[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1998 Edition]
[From the U.S. Government Printing Office]
50
Wildlife and Fisheries
[[Page i]]
PARTS 200 TO 599
Revised as of October 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF OCTOBER 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter II--National Marine Fisheries Service,
National Oceanic and Atmospheric Administration,
Department of Commerce 3
Chapter III--International Fishing and Related
Activities 319
Chapter IV--Joint Regulations (United States Fish
and Wildlife Service, Department of the Interior and
National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations 369
Chapter V--Marine Mammal Commission 411
Finding Aids:
Material Approved for Incorporation by Reference........ 437
Table of CFR Titles and Chapters........................ 439
Alphabetical List of Agencies Appearing in the CFR...... 457
List of CFR Sections Affected........................... 467
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 50 CFR 216.1 refers
to title 50, part 216,
section 1.
----------------------------
[[Page v]]
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, 1998), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
[[Page vii]]
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408.
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call 202-512-1800,
M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours
a day. For payment by check, write to the Superintendent of Documents,
Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO
Customer Service call 202-512-1803.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, The United States
Government Manual, the Federal Register, Public Laws, Weekly Compilation
of Presidential Documents and the Privacy Act Compilation are available
in electronic format at www.access.gpo.gov/nara (``GPO Access''). For
more information, contact Electronic Information Dissemination Services,
U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498
(toll-free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA
site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 1998.
[[Page ix]]
THIS TITLE
Title 50--Fish and Wildlife is composed of three volumes. The parts
in these volumes are arranged in the following order: Parts 1-199, parts
200-599 and part 600 to end. The first volume (parts 1-199) contains the
current regulations issued under chapter I--United States Fish and
Wildlife Service, Department of the Interior. The second volume (parts
200-599) contains the current regulations issued under chapter II--
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce; chapter III--International
Fishing and Related Activities, chapter IV--Joint Regulations (United
States Fish and Wildlife Service, Department of the Interior and
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce); Endangered Species Committee
regulations; and chapter V--Marine Mammal Commission. The third volume
(part 600 to end) contains the current regulations issued under chapter
VI--Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of October 1, 1998.
Alphabetical listings of endangered and threatened wildlife and
plants appear in part 17.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
For this volume, Melanie L. Marcec was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 200 to 599)
--------------------------------------------------------------------
Part
chapter ii--National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of
Commerce.................................................. 216
chapter iii--International Fishing and Related Activities... 300
chapter iv--Joint Regulations (United States Fish and
Wildlife Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce); Endangered
Species Committee Regulations............................. 401
chapter v--Marine Mammal Commission......................... 501
Cross References: Commercial fishing on Red Lake Indian Reservation,
Bureau of Indian Affairs, Interior: 25 CFR part 242.
Disposal of certain wild animals in national parks, National Park
Service, Interior: 36 CFR part 10.
Exchanges of land for migratory bird or other wildlife refuges, Bureau
of Land Management, Interior: 43 CFR 2200.0-1--2272.1.
Fishing, hunting, trapping, and protection of wildlife in national
forests and wildlife refuges, Forest Service, USDA: 36 CFR part 241,
Secs. 261.8, 261.9.
Fishing, hunting, trapping, and protection of wildlife in national
parks, memorials, recreation areas, etc., National Park Service,
Interior: 36 CFR parts 2, 7, 20.
Fishing and hunting in reservoir areas, Corps of Engineers, Army, DoD:
36 CFR 327.8.
Free entry of animals, birds and products of American fisheries under
specified conditions, Customs Service, Treasury: 19 CFR 10.70--10.83.
Grazing areas for wildlife maintenance, Bureau of Land Management,
Interior: 43 CFR part 4110.
Making pictures, television production, or sound tracks on areas
administered by the United States Fish and Wildlife Service or the
National Park Service, Interior: 43 CFR 5.1.
[[Page 3]]
CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C--MARINE MAMMALS
Part Page
216 Regulations governing the taking and
importing of marine mammals............. 5
217 General provisions.......................... 71
220 General permit procedures................... 76
221 Designated ports............................ 80
222 Endangered fish or wildlife................. 81
225 Federal/State cooperation in the
conservation of endangered and
threatened species...................... 97
226 Designated critical habitat................. 100
227 Threatened species.......................... 131
229 Authorization for commercial fisheries under
the Marine Mammal Protection Act of 1972 194
SUBCHAPTER D--WHALING
230 Whaling provisions.......................... 215
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE
[RESERVED]
SUBCHAPTER F--AID TO FISHERIES
253 Fisheries assistance programs............... 218
[[Page 4]]
259 Capital construction fund................... 227
SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF,
AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260 Inspection and certification................ 239
261 United States Standards for Grades.......... 270
SUBCHAPTER H--[RESERVED]
SUBCHAPTER I--TUNA FISHERIES
285 Atlantic tuna fisheries..................... 272
SUBCHAPTER J [RESERVED]
SUBCHAPTER K--CONTINENTAL SHELF
296 Fishermen's Contingency Fund................ 311
[[Page 5]]
SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C--MARINE MAMMALS
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS--Table of Contents
Subpart A--Introduction
Sec.
216.1 Purpose of regulations.
216.2 Scope of regulations.
216.3 Definitions.
216.4 Other laws and regulations.
216.5 Payment of penalty.
216.6 Forfeiture and return of seized property.
216.7 Holding and bonding.
216.8 Enforcement officers.
Subpart B--Prohibitions
216.11 Prohibited taking.
216.12 Prohibited importation.
216.13 Prohibited uses, possession, transportation, sales, and permits.
216.14 Marine mammals taken before the MMPA.
216.15 Depleted species.
216.16 Prohibitions under the General Authorization for Level B
harassment for scientific research.
Subpart C--General Exceptions
216.21 Actions permitted by international treaty, convention, or
agreement.
216.22 Taking by State or local government officials.
216.23 Native exceptions.
216.24 Taking and related acts incidental to commercial fishing
operations.
216.25 Exempted marine mammals and marine mammal products.
216.26 Collection of certain marine mammals parts without prior
authorization.
216.27 Release, non-releasability, and disposition under special
exception permits for rehabilitated marine mammals.
Subpart D--Special Exceptions
216.30 [Reserved]
216.31 Definitions.
216.32 Scope.
216.33 Permit application submission, review, and decision procedures.
216.34 Issuance criteria.
216.35 Permit restrictions.
216.36 Permit conditions.
216.37 Marine mammal parts.
216.38 Reporting.
216.39 Permit amendments.
216.40 Penalties and permit sanctions.
216.41 Permits for scientific research and enhancement.
216.42 Photography. [Reserved]
216.43 Public display. [Reserved]
216.44 Applicability/transition.
216.45 General Authorization for Level B harassment for scientific
research.
216.46-216.49 [Reserved]
Subpart E--Designated Ports
216.50 Importation at designated ports.
Subpart F--Pribilof Islands, Taking for Subsistence Purposes
216.71 Allowable take of fur seals.
216.72 Restrictions on taking.
216.73 Disposition of fur seal parts.
216.74 Cooperation with Federal officials.
Subpart G--Pribilof Islands Administration
216.81 Visits to fur seal rookeries.
216.82 Dogs prohibited.
216.83 Importation of birds or mammals.
216.84 [Reserved]
216.85 Walrus and Otter Islands.
216.86 Local regulations.
216.87 Wildlife research.
Subpart H--Dolphin Safe Tuna Labeling
216.90 Purpose.
216.91 Labeling requirements.
216.92 Purse seine vessels greater than 400 short tons (362.8 metric
tons).
216.93 Submission of documentation.
216.94 Requests to review documents.
216.95 False statements or endorsements.
Subpart I--General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
216.101 Purpose.
216.102 Scope.
216.103 Definitions.
216.104 Submission of requests.
216.105 Specific regulations.
216.106 Letter of Authorization.
216.107 Incidental harassment authorization for Arctic waters.
[[Page 6]]
216.108 Requirements for monitoring and reporting under incidental
harassment authorizations for Arctic waters.
Subpart J--Taking of Ringed Seals Incidental to On-Ice Seismic
Activities
216.111 Specified activity and specified geographical region.
216.112 Effective dates.
216.113 Permissible methods.
216.114 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Renewal of Letters of Authorization.
216.118 Modifications to Letters of Authorization.
216.119 [Reserved]
Subparts K-L [Reserved]
Subpart M--Taking of Bottlenose Dolphins and Spotted Dolphins Incidental
to Oil and Gas Structure Removal Activities
216.141 Specified activity and specified geographical region.
216.142 Effective dates.
216.143 Permissible methods of taking; mitigation.
216.144 Prohibitions.
216.145 Requirements for monitoring and reporting.
216.146 Letters of Authorization.
216.147 Renewal of Letters of Authorization.
216.148 Modifications to Letters of Authorization.
Subpart N--Taking of Marine Mammals Incidental to Underwater Detonation
of Conventional Explosives by the Department of Defense
216.151 Specified activity, geographical region, and incidental take
levels.
216.152 Effective dates.
216.153 Permissible methods of taking; mitigation.
216.154 Prohibitions.
216.155 Requirements for monitoring and reporting.
216.156 Renewal of Letter of Authorization.
216.157 Modifications to Letter of Authorization.
Subparts O-Q [Reserved]
Note to part 216: See also 50 CFR parts 228 and 229 for regulations
governing certain incidental takings of marine mammals.
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.
Editorial Note: At 56 FR 21096, May 7, 1991, 56 FR 41308, Aug. 20,
1991, and 56 FR 48115, Sept. 24, 1991, findings of nonconformance,
embargo and revocation were published in the Federal Register.
Subpart A--Introduction
Sec. 216.1 Purpose of regulations.
The regulations in this part implement the Marine Mammal Protection
Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407, Pub. L. 92-522, which,
among other things, restricts the taking, possession, transportation,
selling, offering for sale, and importing of marine mammals.
Sec. 216.2 Scope of regulations.
This part 216 applies solely to marine mammals and marine mammal
products as defined in Sec. 216.3. For regulations under the MMPA, with
respect to other marine mammals and marine mammal products, see 50 CFR
part 18.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]
Sec. 216.3 Definitions.
In addition to definitions contained in the MMPA, and unless the
context otherwise requires, in this part 216:
ABI means Automated Broker Interface, the electronic product-entry
filing system under the control of the U.S. Customs Service, Department
of the Treasury.
Acts means, collectively, the Marine Mammal Protection Act of 1972,
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973,
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as
amended, 16 U.S.C. 1151 et seq.
Active sportfishing means paying passengers have their terminal
fishing gear (lures, hooks, etc.) in the water in an attempt to catch
fish or, in the case of fishing involving chumming, fishing is
considered to be in progress from the instant fish have been sighted
taking bait (boiling) during that chumming process.
Alaskan Native means a person defined in the Alaska Native Claims
Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the
United States
[[Page 7]]
who is of one-fourth degree or more Alaska Indian (including Tsimishian
Indians enrolled or not enrolled in the Metlaktla Indian Community),
Eskimo, or Aleut blood or combination thereof. The term includes any
Native, as so defined, either or both of whose adoptive parents are not
Natives. It also includes, in the absence of proof of a minimum blood
quantum, any citizen of the United States who is regarded as an Alaska
Native by the Native village or group, of which he claims to be a member
and whose father or mother is (or, if deceased, was) regarded as Native
by any Native village or Native group. Any such citizen enrolled by the
Secretary of the Interior pursuant to section 5 of the Alaska Native
Claims Settlement Act shall be conclusively presumed to be an Alaskan
Native for purposes of this part.
Article of handicraft means items made by an Indian, Aleut or Eskimo
from the nonedible byproducts of fur seals taken for personal or family
consumption which--
(1) Were commonly produced by Alaskan Natives on or before October
14, 1983;
(2) Are composed wholly or in some significant respect of natural
materials, and;
(3) Are significantly altered from their natural form and which are
produced, decorated, or fashioned in the exercise of traditional native
handicrafts without the use of pantographs, multiple carvers, or similar
mass copying devices. Improved methods of production utilizing modern
implements such as sewing machines or modern tanning techniques at a
tannery registered pursuant to Sec. 216.23(c) may be used so long as no
large scale mass production industry results. Traditional native
handicrafts include, but are not limited to, weaving, carving,
stitching, sewing, lacing, beading, drawing, and painting. The formation
of traditional native groups, such as a cooperative, is permitted so
long as no large scale mass production results.
Assistant Administrator means the Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Silver Spring, MD 20910, or his/her
designee.
Authentic native articles of handicrafts and clothing means items
made by an Indian, Aleut or Eskimo which (a) were commonly produced on
or before December 21, 1972, and (b) are composed wholly or in some
significant respect of natural materials, and (c) are significantly
altered from their natural form and which are produced, decorated, or
fashioned in the exercise of traditional native handicrafts without the
use of pantographs, multiple carvers, or similar mass copying devices.
Improved methods of production utilizing modern implements such as
sewing machines or modern tanning techniques at a tannery registered
pursuant to Sec. 216.23(c) may be used so long as no large scale mass
production industry results. Traditional native handicrafts include, but
are not limited to, weaving, carving, stitching, sewing, lacing,
beading, drawing, and painting. The formation of traditional native
groups, such as a cooperative, is permitted so long as no large scale
mass production results.
Bona fide scientific research: (1) Means scientific research on
marine mammals conducted by qualified personnel, the results of which:
(i) Likely would be accepted for publication in a refereed
scientific journal;
(ii) Are likely to contribute to the basic knowledge of marine
mammal biology or ecology. (Note: This includes, for example, marine
mammal parts in a properly curated, professionally accredited scientific
collection); or
(iii) Are likely to identify, evaluate, or resolve conservation
problems.
