[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14248]


[[Page Unknown]]

[Federal Register: June 17, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 229

[Docket No. 950542-4142; I.D. 050394B]

 

Interim Exemption for Commercial Fisheries

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to reinstate the regulations 
implementing the interim exemption from the general prohibition on 
taking marine mammals in the Marine Mammal Protection Act (MMPA) for 
certain incidental takings of marine mammals by commercial fishermen 
until September 1, 1995, or until superseded by regulations prescribed 
under section 118 of the MMPA. This reinstatement is required by 
section 114 of the MMPA, as amended by section 15 of the MMPA 
Amendments of 1994.

EFFECTIVE DATE: This rule is effective on June 17, 1994 through 
September 1, 1995.

ADDRESSES: Office of Protected Resources, National Marine Fisheries 
Service, 1335 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Thomas C. Eagle, 301-713-2319 or 
Patricia A. Montanio, 301-713-2322.

SUPPLEMENTARY INFORMATION: The 1988 amendments to the MMPA directed the 
Secretary of Commerce to implement an interim exemption from the 
general prohibition on taking marine mammals in the MMPA for certain 
incidental takings by commercial fishermen during the period November 
23, 1988, through October 1, 1993, while a permanent regime to govern 
interactions between marine mammals and commercial fishing operations 
was developed. Congress subsequently extended the interim exemption 
until May 1, 1994. For background on this issue, refer to earlier 
regulatory actions (56 FR 23958, May 24, 1991; 57 FR 59832, December 
16, 1992; 58 FR 51788, October 5, 1993; and 59 FR 17048, April 11, 
1994).
    The MMPA Amendments of 1994, Public Law 103-238, among other 
things, amended the MMPA by adding a new section 118 to establish a 
permanent regime to govern interactions between marine mammals and 
commercial fishing operations. Section 15 of the MMPA Amendments of 
1994 amended section 114(a) of the MMPA to extend the interim exemption 
through September 1, 1995, or until superseded by regulations 
prescribed under new section 118 implementing the new regime, whichever 
is earlier.
    Due to an administrative delay, 50 CFR part 229, the regulations 
implementing the interim exemption, expired on May 1, 1994, and now 
must be reissued. This final rule reinstates those regulations until 
September 1, 1995, unless they are superseded earlier by regulations 
implementing new section 118. The reissued regulations are identical to 
those that expired except for changes in the addresses of the Southwest 
and Southeast Regions, NMFS. This reinstatement is required by section 
114 of the MMPA, as amended by section 15 of the MMPA Amendments of 
1994. This rule also amends a note in 50 CFR part 216 to conform to a 
cross reference from part 50 CFR part 229.

Classification

    This rule is not significant for purposes of E.O. 12866. Under 
section 114 of the MMPA, as amended by Public Law 103-238, the interim 
extension was extended until September 1, 1995, or until superseded by 
regulations prescribed under new section 118, whichever is earlier. 
This rule merely reinstates the regulations which, through 
administrative delay, were allowed to lapse. The lapsed regulations 
were subject to full notice and opportunity-for-public-comment 
procedures and no useful purpose would be served by delaying their 
reinstatement to provide notice and opportunity for public comment. 
Full notice and opportunity for public comments will be provided for 
the section 118 regulations presently being developed. Further, to 
delay reinstatement of the interim exemption regulations would be 
inconsistent with section 114 whose clear intent was to have the 
exemption and its implementing regulations continue to avoid any 
disruption to our commercial fisheries. Accordingly, the Assistant 
Administrator for Fisheries, under section 553(b)(B) of the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), finds, for good 
cause, that providing notice and opportunity for public comment is 
unnecessary and would be contrary to the public interest. Because 
reinstatement of the regulations relieves a restriction of commercial 
fisheries, under section 553(d)(1) of the APA, 5 U.S.C. 553(d)(1), this 
rule is not subject to a 30-day delay in effective date.

List of Subjects

50 CFR Part 216

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: June 7, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 216 and 229 
are amended as follows:

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

    1. The authority for part 216 continues to read as follows:

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


Sec. 216.24  [Amended]

    2. Section 216.24 is amended in the note by revising the phrase 
``November 23, 1988, through October 1, 1993.'' to read ``June 17, 1994 
through September 1, 1995.''
    3. Part 229 is added to read as follows:

Subpart A--General Provisions

Sec.
229.1  Purpose and scope.
229.2  Definitions.
229.3  Criteria for categorizing fisheries.
229.4  Prohibitions.
229.5  Registrations for Category I and II fisheries.
229.6  Issuance of Exemption Certificates.
229.7  Requirements for Category III fisheries.
229.8  Emergency and special regulations.
229.9  Penalties.
229.10  Confidential fisheries data.

