waters listed in paragraph (a)(3) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess anchored gillnet gear in the Other
Northeast Gillnet Waters Area that overlaps an area from the U.S./Canada
border south to a straight line from 41[deg]18.2[min] N. lat.,
71[deg]51.5[min] W. long. (Watch Hill Point, RI) south to 40[deg]00[min]
N. lat. and then east to the eastern edge of the EEZ, unless that 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 area-specific
requirements listed in paragraph (d)(2) of this section or unless the
gear is stowed as specified in Sec. 229.2.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess
anchored gillnet gear in the Other Northeast Gillnet Waters Area that is
south of a straight line from 41[deg]18.2[min] N. lat., 71
[deg]51.5[min] W. long. (Watch Hill Point, RI) south to 40[deg]00[min]
N. lat. and then east to the eastern edge of the EEZ, unless that 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 area-specific
requirements listed in paragraph (d)(2) of this section or unless the
gear is stowed as specified in Sec. 229.2.
(8) Mid/South Atlantic Gillnet Waters--(i) Area. The Mid/South
Atlantic Gillnet Waters consists of all U.S. waters bounded on the north
from Long Island, NY, at 72[deg]30[min] W. long. south to
36[deg]33.03[min] N. lat. and east to the eastern edge of the EEZ, and
bounded on the south by 32[deg]00[min] N. lat., and east to the eastern
edge of the EEZ. When the Mid/South Atlantic Gillnet Waters Area
overlaps the Southeast U.S. Restricted Area and its restricted period as
specified in paragraphs (f)(1) and (f)(2) of this section, then the
closure and exemption for the Southeast U.S. Restricted Area as
specified in paragraph (f)(2) of this section applies.
(ii) Area-specific gear or vessel requirements. From September 1
through May 31, no person or vessel may fish with or possess anchored
gillnet gear in the Mid/South Atlantic Gillnet Waters unless that 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, or unless the gear is stowed as specified in
Sec. 229.2. When the Mid/South Atlantic Gillnet Waters Area overlaps
the Southeast U.S. Restricted Area and its restricted period as
specified in paragraphs (f)(1) and (f)(2) of this section, then the
closure and exemption for the Southeast U.S. Restricted Area as
specified in paragraph (f)(2) of this section applies.
(A) Buoy line weak links. All buoys, flotation devices and/or
weights (except gillnets, anchors, and leadline woven into the buoy
line), such as surface buoys, high flyers, sub-surface buoys, toggles,
window weights, etc., must be attached to the buoy line with a weak link
placed as close to each individual buoy, flotation device and/or weight
as operationally feasible and that meets the following specifications:
(1) The weak link must be chosen from the following list approved by
NMFS: 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. A brochure
illustrating the techniques for making weak links is
[[Page 40]]
available from the Regional Administrator, NMFS, Greater Atlantic Region
upon request.
(2) The breaking strength of the weak links must not exceed 1,100 lb
(499.0 kg).
(3) Weak links must break cleanly leaving behind the bitter end of
the line. The bitter end of the line must be free of any knots when the
weak link breaks. Splices are not considered to be knots for the
purposes of this provision.
(B) Net panel weak links. The weak link requirements apply to all
variations in panel size. All net panels must contain weak links that
meet the following specifications unless exempted under paragraph (a)(5)
of this section:
(1) The breaking strength for each of the weak links must not exceed
1,100 lb (499.0 kg).
(2) The weak link must be chosen from the following list approved by
NMFS: Plastic weak links or rope of appropriate breaking strength. If
rope of appropriate breaking strength is used throughout the floatline
then individual weak links are not required. A brochure illustrating the
techniques for making weak links is available from the Regional
Administrator, NMFS, Greater Atlantic Region upon request.
(3) Weak links must be placed in the center of the floatline of each
gillnet net panel up to and including 50 fathoms (300 ft or 91.4 m) in
length, or at least every 25 fathoms (150 ft or 45.7 m) along the
floatline for longer panels.
(C) Additional anchoring system and net panel weak link
requirements. All gillnets must return to port with the vessel unless
the gear meets the following specifications:
(1) Anchoring systems. All anchored gillnets, regardless of the
number of net panels, must be secured at each end of the net string with
a burying anchor (an anchor that holds to the ocean bottom through the
use of a fluke, spade, plow, or pick) having the holding capacity equal
to or greater than a 22-lb (10.0-kg) Danforth-style anchor unless
exempted under paragraph (a)(5) of this section. Dead weights do not
meet this requirement. A brochure illustrating the techniques for
rigging anchoring systems is available from the Regional Administrator,
NMFS, Greater Atlantic Region upon request.
(2) Net panel weak links. Net panel weak links must meet the
specifications in this paragraph. The breaking strength of each weak
link must not exceed 1,100 lb (499.0 kg). The weak link requirements
apply to all variations in panel size. All net panels in a string must
contain weak links that meet one of the following two configurations
found in paragraph (d)(2)(ii)(A) or (d)(2)(ii)(B) of this section.
(3) Additional provision for North Carolina. All gillnets set 300
yards (274.3 m) or less from the shoreline in North Carolina must meet
the anchoring system and net panel weak link requirements in paragraphs
(d)(8)(ii)(C)(1) and (d)(8)(ii)(C)(2) of this section, or the following:
(i) The entire net string must be less than 300 yards (274.3 m) from
shore.
(ii) The breaking strength of each weak link must not exceed 600 lb
(272.2 kg). The weak link requirements apply to all variations in panel
size.
(iii) All net panels in a string must contain weak links that meet
one of the following two configuration specifications found in paragraph
(d)(2)(ii)(A) or (d)(2)(ii)(B) of this section.
(iv) Regardless of the number of net panels, all anchored gillnets
must be secured at the offshore end of the net string with a burying
anchor (an anchor that holds to the ocean bottom through the use of a
fluke, spade, plow, or pick) having a holding capacity equal to or
greater than an 8-lb (3.6-kg) Danforth-style anchor, and at the inshore
end of the net string with a dead weight equal to or greater than 31 lb
(14.1 kg).
(e) Restrictions applicable to drift gillnet gear--(1) Cape Cod Bay
Restricted Area--(i) Area. The Cape Cod Bay Restricted Area is bounded
by the following points and on the south and east by the interior
shoreline of Cape Cod, Massachusetts.
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CCB1........................ 41[deg]46.8[min] 70[deg]30[min]
CCB2........................ 42[deg]12[min] 70[deg]30[min]
CCB3........................ 42[deg]12[min] 70[deg]15[min]
CCB4........................ 42[deg]04.8[min] 70[deg]10[min]
------------------------------------------------------------------------
[[Page 41]]
(ii) Closure. From January 1 through April 30 of each year, no
person or vessel may fish with or possess drift gillnet gear in the Cape
Cod Bay Restricted Area unless the Assistant Administrator specifies
gear restrictions or alternative fishing practices in accordance with
paragraph (e)(1)(i) of this section and the gear or practices comply
with those specifications, or unless the gear is stowed as specified in
Sec. 229.2. The Assistant Administrator 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 restricted area and are unlikely to return for the
remainder of the season.
(iii) Area-specific gear or vessel requirements. From May 1 through
December 31 of each year, no person or vessel may fish with or possess
drift gillnet gear in the Cape Cod Bay Restricted Area unless that gear
complies with the gear marking requirements specified in paragraph (b)
of this section, or unless the gear is stowed as specified in Sec.
229.2. Additionally, no person or vessel may fish with or possess drift
gillnet gear at night in the Cape Cod Bay Restricted Area unless that
gear is tended, or unless the gear is stowed as specified in Sec.
229.2. During that time, all drift gillnet gear set by that vessel in
the Cape Cod Bay Restricted Area must be removed from the water and
stowed on board the vessel before a vessel returns to port.
(2) Great South Channel Restricted Gillnet Area--(i) Area. The Great
South Channel Restricted Gillnet Area consists of the area bounded by
lines connecting the following four points:
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
GSC1........................... 41[deg]02.2[min] 69[deg]02[min]
GSC2........................... 41[deg]43.5[min] 69[deg]36.3[min]
GSC3........................... 42[deg]10[min] 68[deg]31[min]
GSC4........................... 41[deg]38[min] 68[deg]13[min]
------------------------------------------------------------------------
(ii) Closure. From April 1 through June 30 of each year, no person
or vessel may set, fish with or possess drift gillnet gear in the Great
South Channel Restricted Gillnet Area unless the Assistant Administrator
specifies gear restrictions or alternative fishing practices in
accordance with paragraph (i) of this section and the gear or practices
comply with those specifications, or unless the gear is stowed as
specified in Sec. 229.2.
(iii) Area-specific gear or vessel requirements. From July 1 through
March 31 of each year, no person or vessel may fish with or possess
drift gillnet gear in the Great South Channel Restricted Gillnet Area
unless that gear complies with the gear marking requirements specified
in paragraph (b) of this section, or unless the gear is stowed as
specified in Sec. 229.2. Additionally, no person or vessel may fish
with or possess drift gillnet gear at night in the Great South Channel
Restricted Gillnet Area unless that gear is tended, or unless the gear
is stowed as specified in Sec. 229.2. During that time, all drift
gillnet gear set by that vessel in the Great South Channel Restricted
Gillnet Area must be removed from the water and stowed on board the
vessel before a vessel returns to port.
(3) Great South Channel Sliver Restricted Area--(i) Area. The Great
South Channel Sliver Restricted Area consists of the area bounded by
lines connecting the following points:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
GSCRA1......................... 41[deg]02.2[min] 69[deg]02[min]
GSCRA2......................... 41[deg]43.5[min] 69[deg]36.3[min]
GSCRA3......................... 41[deg]40[min] 69[deg]45[min]
GSCRA4......................... 41[deg]00[min] 69[deg]05[min]
------------------------------------------------------------------------
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess drift gillnet gear in the Great South
Channel Sliver Restricted Gillnet Area unless that gear complies with
the gear marking requirements specified in paragraph (b) of this
section, or unless the gear is stowed as specified in Sec. 229.2.
Additionally, no person or vessel may fish with or possess drift gillnet
gear at night in the Great South Channel Sliver Restricted Area unless
that gear is tended, or unless the gear is stowed as specified in Sec.
229.2. During that time, all drift gillnet gear set by that vessel in
the Great South Channel Sliver Restricted Area must be removed from the
water and stowed on board the vessel before a vessel returns to port.
(4) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The
Stellwagen Bank/Jeffreys Ledge Restricted Area includes all Federal
waters of the Gulf
[[Page 42]]
of Maine, except those designated the Cape Cod Bay Restricted Area in
paragraph (e)(1), that lie south of 43[deg]15[min] N. lat. and west of
70[deg]00[min] W. long.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess drift 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, or
unless the gear is stowed as specified in Sec. 229.2. Additionally, no
person or vessel may fish with or possess drift gillnet gear at night in
the Stellwagen Bank/Jeffreys Ledge Area unless that gear is tended, or
unless the gear is stowed as specified in Sec. 229.2. During that time,
all drift gillnet gear set by that vessel in the Stellwagen Bank/
Jeffreys Ledge Restricted Area must be removed from the water and stowed
on board the vessel before a vessel returns to port.
(5) Other Northeast Gillnet Waters Area--(i) Area. The Other
Northeast Gillnet Waters Area consists of all state and Federal U.S.
waters from the U.S./Canada border to Long Island, NY, at 72[deg]30[min]
W. long. south to 36[deg]33.03[min] N. lat. and east to the eastern edge
of the EEZ, with the exception of the Cape Cod Bay Restricted Area,
Stellwagen Bank/Jeffreys Ledge Restricted Area, Great South Channel
Restricted Gillnet Area, Great South Channel Sliver Restricted Area, and
exempted waters listed in paragraph (a)(3) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess drift gillnet gear in the Other
Northeast Gillnet Waters Area unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, or
unless the gear is stowed as specified in Sec. 229.2. Additionally, no
person or vessel may fish with or possess drift gillnet gear at night in
the Other Northeast Gillnet Waters Area unless that gear is tended, or
unless the gear is stowed as specified in Sec. 229.2. During that time,
all drift gillnet gear set by that vessel in the Other Northeast Gillnet
Waters Area must be removed from the water and stowed on board the
vessel before a vessel returns to port.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess
drift gillnet gear in the Other Northeast Gillnet Waters Area that is
south of a straight line from 41[deg]18.2[min] N. lat., 71[deg]51.5[min]
W. long. (Watch Hill Point, RI) south to 40[deg]00[min] N. lat. and then
east to the eastern edge of the EEZ, unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section, or
unless the gear is stowed as specified in Sec. 229.2. Additionally, no
person or vessel may fish with or possess drift gillnet gear at night in
the Other Northeast Gillnet Waters Area unless that gear is tended, or
unless the gear is stowed as specified in Sec. 229.2. During that time,
all drift gillnet gear set by that vessel in the Other Northeast Gillnet
Waters Area must be removed from the water and stowed on board the
vessel before a vessel returns to port.
(6) Mid/South Atlantic Gillnet Waters Area--(i) Area. The Mid/South
Atlantic Gillnet Waters consists of all U.S. waters bounded on the north
from Long Island, NY at 72[deg]30[min] W. long. south to
36[deg]33.03[min] N. lat. and east to the eastern edge of the EEZ, and
bounded on the south by 32[deg]00[min] N. lat., and east to the eastern
edge of the EEZ. When the Mid/South Atlantic Gillnet Waters Area
overlaps the Southeast U.S. Restricted Area and its restricted period as
specified in paragraphs (f)(1) and (f)(2) of this section, then the
closure and exemption for the Southeast U.S. Restricted Area as
specified in paragraph (f)(2) of this section applies.
(ii) Area-specific gear or vessel requirements. From September 1
through May 31, no person or vessel may fish with or possess drift
gillnet gear at night in the Mid/South Atlantic Gillnet Waters Area
unless:
(A) The gear complies with gear marking requirements specified in
paragraph (b) of this section;
(B) The gear is tended; and
(C) All gear is removed from the water and stowed on board the
vessel before a vessel returns to port. No person or vessel may possess
drift gillnet at night in the Mid/South Atlantic Gillnet Waters unless
the gear is stowed as specified in Sec. 229.2. When the Mid/South
Atlantic Gillnet Waters
[[Page 43]]
Area overlaps the Southeast U.S. Restricted Area and its restricted
period as specified in paragraphs (f)(1) and (f)(2) of this section,
then the closure and exemption for the Southeast U.S. Restricted Area as
specified in paragraph (f)(2) of this section applies.
(f) Restrictions applicable to the Southeast U.S. Restricted Area--
(1) Area. The Southeast U.S. Restricted Area consists of the area
bounded by straight lines connecting the following points in the order
stated from south to north:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
SERA1.......................... 27[deg]51[min] (\1\)
SERA2.......................... 27[deg]51[min] 80[deg]00[min]
SERA3.......................... 32[deg]00[min] 80[deg]00[min]
SERA4.......................... 32[deg]36[min] 78[deg]52[min]
SERA5.......................... 32[deg]51[min] 78[deg]36[min]
SERA6.......................... 33[deg]15[min] 78[deg]24[min]
SERA7.......................... 33[deg]27[min] 78[deg]04[min]
SERA8.......................... (\2\) 78[deg]33.9[min]
------------------------------------------------------------------------
\1\ Florida shoreline.
\2\ South Carolina shoreline.
(i) Southeast U.S. Restricted Area N. The Southeast U.S. Restricted
Area N consists of the Southeast U.S. Restricted Area from
29[deg]00[min] N. lat. northward.
(ii) Southeast U.S. Restricted Area S. The Southeast U.S. Restricted
Area S consists of the Southeast U.S. Restricted Area southward of
29[deg]00[min] N. lat.
(2) Restricted periods, closure, and exemptions--(i) Restricted
periods. The restricted period for the Southeast U.S. Restricted Area N
is from November 15 through April 15, and the restricted period for the
Southeast U.S. Restricted Area S is from December 1 through March 31.
(ii) Closure for gillnets. (A) Except as provided under paragraph
(f)(2)(v) of this section, fishing with or possessing gillnet in the
Southeast U.S. Restricted Area N during the restricted period is
prohibited.
(B) Except as provided under paragraph (f)(2)(iii) of this section
and (f)(2)(iv) of this section, fishing with gillnet in the Southeast
U.S. Restricted Area S during the restricted period is prohibited.
(iii) Exemption for Southeastern U.S. Atlantic shark gillnet
fishery. Fishing with gillnet for sharks with webbing of 5 inches (12.7
cm) or greater stretched mesh is exempt from the restrictions under
paragraph (f)(2)(ii)(B) of this section if:
(A) The gillnet is deployed so that it encloses an area of water;
(B) A valid commercial directed shark limited access permit has been
issued to the vessel in accordance with 50 CFR Sec. 635.4(e) and is on
board;
(C) No net is set at night or when visibility is less than 500 yards
(1,500 ft, 460 m);
(D) The gillnet is removed from the water before night or
immediately if visibility decreases below 500 yards (1,500 ft, 460 m);
(E) Each set is made under the observation of a spotter plane;
(F) No gillnet is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale;
(G) The gillnet is removed immediately from the water if a right,
humpback, or fin whale moves within 3 nautical miles (5.6 km) of the set
gear;
(H) The gear complies with the gear marking requirements specified
in paragraph (b) of this section; and
(I) The operator of the vessel calls the Southeast Fisheries Science
Center Panama City Laboratory in Panama City, FL, not less than 48 hours
prior to departing on any fishing trip in order to arrange for observer
coverage. If the Panama City Laboratory requests that an observer be
taken on board a vessel during a fishing trip at any time from December
1 through March 31 south of 29[deg]00[min] N. lat., no person may fish
with such gillnet aboard that vessel in the Southeast U.S. Restricted
Area S unless an observer is on board that vessel during the trip.
(iv) Exemption for Spanish Mackerel component of the Southeast
Atlantic gillnet fishery. Fishing with gillnet for Spanish mackerel is
exempt from the restrictions under paragraph (f)(2)(ii)(B) of this
section from December 1 through December 31, and from March 1 through
March 31 if:
(A) Gillnet mesh size is between 3.5 inches (8.9 cm) and 4\7/8\
inches (12.4 cm) stretched mesh;
(B) A valid commercial vessel permit for Spanish mackerel has been
issued to the vessel in accordance with Sec. 622.4(a)(2)(iv) of this
title and is on board;
[[Page 44]]
(C) No person may fish with, set, place in the water, or have on
board a vessel a gillnet with a float line longer than 800 yards (2,400
ft, 732 m);
(D) No person may fish with, set, or place in the water more than
one gillnet at any time;
(E) No more than two gillnets, including any net in use, may be
possessed at any one time; provided, however, that if two gillnets,
including any net in use, are possessed at any one time, they must have
stretched mesh sizes (as allowed under the regulations) that differ by
at least .25 inch (.64 cm);
(F) No person may soak a gillnet for more than 1 hour. The soak
period begins when the first mesh is placed in the water and ends either
when the first mesh is retrieved back on board the vessel or the
gathering of the gillnet is begun to facilitate retrieval on board the
vessel, whichever occurs first; providing that, once the first mesh is
retrieved or the gathering is begun, the retrieval is continuous until
the gillnet is completely removed from the water;
(G) No net is set at night or when visibility is less than 500 yards
(1,500 ft, 460 m);
(H) The gillnet is removed from the water before night or
immediately if visibility decreases below 500 yards (1,500 ft, 460 m);
(I) No net is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale;
(J) The gillnet is removed immediately from the water if a right,
humpback, or fin whale moves within 3 nautical miles (5.6 km) of the set
gear; and
(K) The 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
area-specific requirements for anchored gillnets specified in paragraphs
(d)(8)(ii)(A) through (d)(8)(ii)(D) of this section for the Mid/South
Atlantic Gillnet Waters.
(v) Exemption for vessels in transit with gillnet aboard. Possession
of gillnet aboard a vessel in transit is exempt from the restrictions
under paragraph (f)(2)(ii)(A) of this section if: All nets are covered
with canvas or other similar material and lashed or otherwise securely
fastened to the deck, rail, or drum; and all buoys, high flyers, and
anchors are disconnected from all gillnets. No fish may be possessed
aboard such a vessel in transit.
(vi) Restrictions for trap/pot gear. Fishing with trap/pot gear in
the Southeast U.S. Restricted Area N during the restricted period is
allowed if:
(A) Trap/pot gear is not fished in a trap/pot trawl;
(B) All buoys or flotation devices are attached to the buoy line
with a weak link that meets the requirements of paragraph (c)(2)(ii) of
this section. The weak link has a maximum breaking strength of 600 lbs
(272 kg) except in Florida State waters where the maximum breaking
strength is 200 lbs (91kg);
(C) The buoy line has a maximum breaking strength of 2,200 lbs (998
kg) except in Florida State waters where the maximum breaking strength
is 1,500 lbs (630 kg);
(D) The entire buoy line must be free of objects (e.g., weights,
floats, etc.) except where it attaches to the buoy and trap/pot;
(E) The buoy line is made of sinking line;
(F) The gear complies with gear marking requirements as specified in
paragraph (b) of this section; and
(G) Trap/pot gear that is deployed in the EEZ (as defined in Sec.
600.10 of this title) is brought back to port at the conclusion of each
fishing trip.
(g) Restrictions applicable to the Other Southeast Gillnet Waters--
(1) Area. The Other Southeast Gillnet Waters Area includes all waters
bounded by 32[deg]00[min] N. lat. on the north (near Savannah, GA),
26[deg]46.50[min] N. lat. on the south (near West Palm Beach, FL),
80[deg]00[min] W. long. on the west, and the EEZ boundary on the east.
(2) Closure for gillnets. Fishing with or possessing gillnet gear in
the Other Southeast Gillnet Waters Area north of 29[deg]00[min] N. lat.
from November 15 through April 15 or south of 29[deg]00[min] N. lat.
from December 1 through March 31 is allowed if one of the following
exemptions applies:
(i) Exemption for Southeastern U.S. Atlantic shark gillnet fishery.
Fishing with or possessing gillnet gear with webbing
[[Page 45]]
of 5 inches (12.7 cm) or greater stretched mesh is allowed if:
(A) The gear is marked as required in paragraph (b) of this section.
(B) No net is set within 3 nautical miles (5.6 km) of a right,
humpback, or fin whale; and
(C) The gear is removed immediately from the water if a right,
humpback, or fin whale moves within 3 nautical miles (5.6 km) of the set
gear.
(ii) Exemption for Southeast Atlantic gillnet fishery. Fishing with
or possessing gillnet gear is allowed if:
(A) The gear is marked as required in paragraph (b) of this section;
or
(B) The gear is fished south of 27[deg]51[min] N.
(iii) Exemption for vessels in transit with gillnet aboard.
Possession of gillnet gear aboard a vessel in transit is allowed if:
(A) All nets are covered with canvas or other similar material and
securely fastened to the deck, rail, or drum; and
(B) All buoys, high flyers, and anchors are disconnected from all
gillnets.
(h) Restrictions applicable to the Southeast U.S. Monitoring Area--
(1) Area. The Southeast U.S. Monitoring Area consists of the area from
27[deg]51[min] N. lat. (near Sebastian Inlet, FL) south to
26[deg]46.50[min] N. lat. (near West Palm Beach, FL), extending from the
shoreline or exemption line out to 80[deg]00[min] W. long.
(2) Restrictions for Southeastern U.S. Atlantic shark gillnet
fishery. Fishing with or possessing gillnet gear with webbing of 5
inches (12.7 cm) or greater stretched mesh from December 1 through March
31 is allowed if:
(i) The gear complies with the gear marking requirements specified
in paragraph (b) of this section;
(ii) The vessel owner/operator is in compliance with the vessel
monitoring system (VMS) requirements found in 50 CFR 635.69; and
(iii) The vessel owner/operator and crew are in compliance with
observer requirements found in Sec. 229.7.
(3) Restrictions for Southeastern U.S. Atlantic shark gillnet
fishery vessels in transit. Possession of gillnet gear with webbing of 5
inches (12.7 cm) or greater stretched mesh aboard a vessel in transit
from December 1 through March 31 is allowed if:
(i) All gear is stowed as specified in 50 CFR 229.2; and
(ii) The vessel owner/operator is in compliance with the vessel
monitoring system (VMS) requirements found in 50 CFR 635.69.
(i) 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 or restricted areas. If a
serious injury or mortality of a right whale occurs in the Cape Cod Bay
Restricted Area from January 1 through May 15, in the Great South
Channel Restricted Area from April 1 through June 30, the Southeast U.S.
Restricted Area N from November 15 to April 15, or the Southeast U.S.
Restricted Area S from December 1 through March 31 as the result of an
entanglement by trap/pot or gillnet gear allowed to be used in those
areas and times, the Assistant Administrator shall close that area to
that gear type (i.e., trap/pot or gillnet) 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 (i)(2) of this section or unless other measures are
implemented under paragraph (i)(2) of this section.
(2) Other special measures. The Assistant Administrator may, in
consultation with the Take Reduction Team, 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;
[[Page 46]]
(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.
[79 FR 36610, June 27, 2014; 79 FR 49718, Aug. 22, 2014, as amended at
79 FR 73852, Dec. 12, 2014; 80 FR 30375, May 28, 2015]
Effective Date Note: At 86 FR 52011, Sept. 17, 2021, Sec. 229.32
was revised, effective Oct. 18, 2021. For the convenience of the user,
the revised text is set forth as follows:
Sec. 229.32 Atlantic large whale take reduction plan regulations.
(a) Purpose and scope--(1) Whales and fixed gear fisheries. The
purpose of this section is to implement the Atlantic Large Whale Take
Reduction Plan to reduce incidental mortality and serious injury of fin,
humpback, and right whales in specific Category I and Category II
commercial fisheries from Maine through Florida. Specific Category I and
II commercial fisheries within the scope of the Plan are identified and
updated in the annual List of Fisheries. The measures identified in the
Atlantic Large Whale Take Reduction Plan are also intended to benefit
minke whales, which are not designated as a strategic stock, but are
known to be taken incidentally in gillnet and trap/pot fisheries. The
gear types affected by this plan include gillnets (e.g., anchored,
drift, and shark) and traps/pots. The Assistant Administrator may revise
the requirements set forth in this section in accordance with paragraph
(i) of this section;
(2) Regulated waters--(i) U.S. Atlantic waters. The regulations in
this section apply to all U.S. waters in the Atlantic except for the
areas exempted in paragraph (a)(3) of this section;
(ii) Northeast Region. The Northeast Region referred to in
paragraphs (b)(1) (b)(2)(i), (b)(3), and (c)(2)(iv) of this section
applies to ocean waters within an area bounded on the west by land or by
a rhumb line from 41[deg]18.2[min] N lat., 71[deg]51.5[min] W long.
(Watch Hill Point, RI) and on the south by the 40[deg]00[min] N lat.
line running east to the EEZ line, and bounded on the east by the EEZ
north to the U.S./Canada border except for the areas and specific
purposes exempted in paragraph (a)(3) of this section; and
(iii) Six-mile line. The six-mile line referred to in paragraph
(c)(2)(iv) of this section is a line connecting the following points
(Machias Seal to Provincetown):
Table 1 to Paragraph (a)(2)(iii)
44[deg]31.98[min] N lat., 67[deg]9.72[min] W long. (Machias Seal)
44[deg]3.42[min] N lat., 68[deg]10.26[min] W long. (Mount Desert Island)
43[deg]40.98[min] N lat., 68[deg]48.84[min] W long. (Matinicus)
43[deg]39.24[min] N lat., 69[deg]18.54[min] W long. (Monhegan)
43[deg]29.4[min] N lat., 70[deg]5.88[min] W long. (Casco Bay)
42[deg]55.38[min] N lat., 70[deg]28.68[min] W long. (Isle of Shoals)
42[deg]49.53[min] N lat., 70[deg]32.84[min] W long.
42[deg]46.74[min] N lat., 70[deg]27.70[min] W long.
42[deg]44.18[min] N lat., 70[deg]24.91[min] W long.
42[deg]41.61[min] N lat., 70[deg]23.84[min] W long.
42[deg]38.18[min] N lat., 70[deg]24.06[min] W long.
42[deg]35.39[min] N lat., 70[deg]25.77[min] W long.
42[deg]32.61[min] N lat., 70[deg]27.91[min] W long.
42[deg]30.00[min] N lat., 70[deg]30.60[min] W long.
42[deg]17.19[min] N lat., 70[deg]34.80[min] W long.
42[deg]12.48[min] N lat., 70[deg]32.20[min] W long.
42[deg]12.27[min] N lat., 70[deg]25.98[min] W long.
42[deg]11.62[min] N lat., 70[deg]16.78[min] W long.
42[deg]12.27[min] N lat., 70[deg]10.14[min] W long.
42[deg]12.05[min] N lat., 70[deg]54.26[min] W long.
42[deg]11.20[min] N lat., 70[deg]17.86[min] W long.
42[deg]09.55[min] N lat., 69[deg]58.80[min] W long. (Provincetown)
(iv) Maine pocket waters. The pocket waters referred to in paragraph
(c)(2)(iv) of this section are defined as follows:
Table 2 to Paragraph (a)(2)(iv)
West of Monhegan Island in the area north of the line 43[deg]42.17[min]
N lat., 69[deg]34.27[min] W long. and 43[deg]42.25[min] N lat.,
69[deg]19.3[min] W long.
East of Monhegan Island in the area located north of the line
43[deg]44[min] N lat., 69[deg]15.08[min] W long. and 43[deg]48.17[min] N
lat., 69[deg]8.02[min] W long.
South of Vinalhaven Island in the area located west of the line
43[deg]52.31[min] N lat., 68[deg]40[min] W long. and 43[deg]58.12[min] N
lat., 68[deg]32.95[min] W long.
South of Bois Bubert Island in the area located northwest of the line
44[deg]19.27[min] N lat., 67[deg]49.5[min] W long. and 44[deg]23.67[min]
N lat., 67[deg]40.5[min] W long.
(v) Maine Lobster Management Zones: The Maine Zones referred to in
paragraph (c)(2)(iv) of this section include waters seaward of the Maine
Exempted Waters referred to in paragraph (a)(3)(ii)(A) of this section
as managed in eight Zones defined by Maine DMR. The Zones are bounded
northeast by the U.S./Canada EEZ International Boundary line, offshore
by the Lobster Management Area (LMA) boundary where LMA 1 meets the
border of LMA 3 (LMA 1/LMA 3 boundary), and to the west by a boundary
proceeding offshore from the Maine/New Hampshire state line. Individual
Zone boundaries are defined as follows:
[[Page 47]]
Table 3 to Paragraph (a)(2)(v)
------------------------------------------------------------------------
Maine lobster management zone Description
------------------------------------------------------------------------
A--East........................... The eastern and offshore boundary of
Zone A East follows the
International Boundary line between
Canada and the United States
(Maine) extending to and following
the Exclusive Economic Zone
boundary to approximately
44[deg]8[min] N lat.,
67[deg]18.00[min] W long.
The western boundary runs from that
point due north along the
67[deg]18.00[min] W long. line to
Cross Island, Maine.
A--West........................... The eastern boundary of Zone A West
is the western boundary of Zone A
East.
The western boundary of Zone A West
follows: A line running from the
Southern tip of Schoodic Point at
44[deg]19.90[min] N lat., and
68[deg]03.61[min] W long. and
running south southeast to the LMA1/
LMA3 border at 43[deg]45.43[min] N
lat. and 67[deg]50.12[min] W long.
The offshore boundary is the LMA1/
LMA3 boundary.
B................................. The eastern boundary of Zone B is
the western boundary of Zone A
West.
The western boundary follows a line
that starts at the southernmost end
of Newbury Neck following a
straight line connecting the points
as follows:
44[deg]13.7[min] N lat, 68[deg]27.8
W long. (a point \1/4\ mile due
east of Pond Island), then to the
easternmost point of Black Island
then to the navigation buoy R ``8''
at the western entrance of York
Narrows then south to Swans Island
Head then continuing along the
southwestern shore of Swans Island
to West Point then following the
western boundary of the Swans
Island Lobster Conservation Area
southerly to a point at 44[deg]
01.9[min] N lat, 68[deg]28.6[min] W
long, then SSE to 43[deg]32.66[min]
N lat., 68[deg]17.28[min] W long.
where it intersects the LMA1/LMA3
boundary.
The offshore boundary is the LMA1/
LMA3 boundary.
C................................. The eastern boundary of Zone C is
the western boundary of Zone B.
The western boundary runs along a
line connecting the points as
follows:
44[deg]18.72[min] N lat.,
68[deg]49.61[min] W long. (Head of
the Cape, Cape Rosier), SSW to
44[deg]10.49[min] N lat.,
68[deg]55.57[min] W long., SW to
44[deg]06.14[min] N lat,
69[deg]00.00[min] W long., S to
44[deg]04.51[min] N lat.,
69[deg]00.01[min] W long., SSE to
44[deg] 00.79[min] N lat.,
68[deg]59.48[min] W long., SSE to
43[deg]58.01[min] N lat.,
68[deg]58.02[min] W long., WSW to
43[deg]57.82[min] N lat., 68[deg]
58.69[min] W long., SSW to
43[deg]56.86[min] N lat.,
68[deg]58.85[min] W long., SE to
43[deg]55.30[min] N lat.,
68[deg]55.00[min] W long., WSW to
43[deg]54.27[min] N lat.,
68[deg]58.33[min] W long., S to
43[deg]51.00[min] N lat.,
68[deg]58.31[min] W long., W to
43[deg]51.00[min] N lat.,
69[deg]00.11[min] W long., SSE to
43[deg]46.57[min] N lat.,
68[deg]59.30[min] W long., SW to
43[deg]44.88[min] N lat.,
69[deg]01.97[min] W long., SE to
43[deg]35.08[min] N lat., 68[deg]
50.08[min] W long., S to
43[deg]19.63[min] N lat., 68[deg]
44.255[min] W long. where it
intersects the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/
LMA3 boundary.