(2) Research that is not on marine mammals, but that may
incidentally take marine mammals, is not included in this definition
(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA,
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
Carrying capacity means the Regional Director's determination of the
maximum amount of fish that a vessel can carry in short tons based on
the greater of the amount indicated by the builder of the vessel, a
marine surveyor's report, or the highest amount reported landed from any
one trip.
Certified charter vessel means a fishing vessel of a non-U.S. flag
nation, which is operating under the jurisdiction of
[[Page 8]]
the marine mammal laws and regulations of another, harvesting, nation by
a formal declaration entered into by mutual agreement of the nations.
Co-investigator means the on-site representative of a principal
investigator.
Commercial fishing operation means the lawful harvesting of fish
from the marine environment for profit as part of an ongoing business
enterprise. Such terms may include licensed commercial passenger fishing
vessel (as defined) activities, but no other sportfishing activities,
whether or not the fish so caught are subsequently sold.
Commercial passenger fishing vessel means any vessel licensed for
commercial passenger fishing purposes within the State out of which it
is operating and from which, while under charter or hire, persons are
legally permitted to conduct sportfishing activities.
Custody means holding a live marine mammal pursuant to the
conditional authority granted under the MMPA, and the responsibility
therein for captive maintenance of the marine mammal.
Director, Office of Protected Resources means Director, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910.
Director, Southwest Region means the Director, Southwest Region,
NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802, or his/her designee.
Dolphin Mortality Limit (DML) means the maximum allowable number of
incidental dolphin mortalities per calendar year assigned to a vessel,
unless a shorter time period is specified.
Endangered Species means a species or subspecies of marine mammal
listed as ``endangered'' pursuant to the Endangered Species Act of 1973,
87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).
ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C.
1531 et seq.
ETP means the eastern tropical Pacific Ocean which includes the
Pacific Ocean area bounded by 40 deg. N. latitude, 40 deg. S. latitude,
160 deg. W. longitude and the coastlines of North, Central and South
America.
ETP Fishing Area 1 means the northern coastal portion of the ETP
east of 117 deg. W. longitude, north of 5 deg. N. latitude, and west of
86 deg. W. longitude.
ETP Fishing Area 2 means the offshore area south of 14 deg. N.
latitude, north of 6 deg. N. latitude, east of 150 deg. W. longitude,
and west of 123 deg. W. longitude.
ETP Fishing Area 3 means all other areas within the ETP not included
in Fishing Areas 1 and 2.
Facility means, in the context specific to captive marine mammals,:
(1) One or more permanent primary enclosures used to hold marine mammals
captive (i.e., pools, lagoons) and associated infrastructure (i.e.,
equipment and supplies necessary for the care and maintenance of marine
mammals) where these enclosures are either located within the boundaries
of a single contiguous parcel of land and water, or are grouped together
within the same general area within which enclosure-to-enclosure
transport is expected to be completed in less than one hour; or
(2) A traveling display/exhibit, where the enclosure(s) and
associated infrastructure is transported together with the marine
mammals.
Feeding is offering, giving, or attempting to give food or non-food
items to marine mammals in the wild. It includes operating a vessel or
providing other platforms from which feeding is conducted or supported.
It does not include the routine discard of bycatch during fishing
operations or the routine discharge of waste or fish byproducts from
fish processing plants or other platforms if the discharge is otherwise
legal and is incidental to operation of the activity.
First exporter means the person or company that first exports the
fish or fish product, or, in the case of shipments that are subject to
the labeling requirements of 50 CFR part 247 and that only contain fish
harvested by vessels of the United States, the first seller of the fish
or fish product.
Fisheries Certificate of Origin means NOAA Form 370, as described in
50 CFR 216.24(e)(3)(iii).
Fishing season means, for the purposes of Sec. 216.24(e), those sets
made on trips that are completed between October 1 and September 30 of
the following calendar year.
[[Page 9]]
FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et
seq.
Fur seal means North Pacific fur seal, scientifically known as
Callorhinus ursinus.
Hard part means any bone, tooth, baleen, treated pelt, or other part
of a marine mammal that is relatively solid or durable.
Harvesting nation means the country under whose flag one or more
fishing vessels are documented, or which has by formal declaration
agreed to assert jurisdiction over one or more certified charter
vessels, from which vessel(s) fish are caught that are a part of any
cargo or shipment of fish to be imported into the United States,
regardless of any intervening transshipments.
Humane means the method of taking, import, export, or other activity
which involves the least possible degree of pain and suffering
practicable to the animal involved.
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into, any place subject to the
jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the Customs
laws of the United States; except that, for the purpose of any ban
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish
products, the definition of ``import'' in Sec. 216.24(e)(1)(ii) shall
apply.
Incidental catch means the taking of a marine mammal (1) because it
is directly interfering with commercial fishing operations, or (2) as a
consequence of the steps used to secure the fish in connection with
commercial fishing operations: Provided, That a marine mammal so taken
must immediately be returned to the sea with a minimum of injury and
further, that the taking of a marine mammal, which otherwise meets the
requirements of this definition shall not be considered an incidental
catch of that mammal if it is used subsequently to assist in commercial
fishing operations.
Intentional purse seine set means that a tuna purse seine vessel or
associated vessels chase marine mammals and subsequently make a purse
seine set.
Intrusive research means a procedure conducted for bona fide
scientific research involving: A break in or cutting of the skin or
equivalent, insertion of an instrument or material into an orifice,
introduction of a substance or object into the animal's immediate
environment that is likely either to be ingested or to contact and
directly affect animal tissues (i.e., chemical substances), or a
stimulus directed at animals that may involve a risk to health or
welfare or that may have an impact on normal function or behavior (i.e.,
audio broadcasts directed at animals that may affect behavior). For
captive animals, this definition does not include:
(1) A procedure conducted by the professional staff of the holding
facility or an attending veterinarian for purposes of animal husbandry,
care, maintenance, or treatment, or a routine medical procedure that, in
the reasonable judgment of the attending veterinarian, would not
constitute a risk to the health or welfare of the captive animal; or
(2) A procedure involving either the introduction of a substance or
object (i.e., as described in this definition) or a stimulus directed at
animals that, in the reasonable judgment of the attending veterinarian,
would not involve a risk to the health or welfare of the captive animal.
Kill-per-set means the number of small, toothed cetaceans (marine
mammals) killed per purse seine set made involving marine mammals.
Kill-per-ton means the number of small toothed cetacean marine
mammals killed per ton of yellowfin tuna caught in sets made on marine
mammals.
Label means a display of written, printed, or graphic matter on or
affixed to the immediate container of any article.
Land or landing means to begin offloading any fish, to arrive in
port with the intention of offloading fish, or to cause any fish to be
offloaded.
Large-scale driftnet means a gillnet that is composed of a panel or
panels of webbing, or a series of such gillnets, with a total length of
2.5 kilometers or more that is used on the high seas and allowed to
drift with the currents and winds for the purpose of harvesting fish
[[Page 10]]
by entangling the fish in the webbing of the net.
Level A Harassment means any act of pursuit, torment, or annoyance
which has the potential to injure a marine mammal or marine mammal stock
in the wild.
Level B Harassment means any act of pursuit, torment, or annoyance
which has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering but which does not have the potential to injure a
marine mammal or marine mammal stock in the wild.
Marine environment means the oceans and the seas, including
estuarine and brackish waters.
Marine mammal means those specimens of the following orders, which
are morphologically adapted to the marine environment, whether alive or
dead, and any part thereof, including but not limited to, any raw,
dressed or dyed fur or skin: Cetacea (whales and porpoises), Pinnipedia,
other than walrus (seals and sea lions).
MMPA means the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1361 et seq.
Native village or town means any community, association, tribe,
band, clan or group.
Optimum sustainable population is a population size which falls
within a range from the population level of a given species or stock
which is the largest supportable within the ecosystem to the population
level that results in maximum net productivity. Maximum net productivity
is the greatest net annual increment in population numbers or biomass
resulting from additions to the population due to reproduction and/or
growth less losses due to natural mortality.
Pregnant means pregnant near term.
Pribilovians means Indians, Aleuts, and Eskimos who live on the
Pribilof Islands.
Principal investigator means the individual primarily responsible
for the taking, importation, export, and any related activities
conducted under a permit issued for scientific research or enhancement
purposes.
Public display means an activity that provides opportunities for the
public to view living marine mammals at a facility holding marine
mammals captive.
Purse seine set on common dolphins means a purse seine set in which
more than 50 percent of the marine mammals killed are common dolphins
or, in sets with no dolphins killed, more than 50 percent of the
dolphins captured are common dolphins.
Regional Director means the Director, Southwest Region, NMFS, 501 W.
Ocean Blvd., Long Beach, CA 90802, or his/her designee.
Rehabilitation means treatment of beached and stranded marine
mammals taken under section 109(h)(1) of the MMPA or imported under
section 109(h)(2) of the MMPA, with the intent of restoring the marine
mammal's health and, if necessary, behavioral patterns.
Secretary shall mean the Secretary of Commerce or his authorized
representative.
Sexual harassment means any unwelcome sexual advance, request for
sexual favors, or other verbal and physical conduct of a sexual nature
which has the purpose or effect of substantially interfering with an
individual's work performance or creating an intimidating, hostile, or
offensive working environment.
Soft part means any marine mammal part that is not a hard part. Soft
parts do not include urine or fecal material.
South Pacific Ocean means any waters of the Pacific Ocean that lie
south of the equator.
Stranded or stranded marine mammal means a marine mammal specimen
under the jurisdiction of the Secretary:
(1) If the specimen is dead, and is on a beach or shore, or is in
the water within the Exclusive Economic Zone of the United States; or
(2) If the specimen is alive, and is on a beach or shore and is
unable to return to the water, or is in the water within the Exclusive
Economic Zone of the United States where the water is so shallow that
the specimen is unable to return to its natural habitat under its own
power.
Subsistence means the use of marine mammals taken by Alaskan Natives
for food, clothing, shelter, heating,
[[Page 11]]
transportation, and other uses necessary to maintain the life of the
taker or those who depend upon the taker to provide them with such
subsistence.
Subsistence uses means the customary and traditional uses of fur
seals taken by Pribilovians for direct personal or family consumption as
food, shelter, fuel, clothing, tools or transportation; for the making
and selling of handicraft articles out of nonedible byproducts of fur
seals taken for personal or family consumption; and for barter, or
sharing for personal or family consumption. As used in this definition--
(1) Family means all persons related by blood, marriage, or
adoption, or any person living within a household on a permanent basis.
(2) Barter means the exchange of fur seals or their parts, taken for
subsistence uses--
(i) For other wildlife or fish or their parts, or
(ii) For other food or for nonedible items other than money if the
exchange is of a limited and noncommercial nature.
Take means to harass, hunt, capture, collect, or kill, or attempt to
harass, hunt, capture, collect, or kill any marine mammal. This
includes, without limitation, any of the following: The collection of
dead animals, or parts thereof; the restraint or detention of a marine
mammal, no matter how temporary; tagging a marine mammal; the negligent
or intentional operation of an aircraft or vessel, or the doing of any
other negligent or intentional act which results in disturbing or
molesting a marine mammal; and feeding or attempting to feed a marine
mammal in the wild.
Threatened species means a species of marine mammal listed as
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat.
884, Pub. L. 93-205.
Trip means a voyage starting when a vessel leaves port with all fish
wells empty of fish and ending when a vessel unloads all of its fish.
Tuna product means any food product processed for retail sale and
intended for human or animal consumption that contains an item listed in
Sec. 216.24(e)(2)(i) or (ii), but does not include perishable items with
a shelf life of less than 3 days.
Wasteful manner means any taking or method of taking which is likely
to result in the killing of marine mammals beyond those needed for
subsistence, subsistence uses, or for the making of authentic native
articles of handicrafts and clothing, or which results in the waste of a
substantial portion of the marine mammal and includes, without
limitation, the employment of a method of taking which is not likely to
assure the capture or killing of a marine mammal, or which is not
immediately followed by a reasonable effort to retrieve the marine
mammal.
Editorial Note: For Federal Register citations affecting Sec. 216.3,
see the List of Sections Affected in the Finding Aids section of this
volume.
Sec. 216.4 Other laws and regulations.
(a) Federal. Nothing in this part, nor any permit issued under
authority of this part, shall be construed to relieve a person from any
other requirements imposed by a statute or regulation of the United
States, including any applicable statutes or regulations relating to
wildlife and fisheries, health, quarantine, agriculture, or customs.
(b) State laws or regulations. See part 403 of this chapter.
[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58
FR 65134, Dec. 13, 1993]
Sec. 216.5 Payment of penalty.
The respondent shall have 30 days from receipt of the final
assessment decision within which to pay the penalty assessed. Upon a
failure to pay the penalty, the Secretary may request the Attorney
General to institute a civil action in the appropriate United States
District Court to collect the penalty.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]
Sec. 216.6 Forfeiture and return of seized property.
(a) Whenever any cargo or marine mammal or marine mammal product has
been seized pursuant to section 107 of the MMPA, the Secretary shall
expedite any proceedings commenced under these regulations.
(b) Whenever a civil penalty has been assessed by the Secretary
under these
[[Page 12]]
regulations, any cargo, marine mammal, or marine mammal product seized
pursuant to section 107 of the MMPA shall be subject to forfeiture. If
respondent voluntarily forfeits any such seized property or the monetary
value thereof without court proceedings, the Secretary may apply the
value thereof, if any, as determined by the Secretary, toward payment of
the civil penalty.