Subpart B--Emergency and Special Regulations [Reserved]

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

Subpart A--General Provisions


Sec. 229.1  Purpose and scope.

    (a) The regulations in this part implement section 114 of the 
Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1384, 
Public Law 100-711, which provides for a 5-year exemption from the 
Act's prohibition on the taking of marine mammals incidental to certain 
commercial fishing operations.
    (b) The provisions of section 114 of the Marine Mammal Protection 
Act of 1972, rather than sections 101, 103 and 104, will govern the 
incidental taking of marine mammals in the course of commercial fishing 
operations by persons using vessels of the United States, other than 
vessels used in the eastern tropical Pacific tuna purse seine fishery, 
and vessels which have valid fishing permits issued in accordance with 
section 204(b) of the Magnuson Fishery Conservation and Management Act 
(16 U.S.C. 1824(b)) for the period from November 23, 1988, through 
September 1, 1995, or until superseded by regulations prescribed under 
section 118, whichever is earlier. Therefore, the regulations in this 
part supersede until September 1, 1995, or until superseded by 
regulations prescribed under section 118, whichever is earlier, the 
other provisions for granting incidental take authority to these 
commercial fishermen, including regulations at Sec. 216.24 of this 
chapter and guidelines on the taking of small numbers of marine mammals 
incidental to commercial fishing operations. (See Sec. 216.24 of this 
chapter).


Sec. 229.2  Definitions.

    In addition to the definitions contained in the Act and unless the 
context otherwise requires, in this part 229:
    (a) Act means the Marine Mammal Protection Act of 1972, as amended 
(16 U.S.C. 1361 et seq.).
    (b) Assistant Administrator means the Assistant Administrator for 
Fisheries, National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, or authorized representative.
    (c) Category I fishery means a commercial fishery determined by the 
Assistant Administrator to have a frequent incidental taking of marine 
mammals and identified as such in the List of Fisheries.
    (d) Category II fishery means a commercial fishery determined by 
the Assistant Administrator to have an occasional incidental taking of 
marine mammals and identified as such in the List of Fisheries.
    (e) Category III fishery means a commercial fishery determined by 
the Assistant Administrator to have a remote likelihood of, or no known 
incidental taking of, marine mammals and identified as such in the List 
of Fisheries. Eligible commercial fisheries not specifically identified 
as Category I or II fisheries are deemed to be Category III fisheries.
    (f) Certificate or Exemption Certificate means a document issued by 
the Assistant Administrator under the authority of section 114 of the 
Act that authorizes the incidental taking of marine mammals and that 
specifies the terms and conditions of the authorized incidental taking, 
including any document that modifies the Exemption Certificate.
    (g) Commercial fishing operation means the catching, taking or 
harvesting of fish from the marine environment (or other areas where 
marine mammals occur) as part of an ongoing for-profit business 
enterprise. The term includes licensed commercial passenger fishing 
vessel (as defined in Sec. 216.3 of this chapter) activities.
    (h) Depleted species means any species or population which has been 
determined to be 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.
    (i) Endangered or threatened species means any species, subspecies 
or population that has been listed under section 4 of the Endangered 
Species Act of 1973. A list of endangered and threatened species is 
found in Secs. 17.11 through 17.12 of this title.
    (j)(1) Fishing vessel or ``vessel'' means any vessel, boat, ship, 
or other craft which is used for, equipped to be used for, or of a type 
which is normally used for:
    (i) Fishing; or
    (ii) Aiding or assisting one or more vessels at sea in the 
performance of any activity relating to fishing, including, but not 
limited to, preparation, supply, storage, refrigeration, 
transportation, or processing.
    (2) Fishing vessel or vessel refers only to vessels of the United 
States, other than vessels used in the eastern tropical Pacific 
yellowfin tuna purse seine fishery, and vessels which have valid 
fishing permits issued in accordance with section 204(b) of the 
Magnuson Fishery Conservation and Management Act.
    (k) Incidental take means the accidental or intentional taking of a 
marine mammal in the course of commercial fishing operations.
    (l) 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 frequency of incidental 
taking of marine mammals, in accordance with the criteria in Sec. 229.3 
of this chapter.
    (m) Marine mammal means any mammal which:
    (1) Is morphologically adapted to the marine environment, including 
sea otters and members of the orders Cetacea (whales and dolphins), 
Sirenia (dugongs and manatees) and suborder Pinnipedia (seals, sea 
lions and walrus); or
    (2) Primarily inhabits the marine environment (such as the polar 
bear).
    (n) Non-vessel 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.
    (o) Observer means a qualified individual designated by the 
National Marine Fisheries Service to record the incidence of marine 
mammal interaction and other scientific data during commercial fishing 
activities.
    (p) Vessel owner means the owner of:
    (1) A fishing vessel which is engaged in a commercial fishing 
operation; or
    (2) Fixed or other commercial fishing gear that is used in a non-
vessel fishery.