D................................. The eastern boundary of Zone D runs
along the points as follows:
44[deg] 18.72[min] N, 068[deg]
49.61[min] W (Head of the Cape,
Cape Rosier), SSW to 44[deg]
10.492[min] N, 068[deg] 55.574[min]
W, SW to 44[deg] 06.136[min] N,
069[deg] 00.000[min] W, S to
44[deg] 04.506[min] N, 069[deg]
00.014[min] W, SSE to 44[deg]
00.788[min] N, 068[deg] 59.475[min]
W, SSE to 43[deg] 58.011[min] N,
068[deg] 58.023[min] W, ENE to
43[deg] 58.194[min] N, 068[deg]
57.381[min] W, SSE to 43[deg]
57.309[min] N, 068[deg] 57.226[min]
W, SE to 43[deg] 55.688[min] N,
068[deg] 53.662[min] W, WSW to
43[deg] 55.285[min] N, 068[deg]
55.000[min] W, WSW to 43[deg]
54.265[min] N, 068[deg] 58.330[min]
W, S to 43[deg] 50.997[min] N,
068[deg] 58.313[min] W, W to
43[deg] 51.001[min] N, 069[deg]
00.107[min] W, SSE to 43[deg]
46.565[min] N, 068[deg] 59.298[min]
W, NE to 43[deg] 47452[min] N,
068[deg] 57.853[min] W, SE to
43[deg] 44.669[min] N, 068[deg]
54.350[min] W, S to
43[deg]19.63[min] N lat., 68[deg]
44.255[min] W long. where it
intersects the LMA1/LMA3 boundary.
The western boundary of Zone D
starts at the southern tip of
Pemaquid Point, SSW and follows a
line connecting the points as
follows:
43[deg]48.1[min] N lat,
69[deg]30[min]W long., S to
43[deg]39.0[min] N lat,
69[deg]30.0[min] W long., S to
43[deg]02.57[min] N lat,
69[deg]16.43[min] W long., to where
it intersects the LMA1/LMA3
boundary.
The offshore boundary is the LMA1/
LMA3 boundary.
E................................. The eastern boundary of Zone E is
the western boundary of Zone C.
The western boundary of Zone E
begins at Newbury Point in Small
Point Harbor, Phippsburg and
follows a line connecting the
points as follows:
SSW to N[sec]2[min], SSE to ``2BH'',
S to 43[deg]38.73[min] N lat.,
69[deg]49.95[min] W long., along
the 3 mile line to
43[deg]38.87[min] N lat.,
69[deg]48.82[min] W long, S to
42[deg]53.51[min] N lat., 69[deg]
32.18[min] W long., where it
intersects the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/
LMA3 boundary.
F................................. The eastern boundary of Zone F is
the western boundary of Zone E.
The western boundary of Zone F runs
in a straight line from the active
Lighthouse at Two Lights Cape
Elizabeth and follows a line
connecting the points as follows:
43[deg]31.80[min] N lat.
70[deg]08.56[min] W long. near the
C ``1'' East Hue & Cry buoy, WSW to
43[deg]29.28[min] N lat,
70[deg]11.77[min] W long., S to
42[deg]36.22[min] N lat.
69[deg]52.66[min] W long, where it
intersects the southeastern apex of
Zone G. From this point, Zone F
boundary follows a straight line
southeast to 42[deg]29.85[min] N-
69[deg] 40.08[min] W where it meets
the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/
LMA3 boundary.
G................................. The eastern boundary of Zone G is as
follows:
43[deg] 41.550[min] N, 070[deg]
14.650[min] W, SSE 159[deg]
Magnetic to 43[deg] 32.875[min] N,
070[deg] 05.920[min] W, SSE to
42[deg] 31.50[min] N, -69[deg]
43.34[min] W where it meets with
the southwestern boundary of Zone
F.
The western boundary of Zone G is
the seaward extension of the Maine--
NH border and follows a line
connecting the points as follows:
43[deg]02.62[min] N lat.
70[deg]42.1[min] W long., to
42[deg]58.92[min] N lat.,
70[deg]37.65[min] W long., to
42[deg]58.75[min] N lat.,
70[deg]36.72[min] W long., to where
it intersects with the western Zone
F boundary.
------------------------------------------------------------------------
[[Page 48]]
(3) Exempted waters--(i) COLREGS demarcation line. The regulations
in this section do not apply to waters landward of the 72 COLREGS
demarcation lines (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 with the exception of the
COLREGS lines for Casco Bay (Maine), Portsmouth Harbor (New Hampshire),
Gardiners Bay and Long Island Sound (New York), and the state of
Massachusetts;
(ii) Other exempted waters--(A) Maine. The regulations in this
section do not apply to waters landward of a line connecting the
following points (Quoddy Narrows/U.S.-Canada border to Odiornes Pt.,
Portsmouth, New Hampshire):
Table 4 to Paragraph (a)(3)(ii)(A)
44[deg]49.67[min] N lat., 66[deg]57.77[min] W long. (R N ``2'', Quoddy
Narrows)
44[deg]48.64[min] N lat., 66[deg]56.43[min] W long. (G ``1'' Whistle,
West Quoddy Head)
44[deg]47.36[min] N lat., 66[deg]59.25[min] W long. (R N ``2'', Morton
Ledge)
44[deg]45.51[min] N lat., 67[deg]02.87[min] W long. (R ``28M'' Whistle,
Baileys Mistake)
44[deg]37.70[min] N lat., 67[deg]09.75[min] W long. (Obstruction,
Southeast of Cutler)
44[deg]27.77[min] N lat., 67[deg]32.86[min] W long. (Freeman Rock, East
of Great Wass Island)
44[deg]25.74[min] N lat., 67[deg]38.39[min] W long. (R ``2SR'' Bell,
Seahorse Rock, West of Great Wass Island)
44[deg]21.66[min] N lat., 67[deg]51.78[min] W long. (R N ``2'', Petit
Manan Island)
44[deg]19.08[min] N lat., 68[deg]02.05[min] W long. (R ``2S'' Bell,
Schoodic Island)
44[deg]13.55[min] N lat., 68[deg]10.71[min] W long. (R ``8BI'' Whistle,
Baker Island)
44[deg]08.36[min] N lat., 68[deg]14.75[min] W long. (Southern Point,
Great Duck Island)
43[deg]59.36[min] N lat., 68[deg]37.95[min] W long. (R ``2'' Bell,
Roaring Bull Ledge, Isle Au Haut)
43[deg]59.83[min] N lat., 68[deg]50.06[min] W long. (R ``2A'' Bell, Old
Horse Ledge)
43[deg]56.72[min] N lat., 69[deg]04.89[min] W long. (G ``5TB'' Bell, Two
Bush Channel)
43[deg]50.28[min] N lat., 69[deg]18.86[min] W long. (R ``2 OM'' Whistle,
Old Man Ledge)
43[deg]48.96[min] N lat., 69[deg]31.15[min] W long. (GR C ``PL'',
Pemaquid Ledge)
43[deg]43.64[min] N lat., 69[deg]37.58[min] W long. (R ``2BR'' Bell,
Bantam Rock)
43[deg]41.44[min] N lat., 69[deg]45.27[min] W long. (R ``20ML'' Bell,
Mile Ledge)
43[deg]36.04[min] N lat., 70[deg]03.98[min] W long. (RG N ``BS'',
Bulwark Shoal)
43[deg]31.94[min] N lat., 70[deg]08.68[min] W long. (G ``1'', East Hue
and Cry)
43[deg]27.63[min] N lat., 70[deg]17.48[min] W long. (RW ``WI'' Whistle,
Wood Island)
43[deg]20.23[min] N lat., 70[deg]23.64[min] W long. (RW ``CP'' Whistle,
Cape Porpoise)
43[deg]04.06[min] N lat., 70[deg]36.70[min] W long. (R N ``2MR'', Murray
Rock)
43[deg]02.93[min] N lat., 70[deg]41.47[min] W long. (R ``2KR'' Whistle,
Kittery Point)
43[deg]02.55[min] N lat., 70[deg]43.33[min] W long. (Odiornes Pt.,
Portsmouth, New Hampshire)
(B) New Hampshire. New Hampshire state waters are exempt from the
minimum number of traps per trawl requirement in paragraph (c)(2)(iv) of
this section. Harbor waters landward of the following lines are exempt
from all the regulations in this section;
Table 5 to Paragraph (a)(3)(ii)(B)
A line from 42[deg]53.691[min] N lat., 70[deg]48.516[min] W long. to
42[deg]53.516[min] N lat., 70[deg]48.748[min] W long. (Hampton Harbor)
A line from 42[deg]59.986[min] N lat., 70[deg]44.654[min] W long. to
42[deg]59.956[min] N, 70[deg]44.737[min] W long. (Rye Harbor)
(C) Rhode Island. Rhode Island state waters are exempt from the
minimum number of traps per trawl requirement in paragraph (c)(2)(iv) of
this sectioN Harbor waters landward of the following lines are exempt
from all the regulations in this section;
Table 6 to Paragraph (a)(3)(ii)(C)
A line from 41[deg]22.441[min] N lat., 71[deg]30.781[min] W long. to
41[deg]22.447[min] N lat., 71[deg]30.893[min] W long. (Pt. Judith Pond
Inlet)
A line from 41[deg]21.310[min] N lat., 71[deg]38.300[min] W long. to
41[deg]21.300[min] N lat., 71[deg]38.330[min] W long. (Ninigret Pond
Inlet)
A line from 41[deg]19.875[min] N lat., 71[deg]43.061[min] W long. to
41[deg]19.879[min] N lat., 71[deg]43.115[min] W long. (Quonochontaug
Pond Inlet)
A line from 41[deg]19.660[min] N lat., 71[deg]45.750[min] W long. to
41[deg]19.660[min] N lat., 71[deg]45.780[min] W long. (Weekapaug Pond
Inlet)
A line from 41[deg]26.550[min] N lat., 71[deg]26.400[min] W long. to
41[deg]26.500[min] N lat., 71[deg]26.505[min] W long. (Pettaquamscutt
Inlet)
(D) New York. The regulations in this section do not apply to waters
landward of a line that follows the territorial sea baseline through
Block Island Sound (Watch Hill Point, RI, to Montauk Point, NY);
(E) Massachusetts. The regulations in this section do not apply to
waters landward of the first bridge over any embayment, harbor, or inlet
in Massachusetts. The following Massachusetts state waters are exempt
from the minimum number of traps per trawl requirement in paragraph
(c)(2)(iv) of this section:
(1) Exempt waters of Massachusetts Bay and Outer Cape. Heading From
the New Hampshire border to 70[deg] W longitude south of Cape Cod,
waters in EEZ Nearshore Management Area 1 and the Outer Cape Lobster
Management Area (as defined in the American Lobster Fishery regulations
under Sec. 697.18 of this title), from the shoreline to 3 nautical
miles from shore, and including waters of Cape Cod Bay southeast of a
straight line connecting
[[Page 49]]
41[deg] 55.8[min] N lat., 70[deg]8.4[min] W long. and 41[deg]47.2[min] N
lat., 70[deg]19.5[min] W long.; and
(2) Exempt waters of southern Massachusetts. Heading From 70[deg] W
longitude south of Cape Cod to the Rhode Island border, all
Massachusetts state waters in EEZ Nearshore Management Area 2 and the
Outer Cape Lobster Management Area (as defined in the American Lobster
Fishery regulations 50 CFR 697.18), including Federal waters of
Nantucket Sound west of 70[deg] W long.;
(F) South Carolina. The regulations in this section do not apply to
waters landward of a line connecting the following points from
32[deg]34.717[min] N lat., 80[deg]08.565[min] W long. to
32[deg]34.686[min] N lat., 80[deg]08.642[min] W long. (Captain Sams
Inlet);
(4) Sinking groundline exemption. The fisheries regulated under this
section are exempt from the requirement to have groundlines composed of
sinking line if their groundline is at a depth equal to or greater than
280 fathoms (1,680 feet or 512.1 m);
(5) Net panel weak link and anchoring exemption. The anchored
gillnet fisheries regulated under this section are exempt from the
requirement to install weak links in the net panel and anchor each end
of the net string if the float-line is at a depth equal to or greater
than 280 fathoms (1,680 feet or 512.1 m); and
(6) Island buffer. Those fishing in waters within \1/4\ nautical
miles of the following Maine islands are exempt from the minimum number
of traps per trawl requirement in paragraph (c)(2)(iv) of this section:
Monhegan Island, Matinicus Island Group (Metinic Island, Small Green
Island, Large Green Island, Seal Island, Wooden Ball Island, Matinicus
Island, Ragged Island), and Isles of Shoals Island Group (Duck Island,
Appledore Island, Cedar Island, Smuttynose Island).
(b) Gear marking requirements--(1) Specified areas Fishermen
permitted by Maine, New Hampshire, Massachusetts, Rhode Island, and NMFS
to fish for lobster and Jonah crab using trap/pot gear in the Northeast
Region will follow the color marking requirements for Federal waters as
indicated in paragraph (b)(2) of this section and, except for when
fishing in LMA3, will follow the color code scheme assigned to their
state, indicated in paragraph (b)(3) of this section. For all other
trap/pot and gillnet gear, excluding shark gillnet, the following areas
are specified for gear marking purposes: Northern Inshore State Trap/Pot
Waters, Cape Cod Bay Restricted Area, Massachusetts Restricted Area,
Stellwagen Bank/Jeffreys Ledge Restricted Area, Northern Nearshore Trap/
Pot Waters Area, Great South Channel Restricted Trap/Pot Area, Great
South Channel Restricted Gillnet Area, Great South Channel Sliver
Restricted Area, Southern Nearshore Trap/Pot Waters Area, Offshore Trap/
Pot Waters Area, Other Northeast Gillnet Waters Area, Mid/South Atlantic
Gillnet Waters Area, Other Southeast Gillnet Waters Area, Southeast U.S.
Restricted Areas, and Southeast U.S. Monitoring Area;
(i) Jordan Basin. The Jordan Basin Restricted Area is bounded by the
following points connected by straight lines in the order listed:
Table 7 to Paragraph (b)(1)(i)
------------------------------------------------------------------------
Point N Lat. W Long.
------------------------------------------------------------------------
JBRA1................................... 43[deg]15[min] 68[deg]50[min]
JBRA2................................... 43[deg]35[min] 68[deg]20[min]
JBRA3................................... 43[deg]25[min] 68[deg]05[min]
JBRA4................................... 43[deg]05[min] 68[deg]20[min]
JBRA5................................... 43[deg]05[min] 68[deg]35[min]
JBRA1................................... 43[deg]15[min] 68[deg]50[min]
------------------------------------------------------------------------
(ii) Jeffreys Ledge Restricted Area. The Jeffreys Ledge Restricted
Area is bounded by the following points connected by a straight line in
the order listed:
Table 8 to Paragraph (b)(1)(ii)
------------------------------------------------------------------------
Point N Lat. W Long.
------------------------------------------------------------------------
JLRA1................................... 43[deg]15[min] 70[deg]25[min]
JLRA2................................... 43[deg]15[min] 70[deg]00[min]
JLRA3................................... 42[deg]50[min] 70[deg]00[min]
JLRA4................................... 42[deg]50[min] 70[deg]25[min]
JLRA1................................... 43[deg]15[min] 70[deg]25[min]
------------------------------------------------------------------------
(2) Markings. All specified gear in specified areas must be marked
with the color code shown in paragraph (b)(3) of this section. The color
must be permanently marked on or along the rope or ropes specified under
paragraphs (b)(2)(i) through (iv) of this section. Each colored mark
must be clearly visible when the gear is hauled or removed from the
water, including if the color of the rope is the same as or similar to
the respective color code;
(i) Northeast Region lobster and Jonah crab buoy line markings.
Beginning May 1, 2022, for all Federal and state Northeast Region
lobster and Jonah crab trap/pot gear regulated under this section, the
buoy lines must be marked with a solid mark at least 36 inches (91.4 cm)
in length within 2 fathoms (3.7 m) of the surface buoy. When fishing in
Federal waters, all Northeast Region lobster and Jonah crab trap/pot
buoy lines must have an additional green mark of at least 12 inches
(30.5 cm) in length no more than 6 inches (15.2 cm) from the 36-inch
(91.4 cm) mark. These long marks within 2 fathoms (3.7 m) of the buoy
must be solid marks that may be applied with dyed, painted, or heat-
shrink tubing, insertion of a colored rope or braided sleeve, or the
line may be marked as approved in writing by the Greater Atlantic
Regional Administrator. When fishing in state waters, the buoy line
below the surface system must be marked by the principal port state
color at least two additional times (top
[[Page 50]]
half, bottom half) and each mark must at least total 12 inches (30.5 cm)
for a total of at least three marks in state waters. For dual permitted
vessels, state regulations will determine whether green Federal markings
in the surface system and buoy line below the surface system can remain
on gear being fished in state waters. When in Federal waters, the buoy
line below the surface system must be marked at least three additional
times (top, middle, and bottom) with the state or LMA 3 specific color,
and each mark must total at least 12 inches (30.5 cm) in length. An
additional green mark of at least 12 inches (30.5 cm) in length denoting
Northeast Region Federal waters must be placed within 6 inches (15.2 cm)
of each area-specific colored mark for a total of at least eight marks
in Federal waters. In marking or affixing the color code(s) for the 1-
foot buoy line marks for gear regulated under this paragraph (b)(2)(i),
the line may be: Dyed; painted, marked with thin colored whipping line,
thin colored plastic, or heat-shrink tubing; spliced in insertion of a
colored rope or braided sleeve or other material, or a thin line may be
woven into or through the line; or the line may be marked as approved in
writing by the Greater Atlantic Regional Administrator. An outreach
guide illustrating the techniques for marking gear is available from the
Greater Atlantic Regional Administrator upon request and posted on the
Atlantic Large Whale Take Reduction Plan website at Fisheries.NOAA.gov/
ALWTRP;
(ii) Other buoy line markings. For all other trap/pot and gillnet
gear regulated under this section, the buoy line must be marked at least
three times (top, middle, bottom) and each mark must total at least 12
inches (30.5 cm) in length. If the mark consists of two colors, then
each color mark may be at least 6 inches (15.2 cm) for a total mark of
12 inches (30.5 cm). In marking or affixing the color code for gear
regulated under this paragraph (b)(2)(ii), the line may be: Dyed,
painted, marked with thin colored whipping line, thin colored plastic,
or heat-shrink tubing, spliced in insertion of a colored rope or braided
sleeve or other material, or a thin line may be woven into or through
the line, or the line may be marked as approved in writing by the
Greater Atlantic Regional Administrator. An outreach guide illustrating
the techniques for marking gear is available from the Greater Atlantic
Regional Administrator upon request and posted on the Atlantic Large
Whale Take Reduction Plan website at Fisheries.NOAA.gov/ALWTRP;
(iii) Net panel markings. Shark gillnet gear net panels in the
Southeast U.S. Restricted Area S, Southeast U.S. Monitoring Area and
Other Southeast Gillnet Waters are required to be marked. The net panel
must be marked along both the floatline and the leadline at least once
every 100 yards (91.4 m);
(iv) Surface buoy markings. Trap/pot and gillnet gear regulated
under this section must mark all surface buoys to identify the vessel or
fishery with one of the following: The owner's motorboat registration
number, the owner's U.S. vessel documentation number, the Federal
commercial fishing permit number, or whatever positive identification
marking is required by the vessel's home-port state. When marking of
surface buoys is not already required by state or Federal regulations,
the letters and numbers used to mark the gear to identify the vessel or
fishery must be at least 1 inch (2.5 cm) in height in block letters or
Arabic numbers in a color that contrasts with the background color of
the buoy. An outreach guide illustrating the techniques for marking gear
is available from the Greater Atlantic Regional Administrator upon
request and posted on the Atlantic Large Whale Take Reduction Plan
website Fisheries.NOAA.gov/ALWTRP;
(3) Color code. Gear must be marked with the appropriate colors to
designate gear types and areas as follows:
Table 9 to Paragraph (b)(3)
------------------------------------------------------------------------
Color code scheme
-------------------------------------------------------------------------
Plan management area Color
------------------------------------------------------------------------
Northeast Region, Lobster and Jonah Crab Trap/Pot Gear, Applicable
beginning May 1, 2022
------------------------------------------------------------------------
Trawls fished by vessels permitted by the Purple.
state of Maine and with a principal port
identified in Maine when fished in state
waters.
Trawls fished by vessels permitted by the Purple, Green.
state of Maine and NMFS, with a principal
port identified in Maine when fished in
Federal LMA 1 waters *.
Trawls fished by vessels permitted by the Yellow.
state of New Hampshire and with a
principal port identified in New Hampshire
when fished in state waters.
Trawls fished by vessels permitted by the Yellow, Green.
state of New Hampshire and NMFS, with a
principal port identified in New Hampshire
when fished in Federal LMA 1 waters *.
Trawls fished by vessels permitted by the Red.
state of Massachusetts and with a
principal port identified in Massachusetts
when fished in state waters.
Trawls fished by vessels permitted by the Red, Green.
state of Massachusetts and NMFS with a
principal port identified in Massachusetts
when fished in Federal waters of LMA 1,
OC, LMA 2 (including 2/3 overlap) *.
Trawls fished by vessels permitted by the Silver/Gray.
state of Rhode Island and with a principal
port identified in Rhode Island when
fished in state waters.
[[Page 51]]
Trawls fished by vessels permitted by the Silver/Gray, Green.
state of Rhode Island and NMFS, with a
principal port identified in Rhode Island
when in Federal waters of LMA 2 (including
2/3 overlap) *.
Trawls fished in the Northeast EEZ Offshore Black, Green.
Management Area 3 (LMA3) excluding the 2/3
overlap.
------------------------------------------------------------------------
Northeast Region, Other Trap/Pot gear
------------------------------------------------------------------------
Massachusetts Restricted Area.............. Red.
Northern Nearshore......................... Red.
Northern Inshore State..................... Red.
Stellwagen Bank/Jeffreys Ledge Restricted Red.
Area.
Great South Channel Restricted Area Red.
overlapping with LMA 2 and/or Outer Cape.
Exempt Rhode Island state waters (single Red and Blue.
traps).
Exempt Massachusetts state waters in LMA 1 Red and White.
(single traps).
Exempt Massachusetts state waters in LMA 2 Red and Black.
(single traps).
Exempt Massachusetts state waters in Outer Red and Yellow.
Cape (single traps).
Isles of Shoals, ME (single traps)......... Red and Orange.
Great South Channel Restricted Area Black.
overlapping with LMA 2/3 and/or LMA 3.
Jordan Basin............................... Black and Purple (LMA 3),
Red and Purple (LMA 1)
Jeffreys Ledge............................. Red and Green.
------------------------------------------------------------------------
Trap/Pot Gear
------------------------------------------------------------------------
Southern Nearshore......................... Orange.
Southeast Restricted Area North (state Blue and Orange.
Waters).
Southeast Restricted Area North (Federal Green and Orange.
Waters).
Offshore................................... Black.
------------------------------------------------------------------------
Gillnet excluding shark gillnet
------------------------------------------------------------------------
Cape Cod Bay Restricted Area............... Green.
Stellwagen Bank/Jeffreys Ledge Restricted Green.
Area.
Great South Channel Restricted Area........ Green.
Great South Channel Restricted Sliver Area. Green.
Other Northeast Gillnet Waters............. Green.
Jordan Basin............................... Green and Yellow.
Jeffreys Ledge............................. Green and Black.
Mid/South Atlantic Gillnet Waters.......... Blue.
Southeast U.S. Restricted Area South....... Yellow.
Other Southeast Gillnet Waters............. Yellow.
------------------------------------------------------------------------
Shark Gillnet (with webbing of 5[sec] or greater)
------------------------------------------------------------------------
Southeast U.S. Restricted Area South....... Green and Blue.
Southeast Monitoring Area.................. Green and Blue.
Other Southeast Waters..................... Green and Blue.
------------------------------------------------------------------------
* For dual permitted vessels, state regulations will determine whether
green marks can remain on gear being fished in state waters.
(c) Restrictions applicable to trap/pot gear in regulated waters--
(1) Universal trap/pot gear requirements. In addition to the gear
marking requirements listed in paragraph (b) of this section and the
area-specific measures listed in paragraphs (c)(2) through (14) of this
section, all trap/pot gear in regulated waters, including the Northern
Inshore State Trap/Pot Waters Area, must comply with the universal gear
requirements listed in paragraphs (c)(1)(i) through (iii) of this
section; \1\
---------------------------------------------------------------------------
\1\ Fishermen are also encouraged to maintain their buoy lines to be
as knot-free as possible. Splices are considered to be less of an
entanglement threat and are thus preferable to knots.
---------------------------------------------------------------------------
(i) No buoy line floating at the surface. No person or vessel may
fish with trap/pot gear that has any portion of the buoy line floating
at the surface at any time when the buoy line is directly connected to
the gear at the ocean bottom. 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. Trap/pot gear must be hauled out of the
water at least once every 30 days; and
[[Page 52]]
(iii) Groundlines. All groundlines must be composed entirely of
sinking line. The attachment of buoys, toggles, or other floatation
devices to groundlines is prohibited.
(2) Area specific gear requirements. Trap/pot gear must be set
according to the requirements outlined in paragraphs (c)(2)(i) through
(iii) of this section and in the table to paragraph (c)(2)(iv) of this
section;
(i) Single traps and multiple-trap trawls. All traps must be set
according to the configuration outlined in the table to paragraph
(c)(2)(iv) of this section. Trawls up to and including five traps must
only have one buoy line unless specified otherwise in the table to
paragraph (c)(2)(iv) of this section;
(ii) Buoy line weak links. With the exception of Northeast Region
lobster and Jonah crab trap/pot trawls, all buoys, flotation devices
and/or weights (except traps/pots, anchors, and leadline woven into the
buoy line), such as surface buoys, high flyers, radar reflectors,
subsurface buoys, toggles, window weights, etc., must be attached to the
buoy line with a weak link placed either as close to each individual
buoy, flotation device and/or weight as operationally feasible, or at
the base of the surface system where the surface system attaches to the
single buoy line, and that meets the following specifications;
(A) Weak link breaking strengths. The breaking strength of the weak
links must not exceed the breaking strength listed in paragraph
(c)(2)(iv) of this section for a specified management area;
(B) Approved weak links. The weak link must be chosen from the
following list approved by NMFS: 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 Greater
Atlantic Regional Administrator. An outreach guide illustrating the
techniques for making weak links is available from the Greater Atlantic
Regional Administrator upon request and posted on the Atlantic Large
Whale Take Reduction Plan website Fisheries.NOAA.gov/ALWTRP; and
(C) Clean breaks. Weak links must break cleanly leaving behind the
bitter end of the line. The bitter end of the line must be free of any
knots when the weak link breaks. Splices are not considered to be knots
for the purposes of this paragraph (c)(2)(ii)(C);
(iii) Weak buoy lines and weak insertion devices. Beginning May 1,
2022, all lobster and Jonah crab trap/pot buoy lines in the management
areas and configurations outlined in the table to paragraph (c)(2)(iv)
of this section must use weak line or must insert weak devices along the
buoy line as described in the table to paragraph (c)(2)(iv). The weak
line and weak insert devices must meet the following specifications;
(A) Breaking strength. The breaking strength of the weak buoy lines
and weak insertion devices must not exceed 1,700 lb (771 kgs);
(B) Approved devices and distance between weak insertions. Weak
insertion devices must be inserted in the specified intervals from the
surface system and must be devices chosen from the following list
approved by NMFS, including any rope no thinner than 5/16 inch (8 mm)
diameter that is engineered to break at 1,700 lb (771 kg) or less in a
color contrasting with the primary buoy line and 3 feet (91.4 cm) or
longer spliced on either end into the primary buoy line. Splices that
achieve nearly the manufactured breaking strength include but are not
limited to: Three or more tuck splices, an eye to loop with 3 or more
tuck splices, or a butt splice. A 3-foot long hollow braided sleeve such
as those known as the South Shore Sleeve installed over a parted buoy
line is approved. A plastic weak link engineered to break at 1700 lb
(771 kg) or less in a color that contrasts with the buoy line and with
the breaking strength imprinted on the weak link is approved. The
Greater Atlantic Regional Administrator will approve other materials,
devices, or configurations inserted according to specifications approved
in writing by the Greater Atlantic Regional Administrator. An outreach
guide illustrating the techniques for making weak insert devices is
available from the Greater Atlantic Regional Administrator upon request
and posted on the Atlantic Large Whale Take Reduction Plan website
Fisheries.NOAA.gov/ALWTRP; and
(C) Clean breaks. Weak line and weak inserts must break cleanly
leaving behind the bitter end of the line. The bitter end of the line
must be free of any knots when the weak insert breaks. Splices are not
considered to be knots for the purposes of this paragraph
(c)(2)(iii)(D).
(iv) Table of area specific trap/pot gear requirements.
Table 10 to Paragraph (c)(2)(iv)
------------------------------------------------------------------------
Minimum number of
Minimum number weak rope or weak
Mgmt area; location traps/trawl insertion
configuration
------------------------------------------------------------------------
Northeast Region Lobster and Jonah Crab Trap/Pot, Applicable beginning
May 1, 2022
------------------------------------------------------------------------
Northern Inshore State; Maine 3 (1 buoy line)... Weak line for the
Zones A, B, F, G exempt waters top 50 percent of
to 3 miles. the buoy line or
one weak
insertion device
at 50 percent
buoy line length
from top.
[[Page 53]]
Northern Inshore State; Maine 2 (1 buoy line) or Weak line for the
Zones C, D, and E exempt waters 4 (2 buoy lines). top 50 percent of
to 3 miles. the buoy line or
one weak
insertion device
at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone A 10 (1 buoy line) Weak line for the
East 3 to 12 miles. or 20 (2 buoy top 33 percent of
lines). the buoy line or
one weak
insertion device
at 33 percent
buoy line length
from top.
Northern Nearshore: Maine Zone A 4 (1 buoy line) or Weak line for the
West 3 to 6 miles. 8 (2 buoy lines). top 50 percent of
the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone A 8 (1 buoy line) or Weak line for the
West 6 to 12 miles. 15 (2 buoy lines). top 50 percent of
the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone B 5 (1 buoy line)... Weak line for the
3 to 6 miles. top 50 percent of
the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone 5 (1 buoy line) or Weak line for the
C, D, E 3 to 6 miles. 10 (2 buoy lines). top 50 percent of
the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone F 5 (1 buoy line) or Weak line for the
and G 3 to 6 miles. 10 (2 buoy lines). top 33 percent of
the buoy line or
one weak
insertion device
at 33 percent
buoy line length
from top.
Northern Nearshore: Maine Zone 5 (1 buoy line) or Weak line for the
B, D, and E 6 to 12 miles. 10 (2 buoy lines). top 50 percent of
the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone C 10 (1 buoy line) Weak line for the
6 to 12 miles. or 20 (2 buoy top 50 percent of
lines). the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore: Maine Zone F 5 (1 buoy line) or Weak line for the
6 to 12 miles. 10 (2 buoy lines). top 33 percent of
the buoy line or
one weak
insertion device
at 33 percent
buoy line length
from top.
Northern Nearshore: Maine Zone G 10 (1 buoy line) Weak line for the
6 to 12 miles. or 20 (2 buoy top 33 percent of
lines). the buoy line or
one weak
insertion device
at 33 percent
buoy line length
from top.
Northern Inshore State and No minimum number Weak inserts every
Massachusetts Restricted Area; of traps per 60 feet (18.3 m)
Massachusetts State Waters \2\. trawl. Trawls up in top 75 percent
to and including of line or full
3 or fewer traps weak line through
must only have top 75 percent of
one buoy line. line.
Northern Inshore State and 2 (1 buoy line) Weak inserts every
Massachusetts Restricted Area; Trawls up to and 60 feet (18.3 m)
Other Massachusetts State including 3 or in top 75 percent
Waters. fewer traps must of line or full
only have one weak line through
buoy line. top 75 percent of
line.
Northern Inshore State; New No minimum trap/ Weak line for the
Hampshire State Waters. trawl. top 50 percent of
the buoy line or
one weak
insertion device
at 50 percent
buoy line length
from top.
Northern Nearshore; New 10................ Weak line for the
Hampshire and Massachusetts (3- top 50 percent of
6 miles). the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore, 15................ Weak line for the
Massachusetts Restricted Area, top 50 percent of
and Stellwagen Bank/Jeffreys the buoy line or
Ledge Restricted Area; LMA 1 (6- two weak
12 miles). insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
Northern Nearshore and LMA1 25................ Weak line for the
Restricted Area; LMA1 (12+ top 33 percent of
miles). the buoy line or
one weak
insertion device
at 33 percent
buoy line length
from top.
Northern Inshore State, No minimum number Weak inserts every
Massachusetts Restricted Area, of traps per 60 ft (18.3 m) in
and Massachusetts South Island trawl. top 75 percent of
Restricted Area; OC and LMA1/OC line or full weak
Overlap(0-3 miles). line through top
75 percent of
line.
Northern Nearshore and 15................ Weak line for the
Massachusetts Restricted Area; top 50 percent of
OC (3-12 miles). the buoy line or
two weak
insertion
devices, one at
25 percent and
one at 50 percent
buoy line length
from top.
[[Page 54]]
Northern Nearshore and Great 20................ Weak line for the
South Channel Restricted Area; top 33 percent of
OC (12+ miles). the buoy line or
one weak
insertion device
at 33 percent
buoy line length
from top.
Northern Inshore State; RI State No minimum number Weak inserts every
Waters. of traps per 60 feet (18.3 m)
trawl. in top 75 percent
of line or full
weak line through
top 75 percent of
line.
Northern Nearshore; LMA 2 (3-12 10................ Weak inserts every
miles). 60 feet (18.3 m)
in top 75 percent
of line or full
weak line through
top 75 percent of
line.
Northern Nearshore, Great South 20................ Weak inserts every
Channel Restricted Area, and 60 feet (18.3 m)
Massachusetts South of Island in top 75 percent
Restricted Area; LMA 2 (12+ of line or full
miles). weak line through
top 75 percent of
line.
Offshore, Great South Channel 20................ Weak inserts every
Restricted Area, and 60 feet (18.3 m)
Massachusetts South Island in top 75 percent
Restricted Area; LMA 2/3 of line or full
Overlap (12+ miles). weak line through
top 75 percent of
line.
Northeast Region Offshore waters 45................ Weak line for the
including Great South Channel top 75 percent of
Restricted Area, and one buoy line.
Massachusetts South Island
Restricted Area, with the
exception of the Georges Basin
and South Georges 50 Fathom
Restricted Areas; LMA 3
including LMA3-only vessels
fishing in 2/3 overlap.
Northeast Region Offshore waters 50................ Weak line for the
Georges Basin Restricted Area. top 75 percent of
the buoy line.
Northeast Region Offshore waters 35................ Weak line for the
South Georges 50 Fathom top 75 percent of
Restricted Area. the buoy line.
------------------------------------------------------------------------
Other Trap/Pot
------------------------------------------------------------------------
Northern Inshore State; Maine 2 (1 buoy line)... <=600 lb.
State and Pocket Waters \1\.
Northern Nearshore; Maine Zones 3 (1 buoy line)... <=600 lb.
A-G (3-6 miles) \1\.