(c) Whenever a civil penalty has been assessed under these
regulations, and whether or not such penalty has been paid, the
Secretary may request the Attorney General to institute a civil action
in an appropriate United States District Court to compel forfeiture of
such seized property or the monetary value thereof to the Secretary for
disposition by him in such manner as he deems appropriate. If no
judicial action to compel forfeiture is commenced within 30 days after
final decision-making assessment of a civil penalty, pursuant to
Sec. 216.60, such seized property shall immediately be returned to the
respondent.
(d) If the final decision of the Secretary under these regulations
is that respondent has committed no violation of the MMPA or of any
permit or regulations issued thereunder, any marine mammal, marine
mammal product, or other cargo seized from respondent in connection with
the proceedings under these regulations, or the bond or other monetary
value substituted therefor, shall immediately be returned to the
respondent.
(e) If the Attorney General commences criminal proceedings pursuant
to section 105(b) of the MMPA, and such proceedings result in a finding
that the person accused is not guilty of a criminal violation of the
MMPA, the Secretary may institute proceedings for the assessment of a
civil penalty under this part: Provided, That if no such civil penalty
proceedings have been commenced by the Secretary within 30 days
following the final disposition of the criminal case, any property
seized pursuant to section 107 of the MMPA shall be returned to the
respondent.
(f) If any seized property is to be returned to the respondent, the
Regional Director shall issue a letter authorizing such return. This
letter shall be dispatched to the respondent by registered mail, return
receipt requested, and shall identify the respondent, the seized
property, and, if appropriate, the bailee of the seized property. It
shall also provide that upon presentation of the letter and proper
identification, the seized property is authorized to be released. All
charges for storage, care, or handling of the seized property accruing 5
days or more after the date of the return receipt shall be for the
account of the respondent: Provided, That if it is the final decision of
the Secretary under these regulations that the respondent has committed
the alleged violation, all charges which have accrued for the storage,
care, or handling of the seized property shall be for the account of the
respondent.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981,
and amended at 59 FR 50375, Oct. 3, 1994]
Sec. 216.7 Holding and bonding.
(a) Any marine mammal, marine mammal product, or other cargo seized
pursuant to section 107 of the MMPA shall be delivered to the
appropriate Regional Director of the National Marine Fisheries Service
(see Sec. 201.2 of this title) or his designee, who shall either hold
such seized property or arrange for the proper handling and care of such
seized property.
(b) Any arrangement for the handling and care of seized property
shall be in writing and shall state the compensation to be paid. Subpart
F of 15 CFR part 904 contains additional procedures that govern seized
property that is subject to forfeiture or has been forfeited under the
MMPA.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981,
and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994]
Sec. 216.8 Enforcement officers.
Enforcement Agents of the National Marine Fisheries Service shall
enforce the provisions of the MMPA and may take any actions authorized
by the MMPA with respect to enforcement. In addition, the Secretary may
utilize, by agreement, the personnel, services, and facilities of any
other Federal Agency for the purposes of enforcing this MMPA. Pursuant
to the terms of section 107(b) of the MMPA, the Secretary
[[Page 13]]
may also designate officers and employees of any State or of any
possession of the United States to enforce the provisions of this MMPA.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981,
and amended at 59 FR 50375, Oct. 3, 1994]
Subpart B--Prohibitions
Sec. 216.11 Prohibited taking.
Except as otherwise provided in subparts C, D, and I of this part
216 or in part 228 or 229, it is unlawful for:
(a) Any person, vessel, or conveyance subject to the jurisdiction of
the United States to take any marine mammal on the high seas, or
(b) Any person, vessel, or conveyance to take any marine mammal in
waters or on lands under the jurisdiction of the United States, or
(c) Any person subject to the jurisdiction of the United States to
take any marine mammal during the moratorium.
[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54
FR 21921, May 19, 1989]
Sec. 216.12 Prohibited importation.
(a) Except as otherwise provided in subparts C and D of this part
216, it is unlawful for any person to import any marine mammal or marine
mammal product into the United States.
(b) Regardless of whether an importation is otherwise authorized
pursuant to subparts C and D of this part 216, it is unlawful for any
person to import into the United States any:
(1) Marine mammal:
(i) Taken in violation of the MMPA, or
(ii) Taken in another country in violation to the laws of that
country;
(2) Any marine mammal product if
(i) The importation into the United States of the marine mammal from
which such product is made would be unlawful under paragraph (b)(1) of
this section, or
(ii) The sale in commerce of such product in the country of origin
if the product is illegal.
(c) Except in accordance with an exception referred to in subpart C
and Secs. 216.31 (regarding scientific research permits only) and 216.32
of this part 216, it is unlawful to import into the United States any:
(1) Marine mammal which was pregnant at the time of taking.
(2) Marine mammal which was nursing at the time of taking, or less
than 8 months old, whichever occurs later.
(3) Specimen of an endangered or threatened species of marine
mammal.
(4) Specimen taken from a depleted species or stock of marine
mammals, or
(5) Marine mammal taken in an inhumane manner.
(d) It is unlawful to import into the United States any fish,
whether fresh, frozen, or otherwise prepared, if such fish was caught in
a manner proscribed by the Secretary of Commerce for persons subject to
the jurisdiction of the United States, whether or not any marine mammals
were in fact taken incident to the catching of the fish.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]
Sec. 216.13 Prohibited uses, possession, transportation, sales, and permits.
It is unlawful for:
(a) Any person to use any port, harbor or other place under the
jurisdiction of the United States for any purpose in any way connected
with a prohibited taking or an unlawful importation of any marine mammal
or marine mammal product; or
(b) Any person subject to the jurisdiction of the United States to
possess any marine mammal taken in violation of the MMPA or these
regulations, or to transport, sell, or offer for sale any such marine
mammal or any marine mammal product made from any such mammal.
(c) Any person subject to the jurisdiction of the United States to
use in a commercial fishery, any means or method of fishing in
contravention of regulations and limitations issued by the Secretary of
Commerce for that fishery to achieve the purposes of this MMPA.
(d) Any person to violate any term, condition, or restriction of any
permit issued by the Secretary.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3,
1994; 61 FR 21933, May 10, 1996]
[[Page 14]]
Sec. 216.14 Marine mammals taken before the MMPA.
(a) Section 102(e) of the MMPA provides, in effect, that the MMPA
shall not apply to any marine mammal taken prior to December 21, 1972,
or to any marine mammal product, consisting of or composed in whole or
in part of, any marine mammal taken before that date. This prior status
of any marine mammal or marine mammal product may be established by
submitting to the Director, National Marine Fisheries Service prior to,
or at the time of importation, an affidavit containing the following:
(1) The Affiant's name and address;
(2) Identification of the Affiant;
(3) A description of the marine mammals or marine mammal products
which the Affiant desires to import;
(4) A statement by the Affiant that, to the best of his knowledge
and belief, the marine mammals involved in the application were taken
prior to December 21, 1972;
(5) A statement by the Affiant in the following language:
The foregoing is principally based on the attached exhibits which,
to the best of my knowledge and belief, are complete, true and correct.
I understand that this affidavit is being submitted for the purpose of
inducing the Federal Government to permit the importation of--under the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and
regulations promulgated thereunder, and that any false statements may
subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties
under the Marine Mammal Protection Act of 1972.
(b) Either one of two exhibits shall be attached to such affidavit,
and will contain either:
(1) Records or other available evidence showing that the product
consists of or is composed in whole or in part of marine mammals taken
prior to the effective date of the MMPA. Such records or other
evidentiary material must include information on how, when, where, and
by whom the animals were taken, what processing has taken place since
taking, and the date and location of such processing; or
(2) A statement from a government agency of the country of origin
exercising jurisdiction over marine mammals that any and all such
mammals from which the products sought to be imported were derived were
taken prior to December 21, 1972.
(c) No pre-Act marine mammal or pre-Act marine mammal product may be
imported unless the requirements of this section have been fulfilled.
(d) This section has no application to any marine mammal or marine
mammal product intended to be imported pursuant to Secs. 216.21, 216.31
or Sec. 216.32.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3,
1994]
Sec. 216.15 Depleted species.
The following species or population stocks have been designated by
the Assistant Administrator as depleted under the provisions of the
MMPA.
(a) Hawaiian monk seal (Monachus schauinslandi).
(b) Bowhead whale (Balaena mysticetus).
(c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island
population.
(d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock
along the U.S. mid-Atlantic coast.
(e) Eastern spinner dolphin (Stenella longirostris orientalis).
(f) Northeastern offshore spotted dolphin (Stenella attenuata).
[53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58
FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3,
1994]
Sec. 216.16 Prohibitions under the General Authorization for Level B harassment for scientific research.
It shall be unlawful for any person to:
(a) Provide false information in a letter of intent submitted
pursuant to Sec. 216.45(b);
(b) Violate any term or condition imposed pursuant to
Sec. 216.45(d).
[59 FR 50376, Oct. 3, 1994]
Subpart C--General Exceptions
Sec. 216.21 Actions permitted by international treaty, convention, or agreement.
The MMPA and these regulations shall not apply to the extent that
they are inconsistent with the provisions of any international treaty,
convention
[[Page 15]]
or agreement, or any statute implementing the same relating to the
taking or importation of marine mammals or marine mammal products, which
was existing and in force prior to December 21, 1972, and to which the
United States was a party. Specifically, the regulations in subpart B of
this part and the provisions of the MMPA shall not apply to activities
carried out pursuant to the Interim Convention on the Conservation of
North Pacific Fur Seals signed at Washington on February 9, 1957, and
the Fur Seal Act of 1966, 16 U.S.C. 1151 through 1187, as in each case,
from time to time amended.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]
Sec. 216.22 Taking by State or local government officials.
(a) A State or local government official or employee may take a
marine mammal in the normal course of his duties as an official or
employee, and no permit shall be required, if such taking:
(1) Is accomplished in a humane manner;
(2) Is for the protection or welfare of such mammal or for the
protection of the public health or welfare; and
(3) Includes steps designed to insure return of such mammal, if not
killed in the course of such taking, to its natural habitat. In
addition, any such official or employee may, incidental to such taking,
possess and transport, but not sell or offer for sale, such mammal and
use any port, harbor, or other place under the jurisdiction of the
United States. All steps reasonably practicable under the circumstances
shall be taken by any such employee or official to prevent injury or
death to the marine mammal as the result of such taking. Where the
marine mammal in question is injured or sick, it shall be permissible to
place it in temporary captivity until such time as it is able to be
returned to its natural habitat. It shall be permissible to dispose of a
carcass of a marine mammal taken in accordance with this subsection
whether the animal is dead at the time of taking or dies subsequent
thereto.
(b) Each taking permitted under this section shall be included in a
written report to be submitted to the Secretary every six months
beginning December 31, 1973. Unless otherwise permitted by the
Secretary, the report shall contain a description of:
(1) The animal involved;
(2) The circumstances requiring the taking;
(3) The method of taking;
(4) The name and official position of the State official or employee
involved;
(5) The disposition of the animal, including in cases where the
animal has been retained in captivity, a description of the place and
means of confinement and the measures taken for its maintenance and
care; and
(6) Such other information as the Secretary may require.
(c) Salvage of dead stranded marine mammals or parts therefrom and
subsequent transfer.
(1) Salvage. In the performance of official duties, a state or local
government employee; an employee of the National Marine Fisheries
Service, the U.S. Fish and Wildlife Service, or any other Federal agency
with jurisdiction and conservation responsibilities in marine shoreline
areas; or a person authorized under 16 U.S.C. 1382(c) may take and
salvage a marine mammal specimen if it is stranded and dead or it was
stranded or rescued and died during treatment, transport, captivity or
other rehabilitation subsequent to that stranding or distress if salvage
is for the purpose of utilization in scientific research or for the
purpose of maintenance in a properly curated, professionally accredited
scientific collection.
(2) Registration. A person salvaging a dead marine mammal specimen
under this section must register the salvage of the specimen with the
appropriate Regional Office of the National Marine Fisheries Service
within 30 days after the taking or death occurs. The registration must
include:
(i) The name, address, and any official position of the individual
engaged in the taking and salvage;
(ii) A description of the marine mammal specimen salvaged including
the scientific and common names of the species;
(iii) A description of the parts salvaged;
[[Page 16]]
(iv) The date and the location of the taking;
(v) Such other information as deemed necessary by the Assistant
Administrator.
(3) Identification and curation. The Regional Director will assign a
single unique number to each carcass, and the parts thereof, that are
salvaged under the provisions of this section. The person who salvaged
the specimen may designate the number to be assigned. After this number
is assigned, the person who salvaged the specimen must permanently mark
that number on each separate hard part of that specimen and must affix
that number with tags or labels to each soft part of that specimen or
the containers in which that soft part is kept. Each specimen salvaged
under this section must be curated in accordance with professional
standards.
(4) No sale or commercial trade. No person may sell or trade for
commercial purposes any marine mammal specimen salvaged under this
section.
(5) Transfer without prior authorization. A person who salvages a
marine mammal specimen under this section may transfer that specimen to
another person if:
(i) The person transferring the marine mammal specimen does not
receive remuneration for the specimen;
(ii) The person receiving the marine mammal specimen is an employee
of the National Marine Fisheries Service, the U.S. Fish and Wildlife
Service, or any other Federal agency with jurisdiction and conservation
responsibilities in marine shoreline areas; is a person authorized under
16 U.S.C. 1382(c); or is a person who has received prior authorization
under paragraph (c)(6) of this section;
(iii) The marine mammal specimen is transferred for the purpose of
scientific research, for the purpose of maintenance in a properly
curated, professionally accredited scientific collection, or for
educational purposes;
(iv) The unique number assigned by the National Marine Fisheries
Service is on, marked on, or affixed to the marine mammal specimen or
container; and
(v) Except as provided under paragraph (c)(8) of this section, the
person transferring the marine mammal specimen notifies the appropriate
Regional Office of the National Marine Fisheries Service of the
transfer, including notification of the number of the specimen
transferred and the person to whom the specimen was transferred, within
30 days after the transfer occurs.