Sec. 229.3  Criteria for categorizing fisheries.

    (a) Publication. (1) The Assistant Administrator will publish in 
the Federal Register notice of a proposed revised List of Fisheries on 
or about July 1, 1990, 1991 and 1992, for the purpose of receiving 
public comment. On or about October 1, 1990, 1991, and 1992, the 
Assistant Administrator will publish a final revised List of Fisheries 
which will become effective January 1 of the next calendar year.
    (2) The proposed and final revised List of Fisheries will:
    (i) Categorize each commercial fishery according to the criteria 
set forth in paragraph (b) of this section; and
    (ii) List the marine mammals and the estimated number of vessels or 
persons involved in each commercial fishery.
    (3) The Assistant Administrator may publish a revised List of 
Fisheries at other times, after notice and opportunity for public 
comment. The revised final List of Fisheries will become effective no 
sooner than 30 days after publication in the Federal Register.
    (b) Categories. The List of Fisheries will be revised and 
commercial fisheries will be categorized into Category I, Category II 
or Category III according to the following criteria. In evaluating 
incidental takes for purposes of categorizing fisheries, the Assistant 
Administrator will consider the definition of take in section 3 of the 
Act, the language of section 114 of the Act and the legislative history 
of the 1988 amendments.
    (1) Category I. (i)(A) There is documented information indicating a 
``frequent'' incidental taking of marine mammals in the fishery; or
    (B) Congress intended that the fishery should be placed in Category 
I and there is no documented information indicating that it should be 
placed in another Category.
    (ii) ``Frequent'' means that it is highly likely that more than one 
marine mammal will be incidentally taken by a randomly selected vessel 
in the fishery during a 20-day period.
    (2) Category II. (i)(A) There is documented information indicating 
an ``occasional'' incidental taking of marine mammals in the fishery; 
or
    (B) In the absence of information indicating the frequency of 
incidental taking of marine mammals, other factors such as fishing 
techniques, gear used, methods used to deter marine mammals, target 
species, seasons and areas fished, and species and distribution of 
marine mammals in the area suggest there is a likelihood of at least an 
``occasional'' incidental taking in the fishery.
    (ii) ``Occasional'' means that there is some likelihood that one 
marine mammal will be incidentally taken by a randomly selected vessel 
in the fishery during a 20-day period, but that there is little 
likelihood that more than one marine mammal will be incidentally taken.
    (3) Category III. (i)(A) There is information indicating no more 
than a ``remote likelihood'' of an incidental taking of a marine mammal 
in the fishery;
    (B) In the absence of information indicating the frequency of 
incidental taking of marine mammals, other factors such as fishing 
techniques, gear used, methods used to deter marine mammals, target 
species, seasons and areas fished, and species and distribution of 
marine mammals in the area suggest there is no more than a remote 
likelihood of an incidental take in the fishery; or
    (C) Congress intended that the fishery should be placed in Category 
III and there is not documented information indicating that it should 
be placed in another Category.
    (ii) ``Remote likelihood'' means that it is highly unlikely that 
any marine mammal will be incidentally taken by a randomly selected 
vessel in the fishery during a 20-day period.


Sec. 229.4  Prohibitions.