Northern Nearshore; Maine Zones 5 (1 buoy line)... <=600 lb.
A-C (6-12 miles) \1\.
Northern Nearshore; Maine Zones 10................ <=600 lb.
D-G (6-12 miles) \1\.
Northern Nearshore, Offshore, 15................ <=600 lb (<=1500
and LMA1 Restricted Area; Maine lb in offshore,
Zones A-E (12+ miles). 2,000 lb if red
crab trap/pot).
Northern Nearshore, Offshore, 15 (Mar 1-Oct 31) <=600 ls (<=1500
and LMA1 Restricted Area; Maine 20 (Nov 1-Feb 28/ lb in offshore,
Zones F-G (12+ miles). 29). 2,000 ls if red
crab trap/pot).
Northern Inshore State and No minimum number <=600 lb.
Massachusetts Restricted Area; of traps per
Massachusetts State Waters \2\. trawl. Trawls up
to and including
3 or fewer traps
must only have
one buoy line.
Northern Inshore State, 2 (1 buoy line) <=600 lb.
Massachusetts Restricted Area, Trawls up to and
and Massachusetts South Island including 3 or
Restricted Area; Other fewer traps must
Massachusetts State Waters. only have one
buoy line.
Northern Inshore State; New No minimum number <=600 lb.
Hampshire State Waters. of traps per
trawl.
Northern Nearshore and 10................ <=600 lb.
Massachusetts Restricted Area
and Stellwagen Bank/Jeffreys
Ledge Restricted Area; LMA 1 (3-
12 miles).
Northern Nearshore and LMA1 20................ <=600 lb.
Restricted Area; LMA 1 (12+
miles).
Northern Inshore State and No minimum number <=600 lb.
Massachusetts Restricted Area; of traps per
LMA1/OC Overlap (0-3 miles). trawl.
Northern Inshore State and No minimum number <=600 lb.
Massachusetts Restricted Area; of traps per
OC (0-3 miles). trawl.
Northern Nearshore and 10................ <=600 lb.
Massachusetts Restricted Area;
OC (3-12 miles).
Northern Nearshore and Great 20................ <=600 lb.
South Channel Restricted Area;
OC (12+ miles).
Northern Inshore State; Rhode No minimum number <=600 lb.
Island State Waters. of traps per
trawl.
Northern Nearshore, and 10................ <=600 lb.
Massachusetts South Island
Restricted Area; LMA 2 (3-12
miles).
[[Page 55]]
Northern Nearshore, Great South 20................ <=600 lb.
Channel Restricted Area; LMA 2
(12+ miles).
Northeast Offshore and Great 20................ <=1500 lb (2,000
South Channel Restricted Area, lb if red crab
and Massachusetts South Island trap/pot).
Restricted Area; LMA 2/3
Overlap (12+ miles).
Northeast Offshore waters, Great 20................ <=1500 lb (2,000
South Channel Restricted Area, lb if red crab
and Massachusetts South Island trap/pot).
Restricted Area; LMA 3 (12+
miles).
Southern Nearshore; LMA 4,5,6... No minimum number <=600 lb.
of traps per
trawl.
Southeast U.S. Restricted Area 1................. <=200 lb.
North \3\ Florida State Waters.
Southeast U.S. Restricted Area 1................. <=600 lb.
North; \3\ Georgia State Waters.
Southeast U.S. Restricted Area 1................. <=600 lb.
North; \3\ South Carolina State
Waters.
Southeast U.S. Restricted Area 1................. <=600 lb.
North; \3\ Federal Waters off
Florida, Georgia, South
Carolina.
------------------------------------------------------------------------
\1\ The 6-mile line, pocket waters, and Maine Zones are defined in
paragraphs (a)(2)(iii) through (v) of this section.
\2\ Massachusetts State waters as defined as paragraph (a)(3)(ii)(E) of
this section.
\3\ See paragraph (f)(1) of this section for description of area.
(3) Massachusetts Restricted Area--(i) Area. The Massachusetts
Restricted Area is bounded landward by the Massachusetts shoreline, from
points MRA1 through MRA3 bounded seaward by the designated Massachusetts
state waters boundary, and then bounded by a rhumb line connecting
points MRA3 through MRA11 in order as detailed in table 11 to paragraph
(c)(3)(i);
Table 11 to Paragraph (c)(3)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
MRA1.................................... 42[deg]52.32[m 70[deg]48.98[m
in] in]
MRA2.................................... 42[deg]52.58[m 70[deg]43.94[m
in] in]
MRA3.................................... 42[deg]12[min] 70[deg]38.69[m
in]
MRA4.................................... 42[deg]12[min] 70[deg]30[min]
MRA5.................................... 42[deg]30[min] 70[deg]30[min]
MRA6.................................... 42[deg]30[min] 69[deg]45[min]
MRA7.................................... 41[deg]56.5[mi 69[deg]45[min]
n]
MRA8.................................... 41[deg]21.5[mi 69[deg]16[min]
n]
MRA9.................................... 41[deg]15.3[mi 69[deg]57.9[mi
n] n]
MRA10................................... 41[deg]20.3[mi 70[deg]00[min]
n]
MRA11................................... 41[deg]40.2[mi 70[deg]00[min]
n]
------------------------------------------------------------------------
(ii) Closure to fishing with buoy lines. From February 1 to April
30, it is prohibited to fish with, set, or possess trap/pot gear in the
area in this paragraph (c)(3)(i) of this section unless it is fished
without buoy lines or with buoy lines that are stored on the bottom
until it can be remotely released for hauling, or it is stowed in
accordance with Sec. 229.2 of this chapter. Authorizations for fishing
without buoy lines must be obtained if such fishing would not be in
accordance with surface marking requirements of Sec. Sec. 697.21 and
648.84 of this title or other applicable fishery management regulations.
The minimum number of trap/trawl gear configuration requirements
specified in paragraph (c)(2)(iv) of this section remain in effect
unless an exemption to those requirements is authorized.
(iii) Area-specific gear or vessel requirements. From May 1 through
January 31, no person or vessel may fish with or possess trap/pot gear
in the Massachusetts Restricted Area unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section,
the universal trap/pot gear requirements specified in paragraph (c)(1)
of this section, and the area-specific requirements listed in paragraph
(c)(2) of this section, or unless the gear is stowed as specified in
Sec. 229.2.
(4) South Island Restricted Area--(i) Area. The South Island
Restricted Area is bounded by the following points connected by rhumb
lines in the order listed, and bounded on the north by the shoreline of
Nantucket, Massachusetts.
Table 12 to Paragraph (c)(4)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
SIRA1................................... 41[deg]20.00[m 71[deg]19.00[m
in] N in] W
SIRA2................................... 41[deg]20.00[m 69[deg]30.00[m
in] N in] W
SIRA3................................... 40[deg]30.00[m 69[deg]30.00[m
in] N in] W
SIRA4................................... 40[deg]30.00[m 71[deg]19.00[m
in] N in] W
SIRA.................................... 41[deg]20.00[m 71[deg]19.00[m
in] N in] W
------------------------------------------------------------------------
(ii) Closure to fishing with buoy lines. From February 1 to April
30, it is prohibited to fish with, set, or possess trap/pot gear in the
area in paragraph (c)(4)(i) of this section unless it is fished without
buoy lines or with buoy lines that are stored on the bottom until they
can be remotely released for hauling, or
[[Page 56]]
the trap/pot gear is stowed in accordance with Sec. 229.2.
Authorizations for fishing without buoy lines must be obtained if such
fishing would not be in accordance with surface marking requirements of
50 CFR 697.21 and 648.84. The minimum number of trap/trawl gear
configuration requirements specified in paragraph (c)(2)(iv) of this
section remain in effect unless an exemption to those requirements is
authorized.
(iii) Area-specific gear or vessel requirements. From May 1 through
January 31, no person or vessel may fish with or possess trap/pot gear
in the Massachusetts South Island Restricted Area unless that gear
complies with the gear marking requirements specified in paragraph (b)
of this section, the universal trap/pot gear requirements specified in
paragraph (c)(1) of this section, and the area-specific requirements
listed in paragraph (c)(2) of this section, or unless the gear is stowed
as specified in Sec. 229.2.
(5) Great South Channel Restricted Trap/Pot Area--(i) Area. The
Great South Channel Restricted Trap/Pot Area consists of the area
bounded by the following points.
Table 13 to Paragraph (c)(5)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
GSC1.................................... 41[deg]40[min] 69[deg]45[min]
GSC2.................................... 41[deg]0[min] 69[deg]05[min]
GSC3.................................... 41[deg]38[min] 68[deg]13[min]
GSC4.................................... 42[deg]10[min] 68[deg]31[min]
GSC1.................................... 41[deg]40[min] 69[deg]45[min]
------------------------------------------------------------------------
(ii) Closure to fishing with buoy lines. From April 1 through June
30, it is prohibited to fish with, set, or possess trap/pot gear in the
area in paragraph (c)(5)(i) of this section unless it is fished without
buoy lines or with buoy lines that are stored on the bottom until they
can be remotely released for hauling, or the trap/pot gear is stowed in
accordance with Sec. 229.2. Authorizations for fishing without buoy
lines must be obtained if such fishing would not be in accordance with
surface marking requirements of 50 CFR 697.21 and 648.84.
(iii) Area-specific gear or vessel requirements. From July 1 through
March 31, no person or vessel may fish with or possess trap/pot gear in
the Great South Channel Restricted Trap/Pot Area unless that gear
complies with the gear marking requirements specified in paragraph (b)
of this section, the universal trap/pot gear requirements specified in
paragraph (c)(1) of this section, and the area-specific requirements
listed in paragraph (c)(2) of this section, or unless the gear is stowed
as specified in Sec. 229.2.
(6) Lobster Management Area One Restricted Area--(i) Area. The
Lobster Management Area One Restricted Area (LMRA1) is bounded by the
following points connected by rhumblines in the order listed.
Table 14 to Paragraph (c)(6)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
LMA1RA 1................................ 43[deg]06[min] 69[deg]36.77[m
in]
LMA1RA 2................................ 43[deg]44[min] 68[deg]21.6[mi
n]
LMA1RA 3................................ 43[deg]32.68[m 68[deg]17.27[m
in] in]
LMA1RA 4................................ 42[deg]53.52[m 69[deg]32.16[m
in] in]
LMA1RA 1................................ 43[deg]06[min] 69[deg]36.77[m
in]
------------------------------------------------------------------------
(ii) Restrictions to fishing with buoy lines. From October 1 to
January 31, it is prohibited to fish with, set, or possess trap/pot gear
in the area in paragraph (c)(6)(i) of this section unless it is fished
without buoy lines or with buoy lines that are stored on the bottom
until they can be remotely released for hauling, or the trap/pot gear is
stowed in accordance with Sec. 229.2. Authorizations for fishing
without buoy lines must be obtained if such fishing would not be in
accordance with surface marking requirements of 50 CFR 697.21 and
648.84. The minimum number of trap/trawl gear configuration requirements
specified in paragraph (c)(2)(iv) of this section remain in effect
unless an exemption to those requirements is authorized.
(iii) Area-specific gear or vessel requirements. From February 1
through September 30, no person or vessel may fish with or possess trap/
pot gear in the LMA 1 Restricted Area unless that gear complies with the
gear marking requirements specified in paragraph (b) of this section,
the universal trap/pot gear requirements specified in paragraph (c)(1)
of this section, and the area-specific requirements listed in paragraph
(c)(2) of this section, or unless the gear is stowed as specified in
Sec. 229.2.
(7) 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 the
Massachusetts Restricted Area in paragraph (c)(3) of this section, that
lie south of 43[deg]15[min] N lat. and west of 70[deg]00[min] W long.
(ii) Year round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot 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 trap/pot gear requirements specified in paragraph (c)(1) of
this section, and the area-specific requirements listed in paragraph
(c)(2) of this section, or unless the gear is stowed as specified in
Sec. 229.2.
(8) Georges Basin Restricted Area (i) Area. The Georges Basin
Restricted Area (GBRA) referred to in paragraph (c)(2)(iv) of this
section is bounded by rhumb lines connecting the following points in the
order listed in table 15 to paragraph (c)(8)(i).
[[Page 57]]
Table 15 to Paragraph (c)(8)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
GBRA 1.................................. 42[deg]03.00[m 67[deg]40.02[m
in] in]
GBRA 2.................................. 42[deg]30.00[m 67[deg]40.02[m
in] in]
GBRA 3.................................. 42[deg]30.00[m 67[deg]27.00[m
in] in]
GBRA 4.................................. 42[deg]09.30[m 67[deg]08.70[m
in] in]
GBRA 1.................................. 42[deg]03.00[m 67[deg]40.02[m
in] in]
------------------------------------------------------------------------
(ii) [Reserved]
(iii) Area-specific gear or vessel requirements. Beginning May 1
2022, no person or vessel may fish with or possess trap/pot gear in the
Georges Basin Restricted Area unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, and the area-specific requirements listed in paragraph
(c)(2) of this section, or unless the gear is stowed as specified in
Sec. 229.2.
(9) South Georges 50 Fathom Restricted Area--(i) Area. The South
Georges 50 Fathom Restricted Area curve line referred to in paragraph
(c)(2)(iv) of this section is an area bounded in the south by the 40
degree southern border of the Northeast Region, bounded seaward by the
EEZ, and bounded in the north by rhumb lines connecting the following
points in the order listed in table 16 to paragraph (c)(9)(i).
Table 16 to Paragraph (c)(9)(i)
------------------------------------------------------------------------
Point N lat. W long.
------------------------------------------------------------------------
SGRA 1.................................. 40[deg]00.00[m 71[deg]49.86[m
in] in]
SGRA 2.................................. 40[deg]06.47[m 71[deg]24.69[m
in] in]
SGRA 3.................................. 40[deg]06.49[m 71[deg]24.62[m
in] in]
SGRA 4.................................. 40[deg]20.82[m 71[deg]03.52[m
in] in]
SGRA 5.................................. 40[deg]20.89[m 71[deg]03.42[m
in] in]
SGRA 6.................................. 40[deg]21.16[m 70[deg]35.17[m
in] in]
SGRA 7.................................. 40[deg]21.16[m 70[deg]35.02[m
in] in]
SGRA 8.................................. 40[deg]16.84[m 70[deg]07.34[m
in] in]
SGRA 9.................................. 40[deg]16.81[m 70[deg]07.17[m
in] in]
SGRA 10................................. 40[deg]09.92[m 69[deg]40.43[m
in] in]
SGRA 11................................. 40[deg]09.87[m 69[deg]40.25[m
in] in]
SGRA 12................................. 40[deg]14.72[m 69[deg]12.77[m
in] in]
SGRA 13................................. 40[deg]14.74[m 69[deg]12.63[m
in] in]
SGRA 14................................. 40[deg]19.83[m 68[deg]45.19[m
in] in]
SGRA 15................................. 40[deg]19.86[m 68[deg]45.05[m
in] in]
SGRA 16................................. 40[deg]31.55[m 68[deg]21.25[m
in] in]
SGRA 17................................. 40[deg]31.63[m 68[deg]21.10[m
in] in]
SGRA 18................................. 40[deg]34.09[m 67[deg]52.94[m
in] in]
SGRA 19................................. 40[deg]34.11[m 67[deg]52.76[m
in] in]
SGRA 20................................. 40[deg]38.45[m 67[deg]24.98[m
in] in]
SGRA 21................................. 40[deg]38.46[m 67[deg]24.90[m
in] in]
SGRA 22................................. 40[deg]50.05[m 67[deg]00.91[m
in] in]
SGRA 23................................. 40[deg]50.14[m 67[deg]00.73[m
in] in]
SGRA 24................................. 41[deg]00.10[m 66[deg]35.45[m
in] in]
SGRA 25................................. 41[deg]00.21[m 66[deg]35.18[m
in] in]
SGRA 26................................. 41[deg]14.84[m 66[deg]21.82[m
in] in]
------------------------------------------------------------------------
(ii) Area-specific gear or vessel requirements. Beginning May 1,
2022, no person or vessel may fish with or possess trap/pot gear in the
South Georges 50 Fathom Restricted Area unless that gear complies with
the gear marking requirements specified in paragraph (b) of this
section, the universal trap/pot gear requirements specified in paragraph
(c)(1) of this section, and the area-specific requirements listed in
paragraph (c)(2) of this section, or unless the gear is stowed as
specified in Sec. 229.2.
(10) Offshore Trap/Pot Waters Area--(i) Area. The Offshore Trap/Pot
Waters Area includes all Federal waters of the EEZ Offshore Management
Area known as Lobster Management Area 3, including the area known as the
Area 2/3 Overlap and Area 3/5 Overlap as defined in the American Lobster
Fishery regulations at 50 CFR 697.18, with the exception of the Great
South Channel Restricted Trap/Pot Area, Southeast Restricted Area,
Georges Basin Restricted Area, South Georges 50 Fathom Restricted Area,
and extending south along the 100-fathom (600-ft or 182.9-m) depth
contour from 35[deg]14[min] N lat. South to 27[deg]51[min] N lat., and
east to the eastern edge of the EEZ.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Northeast Region
portion of Offshore Trap/Pot Waters Area that overlaps an area from the
U.S./Canada border south to a straight line from 41[deg]18.2[min] N
lat., 71[deg]51.5[min] W long. (Watch Hill Point, RI) south to
40[deg]00[min] N lat., and then east to the eastern edge of the EEZ,
unless that gear complies with the gear marking requirements specified
in paragraph (b) of this section, the universal trap/pot gear
requirements specified in paragraph (c)(1) of this section, and the
area-specific requirements listed in paragraph (c)(2) of this section,
or unless the gear is stowed as specified in Sec. 229.2.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess
trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area
bounded on the north by a straight line from 41[deg]18.2[min] N lat.,
71[deg]51.5[min] W long. (Watch Hill Point, RI) south to 40[deg]00[min]
N lat. and then east to the eastern edge of the EEZ, and bounded on the
south by a line at 32[deg]00[min] N lat., and east to the eastern edge
of the EEZ, unless that gear complies with the gear marking requirements
specified in paragraph (b) of this section, the universal trap/pot gear
requirements specified in paragraph (c)(1) of this section, and area-
specific requirements in paragraph (c)(2) of this section or unless the
gear is stowed as specified in Sec. 229.2.
(iv) Seasonal area-specific gear or vessel requirements. From
November 15 to April 15, no person or vessel may fish with or possess
trap/pot gear in the Offshore Trap/Pot Wa-
ters Area that overlaps an area from 32[deg]00[min] N lat. south to
29[deg]00[min] N lat. and east to the eastern edge of the EEZ, unless
that gear complies with the gear marking requirements specified in
paragraph (b) of this section, the
[[Page 58]]
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) of this
section or unless the gear is stowed as specified in Sec. 229.2.
(v) Seasonal area-specific gear or vessel requirements. From
December 1 to March 31, no person or vessel may fish with or possess
trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area
from 29[deg]00[min] N lat. south to 27[deg]51[min] N lat. and east to
the eastern edge of the EEZ, unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) in this
section, or unless the gear is stowed as specified in Sec. 229.2.
(11) Northern Inshore State Trap/Pot Waters Area--(i) Area. The
Northern Inshore State Trap/Pot Waters Area includes the state waters of
Rhode Island, Massachusetts, New Hampshire, and Maine, with the
exception of Massachusetts Restricted Area and those waters exempted
under paragraph (a)(3) of this section. Federal waters west of
70[deg]00[min] N lat. in Nantucket Sound are also included in the
Northern Inshore State Trap/Pot Waters Area.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Northern Inshore
State Trap/Pot Waters Area unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) of this
section or unless the gear is stowed as specified in Sec. 229.2.
(12) Northern Nearshore Trap/Pot Waters Area--(i) Area. The Northern
Nearshore Trap/Pot 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 Great South Channel
Restricted Trap/Pot Area, Massachusetts Restricted Area, Stellwagen
Bank/Jeffreys Ledge Restricted Area, and Federal waters west of
70[deg]00[min] N lat. in Nantucket Sound (included in the Northern
Inshore State Trap/Pot Waters Area) and those waters exempted under
paragraph (a)(3) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Northern
Nearshore Trap/Pot Waters Area unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) of this
section, or unless the gear is stowed as specified in Sec. 229.2.
(13) Southern Nearshore Trap/Pot Waters Area--(i) Area. The Southern
Nearshore Trap/Pot Waters Area includes all state and Federal waters
that fall within EEZ Nearshore Management Area 4, EEZ Nearshore
Management Area 5, and EEZ Nearshore Management Area 6 (as defined in
the American Lobster Fishery regulations in Sec. 697.18 of this title,
and excluding the Area 3/5 Overlap), and inside the 100-fathom (600-ft
or 182.9-m) depth contour line from 35[deg]30[min] N lat. south to
27[deg]51[min] N lat. and extending inshore to the shoreline or
exemption line, with the exception of those waters exempted under
paragraph (a)(3) of this section and those waters in the Southeast
Restricted Area defined in paragraph (f)(1) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess trap/pot gear in the Southern
Nearshore Trap/Pot Waters Area that is east of a straight line from
41[deg]18.2[min] N lat., 71[deg]51.5[min] W long. (Watch Hill Point, RI)
south to 40[deg]00[min] N lat., unless that gear complies with the gear
marking requirements specified in paragraph (b) of this section, the
universal trap/pot gear requirements specified in paragraph (c)(1) of
this section, the area-specific requirements in paragraph (c)(2) of this
section or unless the gear is stowed as specified in Sec. 229.2.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess
trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that
overlaps an area bounded on the north by a straight line from
41[deg]18.2[min] N lat., 71[deg]51.5[min] W long. (Watch Hill Point, RI)
south to 40[deg]00[min] N lat. and then east to the eastern edge of the
EEZ, and bounded on the south by 32[deg]00[min] N lat., and east to the
eastern edge of the EEZ, unless that gear complies with the gear marking
requirements specified in paragraph (b) of this section, the universal
trap/pot gear requirements in paragraph (c)(1) of this section, the
area-specific requirements in paragraph (c)(2) of this section or unless
the gear is stowed as specified in Sec. 229.2.
(iv) Seasonal area-specific gear or vessel requirements. From
November 15 to April 15, no person or vessel may fish with or possess
trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that
overlaps an area from 32[deg]00[min] N lat. south to 29[deg]00[min] N
lat. and east to the eastern edge of the EEZ, unless that gear complies
with the gear marking requirements specified in paragraph (b) of this
section, the universal trap/pot gear requirements specified in paragraph
(c)(1) of this section, the area-specific requirements in paragraph
(c)(2) of this section or unless the gear is stowed as specified in
Sec. 229.2.
(v) Seasonal area-specific gear or vessel requirements. From
December 1 to March 31, no person or vessel may fish with or possess
trap/pot gear in the Southern Nearshore
[[Page 59]]
Trap/Pot Waters Area that overlaps an area from 29[deg]00[min] N lat.
south to 27[deg]51[min] N lat. and east to the eastern edge of the EEZ,
unless that gear complies with the gear marking requirements specified
in paragraph (b) of this section, the universal trap/pot gear
requirements specified in paragraph (c)(1) of this section, the area-
specific requirements in paragraph (c)(2) of this section or unless the
gear is stowed as specified in Sec. 229.2.
(14) Restrictions applicable to the red crab trap/pot fishery--(i)
Area. The red crab trap/pot fishery is regulated in the waters
identified in paragraphs (c)(10)(i) and (c)(14)(i) of this section.
(ii) Year-round area-specific gear or vessel requirements. No person
or vessel may fish with or possess red crab trap/pot gear in the area
identified in paragraph (c)(14)(i) of this section that overlaps an area
from the U.S./Canada border south to a straight line from 41[deg]
18.2[min] N lat., 71[deg]51.5[min] W long. (Watch Hill Point, RI) south
to 40[deg]00[min] N lat., and then east to the eastern edge of the EEZ,
unless that gear complies with the gear marking requirements specified
in paragraph (b) of this section, the universal trap/pot gear
requirements specified in paragraph (c)(1) of this section, the area-
specific requirements in paragraph (c)(2) of this section or unless the
gear is stowed as specified in Sec. 229.2.
(iii) Seasonal area-specific gear or vessel requirements. From
September 1 to May 31, no person or vessel may fish with or possess red
crab trap/pot gear in the area identified in paragraph (c)(14)(i) of
this section that overlaps an area bounded on the north by a straight
line from 41[deg]18.2[min] N lat., 71[deg]51.5[min] W long. (Watch Hill
Point, RI) south to 40[deg]00[min] N lat. and then east to the eastern
edge of the EEZ, and bounded on the south by a line at 32[deg]00[min] N
lat., and east to the eastern edge of the EEZ, unless that gear complies
with the gear marking requirements specified in paragraph (b) of this
section, the universal trap/pot gear requirements specified in paragraph
(c)(1) of this section, the area-specific requirements in paragraph
(c)(2) of this section or unless the gear is stowed as specified in
Sec. 229.2.
(iv) Seasonal area-specific gear or vessel requirements. From
November 15 to April 15, no person or vessel may fish with or possess
red crab trap/pot gear in the area identified in paragraph (c)(14)(i) of
this section that overlaps an area from 32[deg]00[min] N lat. south to
29[deg]00[min] N lat. and east to the eastern edge of the EEZ, unless
that gear complies with the gear marking requirements specified in
paragraph (b) of this section, the universal trap/pot gear requirements
specified in paragraph (c)(1) of this section, the area-specific
requirements in paragraph (c)(2) of this section or unless the gear is
stowed as specified in Sec. 229.2.
(v) Seasonal area-specific gear or vessel requirements. From
December 1 to March 31, no person or vessel may fish with or possess red
crab trap/pot gear in the area identified in paragraph (c)(14)(i) of
this section that overlaps an area from 29[deg]00[min] N lat. south to
27[deg]51[min] N lat. and east to the eastern edge of the EEZ, unless
that gear complies with the gear marking requirements specified in
paragraph (b) of this section, the universal trap/pot gear requirements
specified in paragraph (c)(1) of this section, the area-specific
requirements in paragraph (c)(2) of this section or unless the gear is
stowed as specified in Sec. 229.2.
Sec. 229.33 Harbor Porpoise Take Reduction Plan Regulations--New England.
(a) Restrictions--(1) Northeast Closure Area--(i) Area restrictions.
From August 15 through September 13, it is prohibited to fish with, set,
haul back, possess on board a vessel unless stowed in accordance with
Sec. 229.2, or fail to remove sink gillnet gear or gillnet gear capable
of catching multispecies from the Northeast Closure Area. This
restriction does not apply to vessels fishing with a single pelagic
gillnet (as described and used as set forth in Sec. 648.81(f)(2)(ii) of
this title).
(ii) Area boundaries. The Northeast Closure Area is bounded by
straight lines connecting the following points in the order stated:
Northeast Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
NE1............................ 44[deg]27.3[min].. 68[deg]55.0[min]
(ME shoreline)
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............................ 44[deg]45.8[min].. 67[deg]02.7[min]
(ME shoreline)
------------------------------------------------------------------------
(2) Mid-Coast Management Area--(i) Area restrictions. From September
15 through May 31, it is prohibited to fish with, set, haul back,
possess on board a vessel unless stowed in accordance with Sec. 229.2,
or fail to remove sink gillnet gear or gillnet gear capable of catching
multispecies from the Mid-Coast Management Area, unless the gillnet gear
is equipped with pingers in accordance with paragraphs (b) and (c) of
this section. This prohibition does not apply to vessels fishing with a
single pelagic gillnet (as described and used as set forth in Sec.
648.81(f)(2)(ii) of this title).
[[Page 60]]
(ii) Area boundaries. The Mid-Coast Management Area is the area
bounded by straight lines connecting the following points in the order
stated:
Mid-Coast Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MC1............................ 42[deg]30.0[min].. 70[deg]50.1[min]
(MA shoreline)
MC2............................ 42[deg]30.0[min].. 70[deg]15.0[min]
MC3............................ 42[deg]40.0[min].. 70[deg]15.0[min]
MC4............................ 42[deg]40.0[min].. 70[deg]00.0[min]
MC5............................ 43[deg]00.0[min].. 70[deg]00.0[min]
MC6............................ 43[deg]00.0[min].. 69[deg]30.0[min]
MC7............................ 43[deg]30.0[min].. 69[deg]30.0[min]
MC8............................ 43[deg]30.0[min].. 69[deg]00.0[min]
MC9............................ 44[deg]17.8[min].. 69[deg]00.0[min]
(ME shoreline)
------------------------------------------------------------------------
(3) Massachusetts Bay Management Area--(i) Area restrictions. From
November 1 through February 28/29 and from April 1 through May 31, it is
prohibited to fish with, set, haul back, possess on board a vessel
unless stowed in accordance with Sec. 229.2, or fail to remove sink
gillnet gear or gillnet gear capable of catching multispecies from the
Massachusetts Bay Management Area, unless the gillnet gear is equipped
with pingers in accordance with paragraphs (b) and (c) of this section.
From March 1 through March 31, it is prohibited to fish with, set, haul
back, possess on board a vessel unless stowed in accordance with Sec.
229.2, or fail to remove sink gillnet gear or gillnet gear capable of
catching multispecies from the Massachusetts Bay Management Area. These
restrictions do not apply to vessels fishing with a single pelagic
gillnet (as described in Sec. 648.81(f)(2)(ii) of this title).
(ii) Area boundaries. The Massachusetts Bay Management Area is
bounded by straight lines connecting the following points in the order
stated:
Massachusetts Bay Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MB1............................ 42[deg]30.0[min].. 70[deg]50.1[min]
(MA shoreline)
MB2............................ 42[deg]30.0[min].. 70[deg]30.0[min]
MB3............................ 42[deg]15.0[min].. 70[deg]30.0[min]
MB4............................ 42[deg]15.0[min].. 70[deg]00.0[min]
MB5............................ 42[deg]00.0[min].. 70[deg]00.0[min]
MB6............................ 42[deg]00.0[min].. 70[deg]01.2[min]
(MA shoreline)
MB7............................ 42[deg]00.0[min].. 70[deg]04.8[min]
(MA shoreline)
MB8............................ 42[deg]00.0[min].. 70[deg]42.2[min]
(MA shoreline)
------------------------------------------------------------------------
(4) Stellwagen Bank Management Area--(i) Area restrictions. From
November 1 through May 31, it is prohibited to fish with, set, haul
back, possess on board a vessel unless stowed in accordance with Sec.
229.2, or fail to remove sink gillnet gear or gillnet gear capable of
catching multispecies from the Stellwagen Bank Management Area, unless
the gillnet gear is equipped with pingers in accordance with paragraphs
(b) and (c) of this section. This restriction does not apply to vessels
fishing with a single pelagic gillnet (as described in Sec.
648.81(f)(2)(ii) of this title).
(ii) Area boundaries. The Stellwagen Bank Management Area is bounded
by straight lines connecting the following points in the order stated:
Stellwagen Bank Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
SB1............................ 42[deg]30.0[min].. 70[deg]30.0[min]
SB2............................ 42[deg]30.0[min].. 70[deg]15.0[min]
SB3............................ 42[deg]15.0[min].. 70[deg]15.0[min]
SB4............................ 42[deg]15.0[min].. 70[deg]30.0[min]
SB1............................ 42[deg]30.0[min].. 70[deg]30.0[min]
------------------------------------------------------------------------
(5) Southern New England Management Area--(i) Area restrictions.
From December 1 through May 31, it is prohibited to fish with, set, haul
back, possess on board a vessel unless stowed in accordance with Sec.
229.2, or fail to remove sink gillnet gear or gillnet gear capable of
catching multispecies from the Southern New England Management Area,
unless the gillnet gear is equipped with pingers in accordance with
paragraphs (b) and (c) of this section. This prohibition does not apply
to vessels fishing with a single pelagic gillnet (as described in Sec.
648.81(f)(2)(ii) of this title).
(ii) Area boundaries. The Southern New England Management Area is
bounded by straight lines connecting the following points in the order
stated:
Southern New England Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
SNE1........................... Western boundary as specified \1\.
SNE2........................... 40[deg]00.0[min].. 72[deg]30.0[min]
SNE3........................... 40[deg]00.0[min].. 69[deg]30.0[min]
SNE4........................... 42[deg]15.0[min].. 69[deg]30.0[min]
SNE5........................... 42[deg]15.0[min].. 70[deg]00.0[min]
[[Page 61]]
SNE6........................... 41[deg]58.3[min].. 70[deg]00.0[min]
(MA shoreline)
------------------------------------------------------------------------
\1\ Bounded on the west by a line running from the Rhode Island
shoreline at 41[deg]18.2[min] N. lat. and 71[deg]51.5[min] W. long.
(Watch Hill, RI), southwesterly through Fishers Island, NY, to Race
Point, Fishers Island, NY; and from Race Point, Fishers Island, NY;
southeasterly to the intersection of the 3-nautical mile line east of
Montauk Point; southwesterly along the 3-nautical mile line to the
intersection of 72[deg]30.0[min] W. long.
(6) Cape Cod South Closure Area--(i) Area restrictions. From March 1
through March 31, it is prohibited to fish with, set, haul back, possess
on board a vessel unless stowed in accordance with Sec. 229.2, or fail
to remove sink gillnet gear or gillnet gear capable of catching
multispecies from the Cape Cod South Closure Area. This prohibition does
not apply to vessels fishing with a single pelagic gillnet (as described
in Sec. 648.81(f)(2)(ii) of this title).
(ii) Area boundaries. The Cape Cod South Closure Area is bounded by
straight lines connecting the following points in the order stated:
Cape Cod South Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CCS1........................... 41[deg]19.6[min].. 71[deg]45.0[min]
(RI shoreline)
CCS2........................... 40[deg]40.0[min].. 71[deg]45.0[min]
CCS3........................... 40[deg]40.0[min].. 70[deg]30.0[min]
CCS4........................... 41[deg]20.9[min].. 70[deg]30.0[min]
CCS5........................... 41[deg]23.1[min].. 70[deg]30.0[min]
CCS6........................... 41[deg]33.1[min].. 70[deg]30.0[min]
(MA shoreline)
------------------------------------------------------------------------
(7) Offshore Management Area--(i) Area restrictions. From November 1
through May 31, it is prohibited to fish with, set, haul back, possess
on board a vessel unless stowed in accordance with Sec. 229.2, or fail
to remove sink gillnet gear or gillnet gear capable of catching
multispecies from the Offshore Management Area, unless the gillnet gear
is equipped with pingers in accordance with paragraphs (b) and (c) of
this section. This restriction does not apply to vessels fishing with a
single pelagic gillnet (as described in Sec. 648.81(f)(2)(ii) of this
title).