(6) Other transfers within the United States. Except as provided
under paragraphs (c)(5) and (c)(8) of this section, a person who
salvages a marine mammal specimen, or who has received a marine mammal
specimen under the provisions of this section, may not transfer that
specimen to another person within the United States unless the Regional
Director of the appropriate Regional Office of the National Marine
Fisheries Service grants prior written authorization for the transfer.
The Regional Director may grant authorization for the transfer if there
is evidence that the conditions listed under paragraphs (c)(5)(i),
(c)(5)(iii), and (c)(5)(iv) of this section are met.
(7) Tranfers outside of the United States. A person who salvages a
marine mammal specimen, or a person who has received a marine mammal
specimen under the provisions of this section, may not transfer that
specimen to a person outside of the United States unless the Assistant
Administrator grants prior written authorization for the transfer. The
Assistant Administrator may grant authorization for the transfer if
there is evidence that the conditions listed under paragraphs (c)(5)(i),
(c)(5)(iii), and (c)(5)(iv) of this section are met.
(8) Exceptions to requirements for notification or prior
authorization. A person may transfer a marine mammal specimen salvaged
under this section without the notification required in paragraph
(c)(5)(v) of this section or the prior authorization required in
paragraph (c)(6) of this section if:
(i) The transfer is a temporary transfer to a laboratory or research
facility within the United States so that analyses can be performed for
the person salvaging the specimen; or
(ii) The transfer is a loan of not more than 1 year to another
professionally
[[Page 17]]
accredited scientific collection within the United States.
[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]
Sec. 216.23 Native exceptions.
(a) Taking. Notwithstanding the prohibitions of subpart B of this
part 216, but subject to the restrictions contained in this section, any
Indian, Aleut, or Eskimo who resides on the coast of the North Pacific
Ocean or the Arctic Ocean may take any marine mammal without a permit,
if such taking is:
(1) By Alaskan Natives who reside in Alaska for subsistence, or
(2) For purposes of creating and selling authentic native articles
of handicraft and clothing, and
(3) In each case, not accomplished in a wasteful manner.
(b) Restrictions. (1) No marine mammal taken for subsistence may be
sold or otherwise transferred to any person other than an Alaskan Native
or delivered, carried, transported, or shipped in interstate or foreign
commerce, unless:
(i) It is being sent by an Alaskan Native directly or through a
registered agent to a tannery registered under paragraph (c) of this
section for the purpose of processing, and will be returned directly or
through a registered agent to the Alaskan Native; or
(ii) It is sold or transferred to a registered agent in Alaska for
resale or transfer to an Alaskan Native; or
(iii) It is an edible portion and it is sold in an Alaskan Native
village or town.
(2) No marine mammal taken for purposes of creating and selling
authentic native articles of handicraft and clothing may be sold or
otherwise transferred to any person other than an Indian, Aleut or
Eskimo, or delivered, carried, transported or shipped in interstate or
foreign commerce, unless:
(i) It is being sent by an Indian, Aleut or Eskimo directly or
through a registered agent to a tannery registered under paragraph (c)
of this section for the purpose of processing, and will be returned
directly or through a registered agent to the Indian, Aleut or Eskimo;
or
(ii) It is sold or transferred to a registered agent for resale or
transfer to an Indian, Aleut, or Eskimo; or
(iii) It has first been transformed into an authentic native article
of handicraft or clothing; or
(iv) It is an edible portion and sold (A) in an Alaskan Native
village or town, or (B) to an Alaskan Native for his consumption.
(c) Any tannery, or person who wishes to act as an agent, within the
jurisdiction of the United States may apply to the Director, National
Marine Fisheries Service, U.S. Department of Commerce, Washington, DC
20235, for registration as a tannery or an agent which may possess and
process marine mammal products for Indians, Aleuts, or Eskimos. The
application shall include the following information:
(i) The name and address of the applicant;
(ii) A description of the applicant's procedures for receiving,
storing, processing, and shipping materials;
(iii) A proposal for a system of bookkeeping and/or inventory
segregation by which the applicant could maintain accurate records of
marine mammals received from Indians, Aleuts, or Eskimos pursuant to
this section;
(iv) Such other information as the Secretary may request;
(v) A certification in the following language:
I hereby certify that the foregoing information is complete, true
and correct to the best of my knowledge and belief. I understand that
this information is submitted for the purpose of obtaining the benefit
of an exception under the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361 through 1407) and regulations promulgated thereunder, and
that any false statement may subject me to the criminal penalties of 18
U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of
1972.
(vi) The signature of the applicant.
The sufficiency of the application shall be determined by the Secretary,
and in that connection, he may waive any requirement for information, or
require any elaboration or further information deemed necessary. The
registration of a tannery or other agent shall be subject to such
conditions as the Secretary prescribes, which may include,
[[Page 18]]
but are not limited to, provisions regarding records, inventory
segregation, reports, and inspection. The Secretary may charge a
reasonable fee for processing such applications, including an
appropriate apportionment of overhead and administrative expenses of the
Department of Commerce.
(d) Notwithstanding the preceding provisions of this section,
whenever, under the MMPA, the Secretary determines any species of stock
of marine mammals to be depleted, he may prescribe regulations pursuant
to section 103 of the MMPA upon the taking of such marine animals by any
Indian, Aleut, or Eskimo and, after promulgation of such regulations,
all takings of such marine mammals shall conform to such regulations.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]
Sec. 216.24 Taking and related acts incidental to commercial fishing operations.
Note to Sec. 216.24: The provisions of 50 CFR part 229, rather than
Sec. 216.24, will govern the incidental taking of marine mammals in the
course of commercial fishing operations by persons using vessels of the
United States, other than vessels used in the eastern tropical Pacific
yellowfin tuna purse seine fishery, and vessels which have valid fishing
permits issued in accordance with section 204(b) of the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1824(b)). Other commercial
fisheries remain subject to regulations under Sec. 216.24.
(a)(1) No marine mammals may be taken in the course of a commercial
fishing operation unless: The taking constitutes an incidental catch as
defined in Sec. 216.3, a general permit and certificate(s) of inclusion
have been obtained in accordance with these regulations and such taking
is not in violation of such permit, certificate(s), and regulations.
(2)(i) It is unlawful for any person using a Class I (400 short tons
(362.8 metric tons) carrying capacity or less) or Class II (greater than
400 short tons (362.8 metric tons) carrying capacity, built before 1961)
U.S. purse seine fishing vessel on a fishing involving the utilization
of purse seines to capture yellowfin tuna, that is not operating under a
Category 2 general permit and certificate(s) of inclusion, to carry more
than two speedboats if any part of its fishing trip is in the Pacific
Ocean area described in the General Permit for gear Category 2
operations.
(ii) It is unlawful for any person using a Class III (greater than
400 short tons (362.8 metric tons) carrying capacity, built after 1960)
U.S. purse seine fishing vessel that does not have and operate under a
valid operator and vessel certificate of inclusion, to catch, possess,
or land tuna from a fishing trip that includes the Pacific Ocean area
described in the General Permit for gear Category 2 operations.
(iii) It is unlawful for any person subject to the jurisdiction of
the United States to receive, purchase, or possess tuna caught,
possessed, or landed in violation of paragraph (a)(2)(ii) of this
section.
(iv) It is unlawful for a person subject to the jurisdiction of the
United States intentionally to deploy a purse seine net on, or to
encircle, dolphins from a vessel operating in the ETP when the DML
assigned to that vessel has been reached, or when there is not a DML
assigned to that vessel.
(3) Upon written request in advance of entering the General Permit
area, the limitation in (a)(2) may be waived by the Director, Southwest
Region for the purpose of allowing transit through the General Permit
area. The waiver will provide in writing the terms and conditions under
which the vessel must operate, including a requirement to report by
radio to the Director, Southwest Region the vessel's date of exit from
or subsequent entry to the permit area, in order to transit the area
with more than two speedboats.
(b) [Reserved]
(c) Certificates of inclusion--(1) Vessel certificates of inclusion.
The owner or managing owner of a vessel that participates in commercial
fishing operations under the ATA permit must hold a valid vessel
certificate of inclusion. Such certificates are not transferable and
must be renewed annually. If a vessel certificate holder surrenders his/
her certificate to the Director, Southwest Region, the certificate shall
not be returned nor shall a new certificate be issued before the end of
the calendar year. This provision does not
[[Page 19]]
apply when a change of vessel ownership occurs.
(2) Operator's certificate of inclusion. The person in charge of and
actually controlling fishing operations (hereinafter referred to as the
operator) on a vessel engaged in commercial fishing operations under the
ATA permit, must hold a valid operator's certificate of inclusion. Such
certificates are not transferable, and must be renewed annually. In
order to receive a certification of inclusion, the operator must have
satisfactorily completed all required training.
(3) A vessel certificate issued pursuant to paragraph (c)(1) of this
section must be on board the vessel while it is engaged in fishing
operations and the operator's certificate issued pursuant to paragraph
(c)(2) of this section must be in the possession of the operator to whom
it was issued. Certificates must be shown upon request to an enforcement
agent or other National Marine Fisheries Service (NMFS) designated
agent. Vessels and operators at sea on a fishing trip on the expiration
date of their certificate of inclusion, to whom or to which a
certificate of inclusion for the next year has been issued, may take
marine mammals under the terms of the new certificate. A vessel owner or
operator is obligated to obtain or place the new certificate on board,
as appropriate, when the vessel next returns to port.
(4) Applications. Owners or managing owners of purse seine vessels
should make application for vessel certificates of inclusion to the
Director, Southwest Region. Applications for vessel certificates of
inclusion must contain:
(i) The name of the vessel that is to appear on the certificate(s)
of inclusion;
(ii) The category of the general permit under which the applicant
wishes to be included;
(iii) The species of fish sought and general area of operations;
(iv) The identity of state and local commercial fishing licenses, if
applicable, under which vessel operations are conducted, and dates of
expiration;
(v) The name of the operator and date of training, if applicable;
and
(vi) The name and signature of the applicant, whether owner or
managing owner, address, and if applicable, the organization acting on
behalf of the vessel.
(5) Fees. (i) Applications for certificates of inclusion under
paragraph (c)(1) of this section must include a fee of $200.00 for each
vessel named in the application, unless the applicant's income is below
Federal poverty guidelines and the applicant shows in the application
that his/her income is below such guidelines, in which case a fee of
$20.00 must be included.
(ii) The Assistant Administrator may change the amount of the fee
required at any time a different fee is determined to be reasonable, and
notification of such change shall be published in the Federal Register.
(6) The Director, Southwest Region shall determine the adequacy and
completeness of applications, and upon said determination that such
applications are adequate and complete, shall approve such applications
and issue the certificate(s).
(7) Failure to comply with provisions of the ATA permit,
certificates of inclusion, or these regulations may lead to suspension,
revocation, modification, or denial of a certificate of inclusion. It
may also subject the certificate holder, vessel, vessel owner, operator,
or master to the penalties provided under the MMPA. Procedures governing
permit sanctions and denials are found at subpart D of 15 CFR part 904.
(8) By using an operator or vessel certificate of inclusion under
the ATA permit, the certificate holder authorizes the release to NMFS of
all data collected by observers aboard purse seine vessels during
fishing trips under the Inter-American Tropical Tuna Commission observer
program or any other international observer program in which the United
States may participate. The certificate holder must furnish the
international observer program all release forms required to provide the
observer data to NMFS. Data obtained under such releases will be used
for the same purposes as data collected directly by observers placed by
the NMFS and will be subject to the same standards of confidentiality.
[[Page 20]]
(d) Terms and conditions of certificates under general permits shall
include, but are not limited to the following:
(1) [Reserved]
(2) Encircling gear, purse seining involving the intentional taking
of marine mammals--(i) Quotas:
(A) A certificated vessel may take marine mammals only if the taking
is an incidental occurrence in the course of normal commercial tuna
purse seine fishing operations, and the fishing operations are under the
immediate direction of a person who is the holder of a valid operator's
certificate of inclusion, subject to the following conditions:
(1)-(2) [Reserved]
(3) No purse seine net may be deployed on or used to encircle any
school of dolphins in which any eastern spinner dolphin (Stenella
longirostris), coastal spotted dolphin (Stenella attenuata), or, in the
area from 40 deg. N. lat. to 5 deg. N. lat. and from 120 deg. W. long.
to the coastline of Central and South America, any offshore spotted
dolphin (Stenella attenuata), are observed in the school prior to the
release of the net skiff.
(B) The incidental mortality of marine mammals permitted under the
general permit for each category will be monitored according to the
methodology published in the Federal Register. The Assistant
Administrator shall determine on the basis of the evidence available to
him the date upon which the allowable quotas will be reached or
exceeded. Notice of the Assistant Administrator's determination shall be
published in the Federal Register not less than seven days prior to the
effective date.
(C) Except for the coastal spotted dolphin stock and the eastern
spinner dolphin stock, if at the time the net skiff attached to the net
is released from the vessel at the start of a set, and species or stocks
that are prohibited from being taken are not reasonably observable, the
fact that individuals of that species or stock are subsequently taken
will not be cause for issuance of a notice of violation provided that
all procedures required by the applicable regulations have been
followed.