    (a) Prohibited activities. (1) It is unlawful for a commercial 
fishing vessel, a vessel owner, or a master or operator of a vessel to 
engage in a Category I or II fishery unless the vessel owner or 
authorized representative has complied with the requirements pertaining 
to registration, Exemption Certificates, decals and reports as 
contained in this part 229.
    (2) It is unlawful to assault, harm, oppose, impede, intimidate, 
impair or in any way interfere with an observer or the observations 
being carried out.
    (b) Prohibited taking. (1) Except as otherwise provided in part 17 
of this title, part 216 of this chapter or this part 229, it is 
unlawful to take any marine mammal incidental to commercial fishing 
operations.
    (2) Under this part 229, it is unlawful to:
    (i)(A) Take any southern (California) sea otter; or
    (B) Intentionally lethally take any Steller sea lion, any Alaskan 
sea otter, any cetacean, any depleted species (including the Pribilof 
Island population of North Pacific fur seal), or any endangered or 
threatened marine mammal.
    (ii) If the use of firearms or other means to deter marine mammals 
results in an injury or mortality of a marine mammal, the taking is 
presumed to be an intentional lethal taking.
    (3) Exemptions under this part 229 apply only to prohibitions under 
the Marine Mammal Protection Act and do not apply to prohibitions under 
the Endangered Species Act of 1973. To be exempt from the taking 
prohibitions under the Endangered Species Act, specific authority under 
that Act is required.
    (c) Other prohibitions. It is unlawful to violate any other 
provision of these regulations or the terms and conditions of Exemption 
Certificates.


Sec. 229.5  Registrations for Category I and II fisheries.

    (a) Registrations. To engage lawfully in a Category I or II fishery 
after July 21, 1989, the vessel owner or authorized representative of 
the vessel owner must register for and receive an Exemption Certificate 
or annual renewal. Registrations should be submitted at least 30 days 
prior to the vessel engaging in a Category I or II fishery. The 
following information is required to register:
    (1) Name, address, and phone number of vessel owner;
    (2) Name and address of operator, if different from owner;
    (3) Vessel name, length and home port; state commercial vessel 
license number, Coast Guard documentation number, state registration 
number, and/or Tribal plaque number, where appropriate;
    (4) A list of all Category I and II fisheries that the vessel is 
expected to participate in during the calendar year (or during 1989 and 
1990, if the registration is made during 1989), and the estimated 
number of trips from port for each fishery; and
    (5) A certification, signed and dated by the vessel owner or 
authorized representative, as follows: ``I hereby certify under penalty 
of perjury that I am the owner of the vessel or that I am authorized to 
register for this exemption on behalf of the owner, that I have 
reviewed all information contained on this document, and that it is 
true and complete to the best of my knowledge.''
    (b) Fee. A check or money order made payable to NOAA, National 
Marine Fisheries Service, in the amount of $30.00 must accompany each 
registration or renewal. For good cause, the Assistant Administrator 
may waive the fee requirement.
    (c) Address. Registrations and requests for registration forms 
should be sent to the Director, Office of Protected Resources, National 
Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, 1335 East West Highway, Silver Spring, MD 20910; 
telephone: 301-713-2319; or one of the following Regional Offices:
    (1) Director, Alaska Region, National Marine Fisheries Service, 
P.O. Box 21668, 709 West 9th Street, Juneau, AK 99802; telephone: 907-
586-7233;
    (2) Director, Northwest Region, National Marine Fisheries Service, 
7600 Sand Point Way NE., Seattle, WA 98115-0070; telephone: 206-526-
6110;
    (3) Director, Southwest Region, National Marine Fisheries Service, 
501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; telephone: 
310-980-4001;
    (4) Director, Northeast Region, National Marine Fisheries Service, 
1 Blackburn Drive, Gloucester, MA 01930; telephone: 508-281-9328; or
    (5) Director, Southeast Region, National Marine Fisheries Service, 
9721 Executive Center Drive, St. Petersburg, FL 33702; telephone: 813-
893-3141.


Sec. 229.6  Issuance of Exemption Certificates.