(ii) Area boundaries. The Offshore Management Area is bounded by
straight lines connecting the following points in the order stated:
Offshore Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
OFS1.......................... 42[deg]50.0[min]. 69[deg]30.0[min]
OFS2.......................... 43[deg]10.0[min]. 69[deg]10.0[min]
OFS3.......................... 43[deg]10.0[min]. 67[deg]40.0[min]
OFS4.......................... 43[deg]05.8[min]. 67[deg]40.0[min] (EEZ
boundary)
OFS5.......................... 42[deg]53.1[min]. 67[deg]44.5[min] (EEZ
boundary)
OFS6.......................... 42[deg]47.3[min]. 67[deg]40.0[min] (EEZ
boundary)
OFS7.......................... 42[deg]10.0[min]. 67[deg]40.0[min]
OFS8.......................... 42[deg]10.0[min]. 69[deg]30.0[min]
OFS1.......................... 42[deg]50.0[min]. 69[deg]30.0[min]
------------------------------------------------------------------------
(8) Cashes Ledge Closure Area--(i) Area restrictions. During the
month of February, it is prohibited to fish with, set, haul back,
possess on board a vessel unless stowed in accordance with Sec. 229.2,
or fail to remove sink gillnet gear or gillnet gear capable of catching
multispecies from the Cashes Ledge Closure Area. This restriction does
not apply to vessels fishing with a single pelagic gillnet (as described
in Sec. 648.81(f)(2)(ii) of this title).
(ii) Area boundaries. The Cashes Ledge Closure Area is bounded by
straight lines connecting the following points in the order stated:
Cashes Ledge Closure Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
CL1........................... 42[deg]30.0[min]. 69[deg]00.0[min]
CL2........................... 42[deg]30.0[min]. 68[deg]30.0[min]
CL3........................... 43[deg]00.0[min]. 68[deg]30.0[min]
CL4........................... 43[deg]00.0[min]. 69[deg]00.0[min]
CL1........................... 42[deg]30.0[min]. 69[deg]00.0[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 (plus or minus 2 kHz) sound at 132 dB
(plus or minus 4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds
(plus or minus 15 milliseconds), and repeating every 4 seconds (plus or
minus 0.2 seconds).
(2) Pinger attachment. An operating and functional pinger must be
attached at each end of a string of gillnets and at the bridle of every
net, or every 300 feet (91.4 m or 50 fathoms), whichever is closer.
(c) Pinger training and authorization. The operator of a vessel may
not fish with, set, haul back, possess on board a vessel unless stowed
in accordance with Sec. 229.2, or fail to remove sink
[[Page 62]]
gillnet gear or gillnet gear capable of catching multispecies in closed
areas where pingers are required as specified under paragraph (b) of
this section, unless the operator has satisfactorily received pinger
training and possesses and retains on board the vessel a valid pinger
training authorization issued by NMFS.
(d) [Reserved]
(e) Research permits. An exemption to the requirements set forth in
this section may be acquired for the purposes of conducting scientific
or gear research within the restricted areas described in this section.
A scientific research permit must be acquired through NMFS's existing
permit application process, administered by NMFS.
(f) Other special measures. The Assistant Administrator may, after
consultation with the Take Reduction Team, revise the requirements of
this section through notification published in the Federal Register if:
(1) NMFS determines that pinger operating effectiveness in the
commercial fishery is inadequate to reduce bycatch below the stock's PBR
level.
(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.
[75 FR 7396, Feb. 19, 2010, as amended at 78 FR 61826, Oct. 4, 2013]
Sec. 229.34 Harbor Porpoise Take Reduction Plan Regulations-
-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.
long. at the southern coast of Long Island, NY at 40[deg]50.1[min] N.
lat. and on the south by the NC/SC border (33[deg]51.1[min] N. lat.),
except for the areas exempted in paragraph (a)(2) of this section.
(2) Exempted waters. The regulations within this section are not
applicable to waters landward of the first bridge over any embayment,
harbor, or inlet, or 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)
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. (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)
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) Restrictions--(1) Waters off New Jersey Management Area. The
Waters off New Jersey Management Area is bounded by straight lines
connecting the following points in the order stated:
Waters Off New Jersey Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
WNJ1........................... 40[deg]50.1[min].. 72[deg]30.0[min]
(NY shoreline)
WNJ2........................... 38[deg]47.0[min].. 72[deg]30.0[min]
WNJ3........................... 38[deg]47.0[min].. 75[deg]05.0[min]
(DE shoreline)
------------------------------------------------------------------------
[[Page 63]]
(i) Closure. From April 1 through April 20, it is prohibited to fish
with, set, haul back, possess on board a vessel unless stowed in
accordance with Sec. 229.2, or fail to remove any large mesh gillnet
gear from the Waters off New Jersey Management Area.
(ii) Gear limitations and requirements--large mesh gillnet gear.
From January 1 through April 30, except during April 1 through April 20,
as described in paragraph (b)(1)(i) of this section, no person may fish
with, set, haul back, possess on board a vessel unless stowed in
accordance with Sec. 229.2, or fail to remove any large mesh gillnet
gear in the Waters off New Jersey Management Area, unless the gear
complies with the specified gear characteristics described in paragraphs
(b)(1)(ii)(A) through (F) of this section. During this period, no vessel
may enter or remain in the Waters off New Jersey Management Area with
large mesh gillnet gear on board, unless the gear complies with the
specified gear characteristics described in paragraphs (b)(1)(ii)(A)
through (F) of this section, or is stowed in accordance with Sec.
229.2. In order to comply with these specified gear characteristics, the
gear must have all the following characteristics:
(A) Floatline length. The floatline is not more than 4,800 ft
(1,463.0 m).
(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.44 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 16.
(F) Tie-down system. The gillnet gear is equipped with tie-downs
spaced not more than 24 ft (7.3 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.
(iii) Gear limitations and requirements--small mesh gillnet gear.
From January 1 through April 30, no person may fish with, set, haul
back, possess on board a vessel unless stowed in accordance with Sec.
229.2, or fail to remove any small mesh gillnet gear in the Waters off
New Jersey Management Area unless the gear complies with the specified
gear characteristics described in paragraphs (b)(1)(iii)(A) through (F)
of this section. During this period, no vessel may enter or remain in
the Waters off New Jersey Management Area with small mesh gillnet gear
on board, unless the gear complies with the specified gear
characteristics described in paragraphs (b)(1)(iii)(A) through (F) of
this section, or is stowed in accordance with Sec. 229.2. In order to
comply with these specified gear characteristics, the gear must have all
the following characteristics:
(A) Floatline length. The floatline is not more than 3,000 ft (914.4
m) in length.
(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 10.
(F) Tie-down system. Tie-downs are prohibited.
(2) Mudhole North Management Area. The Mudhole North Management Area
is bounded by straight lines connecting the following points in the
order stated:
Mudhole North Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MN1............................ 40[deg]28.1[min].. 74[deg]00.0[min]
(NJ shoreline)
MN2............................ 40[deg]30.0[min].. 74[deg]00.0[min]
MN3............................ 40[deg]30.0[min].. 73[deg]20.0[min]
MN4............................ 40[deg]05.0[min].. 73[deg]20.0[min]
MN5............................ 40[deg]05.0[min].. 74[deg]02.0[min]
(NJ shoreline)
------------------------------------------------------------------------
(i) Closures. From February 15 through March 15, it is prohibited to
fish with, set, haul back, possess on board a vessel unless stowed in
accordance with Sec. 229.2, or fail to remove any large or small mesh
gillnet gear from
[[Page 64]]
the Mudhole North Management Area. In addition, from April 1 through
April 20, it is prohibited to fish with, set, haul back, possess on
board a vessel unless stowed in accordance with Sec. 229.2, or fail to
remove any large mesh gillnet gear from the Mudhole North Management
Area.
(ii) Gear limitations and requirements--large mesh gillnet gear.
From January 1 through April 30, except during February 15 through March
15 and April 1 through April 20 as described in paragraph (b)(2)(i) of
this section, no person may fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, or fail to remove
any large mesh gillnet gear in the Mudhole North Management Area unless
the gear complies with the specified gear characteristics described in
paragraphs (b)(2)(ii)(A) through (F) of this section. During this
period, no vessel may enter or remain in the Mudhole North Management
Area with large mesh gillnet gear on board, unless the gear complies
with the specified gear characteristics described in paragraphs
(b)(2)(ii)(A) through (F) of this section, or is stowed in accordance
with Sec. 229.2. In order to comply with these specified gear
characteristics, the gear must have all the following characteristics:
(A) Floatline length. The floatline is not more than 3,900 ft
(1,188.7 m).
(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.44 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 13.
(F) Tie-down system. The gillnet gear is equipped with tie-downs
spaced not more than 24 ft (7.3 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.
(iii) Gear limitations and requirements--small mesh gillnet gear.
From January 1 through April 30, except during February 15 through March
15 as described in paragraph (b)(2)(i) of this section, no person may
fish with, set, haul back, possess on board a vessel unless stowed in
accordance with Sec. 229.2, or fail to remove any small mesh gillnet
gear in the Mudhole North Management Area unless the gear complies with
the specified gear characteristics described in paragraphs
(b)(2)(iii)(A) through (F) of this section. During this period, no
vessel may enter or remain in the Mudhole North Management Area with
small mesh gillnet gear on board unless the gear complies with the
specified gear characteristics described in paragraphs (b)(2)(iii)(A)
through (F) of this section, or is stowed in accordance with Sec.
229.2. In order to comply with these specified gear characteristics, the
gear must have all the following characteristics:
(A) Floatline length. The floatline is not more than 3,000 ft (914.4
m) in length.
(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 10.
(F) Tie-down system. Tie-downs are prohibited.
(3) Mudhole South Management Area. The Mudhole South Management Area
is bounded by straight lines connecting the following points in the
order stated:
Mudhole South Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
MS1.............................. 40[deg]05.0[min].... 73[deg]31.0[min
]
MS2.............................. 40[deg]05.0[min].... 73[deg]00.0[min
]
MS3.............................. 39[deg]51.0[min].... 73[deg]00.0[min
]
MS4.............................. 39[deg]51.0[min].... 73[deg]31.0[min
]
MS1.............................. 40[deg]05.0[min].... 73[deg]31.0[min
]
------------------------------------------------------------------------
(i) Closures. From February 1 through March 15, it is prohibited to
fish with, set, haul back, possess on board a vessel unless stowed in
accordance with Sec. 229.2, or fail to remove any large or
[[Page 65]]
small mesh gillnet gear in the Mudhole South Management Area. In
addition, from April 1 through April 20, it is prohibited to fish with,
set, haul back, possess on board a vessel unless stowed in accordance
with Sec. 229.2, or fail to remove any large mesh gillnet gear from the
Mudhole South Management Area.
(ii) Gear limitations and requirements--large mesh gillnet gear.
From January 1 through April 30, except during February 1 through March
15 and April 1 through April 20 as described in paragraph (b)(3)(i) of
this section, no person may fish with, set, haul back, possess on board
a vessel unless stowed in accordance with Sec. 229.2, or fail to remove
any large mesh gillnet gear in the Mudhole South Management Area unless
the gear complies with the specified gear characteristics described in
paragraphs (b)(3)(ii)(A) through (F) of this section. During this
period, no vessel may enter or remain in the Mudhole South Management
Area with large mesh gillnet gear on board, unless the gear complies
with the specified gear characteristics described in paragraphs
(b)(3)(ii)(A) through (F) of this section, or is stowed in accordance
with Sec. 229.2. In order to comply with these specified gear
characteristics, the gear must have all the following characteristics:
(A) Floatline length. The floatline is not more than 3,900 ft
(1,188.7 m).
(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.44 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 13.
(F) Tie-down system. The gillnet gear is equipped with tie-downs
spaced not more than 24 ft (7.3 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.
(iii) Gear limitations and requirements--small mesh gillnet gear.
From January 1 through April 30 of each year, except during February 1
through March 15 as described in paragraph (b)(3)(i) of this section, no
person may fish with, set, haul back, possess on board a vessel unless
stowed in accordance with Sec. 229.2, or fail to remove any small mesh
gillnet gear in the Mudhole South Management Area unless the gear
complies with the specified gear characteristics described in paragraphs
(b)(3)(iii)(A) through (F) of this section. During this period, no
vessel may enter or remain in the Mudhole South Management Area with
small mesh gillnet gear on board unless the gear complies with the
specified gear characteristics described in paragraphs (b)(3)(iii)(A)
through (F) of this section, or is stowed in accordance with Sec.
229.2. In order to comply with these specified gear characteristics, the
gear must have all the following characteristics:
(A) Floatline length. The floatline is not more than 3,000 ft (914.4
m) in length.
(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 10.
(F) Tie-down system. Tie-downs are prohibited.
(4) Southern Mid-Atlantic Management Area. The Southern Mid-Atlantic
Management Area is bounded by straight lines connecting the following
points in the order stated:
Southern Mid-Atlantic Management Area
------------------------------------------------------------------------
Point N. Lat. W. Long.
------------------------------------------------------------------------
SMA1.......................... 38[deg]47.0[min]. 75[deg]05.0[min] (DE
shoreline)
SMA2.......................... 38[deg]47.0[min]. 72[deg]30.0[min]
SMA3.......................... 33[deg]51.1[min]. 72[deg]30.0[min]
SMA4.......................... 33[deg]51.1[min]. 78[deg]32.5[min] (NC/
SC border)
------------------------------------------------------------------------
(i) Closures. From February 15 through March 15, it is prohibited to
fish with, set, haul back, possess on board a vessel unless stowed in
accordance with Sec. 229.2, or fail to remove any
[[Page 66]]
large mesh gillnet gear from the Southern Mid-Atlantic Management Area.
(ii) Gear limitations and requirements--large mesh gillnet gear.
From February 1 through April 30, except during February 15 through
March 15 as described in paragraph (b)(4)(i) of this section, no person
may fish with, set, haul back, possess on board a vessel unless stowed
in accordance with Sec. 229.2, or fail to remove any large mesh gillnet
gear in the Southern Mid-Atlantic Management Area unless the gear
complies with the specified gear characteristics described in paragraphs
(b)(4)(ii)(A) through (F) of this section. During this period, no vessel
may enter or remain in the Southern Mid-Atlantic Management Area with
large mesh gillnet gear on board, unless the gear complies with the
specified gear characteristics described in paragraphs (b)(4)(ii)(A)
through (F) of this section, or is stowed in accordance with Sec.
229.2. In order to comply with these specified gear characteristics, the
gear must have all the following characteristics:
(A) Floatline length. The floatline is not more than 3,900 ft
(1,188.7 m) in length.
(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 13.
(F) Tie-down system. The gillnet gear is equipped with tie-downs
spaced not more than 24 ft (7.3 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.
(iii) Gear limitations and requirements--small mesh gillnet gear.
From February 1 through April 30, no person may fish with, set, haul
back, possess on board a vessel unless stowed in accordance with Sec.
229.2, or fail to remove any small mesh gillnet gear in the Southern
Mid-Atlantic Management Area unless the gear complies with the specified
gear characteristics described in paragraphs (b)(4)(iii)(A) through (F)
of this section. During this period, no vessel may enter or remain in
the Southern Mid-Atlantic Management Area with small mesh gillnet gear
on board, unless the gear complies with the specified gear
characteristics described in paragraphs (b)(4)(iii)(A) through (F) of
this section, or is stowed in accordance with Sec. 229.2. In order to
comply with these specified gear characteristics, the gear must have all
the following characteristics:
(A) Floatline length. The floatline is no longer than 2,118 ft
(645.6 m).
(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in
diameter.
(C) Size of nets. Individual nets or net panels are not more than
300 ft (91.4 m or 50 fathoms) in length.
(D) 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.
(E) Number of nets per string. The total number of nets or net
panels in a net string does not exceed 7.
(F) Tie-down system. Tie-downs are prohibited.
(c) Research permits. An exemption to the requirements set forth in
this section may be acquired for the purposes of conducting scientific
or gear research within the restricted areas described in this section.
A scientific research permit must be acquired through NMFS' existing
permit application process, administered by NMFS.
(d) Other special measures. The Assistant Administrator may revise
the requirements of this section through notification published in the
Federal Register if NMFS determines that the boundary or timing of a
closed area is inappropriate, or that gear modifications are not
reducing bycatch to below the stock's PBR level.
[75 FR 7399, Feb. 19, 2010]
Sec. 229.35 Bottlenose Dolphin Take Reduction Plan.
(a) Purpose and scope. The purpose of this section is to implement
the Bottlenose Dolphin Take Reduction Plan (BDTRP) to reduce incidental
[[Page 67]]
mortality and serious injury of strategic stocks of bottlenose dolphins
within the Western North Atlantic coastal morphotype in specific
Category I and II commercial fisheries from New Jersey through Florida.
Specific Category I and II commercial fisheries within the scope of the
BDTRP are indentified and updated in the annual List of Fisheries. Gear
restricted by this section includes small, medium, and large mesh
gillnets and pound nets. The geographic scope of the BDTRP is all tidal
and marine waters within 6.5 nautical miles (12 km) of shore from the
New York-New Jersey border southward to Cape Hatteras, North Carolina,
and within 14.6 nautical miles (27 km) of shore from Cape Hatteras,
southward to, and including the east coast of Florida down to the
fishery management council demarcation line between the Atlantic Ocean
and the Gulf of Mexico (as described in Sec. 600.105 of this title).
(b) Definitions. In addition to the definitions contained in the
Act, Sec. Sec. 216.3 and 229.2 of this chapter, the terms defined in
this section shall have the following definitions, even if a contrary
definition exists in the Act, Sec. 216.3, or Sec. 229.2:
Beach means landward of and including the mean low water line.
Beach/water interface means the mean low water line.
Bottlenose Dolphin Pound Net Regulated Area means all Virginia
marine waters of the Atlantic Ocean within 3 nautical miles (5.56 km) of
shoreline and all adjacent tidal waters, bounded on the north by
38[deg]01.6[min] N. (Maryland/Virginia border) and on the south by
36[deg]33[min] N (Virginia/North Carolina border); and all southern
Virginia waters of the mainstem Chesapeake Bay bounded on the south and
west by the Hampton Roads Bridge Tunnel across the James River and the
Coleman Memorial Bridge across the York River; and north and east by the
following points connected by straight lines in the order listed:
------------------------------------------------------------------------
Point Area description
------------------------------------------------------------------------
1............................. Where 37[deg]19.0[min] N. lat. meets the
shoreline of the Severn River fork,
near Stump Point, Virginia (western
portion of Mobjack Bay), which is
approximately 76[deg]26.75[min] W.
long.
2............................. 37[deg]19.0[min] N. lat.,
76[deg]13.0[min] W. long.
3............................. 37[deg]13.0[min] N. lat.,
76[deg]13.0[min] W. long.
4............................. Where 37[deg]13.0[min] N. lat. meets the
eastern shoreline of Chesapeake Bay,
Virginia, near Elliotts Creek, which is
approximately 76[deg]00.75[min] W.
long.
------------------------------------------------------------------------
Large mesh gillnet means a gillnet constructed with a mesh size
greater than or equal to 7-inches (17.8 cm) stretched mesh.
Medium mesh gillnet means a gillnet constructed with a mesh size of
greater than 5-inches (12.7 cm) to less than 7-inches (17.8 cm)
stretched mesh.
New Jersey, Delaware, and Maryland State waters means the area
consisting of all marine and tidal waters, within 3 nautical miles (5.56
km) of shore, bounded on the north by 40o 30[min] N. (New York/New
Jersey border at the coast) and on the south by 38o 01.6[min] N.
(Maryland/Virginia border at the coast).
Night means any time between one hour after sunset and one hour
prior to sunrise.
Northern North Carolina State waters means the area consisting of
all marine and tidal waters, within 3 nautical miles (5.56 km) of shore,
bounded on the north by 36[deg] 33[min] N. (Virginia/North Carolina
border at the coast) and on the south by 34[deg] 35.4[min] N. (Cape
Lookout, North Carolina).
Northern Virginia State waters means the area consisting of all
marine and tidal waters, within 3 nautical miles (5.56 km) of shore,
bounded on the north by 38[deg] 01.6[min] N. (Virginia/Maryland border
at the coast) and on the south by 37[deg] 07.23[min] N. (Cape Charles
Light on Smith Island in the Chesapeake Bay mouth).
Small mesh gillnet means a gillnet constructed with a mesh size of
less than or equal to 5-inches (12.7 cm) stretched mesh.
South Carolina, Georgia, and Florida waters means the area
consisting of all marine and tidal waters, within 14.6 nautical miles
(27 km) of shore, bounded on the north by a line extending in a
direction of 135[deg]34[min]55[sec] from true north from the North
Carolina/South Carolina border at 33[deg]51[min]07.9[sec] N. and
78[deg]32[min]32.6[sec] W., and on the south by the fishery management
council demarcation line between the Atlantic Ocean and the Gulf of
Mexico (as described in Sec. 600.105 of this title).
[[Page 68]]
Southern North Carolina State waters means the area consisting of
all marine and tidal waters, within 3 nautical miles (5.56 km) of shore,
bounded on the north by 34[deg]35.4[min] N. (Cape Lookout, North
Carolina), and 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 border at 33[deg]51[min]07.9[sec] N. and
78[deg]32[min]32.6[sec] W.
Southern Virginia State waters means the area consisting of all
marine and tidal waters, within 3 nautical miles (5.56 km) of shore,
bounded on the north by 37[deg] 07.23[min] N. (Cape Charles Light on
Smith Island in the Chesapeake Bay mouth) and on the south by 36[deg]
33[min] N. (Virginia/North Carolina border at the coast).
(c) BDTRP regulated waters--(1) Gillnets. The regulations pertaining
to gillnets in this section apply to New Jersey, Delaware, and Maryland
State waters; Northern North Carolina State waters; Northern Virginia
State waters; South Carolina, Georgia, and Florida waters; Southern
North Carolina State waters; and Southern Virginia State waters as
defined in Sec. 229.35(b), except for the waters identified in Sec.
229.34(a)(2), with the following modification and addition. From
Chincoteague to Ship Shoal Inlet in Virginia (37[deg] 52[min] N. 75[deg]
24.30[min] W. to 37[deg] 11.90[min] N. 75[deg] 48.30[min] W) and South
Carolina, Georgia, and Florida waters, those 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 are excluded
from the regulations.
(2) Pound nets. The regulations pertaining to pound nets in this
section apply to the Bottlenose Dolphin Pound Net Regulated Area.
(d) Regional management measures--(1) New Jersey, Delaware, and
Maryland State waters--(i) Medium and large mesh gillnets. From June 1
through October 31, in New Jersey, Delaware, and Maryland state waters,
no person may fish with any medium or large mesh anchored gillnet gear
at night unless such person remains within 0.5 nautical mile (0.93 km)
of the closest portion of each gillnet and removes all such gear from
the water and stows it on board the vessel before the vessel returns to
port.
(ii) [Reserved]
(2) Virginia state waters--(i) Medium and large mesh gillnets. From
June 1 through October 31, in Southern Virginia State waters and
Northern Virginia State waters, no person may fish with any medium or
large mesh anchored gillnet gear at night unless such person remains
within 0.5 nautical mile (0.93 km) of the closest portion of each
gillnet and removes all such gear from the water and stows it on board
the vessel before the vessel returns to port.
(ii) Pound nets. (A) Year-round, any offshore pound net in the
Bottlenose Dolphin Pound Net Regulated Area must use a modified pound
net leader.
(B) Year-round, any nearshore and offshore pound nets set in the
Bottlenose Dolphin Pound Net Regulated Area must have all three
continuous sections as defined in 50 CFR 229.2, except that one or more
sections may be missing for a maximum period of 10 days for purposes of
setting, removing, and/or repairing pound nets.
(C) The pound net licensee and the vessel operator of any offshore
pound net set in the Bottlenose Dolphin Pound Net Regulated Area must
have completed modified pound net leader compliance training and possess
on board the vessel a valid modified pound net leader compliance
training certificate issued by NMFS. NMFS retains discretion to provide
exemptions in limited circumstances where appropriate. Notice will be
given by NMFS announcing the times and locations of modified pound net
leader compliance training.
(3) Southern Virginia State waters--(i) Large mesh gillnets. From
November 1 through December 31, in Southern Virginia State waters, no
person may fish with, possess on board a vessel unless stowed, or fail
to remove from the water, any large mesh gillnet gear at night.
(ii) [Reserved]
(4) Northern North Carolina State waters--(i) Small mesh gillnets.
From May 1 through October 31, in Northern North Carolina State waters,
no person may fish with any small mesh gillnet gear longer than 1,000
feet (304.8 m).
[[Page 69]]
(ii) Medium mesh gillnets. From November 1 through April 30 of the
following year, in Northern North Carolina State waters, no person may
fish with any medium mesh gillnet at night.
(iii) Large mesh gillnets. (A) From April 15 through December 15, in
Northern North Carolina State waters, no person may fish with any large
mesh gillnet.
(B) From December 16 through April 14 of the following year, in
Northern North Carolina State waters, no person may fish with any large
mesh gillnet without tie-downs at night.
(5) Southern North Carolina State waters--(i) Medium mesh gillnets.
From November 1 through April 30 of the following year, in Southern
North Carolina State waters, no person may fish with any medium mesh
gillnet at night.
(ii) Large mesh gillnets. (A) From April 15 through December 15, in
Southern North Carolina State waters, no person may fish with any large
mesh gillnet.
(B) From December 16 through April 14 of the following year, in
Southern North Carolina State waters, no person may fish, possess on
board unless stowed, or fail to remove from the water, any large mesh
gillnet at night.
(6) South Carolina, Georgia, and Florida waters--(i) Gillnets. Year-
round, in South Carolina, Georgia, and Florida waters, no person may
fish with any gillnet gear unless such person remains within 0.25
nautical miles (0.46 km) of the closest portion of the gillnet. Gear
shall be removed from the water and stowed on board the vessel before
the vessel returns to port.
(ii) [Reserved]
[71 FR 24796, Apr. 26, 2006, as amended at 73 FR 77533, Dec. 19, 2008;
77 FR 45270, July 31, 2012; 80 FR 6929, Feb. 9, 2015]
Sec. 229.36 Atlantic Pelagic Longline Take Reduction Plan (PLTRP).
(a) Purpose and scope. The purpose of this section is to implement
the PLTRP to reduce incidental mortality and serious injury of long-
finned and short-finned pilot whales and Risso's dolphins in the
Atlantic pelagic longline fishery off the U.S. east coast, a component
of the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline
fishery.
(1) Persons subject to this section. The regulations in this section
apply to the owner and operator of any vessel that has been issued or is
required to be issued an Atlantic HMS tunas, swordfish, or shark permit
under Sec. 635.4 of this title and that has pelagic longline gear
onboard as described under Sec. 635.21(c) of this title.
(2) Geographic scope. The geographic scope of the PLTRP is the
Atlantic Federal EEZ off the U.S. East Coast. The regulations specified
in paragraphs (b) through (d) of this section apply throughout the
Atlantic Federal EEZ off the U.S. East Coast. The regulation specified
in paragraph (e) of this section applies to all U.S. Atlantic pelagic
longline vessels operating in the EEZ portion of the Mid-Atlantic Bight.
(b) Definitions. In addition to the definitions contained in the
MMPA and Sec. Sec. 216.3 and 229.2 of this chapter, the following
definitions apply.
(1) Cape Hatteras Special Research Area (CHSRA) means all waters
inside and including the rectangular boundary described by the following
lines: 35[deg] N. lat., 75[deg] W. long., 36[deg] 25' N. lat., and
74[deg] 35' W. long.
(2) Mid-Atlantic Bight means the area bounded by straight lines
connecting the mid-Atlantic states' internal waters and extending to
71[deg] W. long. between 35[deg] N. lat. and 43[deg] N. lat.
(3) Observer means an individual authorized by NMFS, or a designated
contractor, placed aboard a commercial fishing vessel to record
information on marine mammal interactions, fishing operations, marine
mammal life history information, and other scientific data; to collect
biological specimens; and to perform other scientific investigations.
(4) Pelagic longline has the same meaning as in Sec. 635.2 of this
title.
(c) Marine Mammal Handling and Release Placard. The placard,
``Marine Mammal Handling/Release Guidelines: A Quick Reference for
Atlantic Pelagic Longline Gear,'' must be kept posted inside the
wheelhouse and on the working deck. You may contact the NMFS Southeast
Regional Office at (727) 824-5312 to request additional copies of the
placard.
[[Page 70]]
(d) CHSRA--(1) Special observer requirements. If you deploy or fish
with pelagic longline gear in the CHSRA, or intend to do so, you must
call NMFS Southeast Fisheries Science Center (SEFSC), 1-888-254-2558, at
least 48 hours, but no more than 96 hours, prior to embarking on your
fishing trip. This requirement is in addition to any existing selection
and notification requirement for observer coverage by the Pelagic
Observer Program. If, upon calling in, you are informed by the NMFS
SEFSC that no observer will be assigned and that no special research
requirements will apply for that trip, then you need not wait until your
stated date and time of departure and may depart on your fishing trip
immediately. If you are assigned an observer, you must take the observer
during that fishing trip. If you do not take the observer, you are
prohibited from deploying or fishing with pelagic longline gear in the
CHSRA for that fishing trip. You must comply with all provisions of
Sec. 229.7, Monitoring of incidental mortalities and serious injuries.
In addition, all provisions of 50 CFR 600.746, Observers, apply. No
waivers will be granted under Sec. 229.7(c)(3) or Sec. 600.746(f). A
vessel that would otherwise be required to carry an observer, but is
inadequate or unsafe for purposes of carrying an observer and for
allowing operation of normal observer functions, is prohibited from
deploying or fishing with pelagic longline gear in the CHSRA.
(2) Special research requirements. In addition to observing normal
fishing activities, observers may conduct additional scientific
investigations aboard your vessel designed to support the goals of the
PLTRP. The observer will inform you of the specific additional
investigations that may be conducted during your trip. An observer may
direct you to modify your fishing behavior, gear, or both. Instead of
carrying an observer, you may be required to carry and deploy gear
provided by NMFS or an observer or modify your fishing practices. By
calling in per Sec. 229.36(d)(1), you are agreeing to take an observer.
You are also acknowledging you are both willing and able to participate
in research, as per this paragraph, in the CHSRA consistent with the
PLTRP without any compensation. If you are assigned any special research
requirements, you must participate in the research for the duration of
the assignment. If you do not participate in the research, you are
prohibited from deploying or fishing with pelagic longline gear in the
CHSRA for that fishing trip.
(3) Exception for transit. If pelagic longline gear is appropriately
stowed, a vessel may transit through the CHSRA without meeting the
observer and research requirements specified in Sec. 229.36(d)(1) and
Sec. 229.36(d)(2). For the purpose of this paragraph, transit means
non-stop progression through the area. Pelagic longline gear is
appropriately stowed if all gangions, hooks, and buoys are disconnected
from the mainline; hooks are not baited; longline left on the drum is
covered with a tarp; and all other gear components are either stowed
below deck or secured on deck and covered with a tarp.
(e) Gear restrictions. No person may deploy a pelagic longline that
exceeds 20 nautical miles (nm) (37.04 km) in length in the Mid-Atlantic
Bight, including in the CHSRA, unless they have a written letter of
authorization from the Director, NMFS Southeast Fishery Science Center
to use a pelagic longline exceeding 20 nm (37.04 km) in the CHSRA in
support research for reducing bycatch of marine mammals in the pelagic
longline fishery.
[74 FR 23358, May 19, 2009]
Sec. 229.37 False Killer Whale Take Reduction Plan.
(a) Purpose and scope. The purpose of this section is to implement
the False Killer Whale Take Reduction Plan to reduce mortality and
serious injury of the Hawaii Pelagic and Hawaii Insular stocks of false
killer whales in the Hawaii-based deep-set and shallow-set pelagic
longline fisheries. The requirements in this section apply to vessel
owners and operators, and vessels registered for use with Hawaii
longline limited access permits issued under Sec. 665.801(b) of this
title.
(b) Definitions. In addition to the definitions contained in Sec.
229.2, terms in this section have the following meanings:
[[Page 71]]
(1) Deep-set or Deep-setting has the same meaning as the definition
at Sec. 665.800 of this title.
(2) Longline gear has the same meaning as the definition at Sec.
665.800 of this title.
(c) Gear requirements. (1) While deep-setting, the owner and
operator of a vessel registered for use under a Hawaii longline limited
access permit must use only hooks meeting the following specifications:
(i) Circle hook with hook shank containing round wire that can be
measured with a caliper or other appropriate gauge, with a wire diameter
not to exceed 4.5 mm (0.177 in); and
(ii) Offset not to exceed 10 degrees.
(2) While deep-setting, owners and operators of vessels registered
for use under a valid Hawaii longline limited access permit must use
leaders and branch lines that all have a diameter of 2.0 mm or larger if
the leaders and branch lines are made of monofilament nylon. If any
other material is used for a leader or branch line, that material must
have a breaking strength of at least 400 lb (181 kg).
(d) Prohibited area management. (1) Main Hawaiian Islands Longline
Fishing Prohibited Area. Longline fishing is prohibited in the portion
of the EEZ around Hawaii bounded by straight lines connecting the
following coordinated in the order listed:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
A............................................... 18[deg]05[ 155[deg]40
min] [min]
B............................................... 18[deg]20[ 156[deg]25
min] [min]
C............................................... 20[deg]00[ 157[deg]30
min] [min]
D............................................... 20[deg]40[ 161[deg]40
min] [min]
E............................................... 21[deg]40[ 161[deg]55
min] [min]
F............................................... 23[deg]00[ 161[deg]30
min] [min]
G............................................... 23[deg]05[ 159[deg]30
min] [min]
H............................................... 22[deg]55[ 157[deg]30
min] [min]
I............................................... 21[deg]30[ 155[deg]30
min] [min]
J............................................... 19[deg]50[ 153[deg]50
min] [min]
K............................................... 19[deg]00[ 154[deg]05
min] [min]
A............................................... 18[deg]05[ 155[deg]40
min] [min]
------------------------------------------------------------------------
(2) Southern Exclusion Zone. Deep-set longline fishing is prohibited
in the Southern Exclusion Zone when the zone is closed to protect false
killer whales pursuant to the procedures outlined in paragraph (e) of
this section. The Southern Exclusion Zone is the portion of the EEZ
around Hawaii bounded by 165[deg] 00[min] W. longitude on the west,
154[deg] 30[min] W. longitude on the east, the Papahanaumokuakea Marine
National Monument and the Main Hawaiian Islands Longline Fishing
Prohibited Area on the north, and the EEZ boundary on the south.