(D) The general permit is valid until surrendered by the permit
holder or suspended or terminated by the Assistant Administrator
provided the permittee and certificate holders under this part continue
to use the best marine mammal safety techniques and equipment that are
economically and technologically practicable. The Assistant
Administrator may, upon receipt of new information which in his opinion
is sufficient to require modification of the general permit or
regulations, propose to modify such after consultation with the Marine
Mammal Commission. These modifications must be consistent with and
necessary to carry out the purposes of the MMPA. Any modifications
proposed by the Assistant Administrator involving changes in the quotas
will include the statements required by section 103(d) of the MMPA.
Modifications will be proposed in the Federal Register and a public
comment period will be allowed. At the request of any interested person
within 15 days after publication of the proposed modification in the
Federal Register, the Assistant Administrator may hold a public hearing
to receive and evaluate evidence in those circumstances where he has
determined it to be consistent with and necessary to carry out the
purposes of the MMPA. Such request may be for a formal hearing on the
record before an Administrative Law Judge. Within 10 days after receipt
of the request for a public hearing, the Assistant Administrator will
provide the requesting party or parties with his decision. If a request
is denied, the Assistant Administrator will state the reasons for the
denial. Within 10 days after receipt of a decision denying a request for
a formal hearing, the requesting person may file a written notice of
appeal with the Administrator. Based upon the evidence presented in the
notice, the Administrator will render a decision within 20 days from
receipt of the notice.
(ii) General conditions: (A) Marine mammals incidentally taken must
be immediately returned to the environment where captured without
further injury. The operators of purse seine vessels must take every
precaution to refrain from causing or permitting incidental mortality or
serious injury of
[[Page 21]]
marine mammals. Live marine mammals must not be brailed or hoisted onto
the deck during ortza retrieval.
(B) Operators may take such steps as are necessary to protect their
gear or person from damage or threat of personal injury. However, all
marine mammals taken in the course of commercial fishing operations
shall be subject to the definition of ``incidental catch'' in Sec. 216.3
of this part and may not be retained except where a specific permit has
been obtained authorizing the retention.
(C) The vessel certificate holder shall notify the Director,
Southwest Region of any change of vessel operator within at least 48
hours prior to departing on the next scheduled trip.
(iii) Reporting requirements: In accordance with Sec. 216.24(f) of
these regulations, the following specific reporting procedures shall be
required:
(A) The vessel certificate holder of each certificated vessel, who
has been notified via certified letter from NMFS that his/her vessel is
required to carry an observer, shall notify the Director, Southwest
Region at least 5 days in advance of the vessel's departure on a fishing
voyage to allow for observer placement. After a fishing voyage is
initiated, the vessel is obligated to carry an observer until the vessel
returns to port and one of the following conditions is met:
(1) Unloads more than 400 tons of any species of tuna; or
(2) Unloads any amount of any species of tuna equivalent to one half
of the vessel's carrying capacity; or
(3) Unloads its tuna catch after 40 days or more at sea from the
date of departure.
Further, the Director, Southwest Region, may consider special
circumstances for exemptions to this definition, provided written
requests clearly describing the circumstances are received prior to the
termination or the initiation of a fishing voyage. A response to the
written request will be made by the Director, Southwest Region within
five (5) days after receipt of the request. A vessel whose vessel
certificate holder has failed to comply with the provisions of this
section may not engage in fishing operations for which a general permit
is required.
(B) [Reserved]
(C) The Director, Southwest Region, will provide to the public,
periodic quota status reports summarizing the estimated incidental
porpoise mortality by U.S. vessels of individual species and stock.
(iv) A vessel having a vessel certificate issued under paragraph
(c)(1) may not engage in fishing operations for which a general permit
is required unless it is equipped with a porpoise safety panel in its
purse seine, and has and uses the other required gear, equipment, and
procedures.
(A) Class I and II Vessels: For Class I purse seiners (400 short
tons carrying capacity or less) and for Class II purse seiners (greater
than 400 short tons carrying capacity, built before 1961), the porpoise
safety panel must be a minimum of 100 fathoms in length (as measured
before installation), except that the minimum length of the panel in
nets deeper than 10 strips must be determined at a ratio of 10 fathoms
in length for each strip that the net is deep. It must be installed so
as to protect the perimeter of the backdown area. The perimeter of the
backdown area is the length of the corkline which begins at the outboard
end of the last bow bunch pulled and continues to at least two-thirds
the distance from the backdown channel apex to the stern tiedown point.
The porpoise safety panel must consist of small mesh webbing not to
exceed 1\1/4\" stretch mesh, extending from the corkline downward to a
minimum depth equivalent to one strip of 100 meshes of 4\1/4\" stretch
mesh webbing. In addition, at least a 20-fathom length of corkline must
be free from bunchlines at the apex of the backdown channel.
(B) Class III Vessels: For Class III purse seiners (greater than 400
short tons carrying capacity, built after 1960), the porpoise safety
panel must be a minimum of 180 fathoms in length (as measured before
installation), except that the minimum length of the panel in nets
deeper than 18 strips must be determined in a ratio of 10 fathoms in
length for each strip of net depth. It must be installed so as to
protect the perimeter of the backdown area. The perimeter of the
backdown area is the length of corkline which begins at the
[[Page 22]]
outboard end of the last bowbunch pulled and continues to at least two-
thirds the distance from the backdown channel apex to the stern tiedown
point. The porpoise safety panel must consist of small mesh webbing not
to exceed 1\1/4\" stretch mesh extending downward from the corkline and,
if present, the base of the porpoise apron to a minimum depth equivalent
to two strips of 100 meshes of 4\1/4\" stretch mesh webbing. In
addition, at least a 20-fathom length of corkline must be free from
bunchlines at the apex of the backdown channel.
(C) Porpoise safety panel markers: Each end of the porpoise safety
panel and porpoise apron shall be identified with an easily
distinguishable marker.
(D) Porpoise safety panel hand holds: Throughout the length of the
corkline under which the porpoise safety panel and porpoise apron are
located, hand hold openings are to be secured so that the insertion of a
1\3/8\" diameter cylindrical-shaped object meets resistance.
(E) Porpoise safety panel corkline hangings: Throughout the length
of the corkline under which the porpoise safety panel and porpoise apron
are located, corkline hangings shall be inspected by the vessel operator
following each trip. Hangings found to have loosened to the extent that
a cylindrical object with a 1\3/8\" diameter will not meet resistance
when inserted between the cork and corkline hangings, must be tightened
so that a cylindrical object with a 1\3/8\" diameter cannot be inserted.
(F) Speedboats: Certificated vessels engaged in fishing operations
involving setting on marine mammals shall carry a minimum of two
speedboats in operating condition. All speedboats carried aboard purse
seine vessels and in operating condition shall be rigged with towing
bridles and towlines. Speedboat hoisting bridles shall not be
substituted for towing bridles.
(G) Raft: A raft suitable to be used as a porpoise observation-and-
rescue platform shall be carried on all certificated vessels.
(H) Facemask and snorkel, or viewbox: At least two facemasks and
snorkels, or viewboxes, must be carried on all certificated vessels.
(I) Lights: All certificated vessels shall be equipped by July 1,
1986, with lights capable of producing a minimum of 140,000 lumens of
output for use in darkness to ensure sufficient light to observe that
procedures for porpoise release are carried out and to monitor
incidental porpoise mortality.
(v) Vessel inspection: (A) Annual: At least once during each
calendar year, purse seine nets and other gear and equipment required by
these regulations shall be made available for inspection by an
authorized National Marine Fisheries Service Inspector as specified by
the Director, Southwest Region.
(B) Reinspection: Purse seine nets and other gear and equipment
required by these regulations shall be made available for reinspection
by an authorized National Marine Fisheries Service Inspector as
specified by the Director, Southwest Region. The vessel certificate
holder shall notify the Director, Southwest Region of any net
modification at least 5 days prior to departure of the vessel in order
to determine whether a reinspection or trial set is required.
(C) Upon failure to pass an inspection or reinspection, a vessel
having a vessel certificate of inclusion issued under paragraph (c)(1)
may not engage in fishing operations for which a general permit is
required until the deficiencies in gear or equipment are corrected as
required by an authorized National Marine Fisheries Service inspector.
(vi) Operator training requirements. All operators shall maintain
proficiency sufficient to perform the procedures required herein, and
must attend and satisfactorily complete a formal training session
conducted under the auspices of the National Marine Fisheries Service in
order to obtain their certificate of inclusion. At the training session
an attendee shall be instructed concerning the provisions of the Marine
Mammal Protection Act of 1972, the regulations promulgated pursuant to
the MMPA, and the fishing gear and techniques which are required or will
contribute to reducing serious injury and mortality of porpoise
incidental to purse seining for tuna. Operators who have
[[Page 23]]
received a written certificate of satisfactory completion of training
and who possess a current or previous calendar year certificate of
inclusion will not be required to attend additional formal training
sessions unless there are substantial changes in the MMPA, the
regulations, or the required fishing gear and techniques. Additional
training may be required for any operator who is found by the Director,
Southwest Region, to lack proficiency in the procedures required.
(vii) Marine mammal release requirements: All operators shall use
the following procedures during all sets involving the incidental taking
of marine mammals in association with the capture and landing of tuna.
(A) Backdown procedure: Backdown shall be performed following a
purse seine set in which marine mammals are captured in the course of
catching and landing tuna, and shall be continued until it is no longer
possible to remove live marine mammals from the net by this procedure.
Thereafter, other release procedures required shall be continued until
all live animals have been released from the net.
(B) Prohibited use of sharp or pointed instrument: The use of a
sharp or pointed instrument to remove any marine mammal from the net is
prohibited.
(C) Sundown sets prohibited. On every set encircling porpoise, the
backdown procedure must be completed and rolling of the net to sack-up
must be begun before one-half hour after sundown, except as provided
below. For the purpose of this section, sundown is defined as the time
at which the upper edge of the sun disappears below the horizon or, if
view of the sun is obscured, the local time of sunset calculated from
tables developed by the U.S. Naval Observatory. A sundown set is a set
in which the backdown procedure has not been completed and rolling the
net to sack-up has not begun within one-half hour after sundown. Should
a set extend beyond one-half hour after sundown, the operator must use
the required marine mammal release procedures including the use of the
high intensity lighting system.
(1) A certificated operator may obtain an initial waiver from this
prohibition, for trips with an observer, by establishing to the
satisfaction of the Director, Southwest Region, NMFS, based upon NMFS
and Inter-American Tropical Tuna Commission (IATTC) observer records,
that the operator's average kill of marine mammals per set in sundown
sets involving marine mammals was 3.01 marine mammals or fewer.
(i) The application must include the following:
(A) Name of the operator as it appears on the certificate of
inclusion;
(B) The dates of all observed trips any part of which occurred since
July 1, 1986 and observed trips before that date, if necessary to
include a minimum of three observed sundown sets;
(C) Names of the vessels operated during those trips;
(D) The number of marine mammals killed in sundown sets and the
number of sundown sets involving marine mammals;
(E) Detailed description of the circumstances that support any
request that the mortality associated with a particular sundown set be
excluded from consideration; and
(F) The operator's signature or the signature of an individual
authorized by the operator to make the application in the operator's
absence.
(ii) All sundown sets since July 1, 1986 will be considered for this
determination, except that the Director, Southwest Region will exclude
one sundown set from each twelve month period from the calculations of
average kill if the operator establishes to the satisfaction of the
Director, Southwest Region that the kill in that sundown set was due to
an unforeseeable equipment malfunction that could not have been avoided
by reasonable diligence in operating or maintaining the vessel.
(iii) An operator must have a minimum of five observed sundown sets
for the Director, Southwest Region to consider in determining whether or
not the operator qualifies for an exemption. If an operator does not
have five observed sundown sets since July 1, 1986, the Director,
Southwest Region will consider records from observed trips before that
date, starting with the most recent observed trip during which a sundown
set was made and reviewing as many trips as necessary to
[[Page 24]]
obtain at least five sundown sets for consideration.
(2) An operator fishing under an exemption from the sundown set
prohibition must follow the marine mammal release requirements,
including the use of high intensity lights for sets that continue one-
half hour past sundown.
(3) An operator exemption is valid for one calendar year only on
trips carrying a NMFS or IATTC observer and expires on December 31,
unless renewed by the Director, Southwest Region.
(4) An exemption will be reviewed annually between November 1 and
December 15 and the exemption will not be renewed if the operator's
average mortality in sundown sets during trips completed in the previous
twelve month period ending November 1 exceeds the United States fleet's
average mortality rate in daylight sets for all of the observed trips
completed in the same period.
(5) An operator who is notified that his or her exemption will not
be renewed, or who anticipates not getting renewed, may petition the
Director, Southwest Region in writing to reinstate the exemption based
on excluding from the calculations one set where an unforeseeable
equipment malfunction caused mortality in a sundown set that could not
have been avoided by reasonable diligence in operating or maintaining
the vessel. The Director, Southwest Region will reinstate the exemption
if the evidence supports excluding the set and if the resulting
recalculation of the operator's performance meets the standard required
by these regulations.
(D) Porpoise Safety Panel: During backdown, the porpoise safety
panel must be positioned so that it protects the perimeter of the
backdown area. The perimeter of the backdown area is the length of
corkline which begins at the outboard end of the last bow bunch pulled
and continues to at least two-thirds the distance from the backdown
channel apex to the stern tiedown point. Any super apron must be
positioned at the apex of the backdown channel.