    (a) Criteria. After receipt of a completed initial registration and 
required fee, an Exemption Certificate and decal will be issued to the 
vessel owner. If the Certificate and decal are issued in 1989, a 1990 
annual sticker for the decal will be automatically issued upon receipt 
of required report(s) for 1989. The Exemption Certificate will be 
renewed and an annual sticker issued after receipt of an updated 
registration, required fee and required report(s) covering all 
registered Category I and II fisheries. An interim report should be 
submitted with the renewal request if fishing under the current 
Exemption Certificate will not be completed by December 31.
    (b) Possession of Certificates and decals. (1) The decal and, after 
1989, a current annual sticker must be attached to the vessel port side 
on the cabin or, in the absence of a cabin, port side forward on the 
hull, and must be free of obstruction and in good condition. A decal is 
not required for non-vessel fisheries.
    (2) The Exemption Certificate or valid copy must be on board the 
vessel while it is operating in a Category I or II fishery, or, in the 
case of non-vessel fisheries, the Certificate or valid copy must be in 
the possession of the person in charge of the fishing operation. The 
Certificate or valid copy must be made available upon request to any 
state or Federal enforcement agent authorized to enforce the Act or to 
any designated agent of the National Marine Fisheries Service.
    (c) Terms and conditions. (1) Certificates will expire at the end 
of the calendar year, except that Certificates issued in 1989 will 
expire at the end of 1990. After 1989, a current annual sticker is 
required for a decal to be valid.
    (2) Reports. (i) All Exemption Certificate holders must ensure that 
a daily log of fishing effort and incidental takes of marine mammals is 
accurately maintained on board the fishing vessel in such form as 
prescribed by the Assistant Administrator for Fisheries. Fishermen must 
complete an entry on the report/log form each day they fish. Marine 
mammal report/log forms require information on: The fishery, fishing 
effort, gear type and fish species involved; the marine mammal species 
(or description of the animal(s), if species is not known), number, 
date, and location of marine mammal incidental takes; type of 
interaction and any injury to the marine mammal; a description of any 
intentional takes (i.e., efforts to deter animals to protect gear, 
catch, or human life by non-lethal or lethal means); and any loss of 
fish or gear caused by marine mammals. With prior approval by the 
Assistant Administrator for Fisheries, National Marine Fisheries 
Service, alternate report/log forms, such as forms issued by individual 
states, Fishery Management Councils, or Indian Governments, which 
collect the same information required by the National Marine Fisheries 
Service, are acceptable.
    (ii) A current report/log must be kept on board and must be made 
available for inspection upon request by any state or Federal 
enforcement agent authorized to enforce the Act or any designated agent 
of the National Marine Fisheries Service.
    (iii) An annual report, consisting of a copy of the required log, 
must be submitted to the National Marine Fisheries Service no later 
than December 31 of each year covering all Categories I and II 
fisheries for which the Exemption Certificate holder is registered. 
This log shall include information for all Categories I and II 
fisheries for which each Exemption Certificate holder is registered, 
whether or not any marine mammals were taken. If a fishing vessel was 
not used in a Category I or Category II fishery during an exemption 
period for which it was registered, a report to that effect must be 
submitted.
    (3) Observer requirements. (i) If requested by the National Marine 
Fisheries Service, a Certificate holder engaged in a Category I fishery 
must take on board an observer to accompany the vessel on any or all 
fishing trips in a fishing season.
    (ii) After being notified by the National Marine Fisheries Service 
that the vessel is required to carry an observer, the Certificate 
holder must comply with the notification by providing the specified 
information within the specified time on scheduled or anticipated 
fishing trips to facilitate observer placement.
    (iii) The National Marine Fisheries Service 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.
    (iv) The Certificate holder, master and crew must cooperate with 
the observer in the performance of the observer's duties including:
    (A) Providing adequate accommodations;
    (B) Allowing for the embarking and debarking of the observer as 
specified by the National Marine Fisheries Service. 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 as 
weather and sea conditions allow, and with the agreement of the 
observer involved;
    (C) Allowing the observer access to all areas of the vessel 
necessary to conduct observer duties;
    (D) Allowing the observer access to communications equipment and 
navigation equipment as necessary to perform observer duties;
    (E) Providing true vessel locations by latitude and longitude or 
loran coordinates, upon request by the observer;
    (F) Providing marine mammal specimens, as requested;
    (G) Notifying the observer in a timely fashion of when commercial 
fishing operations are to begin and end; and
    (H) Complying with other guidelines, regulations or conditions in 
Certificates that the National Marine Fisheries Service may develop to 
ensure the effective deployment and use of observers.
    (v) Marine mammals killed during fishing operations which are 
readily accessible to crew members must be brought aboard the vessel 
for biological processing, if feasible and if requested by the 
observer. Marine mammals designated as biological specimens by the 
observer must be retained in cold storage aboard the vessel, if 
feasible, until retrieved by authorized personnel of the National 
Marine Fisheries Service.
    (vi) Observers may not bring a civil action against the vessel or 
vessel owner under any law of the United States for any illness, 
disability, injury or death from service as an observer, except in 
cases of the vessel owner's willful misconduct or if the observer is 
engaged by the owner, master or individual in charge of a vessel to 
perform any duties in service to the vessel.
    (vii) The National Marine Fisheries Service will provide for the 
payment of all reasonable costs directly related to housing and 
maintaining observers on board vessels and related to maintaining 
biological specimens as requested by the observer or required in 
Exemption Certificates.
    (4) Any marine mammal incidentally taken must be immediately 
returned to the sea with a minimum of further injury and may be 
retained only if authorized by an observer, by a condition of the 
Exemption Certificate, or by a scientific research permit that is in 
the possession of the operator.
    (5) A Certificate holder or a crew member may intentionally take 
marine mammals to protect catch, gear or person during the course of 
the commercial fishing operation by a means and in a manner not 
expected to cause death or injury to a marine mammal.
    (6) If the infliction of the damage to catch, gear or person is 
substantial and immediate and only after all non-injurious means 
authorized by paragraph (c)(5) of this section have been taken, a 
Certificate holder or crew member may intentionally injure or kill a 
marine mammal to protect gear, catch or person; except that it is 
prohibited for a Certificate holder or crew member to intentionally 
lethally take any Steller sea lion, any Alaskan sea otter, any 
cetacean, any depleted species (including the Pribilof Island 
population of North Pacific fur seal), or any endangered or threatened 
marine mammal.
    (7) No fishing gear, in whole or in part, may be willfully 
discarded.
    (8) A Certificate holder must notify the Assistant Administrator in 
writing:
    (i) If the vessel will engage in any Category I or II fishery not 
listed on the registration at least 30 days prior to engaging in that 
fishery; and
    (ii) Of any changes in mailing address or vessel ownership within 
30 days of such change.
    (9) Certificates and decals are not transferable. In the event of 
the sale or change in ownership of the vessel, the Certificate is void 
and the new owner must register for an Exemption Certificate and decal.
    (10) The Assistant Administrator may establish other terms and 
conditions on Exemption Certificates, including terms and conditions 
for specific fisheries necessary to minimize adverse impacts to a 
marine mammal population in accordance with the procedures in 
Sec. 229.8(b) of this chapter or to comply with the Endangered Species 
Act of 1973.
    (d) Suspension, revocation or denial of Certificates. (1)(i) The 
Assistant Administrator may suspend or revoke an Exemption Certificate 
or deny a Certificate renewal in accordance with the provisions in 15 
CFR part 904 if the Certificate holder:
    (A) Fails to submit reports as required;
    (B) Fails to take on board an observer in a Category I fishery, if 
requested by the National Marine Fisheries Service; or
    (C) Fails to comply with other terms and conditions, including 
special conditions, of the Exemption Certificate or with these 
regulations.
    (ii) Except that the suspension, revocation or denial specified in 
paragraph (d)(1)(i) of this section may be without prior notice or 
opportunity for hearing.
    (2) A suspended Certificate may be reinstated at any time at the 
discretion of the Assistant Administrator.