(e) Southern Exclusion Zone trigger and procedures. (1) The
Assistant Administrator will publish in the Federal Register the
expected observer coverage for a fishing year, the potential biological
removal level for the Hawaii Pelagic stock of false killer whales, and
the associated trigger calculated using the specifications in paragraph
(e)(2) of this section. This trigger will remain in effect until
superseded by publication of a revised trigger.
(2) As used in this section, trigger means the number of observed
false killer whale mortalities or serious injuries in the deep-set
longline fishery that occur in the EEZ around Hawaii, and that serves as
the bycatch threshold for closing the Southern Exclusion Zone to deep-
set longline fishing. The trigger is calculated as the larger of these
two values:
(i) Two; or
(ii) The smallest number of observed false killer whale mortalities
or serious injuries that, when extrapolated based on the percentage
observer coverage in the deep-set longline fishery for that year,
exceeds the Hawaii Pelagic false killer whale stock's potential
biological removal level.
(3) Unless otherwise subject to paragraph (e)(4) of this section, if
there is an observed false killer whale mortality or serious injury in
the EEZ around Hawaii on a declared deep-set longline trip that meets
the established trigger for a given fishing year, the Southern Exclusion
Zone will be closed to deep-set longline fishing until the end of that
fishing year.
(4) If during the same calendar year following closure of the
Southern Exclusion Zone in accordance with paragraph (e)(3) of this
section, there is one observed false killer whale mortality or serious
injury on a declared deep-set longline trip anywhere in the EEZ around
Hawaii, then NMFS shall immediately convene the False Killer Whale Take
Reduction Team.
(5) If in the subsequent calendar year following closure of the
Southern Exclusion Zone in accordance with paragraph (e)(3) of this
section, there is an
[[Page 72]]
observed false killer whale mortality or serious injury in the EEZ
around Hawaii on a declared deep-set longline trip that meets the
established trigger for a given fishing year, the Southern Exclusion
Zone will be closed to deep-set longline fishing until the area is
reopened by the Assistant Administrator as per criteria in paragraph
(e)(7) of this section.
(6) Upon determining that closing the Southern Exclusion Zone is
warranted pursuant to the procedures in paragraphs (e)(1) through (e)(5)
of this section, the Assistant Administrator will provide notice to
Hawaii longline permit holders and the False Killer Whale Take Reduction
Team, publish a notice in the Federal Register, and post information on
the NMFS Pacific Islands Regional Office web site. The notice will
announce that the fishery will be closed beginning at a specified date,
which is not earlier than 7 days and not later than 15 days, after the
date of filing the closure notice for public inspection at the Office of
the Federal Register.
(7) Reopening criteria. If the Southern Exclusion Zone is closed
pursuant to the procedure in paragraphs (e)(1) through (e)(6) of this
section, the Assistant Administrator would reopen the Southern Exclusion
Zone if one or more of the follow criteria were met:
(i) The Assistant Administrator determines, upon consideration of
the False Killer Whale Take Reduction Team's recommendations and
evaluation of all relevant circumstances, that reopening of the Southern
Exclusion Zone is warranted;
(ii) In the 2-year period immediately following the date of the
Southern Exclusion Zone closure, the deep-set longline fishery has zero
observed false killer whale incidental mortalities and serious injuries
within the remaining open areas of the EEZ around Hawaii;
(iii) In the 2-year period immediately following the date of the
closure, the deep-set longline fishery has reduced its total rate of
false killer whale incidental mortality and serious injury (including
the EEZ around Hawaii, the high seas, and the EEZ around Johnston Atoll
(but not Palmyra Atoll) by an amount equal to or greater than the rate
that would be required to reduce false killer whale incidental mortality
and serious injury within the EEZ around Hawaii to below the Hawaii
Pelagic false killer whale stock's potential biological removal level;
or
(iv) The average estimated level of false killer whale incidental
mortality and serious injury in the deep-set longline fishery within the
remaining open areas of the EEZ around Hawaii for up to the 5 most
recent years is below the potential biological removal level for the
Hawaii Pelagic stock of false killer whales at that time.
(8) Upon determining that reopening the Southern Exclusion Zone is
warranted pursuant to the procedures in paragraph (e)(7) of this
section, the Assistant Administrator will provide notice to Hawaii
longline permit holders and the False Killer Whale Take Reduction Team,
publish a notice in the Federal Register, and post information on the
NMFS Pacific Islands Regional Office web site. The notice will announce
that the fishery will be reopened beginning at a specified date, which
is not earlier than 7 days and not later than 15 days, after the date of
filing the closure notice for public inspection at the Office of the
Federal Register.
(f) Marine mammal handling and release. (1) Each year, both the
owner and the operator of a vessel registered for use with a longline
permit issued under Sec. 665.801 of this title must attend and be
certified for completion of a workshop conducted by NMFS on interaction
mitigation techniques for sea turtles, seabirds, and marine mammals, as
required under Sec. 665.814 of this title.
(2) Longline vessel operators (captains) must supervise and be in
visual and/or verbal contact with the crew during any handling or
release of marine mammals.
(3) A NMFS-approved placard setting forth marine mammal handling
and/or release procedures must be posted on the longline vessel in a
conspicuous place that is regularly accessible and visible to the crew.
(4) A NMFS-approved placard instructing vessel crew to notify the
captain in the event of a marine mammal interaction must be posted on
the longline vessel in a conspicuous place
[[Page 73]]
that is regularly accessible and visible to the crew.
[77 FR 71285, 71286, Nov. 29, 2012, as amended at 77 FR 71286, 71286,
Nov. 29, 2012]
[[Page 74]]
Sec. Figure 1 to Part 229--Drift Gillnet Pinger Configuration and
Extender Requirements
[GRAPHIC] [TIFF OMITTED] TR22JA99.001
[64 FR 3434, Jan. 22, 1999]
[[Page 75]]
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 76]]
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 77]]
(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 78]]
SUBCHAPTER F_AID TO FISHERIES
PART 253_FISHERIES ASSISTANCE PROGRAMS--Table of Contents
Subpart A_General
Sec.
253.1 Purpose.
Subpart B_Fisheries Finance Program
253.10 General definitions.
253.11 General FFP credit standards and requirements.
253.12 Credit application.
253.13 Initial investigation and approval.
253.14 Loan documents.
253.15 Recourse against other parties.
253.16 Actual cost.
253.17 Insurance.
253.18 Closing.
253.19 Dual-use CCF.
253.20 Fees.
253.21 Demand by guaranteed noteholder and payment.
253.22 Program operating guidelines.
253.23 Default and liquidation.
253.24 Enforcement violations and adverse actions.
253.25 Other administrative requirements.
253.26 Traditional loans.
253.27 IFQ financing.
253.28 Halibut sablefish IFQ loans.
253.29 CDQ loans.
253.30 Crab IFQ loans.
253.31 Harvesting rights loans.
253.32-253.49 [Reserved]
Subpart C_Interjurisdictional Fisheries
253.50 Definitions.
253.51 Apportionment.
253.52 State projects.
253.53 Other funds.
253.54 Administrative requirements.
Authority: 46 U.S.C. 53701 and 16 U.S.C. 4101 et seq.
Source: 75 FR 78623, Dec. 16, 2010, unless otherwise noted.
Subpart A_General
Sec. 253.1 Purpose.
(a) The regulations in this part pertain to fisheries assistance
programs. Subpart B of this part governs the Fisheries Finance Program
(FFP or the Program), which makes capacity neutral long-term direct
fisheries and aquaculture loans. The FFP conducts all credit
investigations, makes all credit determinations and holds and services
all credit collateral.
(b) Subpart C of this part implements Public Law 99-659 (16 U.S.C.
4100 et seq.), which has two objectives:
(1) Promote and encourage State activities in support of the
management of interjurisdictional fishery resources identified in
interstate or Federal fishery management plans; and
(2) 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 executive 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 Finance Program
Sec. 253.10 General definitions.
The terms used in this subpart have the following meanings:
Act means Chapter 537 of Title 46 of the U.S. Code, (46 U.S.C.
53701-35), as may be amended from time to time.
Actual cost means the sum of all amounts for a project paid by an
obligor (or related person), as well as all amounts that the Program
determines the obligor will become obligated to pay, as such amounts are
calculated by Sec. 253.16.
Applicant means the individual or entity applying for a loan (the
prospective obligor).
Application means the documents provided to or requested by NMFS
from an applicant to apply for a loan.
Application fee means 0.5 percent of the dollar amount of financing
requested.
Approval in principle letter (AIP) means a written communication
from NMFS to the applicant expressing the
[[Page 79]]
agency's commitment to provide financing for a project, subject to all
applicable regulatory and Program requirements and in accordance with
the terms and conditions contained in the AIP.
Aquaculture facility means land, structures, appurtenances,
laboratories, water craft built in the U.S., and any equipment used for
the hatching, caring for, or growing fish, under controlled
circumstances for commercial purposes, as well as the unloading,
receiving, holding, processing, or distribution of such fish.
Capital Construction Fund (CCF), as described under 46 U.S.C. 53501-
17, allows owners of eligible vessels to reserve capital for replacement
vessels, additional vessels, reconstruction of vessels, or reconstructed
vessels, built in the United States and documented under the laws of the
United States, for operation in the fisheries of the United States.
Captain means a vessel operator or a vessel master.
Charter fishing means fishing from a vessel carrying a ``passenger
for hire,'' as defined in 46 U.S.C. 2101(21a), such passenger being
engaged in recreational fishing, from whom consideration is provided as
a condition of carriage on the vessel, whether directly or indirectly
flowing to the owner, charterer, operator, agent, or any other person
having an interest in the vessel.
Citizen means a ``citizen of the United States,'' as described in 46
U.S.C. 104, or an entity who is a citizen for the purpose of documenting
a vessel in the coastwise trade under 46 U.S.C. 50501.
Crewman means any individual, other than a captain, a passenger for
hire, or a fisheries observer working on a vessel that is engaged in
fishing.
Demand means a noteholder's request that a debtor or guarantor pay a
note's full principal and interest balance.
Facility means a fishery or an aquaculture facility.
Fish means finfish, mollusks, crustaceans and all other forms of
aquatic animal and plant life, other than marine mammals and birds.
Fisheries harvest authorization means any transferable permit,
license or other right, approval, or privilege to engage in fishing.
Fishery facility means land, land structures, water craft that do
not engage in fishing, and equipment used for transporting, unloading,
receiving, holding, processing, preserving, or distributing fish for
commercial purposes (including any water craft used for charter
fishing).
Fishing means:
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
(3) Any other activity which can reasonably be expected to result in
the catching, taking, or harvesting of fish;
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1) through (3) of this section.
(5) Fishing does not include any scientific research activity which
is conducted by a scientific research vessel.
Fishing industry for the purposes of this part, means the broad
sector of the national economy comprised of persons or entities that are
engaged in or substantially associated with fishing, including
aquaculture, charter operators, guides, harvesters, outfitters,
processors, suppliers, among others, without regard to the location of
their activity or whether they are engaged in fishing for wild stocks or
aquaculture.
Guarantee means a guarantor's contractual promise to repay
indebtedness if an obligor fails to repay as agreed.
Guarantee fee means one percent of a guaranteed note's average
annual unpaid principal balance.
Guaranteed note means a promissory note from an obligor to a
noteholder, the repayment of which the United States guarantees.
IFQ means Individual Fishing Quota, which is a Federal permit under
a limited access system to harvest a quantity of fish, expressed by a
unit or units representing a percentage of the total allowable catch of
a fishery that may be received or held for exclusive use by a person.
IFQ does not include community development quotas.
Noteholder means a guaranteed note payee.
Obligor means a party primarily liable for payment of the principal
of or
[[Page 80]]
interest on an obligation, used interchangeably with the terms ``note
payor'' or ``notemaker.''
Origination year means the year in which an application for a loan
is accepted for processing.
Program means the Fisheries Finance Program, Financial Services
Division, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce.
Project means:
(1) The refinancing or construction of a new fishing vessel or the
financing or refinancing of a fishery or aquaculture facility or the
refurbishing or purchase of an existing vessel or facility, including,
but not limited to, architectural, engineering, inspection, delivery,
outfitting, and interest costs, as well as the cost of any consulting
contract the Program requires;
(2) The purchase or refinance of any limited access privilege, IFQ,
fisheries access right, permit, or other fisheries harvest
authorization, for which the actual cost of the purchase of such
authorization would be eligible under the Act for direct loans;
(3) Activities (other than fishing capacity reduction, as set forth
in part 600.1000 of this title) that assist in the transition to reduced
fishing capacity;
(4) Technologies or upgrades designed to improve collection and
reporting of fishery-dependent data, to reduce bycatch, to improve
selectivity or reduce adverse impacts of fishing gear, or to improve
safety; or
(5) Any other activity that helps develop the U.S. fishing industry,
including, but not limited to, measures designed or intended to improve
a vessel's fuel efficiency, to increase fisheries exports, to develop an
underutilized fishery, or to enhance financial stability, financial
performance, growth, productivity, or any other business attribute
related to fishing or fisheries.
RAM means the Restricted Access Management division in the Alaska
Regional Office of NMFS or the office that undertakes the duties of this
division to issue or manage quota shares.
Refinancing means newer debt that either replaces older debt or
reimburses applicants for previous expenditures.
Refinancing/assumption fee means a one time fee assessed on the
principal amount of an existing FFP note to be refinanced or assumed.
Refurbishing means any reconstruction, reconditioning, or other
improvement of existing vessels or facilities, but does not include
routine repairs or activities characterized as maintenance.
Security documents mean all documents related to the collateral
securing the U.S. Note's repayment and all other assurances,
undertakings, and contractual arrangements associated with financing or
guarantees provided by NMFS.
Underutilized fishery means any stock of fish (a) harvested below
its optimum yield or (b) limited to a level of harvest or cultivation
below that corresponding to optimum yield by the lack of aggregate
facilities.
U.S. means the United States of America and, for citizenship
purposes, includes the fifty states, Commonwealth of Puerto Rico,
American Samoa, the Territory of the U.S. Virgin Islands, Guam, the
Republic of the Marshal Islands, the Federated States of Micronesia, the
Commonwealth of the Northern Mariana Islands, and 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 obligor to the
United States.
Useful life means the period during which project property will, as
determined by the Program, remain economically productive.
Vessel means any vessel documented under U.S. law and used for
fishing.
Wise use means the development, advancement, management,
conservation, and protection of fishery resources, that is not
inconsistent with the National Standards for Fishery Conservation and
Management (16 U.S.C. 1851) and any other relevant criteria, as may be
specified in applicable statutes, regulations, Fishery Management Plans,
or NMFS guidance.
[[Page 81]]
Sec. 253.11 General FFP credit standards and requirements.
(a) Principal. Unless explicitly stated otherwise in these
regulations or applicable statutes, the amount of any loan may not
exceed 80 percent of actual cost, as such term is described in Sec.
253.16; provided that the Program may approve an amount that is less, in
accordance with its credit determination.
(b) Interest rate. Each loan's annual interest rate will be 2
percent greater than the U.S. Department of Treasury's cost of borrowing
public funds of an equivalent maturity at the time the loan closes.
(c) Ability and experience requirements. An obligor and the majority
of its principals must demonstrate the ability, experience, resources,
character, reputation, and other qualifications the Program deems
necessary for successfully operating the project property and protecting
the Program's interest in the project.
(d) Lending restrictions. Unless it can document that unique or
extraordinary circumstances exist, the Program will not provide
financing:
(1) For venture capital purposes; or
(2) To an applicant who cannot document successful fishing industry
ability and experience of a duration, degree, and nature that the
Program deems necessary to successfully repay the requested loan.
(e) Income and expense projections. The Program, using conservative
income and expense projections for the project property's operation,
must determine that projected net earnings can service all debt,
properly maintain the project property, and protect the Program's
interest against risks of loss, including the industry's cyclical
economics.
(f) Working capital. The Program must determine that a project has
sufficient initial working capital to achieve net earnings projections,
fund all foreseeable contingencies, and protect the Program's interest
in the project. In making its determination, the Program will use a
conservative assessment of an applicant's financial condition, and at
the Program's discretion, some portion of projected working capital
needs may be met by something other than current assets minus
liabilities (i.e., by a line or letter of credit, non-current assets
readily capable of generating working capital, a guarantor with
sufficient financial resources, etc.).
(g) Audited financial statements. Audited financial statements will
ordinarily be required for any obligor with large or financially complex
operations, as determined by the program, whose financial condition the
Program believes cannot be otherwise assessed with reasonable certainty.
(h) Consultant services. Expert consulting services may be necessary
to help the Program assess a project's economic, technical, or financial
feasibility. The Program will notify the applicant if an expert is
required. The Program will select and employ the necessary consultant,
but require the applicant to reimburse the Program for any fees charged
by the consultant. In the event that an application requires expert
consulting services, the loan will not be closed until the applicant
fully reimburses the Program for the consulting fees. This cost may, at
the Program's discretion, be included in the amount of the note. For a
declined application, the Program may reimburse itself from the
application fee as described in Sec. 253.12, including any portion
known as the commitment fee that could otherwise be refunded to the
applicant.
(i) Property inspections. The Program may require adequate condition
and valuation inspection of all property used as collateral as the basis
for assessing the property's worth and suitability for lending. The
Program may also require these at specified periods during the life of
the loan. These must be conducted by competent and impartial inspectors
acceptable to the Program. Inspection cost(s) will be at an applicant's
expense. Those occurring before application approval may be included in
actual cost, as actual cost is described in Sec. 253.16.
(j) Collateral. The Program shall have first lien(s) on all primary
project property pledged as collateral. The Program, at its discretion,
may request additional collateral and will consider any additional
collateral in its credit determinations.
(k) No additional liens. All primary project property pledged as
collateral,
[[Page 82]]
including any additional collateral, shall be free of additional liens,
unless the Program, at the request of the applicant, expressly waives
this requirement in writing.
(l) General FFP credit standards apply. Unless explicitly stated
otherwise in these rules, all FFP direct lending is subject to the above
general credit standards and requirements found in Sec. Sec. 253.12
through 253.30. The Program may adjust collateral, guarantee and other
requirements to reflect individual credit risks.
(m) Adverse legal proceedings. The Program, at its own discretion,
may decline or hold in abeyance any loan approval or disbursement(s) to
any applicant found to have outstanding lawsuits, citations, hearings,
liabilities, appeals, sanctions or other pending actions whose negative
outcome could significantly impact, in the opinion of the Program, the
financial circumstances of the applicant.
Sec. 253.12 Credit application.
(a) Applicant. (1) An applicant must be a U.S. citizen and be
eligible to document a vessel in the coastwise trade: and
(2) Only the legal title holder of project property, or its parent
company (or the lessee of an appropriate long-term lease) may apply for
a loan; and
(3) An applicant and the majority of its principals must generally
have the ability, experience, resources, character, reputation, and
other qualifications the Program deems necessary for successfully
operating, utilizing, or carrying out the project and protecting the
Program's interest; and
(4) Applicants should apply to the appropriate NMFS Regional
Financial Services Branch to be considered.
(b) Application fee. An application fee of 0.5 percent of the dollar
amount of an application is due when the application is formally
accepted. Upon submission, 50 percent of the application fee, known as
the ``filing fee,'' is non-refundable; the remainder, known as the
``commitment fee,'' may be refunded if the Program declines an
application or an applicant withdraws its application before the Program
issues an AIP letter, as described in Sec. 253.13(e). The Program will
not issue an AIP letter if any of the application fee remains unpaid. No
portion of the application fee shall be refunded once the Program issues
an AIP letter.
(c) False statement. A false statement on an application is grounds
for denial or termination of funds, grounds for possible punishment by a
fine or imprisonment as provided in 18 U.S.C. 1001 and an event of a
security default.
Sec. 253.13 Initial investigation and approval.
(a) The Program shall undertake a due diligence investigation of
every application it receives to determine if, in the Program's sole
judgment, the application is both:
(1) Eligible for a loan because it meets applicable loan
requirements; and
(2) Qualified for a loan because the project is deemed an acceptable
credit risk.
(b) The Program will approve eligible and qualified applicants by
evaluating the information obtained during the application and
investigation process.
(c) Among other investigations, applicants may be subject to a
background check, fisheries violations check and credit review.
Background checks are intended to reveal if any key individuals
associated with the applicant have been convicted of or are presently
facing criminal charges such as fraud, theft, perjury, or other matters
which significantly reflect on the applicant's honesty or financial
integrity.
(d) The Program, at its own discretion, may decline or delay
approval of any loans or disbursements to any applicant found to have
outstanding citations, notices of violations, or other pending legal
actions or unresolved claims.
(e) The Program may place any terms and conditions on such approvals
that the Program, in its sole discretion, deems necessary and
appropriate.
(f) Credit decision. (1) The Program shall issue to approved
applicants an AIP letter, which shall describe the terms and conditions
of the loan, including (but not limited to) loan amounts, maturities,
additional collateral, repayment sources or guarantees.
[[Page 83]]
Such terms and conditions are at the Program's sole discretion and shall
also be incorporated in security documents that the Program prepares. An
applicant's non-acceptance of any terms and conditions may result in an
applicant's disqualification.
(2) Any application the Program deems ineligible or unqualified will
be declined.
Sec. 253.14 Loan documents.
(a) U.S. Note. (1) The U.S. Note will be in the form the Program
prescribes.
(2) The U.S. Note evidences the obligor's indebtedness to the United
States.
(i) For financing approved after October 11, 1996, the U.S. Note
evidences the obligor's actual indebtedness to the U.S.; and
(ii) For financing originating before October 11, 1996, that
continues to be associated with a Guaranteed Note, the U.S. Note shall
evidence the obligor's actual indebtedness to the U.S. upon the
Program's payment of any or all of the sums due under the Guaranteed
Note or otherwise disbursed on the obligor's behalf.
(iii) The U.S. Note will, among other things, contain provisions to
add to its principal balance all amounts the Program advances or incurs,
including additional interest charges and costs incurred to protect its
interest or accommodate the obligor.
(3) The U.S. Note shall be assignable by the Program, at its sole
discretion.
(b) Security documents. (1) Each security document will be in the
form the Program prescribes.
(2) The Program will, at a minimum, require the pledge of adequate
collateral, generally in the form of a security interest or mortgage
against all property associated with a project or security as otherwise
required by the Program.
(3) The Program will require such other security as it deems
necessary and appropriate, given the circumstances of each obligor and
the project.
(4) The security documents will, among other things, contain
provisions to secure the repayment of all additional amounts the Program
advances or incurs to protect its interest or accommodate the obligor,
including additional interest charges and fees.
Sec. 253.15 Recourse against parties.
(a) Form. Recourse by borrowers or guarantors may be by a repayment
guarantee, irrevocable letter of credit, additional tangible or
intangible collateral, or other form acceptable to the Program.
(b) Principals accountable. The principal parties in interest, who
ultimately stand most to benefit from the project, will ordinarily be
held financially accountable for the project's performance. The Program
may require recourse against:
(1) All major shareholders of a closely-held corporate obligor;
(2) The parent corporation of a subsidiary corporate obligor;
(3) The related business entities of the obligor if the Program
determines that the obligor lacks substantial pledged assets other than
the project property or is otherwise lacking in any credit factor
required to approve the application;
(4) Any or all major limited partners;
(5) Non-obligor spouses of applicants or obligors in community
property states; and/or
(6) Against any others it deems necessary to protect its interest.
(c) Recourse against parties. Should the Program determine that a
secondary means of repayment from other sources is necessary (including
the net worth of parties other than the obligor), the Program may
require secured or unsecured recourse against any such secondary
repayment sources.
(d) Recourse unavailable. Where appropriate recourse is unavailable,
the conservatively projected net liquidating value of the obligor's
assets (as such assets are pledged to the Program) must, in the
Program's credit judgment, substantially exceed all projected Program
exposure or other risks of loss.
Sec. 253.16 Actual cost.
Actual cost shall be determined as follows:
(a) The actual cost of a vessel shall be the sum of:
(1) The total cost of the project depreciated on a straight-line
basis, over
[[Page 84]]
the project property's useful life, using a 10-percent salvage value;
and
(2) The current market value of appurtenant limited access
privileges or transferable limited access privileges vested in the name
of the obligor, the subject vessel or their owners, provided that such
privileges are utilized by or aboard the subject vessel and will be
pledged as collateral for the subject FFP financing.
(b) The actual cost of a facility shall be the sum of:
(1) The total cost of the project, not including land, depreciated
on a straightline basis over the Project Property's useful life, using a
10-percent salvage value;
(2) The current market value of the land that will be pledged as
collateral for the subject FFP financing, provided that such land is
utilized by the facility; and
(3) The net present value of the payments due under a long term
lease of land or marine use rights, provided that they meet the
following requirements:
(i) The project property must be located at such leased space or
directly use such marine use rights;
(ii) Such lease or marine use right must have a duration the Program
deems sufficient; and
(iii) The lease or marine use right must be assigned to the Program
such that the Program may foreclose and transfer such lease to another
party.
(c) The actual cost of a transferable limited access privilege shall
be determined as follows:
(1) For financing the purchase of limited access privileges, the
actual cost shall be the purchase cost.
(2) For refinancing limited access privileges, the actual cost shall
be the current market value.
(d) The actual cost of any Project that includes any combination of
items described in paragraphs (a), (b) or (c) of this section shall be
the sum of such calculations.
Sec. 253.17 Insurance.
(a) All insurable collateral property and other risks shall be
continuously insured so long as any balance of principal or interest on
a Program loan or guarantee remains outstanding.
(b) Insurers must be acceptable to the Program.
(c) Insurance must be in such forms and amounts and against such
risks the Program deems necessary to protect the United States'
interest.
(d) Insurance must be endorsed to include the requirements the
Program deems necessary and appropriate.
(1) Normally and as appropriate, the Program will be named as an
additional insured, mortgagee, or loss payee, for the amount of its
interest; any waiver of this requirement must be in writing;
(2) Cancellation will require adequate advance written notice;
(3) The Program will be adequately protected against other insureds'
breaches of policy warranties, negligence, omission, etc., in the case
of marine insurance, vessel seaworthiness will be required;
(4) The insured must provide coverage for any other risk or casualty
the Program may require.
Sec. 253.18 Closing.
(a) Approval in principle letters. Every closing will be in strict
accordance with a final approval in principle letter.
(b) Contracts. Promissory notes, security documents, and any other
documents the Program may require will be on standard Program forms that
may not be altered without Program written approval. The Program will
ordinarily prepare all contracts, except certain pledges involving real
property or other matters involving local law, which will be prepared by
each obligor's attorney at the direction and approval of the Program.
(c) Additional requirements. At its discretion the Program may
require services from applicant's attorneys, other contractors or
agents. Real property services required from an applicant's attorney or
agent may include, but are not limited to: Title search, title
insurance, mortgage and other document preparation, document execution
and recording, escrow and disbursement, and legal opinions and other
assurances. The Program will notify the applicant in advance if any such
services
[[Page 85]]
are required of the applicant's attorneys, contractors or other agents.
Applicants are responsible for all attorney's fees, as well as those of
any other private contractor. Attorneys and other contractors must be
satisfactory to the Program.
(d) Closing schedules. The Program will not be liable for adverse
interest-rate fluctuations, loss of commitments, or other consequences
of an inability by any of the parties to meet the closing schedule.
Sec. 253.19 Dual-use CCF.
The Program may require the pledge of a CCF account or annual
deposits of 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 gives the Program control of CCF withdrawals,
recourse against CCF deposits, ensures an emergency refurbishing reserve
(tax-deferred) for project property, and provides additional collateral.
Sec. 253.20 Fees.
(a) Application fee. See Sec. Sec. 253.10 and 253.12(b).
(b) Guarantee fee. For existing Guaranteed Loans, an annual
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 guarantee fee
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. The Program will assess a fee of
one quarter of one (1) percent of the note to be refinanced or assumed.
This fee is due upon application for refinancing or assumption of a
guaranteed or direct loan. Upon submission, the fee shall be non-
refundable. The Program may waive a refinancing or assumption fee's
payment when the refinancing or assumption's primary purpose will
benefit the United States.
(d) Where payable. Fees are payable by check to ``U.S. Department of
Commerce/NOAA.'' Other than those collected at application or closing,
fees are payable by mailing checks to the ``U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, National Marine
Fisheries Service,'' to such address as the Program may designate. To
ensure proper crediting, each check should include the official case
number the Program assigns.
Sec. 253.21 Demand by guaranteed noteholder and payment.
Every demand by the guaranteed noteholder must be delivered in
writing to the Program and 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. The only period during which a
guaranteed noteholder can make demand for a payment default begins on
the thirty-first day of the payment default and continues through the
ninetieth day of a payment default. The noteholder must possess evidence
of the demand's timely delivery.
Sec. 253.22 Program operating guidelines.
The Program may issue policy and administrative guidelines, as the
need arises.
Sec. 253.23 Default and liquidation.
Upon default under the terms of any note, guarantee, security
agreement, mortgage, or other security document the Program shall take
remedial actions including, but not limited to, where appropriate,
retaking or arrest of collateral, foreclosure, restructuring, debarment,
referral for debt collection, or liquidation as it deems best able to
protect the U.S. Government's interest.
Sec. 253.24 Enforcement violations and adverse actions.
(a) Compliance with applicable law. All applicants and Program
participants shall comply with applicable law.
(b) Applicant disqualification. (1) Any issuance of any citation or
Notice of Violation and Assessment by NMFS enforcement or other
enforcement authority may constitute grounds for the Program to:
(i) Delay application or approval processing;
(ii) Delay loan closing;
[[Page 86]]
(iii) Delay disbursement of loan proceeds;
(iv) Disqualify an applicant or obligor; or
(v) Declare default.
(2) The Program will not approve loans or disburse funds to any
applicant found to have an outstanding, final and unappealable fisheries
fine or other unresolved penalty until either: Such fine is paid or
penalty has been resolved; or the applicant enters into an agreement to
pay the penalty and makes all payments or installments as they are due.
Failure to pay or resolve any such fine or penalty in a reasonable
period of time will result in the applicant's disqualification.
(c) Foreclosure in addition to other penalties. In the event that a
person with an outstanding balance on a Program loan or guarantee
violates any ownership, lease, use, or other provision of applicable
law, such person may be subject to foreclosure of property, in addition
to any fines, sanctions, or other penalties.
Sec. 253.25 Other administrative requirements.
(a) Debt Collection Act. In accordance with the provisions of the
Debt Collection Improvement Act of 1996, a person may not obtain any
Federal financial assistance in the form of a loan (other than a
disaster loan) or loan guarantee if the person has an outstanding debt
(other than a debt under the Internal Revenue Code of 1986) with any
Federal agency which is in a delinquent status, as determined under
standards prescribed by the Secretary of the Treasury.
(b) Certifications. Applicants must submit a completed Form CD-511,
``Certifications Regarding Debarment, Suspension and Other
Responsibility Matters; Drug-Free Workplace Requirements and Lobbying,''
or its equivalent or successor form, if any.
(c) Taxpayer identification. An applicant classified for tax
purposes as an individual, limited liability company, partnership,
proprietorship, corporation, or legal entity is required to submit along
with the application a taxpayer identification number (TIN) (social
security number, employer identification number as applicable, or
registered foreign organization number). Recipients who either fail to
provide their TIN or provide an incorrect TIN may have application
processing or funding suspended until the requirement is met.
(d) Audit inquiry. An audit of a Program loan may be conducted at
any time. Auditors, selected at the discretion of the Program or other
agency of the United States, shall have access to any and all books,
documents, papers and records of the obligor or any other party to a
financing that the auditor(s) deem(s) pertinent, whether written,
printed, recorded, produced or reproduced by any mechanical, magnetic or
other process or medium.
(e) Paperwork Reduction Act. The application requirements contained
in these rules have been approved under OMB control number 0648-0012.
The applications for the halibut/sablefish QS crew member eligibility
certificate have been approved under OMB control number 0648-0272.
Notwithstanding any other provisions of law, no person is required to
respond to, nor shall any person be subject to a penalty for failure to
comply with, a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB control number.
Sec. 253.26 Traditional loans.
(a) Eligible projects. Financing or refinancing up to 80 percent of
a project's actual cost shall be available to any citizen who is
determined to be eligible and qualified under the Act and these rules,
except--
(1) The Program will not finance the cost of new vessel
construction.
(2) The Program will not finance a vessel refurbishing project that
materially increases an existing vessel's harvesting capacity.
(b) Financing or refinancing. (1) Projects, other than those
specified in paragraphs (a) (1) and (a)(2) of this section, may be
financed, as well as refinanced.
(2) Notwithstanding paragraph (a)(1) of this section, the Program
may refinance the construction cost of a vessel whose construction cost
has already been financed (or otherwise paid) prior to the submission of
a loan application.
[[Page 87]]
(3) Notwithstanding paragraph (a)(2) of this section, the Program
may refinance the refurbishing cost of a vessel whose initial
refurbishing cost has already been financed (or otherwise paid) prior to
the submission of a loan application.
(4) The Program may finance or refinance the purchase or
refurbishment of any vessel or facility for which the Secretary has:
(i) Accelerated and/or paid outstanding debts or obligations;
(ii) Acquired; or
(iii) Sold at foreclosure.
(c) Existing vessels and facilities. The Program may finance the
purchase of an existing vessel or existing fishery facility if such
vessel or facility will be refurbished in the United States and will be
used in the fishing industry.
(d) Fisheries modernization. Notwithstanding any of this part, the
Program may finance or refinance any:
(1) Activities that assist in the transition to reduced fishing
capacity; or
(2) Technologies or upgrades designed to:
(i) Improve collection and reporting of fishery-dependent data;
(ii) Reduce bycatch;
(iii) Improve selectivity;
(iv) Reduce adverse impacts of fishing gear; or
(v) Improve safety.
(e) Guaranty transition. Upon application by the obligor, any
guaranteed loans originated prior to October 11, 1996, may be refinanced
as direct loans, regardless of the original purpose of the guaranteed
loan.
(f) Maturity. Maturity may not exceed 25 years, but shall not exceed
the project property's useful life. The Program, at its sole discretion,
may set a shorter maturity period.
(g) Credit standards. Traditional loans are subject to all Program
general credit standards and requirements. Collateral, guarantee and
other requirements may be adjusted in accordance with the Program's
assessment of individual credit risks.
Sec. 253.27 IFQ financing.
The Program may finance or refinance the project cost of purchasing,
including the reimbursement of obligors for expenditures previously made
for purchasing, individual fishing quotas in accordance with the
applicable sections of the Magnuson-Stevens Fishery Conservation and
Management Act or any other statute.