(E) Use of explosive devices: The use of explosive devices is
prohibited in all tuna purse seine operations that involve marine
mammals.
(viii) Experimental fishing operations: The Assistant Administrator
may authorize experimental fishing operations and may waive, as
appropriate, any requirements within Sec. 216.24(d)(2), except quotas on
the incidental kill of marine mammals and the prohibition on setting
nets on pure schools of certain porpoise species.
(A) A vessel certificate holder may apply for an experimental
fishing operation waiver by submitting the following information to the
Assistant Administrator no less than 90 days before the intended date
the proposed operation is intended to begin:
(1) Name(s) of the vessel(s) and the vessel certificate holder(s) to
participate;
(2) A statement of the specific vessel gear and equipment or
procedural requirement to be exempted and why such an exemption is
necessary to conduct the experiment;
(3) A description of how the proposed modification to the gear or
procedures is expected to reduce incidental mortalities or serious
injury of marine mammals;
(4) A description of the applicability of this modification to other
purse seine vessels;
(5) Planned design, time, duration, and general area of the
experimental operation;
(6) Name(s) of the certificated operator(s) of the vessel(s) during
the experiment;
(7) A statement of the qualifications of the individual or company
doing the analysis of the research.
(B) The Assistant Administrator will acknowledge receipt of the
application and, upon determining that it is complete, publish notice in
the Federal Register summarizing the application, making the full
application available for inspection and inviting comments for a minimum
period of thirty days from the date of publication.
(C) The Assistant Administrator, after considering the information
identified in paragraph (d)(2)(viii)(A) of this section and the comments
received, will deny the application giving the reasons for denial or
issue a permit to conduct the experiment including restrictions and
conditions as deemed appropriate.
[[Page 25]]
(D) The permit for an experimental fishing operation will be valid
only for the vessels and operators named in the permit, for the time
period and areas specified, for trips carrying an observer assigned by
the NMFS, and when all the terms and conditions of the permit are met.
(E) The Assistant Administrator may suspend or revoke an
experimental fishing permit by written notice to the permit holder if
the terms and conditions of the permit or the provisions of the
regulations are not followed, after providing an opportunity for the
permit holder to discuss the proposed suspension or revocation.
(ix) Operator Certificate of Inclusion Holder Performance
Requirements. (A) The certificate of inclusion of any operator who makes
one or more purse seine sets on marine mammals resulting in an average
kill-per-set for a fishing trip which exceeds 26.30 marine mammals is
suspended. Such suspension shall be effective upon notification from the
Director, Southwest Region and shall be for a period of one year. If the
operator exceeds the 26.30 marine mammals killed per set average for a
subsequent trip within three years of reinstatement, the certificate is
suspended. Such suspension shall be effective upon notification by the
Director, Southwest Region and shall be for a period of one year. If the
operator's average mortality rate exceeds 26.30 marine mammals kill-per-
set on a subsequent trip within five years of the second reinstatement,
the certificate is revoked. The revocation shall be effective upon
notification by the Director, Southwest Region and shall be permanent.
An operator who is subject to a suspension or revocation under this
paragraph may petition the Director, Southwest Region to review the
operator's marine mammal mortality history. The Director, Southwest
Region may reinstate the operator's certificate if the operator
demonstrates that the operator has not exceeded a kill-per-set of 3.89
marine mammals during any of the eight consecutive observed trips
immediately preceding the trip which caused the suspension. However,
that trip will be considered as a single trip exceeding a kill-per-set
of 3.89 marine mammals and subject to the conditions described in
paragraph (d)(2)(ix)(F) of this section. The Director, Southwest Region
may exclude from the mortality calculation for a trip, those purse seine
sets in which marine mammal mortality resulted from an unavoidable and
unforeseeable equipment breakdown. The mortality rate calculated after
exclusion of a set or sets under this paragraph will determine the
action taken under this performance evaluation system.
(B) Fishing trips with five or fewer sets on marine mammals and an
average kill-per-set less than or equal to 26.30 marine mammals are not
subject to further action under the operator performance system. Such
trips neither count as trips meeting the performance standard nor count
as trips failing to meet the performance standard for the purpose of
determining actions based on performance in consecutive fishing trips.
(C) Fishing trips with more than five sets on marine mammals
resulting in an average kill-per-set of not greater than 26.30 marine
mammals are subject to review under the operator performance system as
follows:
(1) The operator's kill of marine mammals in purse seine sets on
marine mammals will be determined from observer records.
(2) The kill-per-set will be determined by dividing the total kill
of marine mammals by the number of sets involving marine mammals during
the fishing trip.
(3) If the calculated kill-per-set for the trip is equal to or less
than 3.89 marine mammals, the operator has met the performance standard
and is not subject to further action under the performance system based
on the current trip.
(4) If the calculated kill-per-set for the trip exceeds 3.89 marine
mammals, the operator failed to meet the mortality performance standard
and is subject to further action under the performance system.
(D) The Director, Southwest Region may exclude from the mortality
calculation for a trip, those purse seine sets in which marine mammal
mortality resulted from an unavoidable and unforeseeable equipment
breakdown. Should exclusion of a set or sets cause
[[Page 26]]
the operator's performance to fall within the standard performance, that
trip will not be counted as a trip for the purposes of the performance
evaluation system.
(E) An operator shall not serve as a certificated operator until the
Director, Southwest Region has determined under this subpart and
notified the operator that the operator's marine mammal mortality rate
performance met or failed to meet the applicable performance standard on
the previous observed trip. The Director, Southwest Region will make the
determination within five days (excluding Saturdays, Sundays and Federal
holidays) after receiving the observer data from the trip.
(F) An operator whose average marine mammal mortality rate exceeds
3.89 kill-per-set for a trip must have observer data and other pertinent
records reviewed by the Director, Southwest Region and the Porpoise
Rescue Foundation for the purpose of determining the causes of higher
than acceptable mortality, must participate in supplemental marine
mammal safety training as ordered by the Director, Southwest Region and
must comply with actions for reducing marine mammal mortality which may
be ordered by the Director, Southwest Region. The operator must carry an
observer on the next trip for which he serves as the certificated
operator. If the Director, Southwest Region determines that the required
training or other ordered action has not been completed satisfactorily
or is refused, the Director, Southwest Region will suspend the
operator's certificate of inclusion for one year.
(G) An operator whose average marine mammal mortality rate exceeds
3.89 marine mammals killed per set on two consecutive trips or on three
trips ending within a period of twenty-four months or on three trips
within eight consecutive trips must have observer data and other
pertinent records reviewed by the Director, Southwest Region and the
Porpoise Rescue Foundation for the purpose of determining the causes of
higher than acceptable mortality, must participate in supplemental
marine mammal safety training as ordered by the Director, Southwest
Region and must comply with actions for reducing marine mammal mortality
which may be ordered by the Director, Southwest Region. The operator
must carry an expert fisherman (i.e., an experienced vessel operator
with a history of low dolphin mortality), if required to do so by the
Director, Southwest Region, to assist in perfecting marine mammal safety
techniques, and must also carry an observer on the next trip for which
he serves as the certificated operator. The selection of the expert
fisherman will be provided by the General Permit holder or the Porpoise
Rescue Foundation and subject to the approval of the Director, Southwest
Region. If the Director, Southwest Region determines that the required
training or other ordered action has not been completed satisfactorily
or is refused, the Director, Southwest Region will suspend the
operator's certificate of inclusion for one year.
(H) The operator certificate of inclusion or an operator whose
average marine mammal mortality rate exceeds 3.89 kill-per-set on three
consecutive trips, or on any four trips (of which no more than two are
consecutives) completed within a period of twenty-four months or on four
trips (of which no more than two are consecutive) within eight
consecutively observed trips, is suspended upon notification to the
operator from the Director, Southwest Region.
(I) Following a suspension and a reinstatement of a certification of
inclusion, the operator certificate of inclusion is suspended for any
operator whose average marine mammal mortality rate exceeds 3.89 marine
mammals killed per set on any subsequent trip as required under the
criteria for a suspension established in paragraph (d)(2)(ix)(H) of this
section. Under this paragraph, trips completed by the operator prior to
suspension will be carried over and counted along with trips completed
subsequent to the suspension. Such suspension shall be effective upon
notification from the Director, Southwest Region and shall be for a
period of one year. For purposes of this paragraph only, each suspension
under paragraph (d)(2)(ix)(A) of this section will be considered
equivalent to and
[[Page 27]]
counted as three consecutive trips exceeding the trip kill rate of 3.89
marine mammals killed per set.
(J) An operator may appeal suspension of revocation of a certificate
of inclusion under paragraphs (d)(2)(ix)(A), (d)(2)(ix)(H), or
(d)(2)(ix)(I) of this section to the Assistant Administrator. Appeals
must be filed in writing within 30 days of suspension or revocation and
must contain a statement setting forth the basis for the appeal. Appeals
must be filed with the Director, Southwest Region. The appeal may be
presented at the option of the operator at a hearing before a person
appointed by the Assistant Administrator to hear the appeal. The
Assistant Administrator will determine, based upon the record, including
any record developed at a hearing, if the suspension or revocation is
supported under the criteria set forth in these regulations. The
decision of the Assistant Administrator will be the final decision of
the Department of Commerce.
(K) An operator must carry an observer on the operator's first trip
after a suspension under this performance system has expired. An
operator must also participate in supplemental marine mammal safety
training and comply with actions for reducing marine mammal mortality as
ordered by the Director, Southwest Region before making another trip as
a certified operator.
(L) A person obtaining an operator certificate of inclusion for the
first time must carry an observer on the operator's first trip.
(x) Vessel Certificate of Inclusion Holder Performance
Requirements--(A) vessel certificate of inclusion holder desiring a DML
for the following year must provide to the Director, Southwest Region,
NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, by
September 1, the name of the purse seine vessel(s) of carrying capacity
greater than 400 short tons (362.8 mt) that the owner thinks will
intentionally deploy purse seine fishing nets in the ETP to encircle
dolphins in an effort to capture tuna during that year. NMFS will
forward the list of purse seine vessels to the Director of the IATTC on
or before October 1, or as required by the IATTC, for assignment of a
DML for the following year.
(B) Each vessel certificate of inclusion holder that desires a DML
for the period July 1 to December 31, for a vessel that has not
previously had a DML assigned for the year, must provide to the
Director, Southwest Region, NMFS, 501 W. Ocean Blvd., Suite 4200, Long
Beach, CA 90802-4213, by March 15, the name of the purse seine vessel(s)
of carrying capacity greater than 400 short tons (362.8 mt) that the
owner thinks will intentionally deploy purse seine fishing nets in the
ETP to encircle dolphins in an effort to capture tuna during the period.
NMFS will forward the list of purse seine vessels to the Director of the
IATTC on or before April 1, or as required by the IATTC, for assignment
of a DML for the 6-month period July 1 to December 31. Under the
Agreement adopted at the Annual Meeting of the IATTC June 16-18, 1992,
the DML shall be assigned from the unutilized pool of DMLs described
under paragraph (d)(2)(x)(D) of this section, divided among the
applicants for the 6-month period, and shall not exceed 50 percent of
the DML assigned to a vessel in the fishery with a DML for the entire
year.
(C)(1) NMFS will notify vessel owners of the DML assigned for each
vessel for the following year as determined by the IATTC.
(2) NMFS may adjust the DMLs, either upward or downward with 15
percent of the original DML, except that the adjusted DMLs for the U.S.
fleet will not exceed the original total of the DMLs for the U.S. fleet
as assigned by the IATTC. All adjustments shall be made prior to
December 1, and NMFS shall notify the IATTC prior to December 15. DMLs
as assigned on December 1 will be applicable to the following year.
(3) NMFS may make an adjustment of a vessel's DMLs if it will
further scientific or technological advancement in the protection of
marine mammals in the fishery, or if the past performance of the vessel
indicates that the protection or use of the yellowfin tuna stocks or
marine mammals is best served by the adjustment, within the mandates of
the MMPA. Experimental fishing operation waivers or scientific
[[Page 28]]
research permits shall be considered a basis for adjustments.
(D)(1) Any vessel assigned a DML, that does not participate, by June
1, in this fishery by operating under valid certificates of inclusion,
or that leaves the fishery, shall lose its right to utilize its DML for
the remainder of the year.
(2) NMFS will determine, based on the available information, whether
a vessel has left the fishery. A vessel lost at sea, undergoing
extensive repairs, operating in an ocean area other than the ETP, or for
which other information indicates will no longer be conducting purse
seine operations in the ETP for the remainder of the period, shall be
determined to have left the fishery. NMFS will make all reasonable
efforts to determine the intentions of the vessel owner, and the owner
of any vessel that has been preliminarily determined to have left the
fishery will be provided notice of such preliminary determination and
the opportunity to provide information on whether the vessel has left
the fishery before NMFS makes a final determination and notifies the
IATTC of this determination. The vessel owner will receive written
notification of NMFS' final determination.
(3) Any unused DML for a vessel that has been determined to have
left the fishery will be returned to the IATTC, to be added to the pool
of unutilized DMLs.
(E) Any vessel that exceeds its assigned DML, after any applicable
adjustment under paragraph (d)(2)(x)(C)(2) of this section, shall have
its DML for the subsequent year reduced by the amount of overage.
(F)(1) The vessel operator and owner are responsible for ensuring
that the DML for that vessel is not exceeded.
(2) Observers, either from the IATTC observer program or the NMFS
observer program, will make their records available to the vessel
operators at any time, including after each set, so that the operator
can monitor the balance of the DML remaining for use during the trip.