Sec. 229.7  Requirements for Category III fisheries.

    (a) Vessel owners engaged only in Category III fisheries are not 
required to register for or receive an Exemption Certificate. Vessel 
owners and crew members of such vessels may incidentally take marine 
mammals subject to these provisions.
    (b) Vessel owners must report all lethal incidental takes of marine 
mammals by contacting the nearest National Marine Fisheries Service 
office, in person, by phone, or by letter, within 10 days of return 
from the fishing trip during which the incidental take occurred. The 
report must include information on: The fishery, fishing effort, gear 
type and fish species involved; the marine mammal species (or 
description of the animal(s), if species is not known), number, date, 
and location of all lethal incidental takes of marine mammals; a 
description of any incidental lethal takes (i.e., efforts to deter 
animals to protect gear, catch, or human life); and any loss of fish or 
gear caused by marine mammals.
    (c) Any marine mammal incidentally taken must be immediately 
returned to the sea with a minimum of further injury and may be 
retained only if authorized by an observer, by the Assistant 
Administrator, or by a scientific research permit that is in the 
possession of the operator.
    (d) Vessel owners and crew members may intentionally take marine 
mammals to protect catch, gear or person during the course of 
commercial fishing operations, by a means and in a manner not expected 
to cause death or injury to a marine mammal.
    (e) If the infliction of the damage to gear, catch or person is 
substantial and immediate and only after all non-injurious methods 
authorized by paragraph (d) of this section have been taken, a vessel 
owner or crew member may intentionally injure or kill a marine mammal 
to protect gear, catch or person; except that it is prohibited for a 
vessel owner or crew member to intentionally lethally take any Steller 
sea lion, any Alaskan sea otter, any cetacean, any depleted species 
(including the Pribilof Island population of North Pacific fur seal), 
or any endangered or threatened marine mammal.
    (f) The willful discard of any fishing gear, in whole or in part, 
is prohibited.