Sec. 253.28 Halibut sablefish IFQ loans.
(a) Specific definitions. For the purposes of this section, the
following definitions apply:
(1) Entry-level fishermen means fishermen who do not own any IFQ in
the year they apply for a loan.
(2) Fishermen who fish from small vessels means fishermen wishing to
purchase IFQ for use on Category B, Category C, or Category D vessels,
but who do not own, in whole or in part, any Category A or Category B
vessels, as such vessels are defined in 50 CFR 679.40(a)(5) of this
title.
(3) Halibut sablefish quota share means a halibut or sablefish
permit, the face amount of which is used as the basis for the annual
calculation of a person's halibut or sablefish IFQ, also abbreviated as
``HSQS'' or ``halibut/sablefish QS.''
(4) Halibut/Sablefish IFQ means the annual catch limit of halibut or
sablefish that may be harvested by a person who is lawfully allocated
halibut or sablefish quota share, a harvest privilege for a specific
portion of the total allowable catch of halibut or sablefish.
(b) Entry level fishermen. The Program may finance up to 80 percent
of the cost of purchasing HSQS by an entry level fisherman who:
(1) Does not own any halibut/sablefish QS during the origination
year;
(2) Applies for a loan to purchase a quantity of halibut/sablefish
QS that is not greater than the equivalent of 8,000 lb. (3,628.7 kg) of
IFQ during the origination year;
(3) Possesses the appropriate transfer eligibility documentation
duly issued by RAM for HSQS;
(4) Intends to be present aboard the vessel, as may be required by
applicable regulations; and
(5) Meets all other Program eligibility, qualification, lending and
credit requirements.
(c) Fishermen fishing from small vessels. The Program may finance up
to 80 percent of the cost of purchasing HSQS by a fisherman who fishes
from a small
[[Page 88]]
vessel, provided that any such fisherman shall:
(1) Apply for a loan to purchase halibut or sablefish QS for use on
vessel Categories B, C, or D, as defined under 50 CFR 679.40(a)(5) of
this title;
(2) Not own an aggregate quantity of halibut/sablefish QS (including
the loan QS) of more than the equivalent of 50,000 lb. (22,679.6 kg) of
IFQ during the origination year;
(3) Not own, in whole or in part, directly or indirectly (including
through stock or other ownership interest) any vessel of the type that
would have been assigned Category A or Category B HSQS under 50 CFR
679.40(a)(5);
(4) Possess the appropriate transfer eligibility documentation duly
issued by the RAM for HSQS;
(5) Intend to be present aboard the vessel, as may be required by
applicable regulations, as IFQ associated with halibut/sablefish QS
financed by the loan is harvested; and
(6) Meet all other Program eligibility, qualification, lending and
credit requirements.
(d) Refinancing. (1) The Program may refinance any existing debts
associated with HSQS an applicant currently holds, provided that--
(i) The HSQS being refinanced would have been eligible for Program
financing at the time the applicant purchased it, and
(ii) The applicant meets the Program's applicable lending
requirements.
(2) The refinancing is in an amount up to 80 percent of HSQS'
current market value; however, the Program will not disburse any amount
that exceeds the outstanding principal balance, plus accrued interest
(if any), of the existing HSQS debt being refinanced.
(3) In the event that the current market value of HSQS and principal
loan balance do not meet the 80 percent requirement in paragraph (d)(2)
of this section, applicants seeking refinancing may be required to
provide additional down payment.
(e) Maturity. Loan maturity may not exceed 25 years, but may be
shorter depending on credit and other considerations.
(f) Repayment. Repayment will be by equal quarterly installments of
principal and interest.
(g) Security. Although quota share(s) will be the primary collateral
for a HSQS loan, the Program may require additional security pledges to
maintain the priority of the Program's security interest. The Program,
at its option, may also require all parties with significant ownership
interests to personally guarantee loan repayment for any applicant that
is a corporation, partnership, or other entity. Subject to the Program's
credit risk determination, some projects may require additional
security, collateral, or credit enhancement.
(h) Crew member transfer eligibility certification. The Program will
accept RAM certification as proof that applicants are eligible to hold
HSQS. The application of any person determined by RAM to be unable to
receive such certification will be declined. Applicants who fail to
obtain appropriate transfer eligibility certification within 45 working
days of the date of application may lose their processing priority.
(i) Program credit standards. HSQS loans, regardless of purpose, are
subject to all Program general credit standards and requirements.
Collateral, guarantee and other requirements may be adjusted to
individual credit risks.
Sec. 253.29 CDQ loans.
(a) FFP actions. The Program may finance or refinance up to 80
percent of a project's actual cost.
(b) Eligible projects. Eligible projects include the purchase of all
or part of ownership interests in fishing or processing vessels,
shoreside fish processing facilities, permits, quota, and cooperative
rights in any of the Bering Sea and Aleutian Islands fisheries.
(c) Eligible entities. The following communities, in accordance with
applicable law and regulations are eligible to participate in the loan
program:
(1) The villages of Akutan, Atka, False Pass, Nelson Lagoon,
Nikolski, and Saint George through the Aleutian Pribilof Island
Community Development Association.
(2) The villages of Aleknagik, Clark's Point, Dillingham, Egegik,
Ekuk,
[[Page 89]]
Ekwok, King Salmon/Savonoski, Levelock, Manokotak, Naknek, Pilot Point,
Port Heiden, Portage Creek, South Naknek, Togiak, Twin Hills, and
Ugashik through the Bristol Bay Economic Development Corporation.
(3) The village of Saint Paul through the Central Bering Sea
Fishermen's Association.
(4) The villages of Chefornak, Chevak, Eek, Goodnews Bay, Hooper
Bay, Kipnuk, Kongiganak, Kwigillingok, Mekoryuk, Napakiak, Napaskiak,
Newtok, Nightmute, Oscarville, Platinum, Quinhagak, Scammon Bay, Toksook
Bay, Tuntutuliak, and Tununak through the Coastal Villages Region Fund.
(5) The villages of Brevig Mission, Diomede, Elim, Gambell, Golovin,
Koyuk, Nome, Saint Michael, Savoonga, Shaktoolik, Stebbins, Teller,
Unalakleet, Wales, and White Mountain through the Norton Sound Economic
Development Corporation.
(6) The villages of Alakanuk, Emmonak, Grayling, Kotlik, Mountain
Village, and Nunam Iqua through the Yukon Delta Fisheries Development
Association.
(7) Any new groups established by applicable law.
(d) Loan terms. (1) CDQ loans may have terms up to thirty years, but
shall not exceed the project property's useful life. The Program, at its
sole discretion, may set a shorter maturity period.
(2) CDQ loans are subject to all Program general credit standards
and requirements. Collateral, guarantee and other requirements may be
adjusted to individual credit risks.
Sec. 253.30 Crab IFQ loans.
(a) Specific definitions. For the purposes of this section, the
following definitions apply:
(1) Crab means those crab species managed under the Fishery
Management Plan for Bering Sea/Aleutian Island (BSAI) King and Tanner
Crab.
(2) Crab FMP means the Fishery Management Plan for BSAI King and
Tanner Crab.
(3) Crab quota share means a BSAI King and Tanner Crab permit, the
base amount of which is used as a basis for the annual calculation of a
person's Crab IFQ, also abbreviated as ``Crab QS.''
(b) Crab captains or crewmen. The Program may finance up to 80
percent of the cost of purchasing Crab QS by a citizen:
(1) Who is or was:
(i) A captain of a crab fishing vessel, or
(ii) A crew member of a crab fishing vessel;
(2) Who has been issued the appropriate documentation of eligibility
by RAM;
(3) Whose aggregate holdings of QS will not exceed any limit on Crab
QS holdings that may be in effect in the Crab FMP implementing
regulations or applicable statutes in effect at the time of loan
closing; and will not hold either individually or collectively, based on
the initial QS pool, as published in 50 CFR part 680, Table 8; and
(4) Who, at the time of initial application, meets all other
applicable eligibility requirements to fish for crab or hold Crab QS
contained in the Crab FMP implementing regulations or applicable
statutes in effect at the time of loan closing.
(c) Refinancing. (1) The Program may refinance any existing debts
associated with Crab QS that an applicant currently holds, provided
that:
(i) The Crab QS being refinanced would have been eligible for
Program financing at the time the applicant purchased it;
(ii) The applicant meets the Program's applicable lending
requirements; and
(iii) The applicant would meet the requirements found in the Crab
FMP implementing regulations at the time any such refinancing loan would
close.
(2) The Program may refinance an amount up to 80 percent of Crab
QS's current market value; however, the Program will not disburse any
amount that exceeds the outstanding principal balance, plus accrued
interest (if any), of the existing Crab QS debt being refinanced.
(3) In the event that the current market value of Crab QS and
current principal balance do not meet the 80 percent requirement in
paragraph (c)(2) of
[[Page 90]]
this section, applicants seeking refinancing may be required to provide
additional down payment.
(d) Maturity. Loan maturity may not exceed 25 years, but may be
shorter depending on credit and other considerations.
(e) Repayment. Repayment schedules will be set by the loan
documents.
(f) Security. Although the quota share will be the primary
collateral for a Crab QS loan, the Program may require additional
security pledges to maintain the priority of the Program's security
interest. The Program, at its option, may also require all parties with
significant ownership interests to personally guarantee loan repayment
for any applicant that is a corporation, partnership, or other entity.
Subject to the Program's credit risk determination, some projects may
require additional security, collateral, or credit enhancement.
(g) Crew member transfer eligibility certification. The Program will
accept RAM transfer eligibility certification as proof that applicants
are eligible to hold Crab QS. The application of any person determined
by RAM to be unable to receive such certification will be declined.
Applicants who fail to obtain appropriate transfer eligibility
certification within 45 working days of the date of application may lose
their processing priority.
(h) Crab Quota Share Ownership Limitation. A program obligor must
comply with all applicable maximum amounts, as may be established by
NMFS regulations, policy or North Pacific Fishery Management Council
action.
(i) Program credit standards. Crab QS loans are subject to all
Program general credit standards and requirements. Collateral, guarantee
and other requirements may be adjusted to individual credit risks.
Sec. 253.31 Harvesting rights loans.
(a) Specific definitions. For the purposes of this section, the
following definitions apply:
(1) Harvesting right(s) means any privilege to harvest fish in a
fishery that is federally managed under a limited access system.
(2) Limited access system has the same meaning given to that term in
section 3 of the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1802).
(b) Loan requirements and limitations. These loan requirements and
limitations apply to individuals or entities who seek to finance or
refinance the acquisition of harvesting rights.
(1) The borrower must meet all regulatory and statutory requirements
to hold the harvesting rights at the time any such loan or refinancing
loan would close.
(2) NMFS will accept and consider the input of a Regional Fishery
Management Council at any time regarding the availability of loans in a
fishery under the Council's authority.
(i) The Council may submit an explanation to NMFS, in writing, as to
why the availability of financing for harvesting rights in a fishery
would harm the achievement of the goals and objectives of the Fishery
Management Plan applicable to the fishery. If NMFS accepts the Council's
reasoning, harvesting rights loans will not be provided, or will cease
to be provided, in that fishery.
(ii) If NMFS determines that harvesting rights loans will not be
provided in a fishery, NMFS will publish a notice in the Federal
Register notifying the public that new loans will not be made in that
fishery.
(iii) In such a scenario, pending applications will be returned and
loan fees returned as exceptional circumstances justify the action.
(3) The harvesting rights to be financed must be issued in a manner
in which they can be individually identified such that a valid and
specific security interest can be recorded. This determination shall be
solely made by the Program.
(c) Refinancing. (1) The Program may refinance any existing debts
associated with harvesting rights a borrower currently holds, provided
that:
(i) The harvesting rights being refinanced would have been eligible
for Program financing at the time the borrower purchased them, if
Program financing had been available;
(ii) The borrower meets all other applicable lending requirements;
and
(iii) The refinancing is in an amount up to 80 percent of the
harvesting
[[Page 91]]
rights' current market value, as determined at the sole discretion of
the Program, and subject to the limitation that the Program will not
disburse any amount that exceeds the outstanding principal balance, plus
accrued interest (if any), of the existing harvesting rights' debt being
refinanced or its fair market value, whichever is less.
(2) In the event that the current market value of harvesting rights
and principal loan balance do not meet the 80 percent requirement in
paragraph (c)(1)(iii) of this section, borrowers seeking refinancing may
be required to provide additional down payment.
(d) Maturity. Loan maturity may not exceed 25 years, but may be
shorter depending on credit and other considerations.
(e) Repayment. Repayment will be by equal quarterly installments of
principal and interest.
(f) Security. Although harvesting right(s) will be the primary
collateral for a loan, the Program may require additional security
pledges to maintain the priority of the Program's security interest. The
Program, at its option, may also require all parties with significant
ownership interests to personally guarantee loan repayment for any
borrower that is a corporation, partnership, or other entity, including
collateral to secure the guarantees. Some projects may require
additional security, collateral, or credit enhancement as determined, in
the sole discretion, by the Program.
(g) Program credit standards. Harvesting rights loans, regardless of
purpose, are subject to all Program general credit standards and
requirements. Collateral, guarantee and other requirements may be
adjusted to individual credit risks.
[83 FR 24232, May 25, 2018]
Sec. Sec. 253.32-253.49
[Reserved]
Subpart C_Interjurisdictional Fisheries
Sec. 253.50 Definitions.
The terms used in this subpart have the following meanings:
Act means the Interjurisdictional Fisheries Act of 1986, Public Law
99-659 (Title III).
Adopt means to implement an interstate fishery management plan by
State action or regulation.
Commercial fishery failure means a serious disruption of a fishery
resource affecting present or future productivity due to natural or
undetermined causes. It does not include either:
(1) The inability to harvest or sell raw fish or manufactured and
processed fishery merchandise; or
(2) Compensation for economic loss suffered by any segment of the
fishing industry as the result of a resource disaster.
Enforcement agreement means a written agreement, signed and dated,
between a state agency and either the Secretary of the Interior or
Secretary of Commerce, or both, to enforce Federal and state laws
pertaining to the protection of interjurisdictional fishery resources.
Federal fishery management plan means a plan developed and approved
under the Magnuson Fishery Conservation and Management Act (16 U.S.C.
1801 et seq.).
Fisheries management means all activities concerned with
conservation, restoration, enhancement, or utilization of fisheries
resources, including research, data collection and analysis, monitoring,
assessment, information dissemination, regulation, and enforcement.
Fishery resource means finfish, mollusks, and crustaceans, and any
form of marine or Great Lakes animal or plant life, including habitat,
other than marine mammals and birds.
Interjurisdictional fishery resource means:
(1) A fishery resource for which a fishery occurs in waters under
the jurisdiction of one or more states and the U.S. Exclusive Economic
Zone; or
(2) A fishery resource for which an interstate or a Federal fishery
management plan exists; or
(3) A fishery resource which migrates between the waters under the
jurisdiction of two or more States bordering on the Great Lakes.
Interstate Commission means a commission or other administrative
body established by an interstate compact.
Interstate compact means a compact that has been entered into by two
or
[[Page 92]]
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.
Sec. 253.51 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] TR16DE10.000
[GRAPHIC] [TIFF OMITTED] TR16DE10.001
(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
[[Page 93]]
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. 253.52 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 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
[[Page 94]]
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. 253.53 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. 253.601(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. 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. 253.54 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 TAX REGULATIONS--Table of Contents
Sec.
259.1 Definitions.
259.2 Applying for a Capital Construction Fund Agreement
(``Agreement'').
259.3 Acquisition, construction, or reconstruction.
259.4 Constructive deposits and withdrawals; ratification of withdrawals
(as qualified) made without first having obtained Secretary's
consent; first tax year for which an Agreement is effective.
259.5 Maximum deposit amounts and time to deposit.
[[Page 95]]
259.6 Termination of inactive and zero balance accounts.
259.7 Annual deposit and withdrawal reports required.
259.8 CCF accounts.
259.9 Conditional consents to withdrawal qualification.
259.10 Miscellaneous.
Authority: 46 U.S.C. 53501, formerly 46 U.S.C. App. 1177 and 1177-1.
Source: 82 FR 24565, May 30, 2017, unless otherwise noted.
Sec. 259.1 Definitions.
As used in this part:
Act means Chapter 535 of Title 46 of the U.S. Code (46 U.S.C. 53501-
53517), as may be amended from time to time.
Agreement means the contract to participate in the program between
the approved CCF applicant (party) and the Secretary.
Agreement vessel means any eligible vessel or qualified vessel which
is subject to an Agreement.
Citizen of the United States means any person who is a United States
citizen and any corporation or partnership organized under the laws of
any state which meets the requirements for documenting vessels in the
U.S. coastwise trade.
Commercial fishing means fishing in which the fish harvested, either
in whole or in part, are intended to enter commerce or enter commerce
through sale, barter or trade.
Depository means the bank or brokerage account(s) listed in the
Agreement where the CCF funds will be physically held.
Eligible vessel means--
(1) A vessel--
(i) Constructed in the United States (and, if reconstructed,
reconstructed in the United States), constructed outside of the United
States but documented under the laws of the United States on April 15,
1970, or constructed outside the United States for use in the United
States foreign trade pursuant to a contract made before April 15, 1970;
(ii) Documented under the laws of the United States if 5 net tons or
greater; and
(iii) Operated in the foreign or domestic commerce of the United
States or in the fisheries of the United States; and
(2) A commercial fishing vessel or vessel which will carry fishing
parties for hire--
(i) Constructed in the United States and, if reconstructed,
reconstructed in the United States;
(ii) State registered if at least 2 net tons but fewer than 5 net
tons or Documented under the laws of the United States if 5 net tons or
greater;
(iii) Owned by a citizen of the United States;
(iv) Having its home port in the United States; and
(v) Operated in the commercial fisheries of the United States.
Extension period means the first day following the end of the Filing
period and ending on the last day of the party's last filing extension.
Filing period means the first day following the end of the Tax Year
and ending on the party's last day to file their tax return absent a
filing extension.
Limited Access System means a system that limits participation in a
fishery to those satisfying certain eligibility criteria or requirements
contained in a fishery management plan or associated regulation.
Qualified vessel means--
(1) A vessel--
(i) Constructed in the United States (and, if reconstructed,
reconstructed in the United States), constructed outside of the United
States but documented under the laws of the United States on April 15,
1970, or constructed outside the United States for use in the United
States foreign trade pursuant to a contract made before April 15, 1970;
(ii) Documented under the laws of the United States if 5 net tons or
greater; and
(iii) Agreed, between the Secretary and the person maintaining the
capital construction fund established under 46 U.S.C. 53503, to be
operated in the fisheries of the United States; and
(2) A commercial fishing vessel or vessel which will carry fishing
parties for hire--
(i) Constructed in the United States and, if reconstructed,
reconstructed in the United States;
[[Page 96]]
(ii) State registered if at least 2 net tons but fewer than 5 net
tons or Documented under the laws of the United States if 5 net tons or
greater;
(iii) Owned by a citizen of the United States;
(iv) Having its home port in the United States; and
(v) Operated in the commercial fisheries of the United States; and
(3) Gear which is permanently fixed to the vessel. The expenditure
for gear and certain nets which are not fixed to the vessel (pots,
traps, longline, seine nets, gill set nets and gill drift nets) is
excluded from the amount eligible for qualified withdrawals of CCF
funds.
Schedule A means the section of the Agreement that designates the
income producing vessel from which deposits are made to a designated
account.
Schedule B means the section of the Agreement that designates the
qualified project for which the CCF funds are to be expended.
Secretary means the Secretary of Commerce with respect to eligible
or qualified vessels operated or to be operated in the fisheries of the
United States.
Tax due date means the date the party's Federal tax return must be
filed, including extensions, with the Internal Revenue Service.
Tax year means the period between January 1 and December 31 for
Calendar year filers or the designated fiscal year for fiscal year
filers.
United States means the United States of America and, for
citizenship purposes, includes the Commonwealth of Puerto Rico, American
Samoa, Guam, the U.S. Virgin Islands, the Republic of the Marshall
Islands, the Federated States of Micronesia, the Commonwealth of the
Northern Mariana Islands, and any other commonwealth, territory, or
possession of the United States, or any political subdivision of any of
them.
Sec. 259.2 Applying for a Capital Construction Fund Agreement
(``Agreement'').
(a) General qualifications. To be eligible to enter into an
Agreement an applicant must:
(1) Be a citizen of the United States (citizenship requirements are
those necessary 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 at 46
U.S.C. 53501) operating in the foreign or domestic commerce of the
United States;
(3) Have an acceptable plan to acquire, construct, or reconstruct
one or more qualified vessels (as defined at 46 U.S.C. 53501). The plan
must be a firm representation of the applicant's actual intentions.
Qualified vessels must be for commercial operation in the fisheries of
the United States. If the vessel is 5 net tons or over, it must be
documented with a fishery trade endorsement. 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. If the vessel
weighs fewer than 5 net tons the party must demonstrate to the
Secretary's satisfaction that the carrying of fishing parties for hire
will constitute its primary activity.
(b) Content of application. Applicants seeking an Agreement must
submit a formal application providing the following information:
(1) Name and Tax Identification Number (TIN) of applicant;
(2) Proof of U.S. citizenship;
(3) The first taxable year for which the Agreement is to apply (see
Sec. 259.4 for the latest time at which applications for an Agreement
relating to the previous taxable year may be received);
(4) The following information regarding each eligible vessel which
is to be incorporated in Schedule A of the Agreement:
(i) Name of vessel,
(ii) Official number or, in the case of vessels weighing 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 characteristics (i.e., net tonnage, fish-carrying
capacity, age, length, type of fishing gear, number of
[[Page 97]]
passengers carried or in the case of vessels operating in the foreign or
domestic commerce the various uses of the vessel, etc.),
(v) Whether it is 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 the vessel is documented and date
last documented,
(ix) The fishery of operation (which in this section means each
species or group of species). Each species must be specifically
identified by the 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) 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),
(5) The specific objectives to be achieved by the accumulation of
assets in a Capital Construction Fund (to be incorporated in Schedule B
of the Agreement) including:
(i) Number of vessels,
(ii) Type of vessel (i.e., catching, processing, transporting, or
passenger carrying fishing vessels),
(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 evidence of
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 account under an 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 must be specifically identified by acceptable common
name of fish, shellfish, or other living marine resources), and
(viii) Area of operation (which in this section means the general
geographic areas in which each vessel 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 to the
Financial Services Division of the National Marine Fisheries Service. As
a general rule, the Agreement must be executed and entered into by the
taxpayer on or prior to the due date for the filing of the Federal tax
return in order to be effective for the tax year to which that return
relates. It is in the Applicant's best interest to file at least 45 days
in advance of such date.
Sec. 259.3 Acquisition, construction, or reconstruction.
CCF funds cannot be used for any vessel acquisition, construction,
or reconstruction that increases harvesting capacity in a fishery or
fisheries, other than in a limited access system in which the fisheries
management authority establishes harvesting limits.
(a) Acquisition. CCF funds can be used to acquire any used qualified
vessel that will fish in a limited access system in which the fisheries
management authority establishes harvesting limits. If the fishery or
fisheries is not a limited access system, CCF funds can only be used to
replace an existing, recently sunken, or scrapped vessel and its
existing harvesting capacity. The replaced vessel must lose its
fisheries trade endorsement and the vessel owner must notify the Coast
Guard Documentation Center of that fact.
(b) Construction. CCF funds can be used to construct a new qualified
vessel that will fish in a limited access system in which the fisheries
management authority establishes harvesting limits. If the fishery or
fisheries is not a limited access system, CCF funds can only be used to
replace an existing, recently sunken, or scrapped vessel and its
existing harvesting capacity. The replaced vessel must lose its
fisheries
[[Page 98]]
trade endorsement and the vessel owner must notify the Coast Guard
Documentation Center of that fact.
(c) Reconstruction. Reconstruction may include rebuilding,
replacing, reconditioning, refurbishing, repairing, converting and/or
improving any portion of a vessel. A reconstruction project must,
however, either substantially prolong the useful life of the
reconstructed vessel, increase its value, materially increase its
safety, reliability, or energy efficiency, or adapt it to a different
commercial use in the fishing trade or industry. No vessel more than 25
years old at the time of 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 of at least 10 years beyond the
date reconstruction is completed.
(d) 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.
Sec. 259.4 Constructive deposits and withdrawals; ratification of
withdrawals (as qualified) made without first having obtained Secretary's
consent; first tax year for which an Agreement is effective.
(a) Constructive deposits and withdrawals (before Agreement executed
date). Constructive deposits and withdrawals are deemed to have been
deposited to and withdrawn from a designated CCF account even though the
funds were not physically deposited. Constructive deposits and
withdrawals shall be permissible only during the ``Tax Year'' for which
a written application for an Agreement is submitted to the Secretary.
Once the Secretary executes the Agreement, the constructive deposit and
withdrawal period ends. All deposits must be physically deposited into a
designated CCF account.
(1) All qualified deposits and expenditures occurring within the
period specified directly above, that are within the eligible ceilings
specified at 46 U.S.C. 53505, may be consented to by the Secretary as
constructive deposits and withdrawals. In order for the Secretary to
provide his or her consent for constructive deposit and withdrawal
treatment, the applicant must include a written request with the
application and provide sufficient supporting data to enable the
Secretary to evaluate the request. This written request must be
submitted no later than the ``Extension Period'' for that party's
initial tax year.
(2) [Reserved]
(b) Constructive deposits and withdrawals (after the Agreement
effective date). The Secretary shall not permit constructive deposits or
withdrawals after the effective date of an Agreement. Deposits made
after the effective date of an Agreement must be physically deposited
into a dedicated CCF account.
(c) First tax year for which an Agreement is effective. In order for
an Agreement to be effective for any applicant's ``Tax Year,'' the
written application must be submitted to the Secretary before the end of
the ``Filing Period'' or ``Extension Period'' for that tax year,
whichever applies. If the written application is received by the
Secretary, after the end of the ``Filing Period'' or ``Extension
Period,'' whichever applies, then the Agreement will be first effective
for the next succeeding ``Tax Year.''
(1) It is in the applicant's best interest to submit his or her
written application at least 45 days in advance of the end of his or her
tax due date. If the written application is submitted too close to the
tax due date, and the Secretary is not ultimately able to execute the
Agreement, the applicant must bear the burden of negotiating with the
Internal Revenue Service for relief. The Secretary shall regard any
penalties related to this denied application as due to the applicant's
failure to apply for an Agreement in a timely manner.
(2) [Reserved]
(d) Ratification of withdrawals, as qualified, made without first
having obtained Secretary's prior consent. Any withdrawals made after
the effective date of an Agreement without the Secretary's consent are
automatically
[[Page 99]]
non-qualified withdrawals, unless the Secretary subsequently consents to
them by ratification.
(1) The Secretary may ratify, as qualified, any withdrawal made
without the Secretary's prior consent, provided the withdrawal would
have resulted in the Secretary's consent had it been requested before
withdrawal.
(2) The Secretary may issue his or her retroactive consent, if
appropriate, as work priorities permit. However, if the Secretary is
unable to issue retroactive consent for withdrawals made without his or
her consent, then those withdrawals, and any associated penalties, will
be deemed due to the party's failure to apply in a timely manner.
(3) It is recommended that a party submit his or her request for
withdrawal at least 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 which the Secretary will not or
cannot consent to ratify, then the result will be an unqualified
withdrawal and/or an involuntary termination of the Agreement.
(4) Should a party withdraw CCF funds for a project not previously
deemed an eligible Schedule B objective without having first obtained
the Secretary's consent, the Secretary may entertain an application to
amend the Agreement's Schedule B objectives as the prerequisite to
consenting by ratification to the withdrawal.
(5) Redeposit of any withdrawals made without the Secretary's
consent, and for which such consent is not subsequently given (either by
ratification or otherwise), shall not be permitted. If the non-qualified
withdrawal adversely affects the Agreement's general status the
Secretary may terminate the Agreement.
Sec. 259.5 Maximum deposit amounts and time to deposit.
(a) Other than the maximum annual ceilings established by the Act,
the Secretary shall not establish an annual ceiling. However, deposits
can no longer be made once a party has deposited 100 percent of the
anticipated cost of all Schedule B objectives unless the Agreement is
then amended to establish additional Schedule B objectives.
(b) Ordinarily, the Secretary shall permit deposits to accumulate
prior to commencement of any given Schedule B objective for a maximum of
ten years. However, at the Secretary's sole discretion and based on good
and sufficient cause shown, the time period may be extended.
Sec. 259.6 Termination of inactive and zero balance accounts.
(a) If a Schedule B objective has not commenced within 10 years from
the date the Agreement was established, and has not been extended by
written approval of the Secretary, the Agreement is considered inactive
and subject to termination.
(b) If the account balance of all depositories of an Agreement is
zero dollars 10 years after the date it was established, and has not
been extended through amendment, the Agreement is considered inactive
and subject to termination unless its Schedule B objective has
commenced.
(c) A certified letter will be sent to holders of Agreements
identified for termination informing them that the agreement will
terminate 60 days after the date of the letter unless the deficiencies
identified in the letter are addressed.
Sec. 259.7 Annual deposit and withdrawal reports required.
(a) The Secretary will require from each party an annual deposit and
withdrawal report for each CCF depository. Failure to submit such
reports may be cause for involuntary termination of the party's
Agreement.
(1) 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, 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 CCF depository.
(2) Each report must bear a certification that the deposit and
withdrawal information given includes all annual
[[Page 100]]
deposit and withdrawal activity for each CCF depository. Negative
reports must be submitted in those cases where there is no deposit and/
or withdrawal activity.
(b) The Secretary, at his or her discretion, may, after due notice,
disqualify withdrawals and/or involuntarily terminate the Agreement for
the participant's failure to submit the required annual deposit and
withdrawal reports.
(c) Additionally, each party shall submit, not later than 30 days
after expiration of the party's tax due date, a copy of the party's
Federal Income Tax Return filed with IRS for the preceding tax year.
Failure to submit the Federal Income Tax Return shall, after due notice,
be cause for the same adverse action specified in paragraph (b) of this
section.
Sec. 259.8 CCF accounts.
(a) General. Each CCF account in a scheduled depository shall have
an account number, which must be reflected on the reports required by
Sec. 259.7. All CCF accounts shall be reserved only for CCF
transactions. There shall be no intermingling of CCF and non-CCF
transactions and there shall be no pooling of 2 or more CCF accounts
without the prior consent of the Secretary. Safe deposit boxes, safes,
or the like shall not be eligible CCF depositories without the
Secretary's consent, which shall be granted solely at his or her
discretion.
(b) Assignment. The use of funds held in a CCF depository 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. Section 53506(a) of the Act provides that amounts
in a CCF account must be kept in a depository or depositories specified
in the Agreements and be subject to such trustee or other fiduciary
requirements as the Secretary may require. 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.
Sec. 259.9 Conditional consents to withdrawal qualification.
The Secretary may conditionally consent to the qualification of a
withdrawal. This consent is conditioned upon the timely submission, to
the Secretary, of the items requested by the Secretary in the withdrawal
approval letter. Failure to provide these items in a timely manner, and
after due notice, will result in nonqualification of the withdrawal and/
or involuntary termination of the Agreement.
Sec. 259.10 Miscellaneous.
(a) Wherever the Secretary prescribes time constraints, the postmark
date shall control if mailed. If a private delivery service is used,
including Federal Express or United Parcel Service, the date listed on
the label shall control. Submission of CCF transactions by email or
facsimile is only allowable when an original signature is not required.
(b) All CCF information received by the Secretary shall be held
strictly confidential to the extent permitted by law, except that it may
be published or disclosed in statistical form provided such publication
does not disclose, directly or indirectly, the identity of the fund
holder.
(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 sometimes 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 or her 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 act in reliance on its being granted.
(d) These Sec. Sec. 259.1 through 259.10 are applicable to all
Agreements first entered into (or amended) on or after the date these
sections are adopted.
[[Page 101]]
(e) These Sec. Sec. 259.1 through 259.10 are specifically
incorporated in all Agreements existing prior to the date these sections
are adopted.
[[Page 102]]
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 103]]
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 104]]
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 105]]
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 106]]
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 107]]
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 108]]
grades until the grade of the lot, if assignable, is established.
Sec. 260.22 Order of inspection service.
Inspection service shall be performed, insofar as practicable, in
the order in which applications therefor are made except that precedence
may be given to any such applications which are made by the United
States (including, but not being limited to, any instrumentality or
agency thereof) and to any application for an appeal inspection.
Sec. 260.23 Postponing inspection service.
If the inspector determines that it is not possible to accurately
ascertain the quality or condition of a processed product immediately
after processing because the product has not reached equilibrium in
color, or drained weight, or for any other substantial reason, he may
postpone inspection service for such period as may be necessary.
Sec. 260.24 Financial interest of inspector.
No inspector shall inspect any processed product in which he is
directly or indirectly financially interested.
Sec. 260.25 Forms of certificates.
Inspection certificates, certificates of sampling or loading, and
other memoranda concerning inspection service shall be issued on forms
approved by the Secretary.
Sec. 260.26 Issuance of certificates.
(a) An inspection certificate may be issued only by an inspector:
Provided, That, another employee of the inspection service may sign any
such certificate covering any processed product inspected by an
inspector when given power of attorney by such inspector and authorized
by the Secretary, to affix the inspector's signature to an inspection
certificate which has been prepared in accordance with the facts set
forth in the notes, made by the inspector, in connection with the
inspection.
(b) A certificate of loading shall be issued and signed by the
inspector or licensed sampler authorized to check the loading of a
specific lot of processed products: Provided, That, another employee of
the inspection service may sign such certificate of loading covering any
processed product checkloaded by an inspector or licensed sampler when
given power of attorney by such inspector or licensed sampler and
authorized by the Secretary to affix the inspector's or licensed
sampler's signature to a certificate of loading which has been prepared
in accordance with the facts set forth in the notes made by the
inspector or licensed sampler in connection with the checkloading of a
specific lot of processed products.
Sec. 260.27 Issuance of corrected certificates.
A corrected inspection certificate may be issued by the inspector
who issued the original certificate after distribution of a certificate
if errors, such as incorrect dates, code marks, grade statements, lot or
car numbers, container sizes, net or drained weights, quantities, or
errors in any other pertinent information require the issuance of a
corrected certificate. Whenever a corrected certificate is issued, such
certificate shall supersede the inspection certificate which was issued
in error and the superseded certificate shall become null and void after
the issuance of the corrected certificate.
Sec. 260.28 Issuance of an inspection report in lieu of an inspection
certificate.