(3) Vessel captains must cease deploying purse seine sets to
encircle dolphins intentionally when the vessel's DML, as adjusted under
paragraph (d)(2)(x)(C)(2) of this section, is reached.
(G)(1) Sanctions recommended by the Review Panel for any violation
of these rules shall be considered by NMFS in its enforcement of these
regulations.
(2) Intentionally deploying a purse seine net on or to encircle
dolphins after the vessel's DML is reached will disqualify the vessel
from consideration for a DML for the following year. If already
assigned, the DMLs for the following year will be withdrawn, and the
IATTC notified by NMFS that the DML assigned to that vessel will be
unutilized. The vessel owner will be provided an opportunity to provide
information and comments on this issue before a final determination is
made by NMFS.
(3) Encircling gear, purse seining not involving the intentional
taking of marine mammals. (i) A certificate holder may take marine
mammals so long as such taking is an incidental occurrence in the course
of normal commercial fishing operations. Marine mammals taken incidental
to commercial fishing operations shall be immediately returned to the
environment where captured without further injury.
(ii) A certificate holder may take such steps as are necessary to
protect his catch, gear, or person from depredation, damage or personal
injury without inflicting death or injury to any marine mammal.
(iii) Only after all means permitted by paragraph (d)(3)(ii) of this
section have been taken to deter a marine mammal from depredating the
catch, damaging the gear, or causing personal injury, may the
certificate holder injure or kill the animal causing the depredation or
immediate damage, or about to cause immediate personal injury; however,
in no event shall a certificate holder kill or injure an Atlantic
bottlenosed dolphin, Tursiops truncatus, under the provisions of this
paragraph. A certificate holder shall not injure or kill any animal
permitted to be killed or injured under this paragraph unless the
infliction of such damage is substantial and immediate and is actually
being caused at the time such steps are taken. In all cases, the burden
is on the certificate holder to report fully and demonstrate that
[[Page 29]]
the animal was causing substantial and immediate damage or about to
cause personal injury and that all possible steps to protect against
such damage or injury as permitted by paragraph (d)(3)(ii) of this
section were taken and that such attempts failed.
(iv) Marine mammals taken in the course of commercial fishing
operations shall be subject to the provisions of Sec. 216.3 with respect
to ``Incidental catch,'' and may be retained except where a specific
permit has been obtained authorizing the retention.
(v) All certificate holders shall maintain logs of incidental take
of marine mammals in such form as prescribed by the Assistant
Administrator. All deaths or injuries to marine mammals occurring in the
course of commercial fishing operations under the conditions of a
general permit shall be immediately recorded in the log and reported in
writing to the Director, Southwest Region, where a certificate
application was made, or to an enforcement agent or other designated
agent of the National Marine Fisheries Service, at the earliest
opportunity but no later than five days after such occurrence, except
that if a vessel at sea returns to port later than five days after such
occurrence, then it shall be reported within forty-eight hours after
arrival in port. Reports must include:
(A) The location, time, and date of the death or injury;
(B) The identity and number of marine mammals killed or injured; and
(C) A description of the circumstances which led up to and caused
the death or injury.
(4) Stationary gear. (i) A certificate holder may take marine
mammals so long as such taking is an incidental occurrence in the course
of normal commercial fishing operations. Marine mammals taken incidental
to commercial fishing operations shall be immediately returned to the
environment where captured without further injury.
(ii) A certificate holder may take such steps as are necessary to
protect his catch, gear, or person from depredation, damage or personal
injury without inflicting death or injury to any marine mammal.
(iii) Only after all means permitted by paragraph (d)(4)(ii) of this
section have been taken to deter a marine mammal from depredating the
catch, damaging the gear, or causing personal injury, may the
certificate holder injure or kill the animal causing the depredation or
immediate damage, or about to cause immediate personal injury; however,
in no event shall a certificate holder kill or injure an Atlantic
bottlenosed dolphin, Tursiops truncatus, under the provisions of this
paragraph. A certificate holder shall not injure or kill any animal
permitted to be killed or injured under this paragraph unless the
infliction of such damage is substantial and immediate and is actually
being caused at the time such steps are taken. In all cases, the burden
is on the certificate holder to report fully and demonstrate that the
animal was causing substantial and immediate damage or about to cause
personal injury and that all possible steps to protect against such
damage or injury as permitted by paragraph (ii) were taken and that such
attempts failed.
(iv) Marine mammals taken in the course of commercial fishing
operations shall be subject to the provisions of Sec. 216.3 with respect
to ``Incidental catch,'' and may not be retained except where a specific
permit has been obtained authorizing the retention.
(v) All certificate holders shall maintain logs of incidental take
of marine mammals in such form as prescribed by the Assistant
Administrator. All deaths or injuries to marine mammals occurring in the
course of commercial fishing operations under the conditions of a
general permit shall be immediately recorded in the log and reported in
writing to the Director, Southwest Region, where a certificate
application was made, or to an enforcement agent or other designated
agent of the National Marine Fisheries Service, at the earliest
opportunity but no later than five days after such occurrence, except
that if a vessel at sea returns to port later than five days after such
occurrence, then it shall be reported within forty-eight hours after
arrival in port. Reports must include:
(A) The location time, and date of the death or injury;
(B) The identity and number of marine mammals killed or injured; and
[[Page 30]]
(C) A description of the circumstances which led up to and caused
the death or injury.
(5) Other gear. (i) A certificate holder may take marine mammals so
long as such taking is an incidental occurrence in the course of normal
commercial fishing operations. Marine mammals taken incidental to
commercial fishing operations shall be immediately returned to the
environment where captured without further injury.
(ii) A certificate holder may take such steps as are necessary to
protect his catch, gear, or person from depredation, damage or personal
injury without inflicting death or injury to any marine mammal.
(iii) Only after all means permitted by paragraph (d)(5)(ii) of this
section have been taken to deter a marine mammal from depredating the
catch, damaging the gear, or causing personal injury, may the
certificate holder injure or kill the animal causing the depredation or
immediate damage, or about to cause immediate personal injury; however,
in no event shall a certificate holder kill or injure an Atlantic
bottlenosed dolphin, Tursiops truncatus, under the provisions of this
paragraph. A certificate holder shall not injure or kill any animal
permitted to be killed or injured under this paragraph unless the
infliction of such damage is substantial and immediate and is actually
being caused at the time such steps are taken. In all cases, the burden
is on the certificate holder to report fully and demonstrate that the
animal was causing substantial and immediate damage or about to cause
personal injury and that all possible steps to protect against such
damage or injury as permitted by paragraph (d)(5)(ii) of this section
were taken and that such attempts failed.
(iv) Marine mammals taken in the course of commercial fishing
operations shall be subject to the provisions of Sec. 216.3 with respect
to ``Incidental catch,'' and may not be retained except where a specific
permit has been obtained authorizing the retention.
(v) All certificate holders shall maintain logs of incidental take
of marine mammals in such form as prescribed by the Assistant
Administrator. All deaths or injuries to marine mammals occurring in the
course of commercial fishing operations under the conditions of a
general permit shall be immediately recorded in the log and reported in
writing to the Director, Southwest Region, where a certificate
application was made, or to an enforcement agent, or other designated
agent of the National Marine Fisheries Service, at the earliest
opportunity but no later than five days after such occurrence, except
that if a vessel at sea returns to port later than five days after such
occurrence, then it shall be reported within forty-eight hours after
arrival in port. Reports must include:
(A) The location, time, and date of the death or injury;
(B) The identity and number of marine mammals killed or injured; and
(C) A description of the circumstances which led up to and caused
the death or injury.
(vi) [Reserved]
(vii) The number of Dall's porpoise (Phocoenoides dalli) killed or
injured by Japanese vessels operating in the U.S. EEZ is limited to an
aggregate of 789 in the Bering Sea and 5250 in the North Pacific Ocean
over the period 1987 to 1989, of which no more than 448 may be taken
from the Bering Sea and no more than 2494 may be taken from the North
Pacific Ocean in any single calendar year. The incidental take levels
authorized by this subpart are reduced proportionately in the event that
the Soviet Union reduces salmon quotas for 1988 or 1989 by more than 10
percent from the 1987 quota. Any permit issued under this part must
indicate the measures by which the permit holder must comply with the
conditions attached to the permit, and the reporting requirements of
paragraph (d)(5)(v) of this section. Any permit issued under this part
may allow retention of marine mammals for scientific purposes and will
not require a separate permit under paragraph (d)(5)(iv) of this
section.
(6) Commercial passenger fishing vessels (CPFV). (i) A certificate
holder aboard the vessel may take marine mammals so long as the taking
is limited to harassment and is an incidental occurrence in the course
of the active sportfishing subject to the following
[[Page 31]]
restrictions (paragraphs (d)(6) (ii) through (vi) of this section).
(ii) Takings are prohibited within 500 yards of a pinniped rookery
or haul-out site.
(iii) A certificate holder aboard the CPFV must use only those non-
lethal, non-injurious methods not including capture as approved in
advance by the Assistant Administrator for Fisheries through publication
in the Federal Register and stipulated in the General Permit for taking
marine mammals.
(iv) Takings are allowed only while engaged in active sportfishing
to prevent imminent marine mammal approaches to the vessel or to protect
a passenger's catch or gear from depredation or damage, without
inflicting death or injury to any marine mammal.
(v) All operators must ensure the safe use of the approved methods
for preventing marine mammal sportfishing interaction and must
satisfactorily complete such training as may be required by the
Assistant Administrator for Fisheries.
(vi) All certificate holders must maintain records of incidental
take of marine mammals in such form as prescribed by the Assistant
Administrator for Fisheries. All incidents involving harassment of
marine mammals must be immediately recorded and reported in writing to
the Director, Southwest Region to whom the certificate application was
made, or to an enforcement agent or other designated agent of the
National Marine Fisheries Service, at the earliest opportunity, but no
later than five days after such occurrence. At a minimum, reports must
include:
(A) The time, date, and location of the taking;
(B) The type of harassment device used, and the number used at each
occurrence;
(C) The number and species of affected marine mammals; and
(D) A description of any behavioral changes noted that may be due to
using the harassment device.
(e) Importation, purchase, shipment, sale and transport. (1)(i) It
is illegal to import into the United States any fish, whether fresh,
frozen, or otherwise prepared, if the fish have been caught with
commercial fishing technology that results in the incidental kill or
incidental serious injury of marine mammals in excess of that allowed
under this part for U.S. fishermen or in excess of what is specified in
subsection (e)(5) in the case of fishing for yellowfin tuna.
(ii) For purposes of this paragraph (e), and in applying the
definition of an ``intermediary nation'', an import occurs when the fish
or fish product is released from a nation's Customs' custody and enters
into the territory of the nation. For other purposes, ``import'' is
defined in Sec. 216.3.
(2) The following fish and categories of fish, which the Assistant
Administrator has determined may be involved with commercial fishing
operations which cause the death or injury of marine mammals, are
subject to the requirements of this section:
(i) Tuna: yellowfin. The following U.S. Harmonized Tariff Schedule
Item Numbers identify the categories of yellowfin tuna and yellowfin
tuna products that are harvested in the ETP purse seine fisher (some of
which are also harvested with large-scale driftnet), are imported into
the United States, and are subject to the restrictions of paragraphs
(e)(3) and (e)(5) of this section:
(A) Tuna, frozen whole or in the round:
0303.42.00.20.0 Tuna, yellowfin, whole frozen.
0303.42.00.40.6 Tuna, yellowfin, eviscerated head-on, frozen.
0303.42.00.60.1 Tuna, yellowfin, eviscerated head-off, frozen.
0303.49.00.40.9 Tuna, non-specific, frozen.
(B) Tuna, canned:
1604.14.10.00.0 Tuna, non-specific, canned in oil.
1604.14.20.40.0 Tuna, non-specific, canned, not in oil, not over 7kg in
quota.
1604.14.30.40.8 Tuna, non-specific, canned, not in oil, not over 7kg
over quota.
(C) Tuna, loins:
1604.14.40.00.4 Tuna, non-specific, not in airtight container, not in
oil, over 6.8kg.
1604.14.50.00.1 Tuna, non-specific, not in airtight container, not in
oil, not over 6.8kg.
(ii) Tuna: non-yellowfin. The following U.S. Harmonized Tariff
Schedule Item Numbers identify the categories of tuna and tuna products
that are harvested with large-scale driftnet and imported into the
United States and are
[[Page 32]]
subject to the restrictions of paragraph (e)(3) of this section:
(A) Tuna, frozen whole or in the round:
0303.41.00.00.5 Tuna, albacore, frozen.
0303.43.00.00.3 Tuna, skipjack, frozen.
0303.49.00.20.3 Tuna, bluefin, frozen.
(B) Tuna, canned:
1604.14.20.20.4 Tuna, albacore, canned, not in oil, not over 7kg in
quota.
1604.14.30.20.2 Tuna, albacore, canned, not in oil, not over 7kg over
quota.