Sec. 229.8  Emergency and special regulations.

    (a) Emergency regulations. If the Assistant Administrator finds 
that the incidental taking of marine mammals in a fishery is having an 
immediate and significant adverse impact on a marine mammal population, 
or in the case of Steller sea lions and North Pacific fur seals, that 
more than 1,350 and 50, respectively, will be incidentally killed 
during a calendar year in all fisheries combined, the Assistant 
Administrator will issue emergency regulations to prevent, to the 
maximum extent practicable, any further taking. Any such regulations:
    (1) Will be issued only after consultation with Regional Fishery 
Management Councils, state fishery agencies and treaty Indian tribal 
governments, where appropriate, and will, to the maximum extent 
practicable, avoid interfering with existing Regional, state or tribal 
fishery management plans;
    (2) Will take into account the economics of the fishery and the 
availability of existing technology to minimize incidental taking to 
the extent that elimination of the adverse effects on the marine mammal 
population will allow;
    (3) May take effect immediately upon publication in the Federal 
Register and will remain in effect for no more than 180 days or until 
the end of the fishing season, whichever is earlier; and
    (4) Will be terminated by notice in the Federal Register at an 
earlier date if the Assistant Administrator determines that the reasons 
for the emergency regulations no longer exist.
    (b) Special regulations or conditions. (1) If the Assistant 
Administrator finds that the incidental taking of marine mammals in a 
fishery is not having an immediate and significant adverse impact on a 
marine mammal population, but that it will likely have a significant 
adverse impact over a period of time longer than one year, the 
Assistant Administrator will request Regional Fishery Management 
Councils, state fisheries agencies or treaty Indian tribal governments, 
where appropriate, to initiate or take action to minimize such impact.
    (2) If the Councils, states or tribes do not take appropriate 
action in a reasonable period of time, the Assistant Administrator will 
issue special regulations or impose special conditions on Exemption 
Certificates to mitigate the adverse impacts.
    (3) Any such regulations or conditions will be issued only if, 
after notice and opportunity for public comment, the Assistant 
Administrator determines such action is necessary to further the 
purposes of section 114 of the MMPA.


Sec. 229.9  Penalties.

    (a) Except as otherwise provided, all violations of these 
regulations are subject to NOAA's civil procedures contained in 15 CFR 
part 904.
    (b) Notwithstanding any other provision in these or other NOAA 
regulations, a person or vessel will not be subject to penalties for 
unknowing violations based on failure to register occurring before 
January 1, 1990. An unknowing violation is one where the violator can 
establish that he or she has not received actual prior notice of the 
registration requirements and has not had the opportunity to receive 
actual notice. Actual notice is presumed where a person has received a 
MMPA Exemption Registration form or any other publication published by 
National Marine Fisheries Service for the purpose of informing the 
public of the registration requirements contained in these regulations.


Sec. 229.10  Confidential fisheries data.

    (a) Proprietary or confidential information includes information, 
the unauthorized disclosure of which could be prejudicial or harmful, 
such as information or data that are identifiable with an individual 
fisherman. Proprietary or confidential information obtained under this 
part 229 must not be disclosed except:
    (1) To Federal employees whose duties require access to such 
information;
    (2) To state employees under an agreement with the Assistant 
Administrator 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.
    (b) Information will be made public in aggregate, summary, or other 
such form that does not disclose the identity or business of any person 
in accordance with NOAA Directive 88-30. Aggregate or summary form 
means data or information submitted by three or more persons that have 
been summed or assembled in such a way that the summation or assembly 
does not reveal the identity or business of any person.

Subpart B--Emergency and Special Regulations [Reserved]

[FR Doc. 94-14248 Filed 6-16-94; 8:45 am]
BILLING CODE 3510-22-P