A letter report in lieu of an inspection certificate may be issued
by an inspector when such action appears to be more suitable than an
inspection certificate: Provided, That, the issuance of such report is
approved by the Secretary.
Sec. 260.29 Disposition of inspection certificates.
The original of any inspection certificate, issued under the
regulations in this part, and not to exceed four copies thereof, if
requested prior to issuance, shall be delivered or mailed promptly to
the applicant, or person designated by the applicant. All other copies
shall
[[Page 109]]
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 110]]
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 111]]
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 112]]
(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 113]]
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 48,001-96,000 156,001-228,000 228,001-300,000 300,001-420,000 Over 420,000
that of a No. 300 size can (300 x 407).. 96,001-156,000
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 72,001-108,000 108,001-168,000 168,001-240,000 Over 240,000
to or exceeding that of a No. 300 size 48,001-72,000
can, but not exceeding that of a No. 3
cylinder size can (404 x 700)...........
group 3
Any type of container of a volume 1,200 or less 1,201-7,200 7,201-15,000 15,001-24,000 24,001-36,000 36,001-60,000 60,001-84,000 84,001-120,000 Over 120,000
exceeding that of a No. 3 cylinder size
can, but not exceeding that of a No. 12
size can (603 x 812)....................
group 4
Any type of container of a volume 200 or less 201-800 801-1,600 1,601-2,400 2,401-3,600 3,601-8,000 8,001-16,000 16,001-28,000
exceeding that of a No. 12 size can, but Over 28,000
not exceeding that of a 5-gallon
container...............................
group 5
Any type of container of a volume 25 or less 26-80 81-200 201-400 401-800 801-1,200 1,201-2,000 2,001-3,200 Over 3,200
exceeding that of a 5-gallon container..
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 114]]
Single sampling plans \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units) \2\. 3 6 13 21 29 38 48 60 72
Acceptance number........................ 0 1 2 3 4 5 6 7
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
table VI of this section.
\2\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. Groups 4 and 5--approximately 2 pounds of product. When
determined by the inspector that a 2-pound sample unit is inadequate, a larger sample unit may be substituted.
Table II--Frozen or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Lot size (number of containers)
Container size group ------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
group 1
Any type of container of 1 pound or less 2,400 or less 2,401-12,000 12,001-24,000 24,001-48,000 48,001-72,000 72,001-108,000 108,001-168,000 168,001-240,000 Over 240,000
net weight..............................
group 2
Any type of container over 1 pound but 1,800 or less 1,801-8,400 8,401-18,000 18,001-36,000 36,001-60,000 60,001-96,000 96,001-132,000 132,001-168,000 Over 168,000
not over 4 pounds net weight............
group 3
Any type of container over 4 pounds but 900 or less 901-3,600 3,601-10,800 10,801-18,000 18,001-36,000 36,001-60,000 60,001-84,000 84,001-120,000 Over 120,000
not over 10 pounds net weight...........
group 4
Any type of container over 10 pounds but 200 or less 201-800 801-1,600 1,601-2,400 2,401-3,600 3,601-8,000 8,001-16,000 16,001-28,000 Over 28,000
not over 100 pounds net weight..........
[[Page 115]]
group 5
Any type of container over 100 pounds net 25 or less 26-80 81-200 201-400 401-800 801-1,200 1,201-2,000 2,001-3,200 Over 3,200
weight..................................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Single sampling plans \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units) \2\. 3 6 13 21 29 38 48 60 72
Acceptance number........................ 0 1 2 3 4 5 6 7 8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
table VI of this section.
\2\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. Groups 4 and 5--approximately 3 pounds of product. When
determined by the inspector that a 3-pound sample unit is inadequate, a larger sample unit or 1 or more containers and their entire contents may be substituted for 1 or more sample units of
3 pounds.
Table III--Canned, Frozen, or Otherwise Processed Fishery and Related Products, and Products Thereof of a Comminuted, Fluid, or Homogeneous State
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Lot size (number of containers)
Container size group \1\ --------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
group 1
Any type of container of 12 ounces or less... 5,400 or 5,401-21,600 21,601-62,400 62,401-112,000 112,001-174,000 174,001-240,000 240,001-360,000 360,001-480,000 Over 480,000
less
group 2
Any type of container over 12 ounces but not 3,600 or 3,601-14,400 14,401-48,000 48,001-96,000 96,001-156,000 156,001-228,000 228,001-300,000 300,001-420,000 Over 420,000
over 60 ounces.............................. less
group 3
Any type of container over 60 ounces but not 1,800 or 1,801-8,400 8,401-18,000 18,001-60,000 36,001-60,000 60,001-96,000 96,001-132,000 132,001-168,000 Over 168,000
over 160 ounces............................. less
group 4
Any type of container over 160 ounces but not 200 or less 201-800 801-1,600 1,601-3,200 3,201-8,000 8,001-16,000 16,001-24,000 24,001-32,000 Over 32,000
over 10 gallons or 100 pounds whichever is
applicable..................................
group 5
Any type of container over 10 gallons or 100 25 or less 26-80 81-200 201-400 401-800 801-1,200 1,201-2,000 2,001-3,200 Over 3,200
pounds whichever is applicable..............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 116]]
Single sampling plans \2\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units) \3\..... 3 6 13 21 29 38 48 60 72
Acceptance number............................ 0 1 2 3 4 5 6 7 8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Ounces pertain to either fluid ounces of volume or avoirdupois ounces of net weight whichever is applicable for the product involved.
\2\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
table VI of this section.
\3\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. A smaller sample unit may be substituted in group 3 at the
inspector's discretion. Groups 4, 5, and 6--approximately 16 ounces of product. When determined by the inspector that a 16-ounce sample unit is inadequate, a larger sample unit may be
substituted.
Table IV--Dehydrated Fishery and Related Products
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Lot size (number of containers)
Container size group -------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
group 1
Any type of container of 1 pound or less 1,800 or less 1,801-8,400 8,401-18,000 18,001-36,000 36,001-60,000 60,001-96,000 96,001-132,000 132,001-168,000 Over 168,000
net weight.............................
group 2
Any type of container over 1 pound but 900 or less 901-3,600 3,601-10,800 10,801-18,000 18,001-36,000 36,001-60,000 60,001-84,000 84,001-120,000 Over 120,000
not over 6 pounds net weight...........
group 3
Any type of container over 6 pounds but 200 or less 201-800 801-1,600 1,601-3,200 3,201-8,000 8,001-16,000 16,001-24,000 24,001-32,000 Over 32,000
not over 20 pounds net weight..........
group 4
Any type of container over 20 pounds but 48 or less 49-400 401-1,200 1,201-2,000 2,001-2,800 2,801-6,000 6,001-9,600 9,601-15,000 Over 15,000
not over 100 pounds net weight.........
[[Page 117]]
group 5
Any type of container over 100 pounds 16 or less 17-80 81-200 201-400 401-800 801-1,200 1,201-2,000 2,001-3,200 Over 3,200
net weight.............................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Single sampling plans \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units) \2\ 3 6 13 21 29 38 48 60 72
Acceptance number....................... 0 1 2 3 4 5 6 7 8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
table VI of this section.
\2\ The sample units for the various container size groups are as follows: Group 1--1 container and its entire contents. Groups 2, 3, 4, and 5--1 container and its entire contents or a smaller
sample unit when determined by the inspector to be adequate.
Table V--Single Sampling Plans for Use in Increasing Sample Size Beyond 72 Sample Units
Sample size, n..................................................... 84 96 108 120 132 144 156 168 180 192 204 216 230 244 258 272 286 300 314 328 342 356 370 384 400
Acceptance numbers, c.............................................. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33
Multiple Sampling Plans \1\
Table VI--Multiple Sampling Plans Comparable to the Indicated Single Sampling Plans
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Indicated single sampling plan:
Single sample size, n......... ... 6 ... ... 13 ... ... 21 ... ... 29 ... ... 38 ... ... 48 ... ... 60 ... ... 72
-----------------------------------------------------------------------------------------------------------------------
Acceptance numbers, c......... ... 1 ... ... 2 ... ... 3 ... ... 4 ... ... 5 ... ... 6 ... ... 7 ... ... 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cumulative sample sizes, nc, and nc c r nc c r nc c r nc c r nc c r nc c r nc c r nc c r
acceptance numbers, c,
and rejection numbers, r, 4 0 2 8 0 3 10 0 3 12 0 4 14 0 4 16 0 4 18 0 5 22 0 5
for multiple sampling.
6 0 2 10 0 3 14 1 4 16 0 4 20 0 5 24 1 5 28 1 6 32 1 7
8 1 2 12 1 3 18 1 4 20 1 5 26 1 6 32 2 6 38 2 7 42 2 8
... ... ... 14 2 3 22 2 5 24 2 5 32 2 6 40 3 8 48 3 8 52 3 9
... ... ... ... ... ... 26 4 5 28 3 6 38 3 7 48 4 8 58 4 8 62 5 10
... ... ... ... ... ... ... ... ... 32 3 6 44 6 7 56 7 8 68 8 9 72 6 10
... ... ... ... ... ... ... ... ... 36 5 6 ... ... ... ... ... ... ... ... ... 82 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ These multiple sampling plans may be used in lieu of the single sampling plans listed at the heading of each column.
[[Page 118]]
Sec. 260.62 Issuance of certificate of sampling.
Each inspector and each licensed sampler shall prepare and sign a
certificate of sampling to cover the samples drawn by the respective
person, except that an inspector who inspects the samples which he has
drawn need not prepare a certificate of sampling. One copy of each
certificate of sampling prepared shall be retained by the inspector or
licensed sampler (as the case may be) and the original and all other
copies thereof shall be disposed of in accordance with the instructions
of the Secretary.
Sec. 260.63 Identification of lots sampled.
Each lot from which officially drawn samples are selected shall be
marked in such manner as may be prescribed by the Secretary, if such
lots do not otherwise possess suitable identification.
Fees and Charges
Sec. 260.69 Payment fees and charges.
Fees and charges for any inspection service shall be paid by the
interested party making the application for such service, in accordance
with the applicable provisions of the regulations in this part, and, if
so required by the person in charge of the office of inspection serving
the area where the services are to be performed, an advance of funds
prior to rendering inspection service in an amount suitable to the
Secretary, or a surety bond suitable to the Secretary, may be required
as a guarantee of payment for the services rendered. All fees and
charges for any inspection service, performed pursuant to the
regulations in this part shall be paid by check, draft, or money order
made payable to the National Marine Fisheries Service. Such check,
draft, or money order shall be remitted to the appropriate regional or
area office serving the geographical area in which the services are
performed, within ten (10) days from the date of billing, unless
otherwise specified in a contract between the applicant and the
Secretary, in which latter event the contract provisions shall apply.
[36 FR 21038, Nov. 3, 1971]
Sec. 260.70 Schedule of fees.
(a) Unless otherwise provided in a written agreement between the
applicant and the Secretary, the fees to be charged and collected for
any inspection service performed under the regulations in this part at
the request of the United States, or any other agency or instrumentality
thereof, will be published as a notice in the Federal Register and will
be in accordance with Sec. 260.81.
(b) Fees are reviewed annually to ascertain that the hourly fees
charged are adequate to recover the costs of the services rendered.
(1) The TYPE I (Contract Inspection) hourly fee is determined by
dividing the estimated annual costs by the estimated annual billable
hours.
(2) The TYPE II (Lot Inspection) hourly fee is determined by adding
a factor of 50 percent to the TYPE I fee, to cover additional costs
(down-time, etc.) associated with conducting lot inspection services.
(3) The TYPE III (Miscellaneous and Consulting) hourly fee is
determined by adding a factor of 25 percent to the TYPE I fee, to cover
the additional costs (down-time, etc.) associated with conducting
miscellaneous inspection services.
[48 FR 24901, June 3, 1983]
Sec. 260.71 [Reserved]
Sec. 260.72 Fees for inspection service performed under cooperative
agreement.
The fees to be charged and collected for any inspection or similar
service performed under cooperative agreement shall be those provided
for by such agreement.
Sec. 260.73 Disposition of fees for inspections made under cooperative
agreement.
Fees for inspection under a cooperative agreement with any State or
person shall be disposed of in accordance with the terms of such
agreement. Such portion of the fees collected under a cooperative
agreement as may be due the United States shall be remitted in
accordance with Sec. 260.69.
[[Page 119]]
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 120]]
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 121]]
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 122]]
[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 123]]
(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 124]]
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 125]]
be served upon all parties to a proceeding shall be accompanied by a
certificate of service signed by the party making service, stating that
such service has been made upon each party to the proceeding.
Certificates of service may be in substantially the following form:
I hereby certify that I have this day served the foregoing document
upon all parties of record in this proceeding by: (1) Mailing postage
prepaid, (2) delivering in person, a copy to each party.
Dated at __________ this _____ day of ______, 19__
Signature ________________
(i) Procedures and evidence. (1) All parties to a hearing shall be
entitled to introduce all relevant evidence on the issues as stated in
the notice for hearing or as determined by the Hearing Examiner at the
outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this section, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary.
(j) Duties of Hearing Examiner. The Hearing Examiner shall have the
authority and duty to:
(1) Take or cause depositions to be taken.
(2) Regulate the course of the hearings.
(3) Prescribe the order in which evidence shall be presented.
(4) Dispose of procedural requests or similar matters.
(5) Hear and initially rule upon all motions and petitions before
him.
(6) Administer oaths and affirmations.
(7) Rule upon offers of proof and receive competent, relevant,
material, reliable, and probative evidence.
(8) Control the admission of irrelevant, immaterial, incompetent,
unreliable, repetitious, or cumulative evidence.
(9) Hear oral arguments if the Hearing Examiner determined such
requirement is necessary.
(10) Fix the time for filing briefs, motions, and other documents to
be filed in connection with hearings.
(11) Issue the initial decision and dispose of any other pertinent
matters that normally and properly arise in the course of proceedings.
(12) Do all other things necessary for an orderly and impartial
hearing.
(k) The record. (1) The Director will designate an official reporter
for all hearings. The official transcript of testimony taken, together
with any exhibits and briefs filed therewith, shall be filed with the
Director. Transcripts of testimony will be available in any proceeding
under the regulations of this section, at rates fixed by the contract
between the United States of America and the reporter. If the reporter
is an employee of the Department of Commerce, the rate will be fixed by
the Director.
(2) The transcript of testimony and exhibits, together with all
briefs, papers, and all rulings by the Hearing Examiner shall constitute
the record. The initial decision will be predicated on the same record,
as will be final decision.
(l) Decisions. (1) The Hearing Examiner shall render the initial
decision in all debarment proceedings before him. The same Hearing
Examiner who presides at the hearing shall render the initial decision
except when such Examiner becomes unavailable to the Department of
Commerce. In such case, another Hearing Examiner will be designated by
the Secretary or Director to render the initial decision. Briefs, or
other documents, to be submitted after the hearing must be received not
later than twenty (20) days after the hearing, unless otherwise extended
by the Hearing Examiner upon motion by a party. The initial decision
shall be made within sixty (60) days after the receipt of all briefs. If
no appeals from the initial decision is served upon the Director within
ten (10) days of the date of the initial decision, it will become the
final decision on the 20th day following the date of the initial
decision. If an appeal is received, the appeal will be transmitted to
the Secretary who will render the final decision after considering the
record and the appeal.
(2) All initial and final decisions shall include a statement of
findings and conclusions, as well as the reasons or bases therefore,
upon the material
[[Page 126]]
issues presented. A copy of each decision shall be served on the parties
to the proceeding, and furnished to interested persons upon request.
(3) It shall be the duty of the Hearing Examiner, and the Secretary
where there is an appeal, to determine whether the person has engaged in
one or more of the acts or activities described in paragraph (a) of this
section, and, if there is a finding that the person has engaged in such
acts or activities, the length of time the person shall be debarred, and
the plants to which the debarment shall apply.
[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 18738, Sept. 21, 1971]
Requirements for Plants Operating Under Continuous Inspection on a
Contract Basis \1\
---------------------------------------------------------------------------
\1\ Compliance with the above requirements does not excuse failure
to comply with all applicable sanitary rules and regulations of city,
county, State, Federal, or other agencies having jursidiction over such
establishments and operations.
---------------------------------------------------------------------------
Sec. 260.96 Application for fishery products inspection service on a
contract basis at official establishments.
Any person desiring to process and pack products in an establishment
under fishery products inspection service on a contract basis, must
receive approval of such buildings and facilities as an official
establishment prior to the inauguration of such service. An application
for inspection service to be rendered in an establishment shall be
approved according to the following procedure:
(a) Initial survey: When application has been filed for inspection
service as aforesaid, NMFS inspector(s) shall examine the buildings,
premises, and facilities according to the requirements of the fishery
products inspection service and shall specify any additional facilities
required for the service.
(b) Final survey and establishment approval: Prior to the
inauguration of the fishery products inspection service, a final survey
of the buildings, premises, and facilities shall be made to verify that
the buildings are constructed and facilities are in accordance with the
approved drawings and the regulations in this part.
(c) Drawings and specifications of new construction or proposed
alterations of existing official establishments shall be furnished to
the Director in advance of actual construction for prior approval with
regard to compliance with requirements for facilities.
[36 FR 21039, Nov. 3, 1971]
Sec. 260.97 Conditions for providing fishery products inspection service
at official establishments.
(a) The determination as to the inspection effort required to
adequately provide inspection service at any establishment will be made
by NMFS. The man-hours required may vary at different official
establishments due to factors such as, but not limited to, size and
complexity of operations, volume and variety of products produced, and
adequacy of control systems and cooperation. The inspection effort
requirement may be reevaluated when the contracting party or NMFS deems
there is sufficient change in production, equipment and change of
quality control input to warrant reevaluation. Inspectors will not be
available to perform any of employee or management duties, however, they
will be available for consultation purposes. NMFS reserves the right to
reassign inspectors as it deems necessary.
(b) NMFS shall not be held responsible:
(1) For damages occurring through any act of commission or omission
on the part of its inspectors when engaged in performing services; or
(2) For production errors, such as processing temperatures, length
of process, or misbranding of products; or
(3) For failure to supply enough inspection effort during any period
of service.
(c) The contracting party will:
(1) Use only wholesome raw material which has been handled or stored
under sanitary conditions and is suitable for processings; maintain the
official establishment(s), designated on the contract in such sanitary
condition and to employ such methods of handling raw
[[Page 127]]
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 128]]
(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 129]]
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 130]]
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 131]]
processed products, in an efficient, clean, and sanitary manner, and
(b) Permit easy access to all parts to insure thorough cleaning and
effective bactericidal treatment. Insofar as is practicable, all such
equipment shall be made of smooth impermeable corrosion-resistant
material that will not adversely affect the processed product by
chemical action or physical contact. Such equipment shall be kept in
good repair and sanitary condition. Such equipment shall be cleaned and
sanitized at a frequency as is necessary or required in accordance with
Good Manufacturing Practice Regulations, 21 CFR part 128.
[36 FR 21041, Nov. 3, 1971]
Sec. 260.103 Operations and operating procedures shall be in accordance
with an effective sanitation program.
(a) All operators in the receiving transporting, holdings,
segregating, preparing, processing, packaging, and storing of processed
products and ingredients, used as aforesaid, shall be strictly in accord
with clean and sanitary methods and shall be conducted as rapidly as
possible and at temperatures that will inhibit and retard the growth of
bacterial and other micro-organisms and prevent any deterioration or
contamination of such processed products or ingredients thereof.
Mechanical adjustments or practices which may cause contamination of
foods by oil, dust, paint, scale, fumes, grinding materials, decomposed
food, filth, chemicals, or other foreign materials shall not be
conducted during any manufacturing or processing operation.
(b) All processed products, raw materials, ingredients, and
components thereof shall be subject to inspection during each
manufacturing or processing operation. To assure a safe, wholesome
finished product, changes in processing methods and procedures as may be
required by the Director shall be effectuated as soon as practicable.
All processed products which are not manufactured or prepared in
accordance with the requirements contained in Sec. Sec. 260.96 to
260.104 or are unwholesome or otherwise not fit for human food shall be
removed and segregated prior to any further processing operation.
(c) Official establishments operating under Federal inspection
should have an effective quality control program as appropriate for the
nature of the products and processing operations.
(d) All ingredients used in the manufacture or processing of any
processed product shall be wholesome and fit for human food.
(e) The methods and procedures employed in the receiving,
segregating, handling, transporting, and processing of ingredients in
official estab lishment(s) shall be adequate to result in a satisfactory
processed product. Such methods and procedures include, but are not
limited to, the following requirements:
(1) Containers, utensils, pans, and buckets used for the storage or
transporting of partially processed food ingredients shall not be nested
unless rewashed and sanitized before each use;
(2) Containers which are used for holding partially processed food
ingredients shall not be stacked in such manner as to permit
contamination of the partially processed food ingredients;
(3) Packages or containers for processed products shall be clean
when being filled with such products; and all reasonable precautions
shall be taken to avoid soiling or contaminating the surface of any
package or container liner which is, or will be, in direct contact with
such products.
(f) Retention tags: (1) Any equipment such as, but not limited to,
conveyors, tillers, sorters, choppers, and containers which fail to meet
appropriate and adequate sanitation requirements will be identified by
the inspector in an appropriate and conspicuous manner with the word
``RETAINED.'' Following such identification, the equipment shall not be
used until the discrepancy has been resolved, the equipment reinspected
and approved by the inspector and the ``RETAINED'' identification
removed by the inspector.
(2) Lot(s) of processed products that may be considered to be
mislabeled and/or unwholesome by reason of contaminants or which may
otherwise be in such condition as to require further evaluation or
testing to determine that
[[Page 132]]
the product properly labeled and/or wholesome will be identified by the
inspector in an appropriate and conspicuous manner with the word
``RETAINED.'' Such lot(s) of product shall be held for reinspection or
testing. Final disposition of the lot(s) shall be determined by NMFS and
the removal of the ``RETAINED'' identification shall be performed by the
inspector.
[36 FR 21041, Nov. 3, 1971]
Sec. 260.104 Personnel.
The establishment management shall be responsible for taking all
precautions to assure the following:
(a) Disease control. No person affected by disease in a communicable
form, or while a carrier of such disease, or while affected with boils,
sores, infected wounds, or other abnormal sources of microbiological
contamination, shall work in a food plant in any capacity in which there
is a reasonable possibility of food ingredients becoming contaminated by
such person, or of disease being transmitted by such person to other
individuals.
(b) Cleanliness. All persons, while working in direct contact with
food preparation, food ingredients, or surfaces coming into contact
therewith shall:
(1) Wear clean outer garments, maintain a high degree of personal
cleanliness, and conform to hygenic practices while on duty, to the
extent necessary to prevent contamination of food products.
(2) Wash and sanitize their hands thoroughly to prevent
contamination by undesirable microorganisms before starting work, after
each absence from the work station, and at any other time when the hands
may have become soiled or contaminated.
(3) Remove all insecure jewelry and, when food is being manipulated
by hand, remove from hands any jewelry that cannot be adequately
sanitized.
(4) If gloves are used in food handling, maintain them in an intact,
clean, and sanitary condition. Such gloves shall be of an impermeable
material except where their usage would be inappropriate or incompatible
with the work involved.
(5) Wear hair nets, caps, masks, or other effective hair restraints.
Other persons that may incidentally enter the processing areas shall
comply with this requirement.
(6) Not store clothing or other personal belongings, eat food, drink
beverages, chew gum, or use tobacco in any form in areas where food or
food ingredients are exposed or in areas used for washing equipment or
utensils.
(7) Take any other necessary precautions to prevent contamination of
foods with microorganisms or foreign substances including, but not
limited to perspiration, hair, cosmetics, tobacco, chemicals, and
medicants.
(c) Education and training. Personnel responsible for identifying
sanitation failures or food contamination should have a background of
education or experience, or a combination thereof, to provide a level of
competency necessary for production of clean wholesome food. Food
handlers and supervisors should receive appropriate training in proper
food-handling techniques and food-protection principles and should be
cognizant of the danger of poor personal hygiene and unsanitary
practices, and other vectors of contamination.
[36 FR 21041, Nov. 3, 1971]
Labeling Requirements
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 133]]
other authorities delegated to the U.S. Department of Commerce.
Sec. 261.102 Publication and removal of U.S. Grade Standards.
(a) The voluntary U.S. Standards for Grades adopted pursuant to this
part shall be issued as Program policies and contained within the NMFS
Fishery Products Inspection Manual. Compliance with voluntary standards
issued as Program policies within the manual shall satisfy the
requirements of this part. Compliance with a voluntary standard issued
as a Program policy does not relieve any party from the responsibility
to comply with the provisions of the Federal Food, Drug, and Cosmetic
Act; or other Federal laws and regulations.
(b) Notification of an application for a new grade standard shall be
published in the Federal Register. If adopted, the grade standard shall
be issued as a Program policy and contained in the NMFS Fishery Products
Inspection Manual.
(c) Recision and revision of a U.S. Standard for Grades will be made
a Program policy amendment and contained in the NMFS Fishery Products
Inspection Manual.
(d) The NMFS Fishery Products Inspection Manual is available to
interested parties.
Sec. 261.103 Basis for determination of a U.S. Standard for Grades.
(a) To address the inherently distinct and dissimilar attributes
found in the fishery product groups, each standard for grades should
have a different scope and product description, product forms, sample
sizes, definition of defects, etc. The Secretary will make the final
determination regarding the content of a U.S. Standard for Grades.
(b) A proposal for a new or revised U.S. grade standard may include
the following:
(1) Scope and product description, which describes the products that
are eligible for grading using the standard (e.g., fish portion, fish
fillet).
(2) Product forms, which describe the types, styles and market forms
covered by the standard (e.g., skin-off, tail-on, headless).
(3) Grade and inspection marks, which describe the grades and
inspection mark criteria for each grade category (e.g., Grade A <= 15
points).
(4) Grade determination, which describes the means by which the
grade is determined (i.e., the factors rated by score points and those
that are not). Standards may contain defect grouping limiting rules that
contain additional provisions that must be met.
(5) Sampling, which describes the method of sampling and sample unit
sizes (e.g., 10 portions, 8 ounces, etc.).
(6) Procedures that describe the process used to determine the
product grade (e.g., label declarations, sensory evaluation).
(7) Definitions of defects, which outline the defects associated
with the products covered by the standard, defines them, and describes
the method of counting or measuring the defects. This section may
provide associated defect points or reference a defect table (e.g.,
bruises, blood spots, bones, black spots, coating defects, 1-inch
squares, percent by weight, ratios).
(8) Defect point assessment, which describes how to assess points
and provides any special guidance that may be necessary to the
particular standard (e.g., defect points for certain categories are
added together and divided by the weight of the sample unit; the number
of instances are counted to determine if it is slight, moderate, or
excessive defect).
(9) Tolerances for lot certification, which provide the sections
from Title 50 CFR that regulate lot certification.
(10) Hygiene, which specifies the sections of applicable Federal
regulations regulating the safe, wholesome production of food for human
consumption.
(11) Methods of analysis, which describe the methods of analysis
that will be used in the evaluation of the products covered by the
standard for grades (e.g., net weight, deglazing, debreading).
(12) Defect table, which is the table of defects and associated
points to be assessed for each defect.
[[Page 134]]
SUBCHAPTER H_FISH AND SEAFOOD PROMOTION
PART 270_SPECIES-SPECIFIC SEAFOOD MARKETING COUNCILS--Table of Contents
Sec.
270.1 Scope.
270.2 Definitions.
270.3 Submission of application.
270.4 Review of application.
270.5 Conduct of referendum.
270.6 Sector participants eligible to vote.
270.7 Results of referendum.
270.8 Nomination and appointment of Council members.
270.9 Terms, vacancies and removal of Council members.
270.10 Responsibilities of a Council.
270.11 Responsibilities of NMFS.
270.12 Notice of Council meetings.
270.13 Books, records and reports.
270.14 Update of sector participant data.
270.15 Quality standards.
270.16 Deposit of funds.
270.17 Authority to impose assessments.
270.18 Method of imposing assessments.
270.19 Notice of assessment.
270.20 Payment of assessments.
270.21 Petition of objection.
270.22 Refunds.
270.23 Dissolution of Councils.
Authority: 16 U.S.C. 4001-4017
Source: 72 FR 18111, Apr. 11, 2007, unless otherwise noted.
Sec. 270.1 Scope.
This part 270 describes matters pertaining to the establishment,
representation, organization, practices, procedures, and termination of
Seafood Marketing Councils.
Sec. 270.2 Definitions.
The following terms and definitions are in addition to or amplify
those contained in the Fish and Seafood Promotion Act of 1986:
Act means the Fish and Seafood Promotion Act of 1986 (Public Law 99-
659) and any subsequent amendments.
Consumer education means actions undertaken to inform consumers of
matters related to the consumption of fish and fish products.
Council means a Seafood Marketing Council for one or more species of
fish and fish products of that species established under section 210 of
the Act (16 U.S.C. 4009).
Expenditure means monetary or material worth of fishery products.
Expenditure is determined at the point a receiver obtains product from a
harvester or an importer obtains product from a foreign supplier. Value
may be expressed in monetary units (the price a receiver pays to a
harvester or an importer pays to a foreign supplier).
Fiscal year means any 12-month period as NMFS may determine for each
Council.
Fish means finfish, mollusks, crustaceans, and all other forms of
aquatic animal life used for human consumption; the term does not
include marine mammals and seabirds.
Harvester means any person in the business of catching or growing
fish for purposes of sale in domestic or foreign markets.
Importer means any person in the business of importing fish or fish
products from another country into the United States and its
territories, as defined by the Act, for commercial purposes, or who acts
as an agent, broker, or consignee for any person or nation that
produces, processes or markets fish or fish products outside of the
United States for sale or for other commercial purposes in the United
States.
Marketer means any person in the business of selling fish or fish
products in the wholesale, export, retail, or restaurant trade, but
whose primary business function is not the processing or packaging of
fish or fish products in preparation for sale.
Marketing and promotion means any activity aimed at encouraging the
consumption of fish or fish products or expanding or maintaining
commercial markets for fish or fish products.
Member means any person serving on any Council.
Participant means a member of a sector or business identified in an
application for a Council charter as being subject to the referendum or
assessment process.
Person means any individual, group of individuals, association,
proprietorship, partnership, corporation, cooperative, or any private
entity of the U.S. fishing industry organized or existing
[[Page 135]]
under the laws of the United States or any state, commonwealth,
territory or possession of the United States who meets the eligibility
requirements as defined in a proposed charter to vote in a referendum.
Processor means any person in the business of preparing or packaging
fish or fish products (including fish of the processor's own harvesting)
for sale in domestic or foreign markets.
Receiver means any person who owns fish processing vessels and any
person in the business of acquiring (taking title to) fish directly from
harvesters.
Research means any type of research designed to advance the image,
desirability, usage, marketability, production, quality and safety of
fish and fish products.
Secretary means the Secretary of Commerce, or the Secretary's
designee.
Sector means
(1) The sector consisting of harvesters;
(2) The sector consisting of importers;
(3) The sector consisting of marketers;
(4) The sector consisting of processors;
(5) The sector consisting of receivers; or
(6) The consumer sector consisting of persons professionally engaged
in the dissemination of information pertaining to the nutritional
benefits and preparation of fish and fish products;
Sector participant means any individual, group of individuals,
association, proprietorship, partnership, corporation, cooperative, or
any private entity of the U.S. fishing industry organized or existing
under the laws of the United States or any state, commonwealth,
territory or possession of the United States who meets the eligibility
requirements as defined in a proposed charter to vote in a referendum.
Species means a fundamental category of taxonomic classification,
ranking after genus, and consisting of animals that possess common
characteristic(s) distinguishing them from other similar groups.
Value means monetary or material worth of fishery products. Value is
the difference between what a receiver is willing to pay for a product
provided by a harvester and its market price or an importer is willing
to pay for a product from a foreign supplier and its market price. Value
may be expressed in monetary units representing consumer surplus or
producer surplus.
Sec. 270.3 Submission of application.
(a) Persons who meet the minimum requirements for sector
participants as described in the proposed charter may file an
application with NMFS for a charter for a Seafood Marketing Council for
one or more species of fish and fish products of that species. One
signed original and two copies of the completed application package must
be submitted to the Assistant Administrator for Fisheries, National
Marine Fisheries Service, NOAA, 1315 East-West Highway, Silver Spring,
MD 20910. Applications should not be bound.
(b) The application consists of four parts:
(1) A document requesting NMFS to establish a Council;
(2) A proposed charter under which the proposed Council will
operate;
(3) A list of eligible referendum participants; and
(4) Analytical documentation addressing requirements of applicable
law.
(c) Content of application--(1) Application or requesting document.
The application or requesting document submitted by the applicants to
NMFS requesting that the Council be established, to the extent
practicable, must include the signatures or corporate certifications, of
no less than three sector participants representing each sector
identified in accordance with paragraph (c)(2)(v) of this section and
who, according to the available data, collectively accounted for, in the
12-month period immediately preceding the month in which the application
was filed, not less than 10 percent of the value of the fish or fish
products specified in the charter that were handled during such period
in each sector by those who meet the eligibility requirements to vote in
the referendum as defined by the application. The application must also
include a statement that, if established, the Council will have
sufficient resources (e.g., cash, donated office space, services,
supplies,
[[Page 136]]
etc.) available for initial administrative expenditures pending
collection of assessments.
(2) Proposed charter. A proposed charter must contain, at a minimum,
the following information:
(i) The name of the Council and a provision proclaiming its
establishment;
(ii) A declaration of the purposes and objectives of the Council;
(iii) A description of the species of fish and fish products,
including the scientific and common name(s), for which the Council will
implement marketing and promotion plans under the Act. (The American
Fisheries Society's ``List of Common and Scientific Names of Fishes from
the United States and Canada'' (latest edition) or where available, an
appropriate volume of its ``List of Common and Scientific Names of
Aquatic Invertebrates of the United States and Canada'' (latest edition)
should be used as the authority for all scientific and common names.);
(iv) A description of the geographic area (state(s)) within the
United States covered by the Council;
(v) The identification of each sector and the number and terms of
representatives for each sector that will be voting members on the
Council. (The number of Council members should be manageable, while
ensuring equitable geographic representation. The term for members will
be 3 years. Initially, to ensure continuity, half of the members' terms
will be 2 years and half will be 3 years. Reappointments are
permissible.);
(vi) The identification of those sectors (which must include a
sector consisting of harvesters, a sector consisting of receivers, and,
if subject to assessment, a sector consisting of importers), eligible to
vote in the referendum to establish the Council;
(vii) For each sector described under paragraph (c)(2)(v) of this
section, a threshold level specifying the minimum requirements, as
measured by income, volume of sales, or other relevant factors, that a
person engaging in business in the sector must meet in order to
participate in a referendum;
(viii) A description of the rationale and procedures for determining
assessment rates as provided in Sec. 270.18, based on a fixed amount
per unit of weight or measure, or on a percentage of value of the
product handled;
(ix) The proposed rate or rates that will be imposed by the Council
on receivers and, if subject to assessment, importers during its first
year of operation;
(x) The maximum amount by which an assessment rate for any period
may be raised above the rate applicable for the immediately preceding
period;
(xi) The maximum rate or rates that can be imposed by a Council on
receivers or importers during the operation of the Council;
(xii) The maximum limit on the amount any one sector participant may
be required to pay under an assessment for any period;
(xiii) The procedures for providing refunds to sector participants
subject to assessment who request the same in accordance with the time
limits specified Sec. 270.22;
(xiv) A provision setting forth the voting procedures by which votes
may be cast by proxy;
(xv) A provision that the Council will have voting members
representing the harvesting, receiving and, if subject to assessment,
importing sectors;
(xvi) A provision setting forth the definition of a quorum for
making decisions on Council business and the procedures for selecting a
chairperson of the Council;
(xvii) A provision that members of the Council will serve without
compensation, but will be reimbursed for reasonable expenses incurred in
performing their duties as members of the Council;
(xviii) A provision containing a requirement for submission to NMFS
the criteria and supporting data for evaluating the annual and/or multi-
year performance of proposed marketing plans and the Council's
performance;
(xix) A provision containing a requirement for submission of
documentation as requested by NMFS for purposes of evaluating
performance of proposed marking plans and the Council's related
performance;
(xx) Where adequate funds are not available, a provision containing
the
[[Page 137]]
minimum number of participants needed for sustained operations that
cannot receive assessment refunds;
(xxi) A provision acknowledging that NMFS will have the right to
participate in Council meetings;
(xxii) A provision that the Council will conduct its activities in
accordance with applicable NMFS requirements and that NMFS has final
approval authority over proposed marketing plans and Council actions;
(xxiii) A provision containing a requirement for the Council to
arrange for a complete audit report to be conducted by an independent
public accountant and submitted to NMFS at the end of each fiscal year;
(xxiv) A provision containing a requirement for the Council to
conduct a market assessment based on economic, market, social and
demographic, and biological information as deemed necessary by NMFS; and
(xxv) A provision containing a requirement for the Council to update
the list of referendum participants on an annual basis.
(3) List of referendum participants. The list of referendum
participants, to the extent practicable, must identify the business name
and address of all sector participants that the applicants believe meet
the requirements for eligibility to vote in the referendum on the
adoption of the proposed charter.
(i) The list should include all sectors in which a sector
participant meets the eligibility requirements to vote in a referendum.
If a sector participant has more than one place of business located
within the geographic area of the Council, all such places should be
listed and the primary place of business should be designated. The
agency will provide appropriate information in its possession of a non-
proprietary nature to assist the applicants in developing the list of
sector participants.
(ii) [Reserved]
(4) Analytical documentation. The applicant must address the
requirements of the Act, implementing regulations, and other applicable
law, i.e., E.O. 12866, Regulatory Flexibility Act, National
Environmental Policy Act, and other law as NMFS determines appropriate.
Sec. 270.4 Review of application.
Within 180 days of receipt of the application to establish a
Council, NMFS will:
(a) Determine if the application is complete and complies with all
of the requirements set out in Sec. 270.3 and complies with all
provisions of the Act and other applicable laws.
(b) Identify, to the extent practicable, those sector participants
who meet the requirements for eligibility to participate in the
referendum to establish the Council. NMFS may require additional
information from the applicants or proposed participants in order to
verify eligibility. NMFS may add names to or delete names from the list
of sector participants believed eligible by the applicants until the
time of the referendum based on additional information received.
(c) If NMFS finds minor deficiencies in an application that can be
corrected within the 180-day review period, NMFS will advise the
applicants in writing of what must be submitted by a specific date to
correct the minor deficiencies.
(d) If NMFS makes a final negative determination, on an application,
NMFS will advise the applicant in writing of the reason for the
determination. The applicant may submit another application at any time
thereafter. NMFS then has 180 days from receipt of the new application
to render a final determination on its acceptability.
Sec. 270.5 Conduct of referendum.
(a) Upon making affirmative determinations under Sec. 270.4, NMFS,
within 90 days after the date of the last affirmative determination,
will conduct a referendum on the adoption of the proposed charter.
(b) NMFS will estimate the cost of conducting the referendum, notify
the applicants, and request that applicants post a bond or provide other
applicable security, such as a cashierSec. s check, to cover costs of
the referendum.
(c) NMFS will initially pay all costs of a referendum to establish a
Council. Within two years after establishment, the Council must
reimburse NMFS for the total actual costs of the referendum from
assessments collected by
[[Page 138]]
the Council. If a referendum fails to result in establishment of a
Council, NMFS will immediately recover all expenses incurred for
conducting the referendum from the bond or security posted by
applicants. In either case, such expenses will not include salaries of
government employees or other administrative overhead, but will be
limited to those additional direct costs incurred in connection with
conducting the referendum.
(d) No less than 30 days prior to holding a referendum, NMFS will:
(1) Publish in the Federal Register the text of the proposed charter
and the most complete list available of sector participants eligible to
vote in the referendum; and
(2) Provide for public comment, including the opportunity for a
public meeting.
Sec. 270.6 Sector participants eligible to vote.
(a) Any participant who meets the minimum requirements as measured
by income, volume of sales or other relevant factors specified in the
approved charter may vote in a referendum.
(b) Only one vote may be cast by each participant who is eligible to
vote, regardless of the number of individuals that make up such
``participant'' and how many sectors the participant is engaged in. The
vote may be made by any responsible officer, owner, or employee
representing a participant.
Sec. 270.7 Results of referendum.
(a) Favorable vote to establish a Council. NMFS will, by order of
publication in the Federal Register, establish the Council and approve
an acceptable proposed charter, if the referendum votes which are cast
in favor of the proposed charter constitute a majority of the sector
participants voting in each and every sector. Further, according to the
best available data, the majority must collectively account for, in the
12-month period immediately preceding the month in which the proposed
charter was filed, at least 66 percent of the value of the fish and fish
products described in the proposed charter handled during such period in
each sector by those who meet the eligibility requirements to vote in
the referendum as defined by the applicants.
(b) Unfavorable vote to establish a Council. If a referendum fails
to pass in any sector of the proposed Council, NMFS will not establish
the Council or approve the proposed charter. NMFS will immediately
recover the cost of conducting the referendum according to Sec.
270.5(c).
(c) Notification of referendum results. NMFS will notify the
applicants of the results of the referendum and publish the results of
the referendum in the Federal Register.
Sec. 270.8 Nomination and appointment of Council members.
(a) Within 30 days after a Council is established, NMFS will solicit
nominations for Council members from the sectors represented on the
Council in accordance with the approved charter. If the harvesters and
receivers represented on the Council are engaged in business in two or
more states, but within the geographic area of the Council, the
nominations made under this section must, to the extent practicable,
result in equitable representation for those states. Nominees must be
knowledgeable and experienced with regard to the activities of, or have
been actively engaged in the business of, the sector that such person
will represent on the Council. Therefore, a resume will be required for
each nominee.
(b) In accordance with 16 U.S.C. 4009(f), NMFS will, within 60 days
after the end of the 30-day period, appoint the members of the Council
from among the nominees.
Sec. 270.9 Terms, vacancies, and removal of Council members.
(a) A Council term is for 3 years, except for initial appointments
to a newly established Council where:
(1) Half of the Council member terms will be 2 years; and
(2) Half of the Council member terms will be 3 years.
(b) A vacancy on a Council will be filled, within 60 days after the
vacancy occurs, in the same manner in which the original appointment was
made. A member appointed to fill a vacancy occurring before the
expiration of the
[[Page 139]]
term for which the member's predecessor was appointed will be appointed
only for the remainder of such term.
(c) Any person appointed under the Act who consistently fails or
refuses to perform his or her duties properly and/or participates in
acts of dishonesty or willful misconduct with respect to
responsibilities under the Act will be removed from the Council by NMFS
if two-thirds of the members of the Council recommend action. All
requests from a Council to NMFS for removal of a Council member must be
in writing and accompanied by a statement of the reasons upon which the
recommendation is based.
Sec. 270.10 Responsibilities of a Council.
(a) Each Council will:
(1) Implement all terms of its approved charter;
(2) Prepare and submit to NMFS, for review and approval under Sec.
270.11(a)(1), a marketing and promotion plan and amendments to the plan
which contain descriptions of the projected consumer education,
research, and other marketing and promotion activities of the Council;
(3) Implement and administer an approved marketing and promotion
plan and amendments to the plan;
(4) Determine the assessment to be made under Sec. 270.18 and
administer the collection of such assessments to finance Council
expenses described in paragraph (b) of this section;
(5) Receive, investigate and report to NMFS accounts of violations
of rules or orders relating to assessments collected under Sec. 270.20,
or quality standard requirements established under Sec. 270.15;
(6) Prepare and submit to NMFS, for review and approval a budget (on
a fiscal year basis) of the anticipated expenses and disbursements of
the Council, including
(i) All administrative and contractual expenses;
(ii) The probable costs of consumer education, research, and other
marketing and promotion plans or projects;
(iii) The costs of the collection of assessments; and
(iv) The expense of repayment of the costs of each referendum
conducted in regard to the Council.
(7) Comply with NMFS requirements, and prepare and submit to NMFS
for review, evaluation, and verification of results and analysis an
annual market assessment and related analytical documentation that is
based on economic, market, social, demographic, and biological
information as deemed necessary by NMFS;
(8) Maintain books and records, prepare and submit to NMFS reports
in accordance with respect to the receipt and disbursement of funds
entrusted to it, and submit to NMFS a completed audit report conducted
by an independent auditor at the end of each fiscal year;
(9) Reimburse NMFS for the expenses incurred for the conduct of the
referendum to establish the Council or any subsequent referendum to
terminate the Council that fails;
(10) Prepare and submit to NMFS report or proposals as the Council
determines appropriate to further the purposes of the Act.
(b) Funds collected by a Council under Sec. 270.17 will be used by
the Council for--
(1) Research, consumer education, and other marketing and promotion
activities regarding the quality and marketing of fish and fish
projects;
(2) Other expenses, as described in Sec. 270.10(a)(1);
(3) Such other expenses for the administration, maintenance, and
functioning of the Council as may be authorized by NMFS; and
(4) Any reserve fund established under paragraph (e)(4) of this
section and any administrative expenses incurred by NMFS specified as
reimbursable under this part.
(c) Marketing and promotion plans and amendments to such plans
prepared by a Council under paragraph (a)(2) of this section will be
designed to increase the general demand for fish and fish products
described in accordance with Sec. 270.3(c)(2)(iii) by encouraging,
expanding, and improving the marketing, promotion and utilization of
such fish and fish products, in domestic or foreign markets, or both,
through consumer education, research,
[[Page 140]]
and other marketing and promotion activities.
(d) Consumer education and other marketing and promotion activities
carried out by a Council under a marketing and promotion plan and
amendments to a plan may not contain references to any private brand or
trade name and will avoid the use of deceptive acts or practices in
promoting fish or fish products or with respect to the quality, value,
or use of any competing product or group of products.
(e) Authority of a Council. A Council may:
(1) Sue and be sued;
(2) Enter into contracts;
(3) Employ and determine the salary of an executive director who
may, with the approval of the Council employ and determine the salary of
such additional staff as may be necessary;
(4) Establish a reserve fund from monies collected and received
under Sec. 270.17 to permit an effective and sustained program of
research, consumer education, and other marketing and promotion
activities regarding the quality and marketing of fish and fish products
in years when production and assessment income may be reduced, but the
total reserve fund may not exceed the amount budgeted for the current
fiscal year of operation.
(f) Amendment of a charter. A Council may submit to NMFS amendments
to the text of the Council's charter. Any proposed amendments to a
charter will be approved or disapproved in the same manner as the
original charter was approved under Sec. 270.4 and Sec. 270.5 with the
exception of Sec. 270.4(b).
Sec. 270.11 Responsibilities of NMFS.
(a) In addition to the duties prescribed under 16 U.S.C. 4009, NMFS
will:
(1) Participate in Council meetings and review, for consistency with
the provisions of 50 CFR part 270 and other applicable law, and approve
or disapprove, marketing and promotion plans and budgets within 60 days
after their submission by a Council;
(2) Immediately notify a Council in writing of the disapproval of a
marketing and promotion plan or budget, together with reasons for such
disapproval;
(3) Issue orders and amendments to such orders that are necessary to
implement quality standards under Sec. 270.15;
(4) Promulgate regulations necessary to carry out the purposes of
this chapter;
(5) Enforce the provisions of the Act;
(6) Make all appointments to Councils in accordance with Sec. 270.8
and the approved Council charter;
(7) Approve the criteria and time frames under which a Council's
performance will be evaluated; and
(8) Implement the provisions of 16 U.S.C. 4001 et seq. in accordance
with the available financial and management resources NMFS determines
can be utilized.
(b) NMFS may provide, on a reimbursable or other basis, such
administrative or technical assistance as a Council may request for
purposes of the initial organization and subsequent operation of the
Council. However, a Council is responsible for the cost of preparing and
submitting information (e.g., reports, evaluation data, etc.) requested
by NMFS.
Sec. 270.12 Notice of Council meetings.
The Council will give NMFS the same notice of its meetings as it
gives to its members. NMFS will have the right to participate in all
Council meetings.
Sec. 270.13 Books, records and reports.
(a) The Council must submit to NMFS the following documents
according to the schedule approved in the Council's charter:
(1) A marketing assessment and promotion plan;
(2) A financial report with respect to the receipt and disbursement
of funds;
(3) An audit report conducted by an independent public accountant;
and
(4) Other reports or data NMFS determines necessary to evaluate the
Council's performance and verify the results of the market assessment
and promotion plan..
(b) All Council records, reports, and data must be maintained by the
Council for a minimum of 3 years, even if the Council is terminated.
[[Page 141]]
Sec. 270.14 Update of sector participant data.
The Council will submit to NMFS at the end of each fiscal year an
updated list of sector participants who meet the minimum requirements
for eligibility to participate in a referendum as stated in the approved
charter.
Sec. 270.15 Quality standards.
(a) Each Council may develop and submit to NMFS for approval or,
upon the request of a Council, NMFS will develop quality standards for
the species of fish or fish products described in the approved charter.
Any quality standard developed under this paragraph must be consistent
with the purposes of the Act.
(b) A quality standard developed under paragraph (a) of this section
may be adopted by a Council by a majority of its members following a
referendum conducted by the Council among sector participants of the
concerned sector(s). In order for a quality standard to be brought
before Council members for adoption, the majority of the sector
participants of the concerned sector(s) must vote in favor of the
standard. Further, according to the best available data, the majority
must collectively account for, in the 12-month period immediately
preceding the month in which the referendum is held, not less than 66
percent of the value of the fish or fish products described in the
charter that were handled during such period in that sector by those who
meet the eligibility requirements to vote in the referendum as defined
by the petitioners.
(c) The Council must submit a plan to conduct the referendum on the
quality standards to NMFS for approval at least 60 days in advance of
such referendum date. The plan must consist of the following:
(1) Date(s) for conducting the referendum;
(2) Method (by mail or in person);
(3) Copy of the proposed notification to sector participants
informing them of the referendum;
(4) List of sector participants eligible to vote;
(5) Name of individuals responsible for conducting the referendum;
(6) Copy of proposed ballot package to be used in the referendum;
and
(7) Date(s) and location of ballot counting.
(d) An official observer appointed by NMFS will be allowed to be
present at the ballot counting and any other phase of the referendum
process, and may take whatever steps NMFS deems appropriate to verify
the validity of the process and results of the referendum.
(e) Quality standards developed under this section of the
regulations must, at a minimum, meet Food and Drug Administration (FDA)
minimum requirements for fish and fish products for human consumption.
(f) Quality standards must be consistent with applicable standards
of the U.S. Department of Commerce (National Oceanic and Atmospheric
Administration) or other recognized Federal standards and/or
specifications for fish and fish products.
(g) No quality standard adopted by a Council may be used in the
advertising or promotion of fish or fish products as being inspected by
the United States Government unless the standard requires sector
participants to be in the U.S. Department of Commerce voluntary seafood
inspection program.
(h) The intent of quality standards must not be to discriminate
against importers who are not members of the Council.
(i) Quality standards must not be developed for the purpose of
creating non-tariff barriers. Such standards must be compatible with
U.S. obligations under the General Agreement on Tariffs and Trade, or
under other international standards deemed acceptable by NMFS.
(j) The procedures applicable to the adoption and the operation of
quality standards developed under this subchapter also apply to
subsequent amendments or the termination of such standards.
(k) With respect to a quality standard adopted under this section,
the Council must develop and file with NMFS an official identifier in
the form of a symbol, stamp, label or seal that will be used to indicate
that a fish or fish product meets the quality standard at the time the
official identifier is
[[Page 142]]
affixed to the fish or fish product, or is affixed to or printed on the
packaging material of the fish or fish product. The use of such
identifier is governed by Sec. 270.15.
Sec. 270.16 Deposit of funds.
All funds collected or received by a Council under this section must
be deposited in an appropriate account in the name of the Council
specified in its charter. Funds eligible to be collected or received by
a Council must be limited to those authorized under the Act.
(a) Pending disbursement, under an approved marketing plan and
budget, funds collected through assessments authorized by the Act must
be deposited in any interest-bearing account or certificate of deposit
of a bank that is a member of the Federal Reserve System, or in
obligations fully guaranteed as to principal and interest by the United
States Government.
(b) The Council may, however, pending disbursement of these funds,
invest in risk-free, short-term, interest-bearing instruments.
(1) Risk-free. All investments must be insured or fully
collateralized with Federal Government securities. In the absence of
collateral, accounts established at financial institutions should, in
aggregate, total less than $100,000 to assure both principal and
interest are federally insured in full.
(2) Short-term. Generally, all investments should be for a
relatively short time period (one year or less) to assure that the
principal is maintained and readily convertible to cash.
(3) Collateralization. Investments exceeding the $100,000 insurance
coverage level must be fully collateralized by the financial
institution.
(i) Collateral must be pledged at face value and must be pledged
prior to sending funds to the institution.
(ii) Government securities are acceptable collateral. Declining
balance, mortgage backed securities such as Government National Mortgage
Association (GNMA) and Federal National Mortgage Association (FNMA) are
not acceptable collateral.
(iii) If an account has been established, collateral may be held at
the local Federal Reserve Bank. Otherwise, another depository must hold
the collateral.
Sec. 270.17 Authority to impose assessments.
A Council will impose and administer the collection of the
assessments that are necessary to pay for all expenses incurred by the
Council in carrying out its functions under 50 CFR part 270.
Sec. 270.18 Method of imposing assessments.
Assessments will be imposed on sector participants in the receiving
sector or the importing sector or both as specified in an approved
Council charter. Assessment rates will be based on value that may be
expressed in monetary units or units of weight or volume.
(a) An assessment on sector participants in the receiving sector
will be in the form of a percentage of the value or a fixed amount per
unit of weight or volume of the fish described in the charter when
purchased by such receivers from fish harvesters.
(b) An assessment on sector participants who own fish processing
vessels and harvest the fish described in the charter will be in the
form of a percentage of the value or on a fixed amount per unit of
weight or volume of the fish described in the charter that is no less
than the value if such fish had been purchased by a receiver other than
the owner of the harvesting vessel.
(c) An assessment on sector participants in the importing sector
will be in the form of a percentage of the value that an importer pays
to a foreign supplier, as determined for the purposes of the customs
laws, or a fixed amount per unit of weight or volume, of the fish or
fish products described in the charter when entered or withdrawn from
warehouse for consumption, in the customs territory of the United States
by such sector participants.
(d) A Council may not impose an assessment on any person that was
not eligible to vote in the referendum establishing the Council by
reason of failure to meet the requirements specified under unless that
person, after the date on which the referendum is held, meets the
requirements of section.
[[Page 143]]
(e) Any person may make voluntary payments or in-kind contributions
to a Council for purposes of assisting the Council in carrying out its
functions.
Sec. 270.19 Notice of assessment.
(a) The Council must serve each person subject to assessment with
notice that the assessment is due. The notice of assessment must
contain:
(1) A specific reference to the provisions of the Act, regulations,
charter and referendum that authorize the assessment;
(2) The amount of the assessment;
(3) The period of time covered by the assessment;
(4) The date the assessment is due and payable, which will not be
earlier than 30 days from the date of the notice;
(5) The form(s) of payment; and
(6) To whom and where the payment must be made.
(b) The notice must advise such person of his or her right to seek
review of the assessment by filing a written petition of objection with
NMFS at any time during the time period to which the assessment applies,
including the right to request a hearing on the petition. The notice
must state that the petition of objection must be filed in accordance
with the procedures in Sec. 270.21.
(c) The notice must also advise such persons of his or her right to
a refund of the assessment as provided in Sec. 270.22. The notice must
state that a refund may be requested for not less than 90 days from such
collection, and provide that the Council will make the refund within 60
days after the request for the refund is requested.
Sec. 270.20 Payment of assessments.
Persons subject to an assessment would be required to pay the
assessment on or before the date due, unless they have demanded a refund
or filed a petition of objection with NMFS under Sec. 270.21. However,
persons who have demanded a refund under Sec. 270.22 or filed a
petition of objection under Sec. 270.21 may submit proof of these
actions in leu of payment. In the case of a petition of objection, NMFs
will inform the Council and the petitioner of its finding at which time
petitioner must pay the revised assessment if applicable.
Sec. 270.21 Petition of objection.
(a) Filing a petition. Any person issued a notice of assessment
under Sec. 270.19 may request that NMFS modify or take other
appropriate action regarding the assessment or promotion plan by filing
a written petition of objection with NMFS. Petitions of objection may be
filed:
(1) Only if the petitioner determines one or more of the following
criteria is not in accordance with the law:
(i) The assessment;
(ii) The plan upon which the assessment is based; or
(iii) Any obligation imposed on the petitioner under the plan.
(2) Only during the time period to which the assessment applies.
(b) Contents of the petition of objection. A petition must be
addressed to Assistant Administrator for Fisheries, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, and
must contain the following:
(1) The petitioner's correct name, address, and principal place of
business. If the petitioner is a corporation, this must be stated,
together with the date and state of incorporation, and the names,
addresses, and respective positions of its officers; if a partnership,
the date and place of formation and the name and address of each
partner;
(2) The grounds upon which the petition of objection is based,
including the specific terms or provisions of the assessment, the
marketing and promotion plan, or obligation imposed by the plan, to
which the petitioner objects;
(3) A full statement of the facts upon which the petition is based,
set forth clearly and concisely, accompanied by any supporting
documentation;
(4) The specific relief requested; and
(5) A statement as to whether or not the petitioner requests a
hearing.
(c) Notice to Council. NMFS will promptly furnish the appropriate
Council with a copy of the petition of objection.
[[Page 144]]
(d) Opportunity for informal hearing. (1) Any person filing a
petition of objection may request an informal hearing on the petition.
The hearing request must be submitted with the petition of objection.
(2) If a request for hearing is timely filed, or if NMFS determines
that a hearing is advisable, NMFS will so notify the petitioner and the
Council. NMFS will establish the applicable procedures, and designate
who will be responsible for conducting a hearing. The petitioner, the
Council, and any other interested party, may appear at the hearing in
person or through a representative, and may submit any relevant
materials, data, comments, arguments, or exhibits. NMFS may consolidate
two or more hearing requests into a single proceeding.
(3) Final decision. Following the hearing, or if no hearing is held,
as soon as practicable, NMFS will decide the matter and serve written
notice of the decision on the petitioner and the Council. NMFS's
decision will be based on a consideration of all relevant documentation
and other evidence submitted, and will constitute the final
administrative decision and order of the agency. NMFS will have the
discretion to waive collection of a contested assessment or revise,
modify, or alter the assessment amount based on a Council method of
assessment.
Sec. 270.22 Refunds.
(a) Notwithstanding any other provision of the Act, any person who
pays an assessment under the Act may demand and must promptly receive
from the Council a refund of such assessment. A demand for refund must
be made in accordance with procedures in the approved charter and within
such time as will be prescribed by the Council and approved by NMFS.
Procedures to provide such a refund must be established before any such
assessment may be collected. Such procedures must allow any person to
request a refund 90 days or more from such collection, and provide that
such refund must be made within 60 days after demand for such refund is
made.
(b) Once a refund has been requested by a sector participant and
paid by the Council, that sector participant may no longer participate
in a referendum or other business of the Council during the remainder of
the assessment rate period. Future assessments will only be sent to such
a sector participant at the request of the sector participant. If
assessments are paid during a future assessment rate period and no
refund is requested, that sector participant may again participate in a
referendum or other business of the Council.
Sec. 270.23 Dissolution of Councils.
(a) Petition for termination. (1) A petition to terminate a Council
may be filed with NMFS by no less than three sector participants in any
one sector. Any petition filed under this subsection must be accompanied
by a written document explaining the reasons for such petition.
(2) If NMFS determines that a petition filed under paragraph (a)(1)
of this section is accompanied by the signatures, or corporate
certifications, of no less than three sector participants in the sector
referred to in paragraph (a)(1) of this section who collectively
accounted for, in the 12-month period immediately preceding the month in
which the petition was filed, not less than 20 percent of the value of
the fish or fish products described in Sec. 270.3(c)(2)(iii) that were
handled by that sector during the period, NMFS within 90 days after the
determination, will conduct a referendum for termination of the Council
among all sector participants in that sector.
(3) Not less than 30 days prior to holding a referendum, NMFS will
publish an announcement in the Federal Register of the referendum,
including an explanation of the reasons for the petition for termination
filed under paragraph (a)(1) of this section and any other relevant
information NMFS considers appropriate.
(4) If the referendum votes which are cast in favor of terminating
the Council constitute a majority of the sector participants voting and
the majority, in the period in paragraph (a)(2) of this section,
collectively accounted for not less than 66 percent of the value of such
fish and fish products that were handled during such period by the
sector in paragraph (a)(1) of this section,
[[Page 145]]
NMFS will by order of publication terminate the Council effective as of
a date by which the affairs of the Council may be concluded on an
orderly basis.
(5) NMFS initially will pay all costs of a referendum conducted in
Sec. 270.23. Prior to conducting such a referendum, NMFS will require
petitioners to post a bond or other security acceptable to NMFS in an
amount which NMFS determines to be sufficient to pay any expenses
incurred for the conduct of the referendum.
(6) If a referendum conducted under Sec. 270.23 fails to result in
the termination of the Council, NMFS will immediately recover the amount
of the bond posted by the petitioners under Sec. 270.23(a)(5).
(7) If a referendum conducted under this subsection results in the
termination of the Council, NMFS will recover the expenses incurred for
the conduct of the referendum from the account established by the
Council. If the amount remaining in such account is insufficient for
NMFS to recover all expenses incurred for the conduct of the referendum,
NMFS will recover the balance of the expenses from the petitioners that
posted a bond under paragraph (a)(5) of this section.
(b) Payment of remaining funds. If a Council is terminated under
section Sec. 270.23(a)(4), NMFS, after recovering all expenses incurred
for the conduct of the referendum under paragraph (a) of this section,
will take such action as is necessary and practicable to ensure that
moneys remaining in the account established by the Council under Sec.
270.17 are paid on a prorated basis to the sector participants from whom
those moneys were collected under Sec. 270.20.
SUBCHAPTER I J [RESERVED]
[[Page 146]]
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 147]]
(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 148]]
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 149]]
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 150]]
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 151]]
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 152]]
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.
PARTS 297 299 [RESERVED]
[[Page 153]]
CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES
--------------------------------------------------------------------
Part Page
300 International fisheries regulations......... 155
301-399
[Reserved]
[[Page 155]]
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 [Reserved]
Subpart C_Eastern Pacific Tuna Fisheries
300.20 Purpose and scope.
300.21 Definitions.
300.22 Recordkeeping and reporting requirements.
300.23 Persons and vessels exempted.
300.24 Prohibitions.
300.25 Fisheries management.
300.26 Vessel monitoring system (VMS).
300.27 Incidental catch and tuna retention requirements.
300.28 FAD restrictions.
300.29 Observers.
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.
300.45 Vessel Monitoring System.
300.46 Transshipping requirements.
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.
300.67 Charter halibut limited access program.
Figure 1 to Subpart E of Part 300--Boundaries for Sitka Sound Local Area
Management Plan (LAMP)
Figure 2 to Subpart E of Part 300--Southern Southeast Alaska Rural and
Non-Rural Areas
Figure 3 to Subpart E of Part 300--Northern Southeast Alaska Rural and
Non-Rural Areas
Figure 4 to Subpart E of Part 300--Prince William Sound Rural and Non-
Rural Areas
Figure 5 to Subpart E of Part 300--Anchorage, Matanuska-Susitna, and
Kenai Rural and Non-Rural Areas
Figure 6 to Subpart E of Part 300--Alaska Peninsula and Aleutian Islands
Rural and Non-Rural Areas
Figure 7 to Subpart E of Part 300--Western and Central Alaska Rural and
Non-Rural Areas
Table 1 to Subpart E of Part 300--Determination of Commission Regulatory
Area 2C Annual Commercial Allocation From the Annual Combined
Catch Limit for Halibut
Table 2 to Subpart E of Part 300--Determination of Commission Regulatory
Area 3A Annual Commercial Allocation From the Annual Combined
Catch Limit for Halibut
Table 3 to Subpart E of Part 300--Determination of Commission Regulatory
Area 2C Annual Charter Halibut Allocation From the Annual
Combined Catch Limit
Table 4 to Subpart E of Part 300--Determination of Commission Regulatory
Area 3A Annual Charter Halibut Allocation From the Annual
Combined Catch Limit
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 Scientific research.
300.104 International Fisheries Trade Permits and AMLR first receiver
permits.
300.105 Preapproval for importation of frozen Dissostichus species.
[[Page 156]]
300.106 Catch Documentation Scheme (CDS): Documentation and other
requirements.
300.107 Vessel permits and requirements.
300.108 Vessel and gear identification.
300.109 Initiating a new fishery.
300.110 Exploratory fisheries.
300.111 Scientific observers.
300.112 Vessel monitoring system.
300.113 CCAMLR Ecosystem Monitoring Program sites.
300.114 Prohibitions.
300.115 Facilitation of enforcement and inspection.
300.116 Penalties.
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.
Subpart M_International Trade Documentation and Tracking Programs for
Highly Migratory Species
300.180 Purpose and scope.
300.181 Definitions.
300.182 International fisheries trade permit.
300.183 Permit holder reporting and recordkeeping requirements.
300.184 Species subject to permitting, documentation, reporting, and
recordkeeping requirements.
300.185 Documentation, reporting and recordkeeping requirements for
consignment documents and re-export certificates.
300.186 Completed and approved documents.
300.187 Validation requirements.
300.188 Ports of entry.
300.189 Prohibitions.
Subpart N_Identification and Certification of Nations
300.200 Purpose and scope.
300.201 Definitions.
300.202 Identification and certification of nations engaged in illegal,
unreported, or unregulated fishing activities.
300.203 Identification and certification of nations engaged in bycatch
of protected living marine resources.
300.204 Identification and certification of nations whose vessels are
engaged in shark catch.
300.205 Effect of certification.
300.206 Denial of port privileges and import restrictions on fish or
fish products.
300.207 Alternative procedures for nations identified as having vessels
engaged in IUU fishing activities that are not certified in
this subpart.
300.208 Alternative procedures for nations identified as having vessels
engaged in bycatch of PLMRs that are not certified in this
subpart.
300.209 Alternative procedures for nations identified as having vessels
engaged in shark catch that are not certified in this subpart.
Subpart O_Western and Central Pacific Fisheries for Highly Migratory
Species
300.210 Purpose and scope.
300.211 Definitions.
300.212 Vessel permit endorsements.
300.213 Vessel information.
300.214 Compliance with laws of other nations.
300.215 Observers.
300.216 Transshipping, bunkering and net sharing.
300.217 Vessel identification.
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300.218 Reporting and recordkeeping requirements.
300.219 Vessel monitoring system.
300.220 Confidentiality of information.
300.221 Facilitation of enforcement and inspection.
300.222 Prohibitions.
300.223 Purse seine fishing restrictions.
300.224 Longline fishing restrictions.
300.225 Eastern High Seas Special Management Area.
300.226 Oceanic whitetip shark and silky shark.
300.227 Framework for catch and fishing effort limits.
300.228 Framework to implement emergency decisions.
Subpart P_Vessels on IUU Vessel Lists
300.300 Purpose and scope.
300.301 Definitions.
300.302 Port entry by foreign, listed IUU vessels.
300.303 Port access by foreign, listed IUU vessels.
300.304 Prohibitions.
Subpart Q_International Trade Documentation and Tracking Programs
300.320 Purpose and scope.
300.321 Definitions.
300.322 International Fisheries Trade Permit.
300.323 Reporting and recordkeeping requirements.
300.324 Seafood Traceability Program.
300.325 Prohibitions.
Subpart R_High Seas Fisheries
300.330 Purpose.
300.331 Definitions.
300.332 Issuing offices.
300.333 Vessel permits.
300.334 Fisheries authorized on the high seas.
300.335 Bottom fishing.
300.336 Vessel identification.
300.337 Requirements for Enhanced Mobile Transceiver Units (EMTUs).
300.338 Observers.
300.339 Transshipment on the high seas.
300.340 Prohibitions.
300.341 Reporting.
Authority: 16 U.S.C. 951 et seq., 16 U.S.C. 1801 et seq., 16 U.S.C.
5501 et seq., 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.
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, and at 76 FR 59305, Sept. 26, 2011.
Subpart A_General
Authority: 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 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.
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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-Stevens Act means the Magnuson-Stevens 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 International Affairs.
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.
Regional Administrator means the Administrator of one of the six
NMFS Regions, described in Table 1 of Sec. 600.502 of this title, or a
designee.
Science and Research Director means the Director of one of the six
NMFS Fisheries Science Centers described in Table 1 of Sec. 600.502 of
this title, or a designee, also known as the Science Director.
Secretary means the Secretary of Commerce or a designee.
USCG means the United States Coast Guard.
Yellowfin tuna means any fish of the species Thunnus albacares
(synonomy: Neothunnus macropterus).
[61 FR 35550, July 5, 1996, as amended at 76 FR 59305, Sept. 26, 2011]
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.
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