(iii) Fish, other than tuna. The following U.S. Harmonized Tariff
Schedule Item Numbers identify the categories of fish and fish products
that are imported into the United States and are subject to the
restrictions of paragraph (e)(3) of this section:
(A) Salmon:
(1) Salmon, frozen whole or in the round:
0303.10.00.12.8 Salmon, chinook, frozen.
0303.10.00.22.6 Salmon, chum, frozen.
0303.10.00.32.4 Salmon, pink, frozen.
0303.10.00.42.2 Salmon, sockeye, frozen.
0303.10.00.52.9 Salmon, coho, frozen.
0303.10.00.62.7 Salmon, Pacific, non-specific, frozen.
0303.21.00.00.9 Trout, frozen.
0303.22.00.00.8 Salmon, Atlantic, Danube, frozen.
0303.29.00.00.1 Salmonidae, non-specific, frozen.
0304.20.60.07.9 Salmonidae, salmon fillet, frozen.
0305.69.40.00.2 Salmon, non-specific, salted.
(2) Salmon, canned:
1604.11.20.20.7 Salmon, pink, canned in oil.
1604.11.20.30.5 Salmon, sockeye, canned in oil.
1604.11.20.90.2 Salmon, non-specific, canned in oil.
1604.11.40.10.5 Salmon, chum, canned, not in oil.
1604.11.40.20.3 Salmon, pink, canned, not in oil.
1604.11.40.30.1 Salmon, sockeye, canned, not in oil.
1604.11.40.40.9 Salmon, non-specific, canned, not in oil.
1604.11.40.50.6 Salmon, non-specific, other.
(B) Squid:
0307.49.00.10.1 Squid, non-specific, fillet, frozen.
0307.49.00.50.2 Squid, non-specific, frozen/dried/salted/brine.
0307.49.00.60.0 Squid, non-specific, & cuttlefish frozen/dried/salted/
brine.
1605.90.60.55.9 Squid, non-specific, prepared/preserved.
(C) Shark:
0303.75.00.00.4 Shark, dogfish and other sharks, frozen.
0305.59.20.00.8 Shark fins.
(D) Swordfish:
0303.79.20.40.8 Swordfish, frozen.
(E) Species not specifically identified:
0303.79.40.90.3 Marine fish, non-specific, frozen.
0304.20.20.66.6 Marine fish, non-specific, fillet blocks frozen over
4.5kg.
0304.20.60.85.4 Marine fish, non-specific, fillet, frozen.
0305.30.60.80.6 Fish, non-specific, fillet dried/salted/brine over
6.8kg.
0305.49.40.40.9 Fish, non-specific, smoked.
0305.59.40.00.4 Fish, non-specific, dried.
0305.69.50.00.9 Fish, non-specific, salted, not over 6.8kg.
0305.69.60.00.7 Fish, non-specific, salted, over 6.8kg.
1604.19.20.00.3 Fish, non-specific, in airtight containers, not in oil.
1604.19.30.00.1 Fish, non-specific, in airtight containers, in oil.
(3)(i) Tuna--(A) All nations. No shipment containing an item listed
in paragraph (e)(2)(i) or (e)(2)(ii) of this section, from any nation,
may be imported into the United States unless:
(1) Accompanied by a completed Fisheries Certificate of Origin
described in paragraph (e)(3)(iii) of this section, or, for points of
entry where the ABI system is available, the information required for
the Certificate may be filed electronically by the ABI system in lieu of
the paper form, provided that the electronic filing is made no later
than at the time of entry and all documentation in support of the ABI
entry is maintained by the importer or broker for not less than 5 years
and is kept available for inspection by NMFS personnel upon request;
(2) The tuna or tuna product was not harvested with a large-scale
driftnet after July 1, 1991; and
(3) An original invoice accompanies the shipment at the time of
importation, or is made available within 30 days of a request by the
Secretary to produce the invoice.
(B) Harvesting nations. No shipment containing an item listed in
paragraph (e)(2)(i) of this section may be imported into the United
States from a harvesting nation subject to paragraph (e)(5)(i) of this
section unless a finding required for importation has been made.
[[Page 33]]
(C) Intermediary nations. No shipment containing an item listed in
paragraph (e)(2)(i) of this section may be imported into the United
States from an intermediary nation subject to paragraph (e)(5)(xiv) of
this section if a ban is currently in force prohibiting the importation.
(D) Harvesting and intermediary nations. No shipment containing an
item in paragraph (e)(2)(i) of this section may be imported into the
United States from a nation that is both a harvesting nation subject to
paragraph (e)(5)(i) of this section and an intermediary nation subject
to paragraph (e)(5)(xiv) of this section unless the necessary findings
have been made under both provisions and a ban is not currently in
force.
(E) Tuna or tuna products sold in or exported from the United States
that suggest the tuna was harvested in a manner not injurious to
dolphins are subject to the requirements of subpart H.
(ii) Other fish. After July 1, 1991, no shipment containing an item
listed in paragraphs (e)(2)(iii)(B) through (E) of this section, and,
after July 1, 1992, no shipment containing an item in the whole of
paragraph (e)(2)(iii) of this section, that was harvested by any nation
determined by the Assistant Administrator to be engaged in large-scale
driftnet fishing, or exported from any such nation, either directly or
through an intermediary nation, may be imported into the United States
unless:
(A) Accompanied by a complete Fisheries Certificate of Origin, as
described in paragraph (e)(3)(iii) of this section;
(B) The fish or fish product was not harvested with a large-scale
driftnet, if the area of harvest, as described on the Fisheries
Certificate of Origin was:
(1) The South Pacific Ocean, for harvests after July 1, 1991; or
(2) Anywhere on the high seas, for harvests after July 1, 1992; and
(C) An original invoice accompanies the shipment at the time of
importation, or is made available within 30 days of a request by the
Secretary to produce the invoice.
(iii) Certificates of Origin. A Fisheries Certificate of Origin
(NOAA Form 370), \1\ certified to be accurate by the first exporter of
the accompanying shipment, must include the following information:
---------------------------------------------------------------------------
\1\ Copies of the form are available from the Director, Southwest
Region (see Sec. 216.3).
---------------------------------------------------------------------------
(A) Country under whose laws the harvesting vessel operated;
(B) Exporter (name and address);
(C) Consignee (name and address);
(D) Type and quantity of the fish or fish products to be imported,
listed by U.S. Harmonized Tariff Schedule Number;
(E) Ocean area where the fish was harvested (ETP, Western Pacific
Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian Ocean,
or other);
(F) Type of fishing gear used to harvest the fish (purse seine,
longline, bait boat, large-scale driftnet, other type of gillnet, trawl,
pole and line, other);
(G) Dates on which the fishing trip began and ended;
(H) If shipment is tuna or products from tuna that were harvested in
the ETP with a purse seine net, the name of the harvesting vessel; and
(I) For shipments harvested by vessels of a nation known to use
large-scale driftnets, as determined by the Secretary pursuant to
paragraph (e)(4) of this section, a statement must be included on the
Fisheries Certificate of Origin, or by separate attachment, that is
dated and signed by a responsible government official of the harvesting
nation, certifying that the fish or fish product was harvested by a
method other than large-scale driftnet, if the shipment includes:
(1) Tuna or tuna products described in paragraph (e)(2) (i) or (ii)
of this section that were harvested on the high seas after July 1, 1991;
or
(2) Fish or fish products other than tuna described in paragraph
(e)(2)(iii) of this section that were harvested in the South Pacific
Ocean after July 1, 1991, or that were harvested anywhere on the high
seas after July 1, 1992.
(4) Large-scale driftnet nations. Based upon the best information
available, the Assistant Administrator will determine which nations have
registered vessels that engage in fishing with
[[Page 34]]
large-scale driftnets. Such determinations shall be published in the
Federal Register. A responsible government official of any such nation
may certify to the Assistant Administrator that none of the nation's
vessels use large-scale driftnets. Upon receipt of the certification,
the Assistant Administrator may find, and publish such finding in the
Federal Register, that none of the nation's vessels engage in fishing
with large-scale driftnets.
(5) Yellowfin tuna. (i) Any tuna or tuna products in the
classifications listed in paragraph (e)(2)(i) of this section, from
harvesting nations whose vessels of greater than 400 short tons (362.8
mt) carrying capacity operate in the ETP tuna purse seine fishery as
determined by the Assistant Administrator, may not be imported into the
United States unless the Assistant Administrator makes an affirmative
finding under either paragraph (e)(5)(v), (e)(5)(viii) or (e)(5)(x) of
this section and publishes the finding in the Federal Register that:
(A) The government of the harvesting nation has adopted a regulatory
program governing the incidental taking of marine mammals in the course
of such harvesting that is comparable to the regulatory program of the
United States; and
(B) The average rate of incidental mortality by the vessels of the
harvesting nation is comparable to the average rate of incidental
mortality of marine mammals by U.S. vessels in the course of such
harvesting as specified in paragraphs (e)(5)(v)(E) and (e)(5)(v)(F) of
this section.
(ii) A harvesting nation which desires an initial finding under
these regulations that will allow it to import into the United States
those products listed in paragraph (e)(2)(i) of this section must
provide the Assistant Administrator with the following information:
(A) A detailed description of the nation's regulatory and
enforcement program governing incidental taking of marine mammals in the
purse seine fishery for yellowfin tuna, including:
(1) A description, with copies of relevant laws, implementing
regulations and guidelines, of the gear and procedures required in the
fishery to protect marine mammals, including but not limited to the
following:
(i) A description of the methods used to identify problems and to
take corrective actions to improve the performance of individual
fishermen in reducing incidental mortality and serious injury. By 1990
the methods must identify individual operators with marine mammal
mortality rates which are consistently and substantially higher than the
majority of the nation's fleet, and provide for corrective training and,
ultimately, suspension and removal from the fishery if the operator's
performance does not improve to at least the performance of the majority
of the fleet in a reasonable time period;
(ii) By 1990, a description of a regulatory system in operation
which ensures that all marine mammal sets are completed through backdown
to rolling the net to sack-up no later than one-half hour after sundown,
except that individual operators may be exempted, if they have
maintained consistently a rate of kill during their observed sundown
sets which is not higher than that of the nation's fleet average during
daylight sets made during the time period used for their comparability
finding; and
(iii) By 1990, a description of its restrictions on the use of
explosive devices in the purse seine fishery which are comparable to
those of the United States.
(2) A detailed description of the method (e.g., Inter-American
Tropical Tuna Commission (IATTC) or other international program observer
records) and level of observer coverage by which the incidental
mortality and serious injury of marine mammals will be monitored.
(B) A list of its vessels and any certified charter vessels of
greater than 400 short tons carrying capacity which purse seined for
yellowfin tuna at any time during the preceding year in the ETP,
indicating the status of each such vessel during that period (i.e.,
actively fishing in ETP, fishing in other waters; in port for repairs;
inactive) and the status of each vessel expected to operate in the ETP
in the year in which the submission is made.
(C) A compilation of the best available data for each calendar year
on the
[[Page 35]]
performance of any of its purse seine vessels (including certified
charter vessels) fishing at any time for tuna associated with marine
mammals within the ETP including the following:
(1) Total number of tons of yellowfin tuna observed caught in each
fishing area by purse seine sets on:
(i) Common dolphin and
(ii) All other marine mammal species;
(2) Total number of marine mammals observed killed and the total
number of marine mammals observed seriously injured in each fishing area
by species/stock by purse seine sets on:
(i) Common dolphin and
(ii) All other marine mammal species;
(3) Total number of observed trips and total number of observed
purse seine sets on marine mammals in each fishing area by the nation's
purse seine fleet during the year;
(4) Total number of vessel trips and total number of purse seine
sets on marine mammals in each fishing area by the nation's purse seine
fleet during the year; and
(5) The total number of observed purse seine sets in each fishing
area in which more than 15 marine mammals were killed.
(D) Data required by paragraph (e)(5)(ii)(C)(2) presented
individually for the following marine mammal species/stocks: offshore
spotted dolphin, coastal spotted dolphin, eastern spinner dolphin,
whitebelly spinner dolphin, common dolphin, striped dolphin, and ``other
marine mammals''.
(E) A description of the source of the data provided in accordance
with paragraph (e)(5)(ii)(C) of this section. The observer program from
which these data are provided must be operated by the IATTC or another
international program in which the United States participates and must
sample at least the same percentage of the fishing trips as the United
States achieves over the same time period, unless the Assistant
Administrator determines that an alternative observer program, including
a lesser level of observer coverage, will provide a sufficiently
reliable average rate of incidental taking of marine mammals for the
nation.
(iii) A nation applying for its initial finding of comparability
should apply at least 120 days before the desired effective date. The
Assistant Administrator's determination on a nation's application for
its initial finding will be announced and published in the Federal
Register within 120 days of receipt of the information required in
paragraph (e)(5)(ii) of this section.
(iv) A harvesting nation that has in effect a positive finding under
this section may request renewal of its finding for the following
calendar year by providing the Assistant Administrator, by December 1 of
the current calendar year, an update of the information listed in
Sec. 216.24(e)(5)(ii) summarizing all fishing trips completed during the
12-month period from October 1 of the previous calendar year through
September 30 of the current year.
(v) The Assistant Administrator's determination of a nation's timely
submitted request for renewal of an affirmative finding will be
announced by December 31. A finding will be valid for the calendar year
following the fishing season for which observer data was submitted for
obtaining a finding. The Assistant Administrator will make an
affirmative finding or renew an affirmative finding if:
(A) The harvesting nation has provided all information required by
paragraphs (e)(5)(ii) and (e)(5)(iv) of this section;
(B) The nation's regulatory program is comparable to the regulatory
program of the United States as described in paragraphs (a), (c),
(d)(2), and (f) of this section and the nation has incorporated into its
regulatory program such additional prohibitions as the United States may
apply to its own vessels within 180 days after the prohibition applies
to U.S. vessels;
(C) The data on marine mammal mortality and serious injury submitted
by the harvesting nation are determined to be accurate;
(D) The observer coverage of fishing trips was equal to that
achieved by the United States during the same time period or, if less,
was determined by the Assistant Administrator to provide a sufficiently
accurate sample of the nation's fleet mortality rate;
[[Page 36]]
(E) For findings using data collected after 1988, the average kill-
per-set rate for the longest period of time for which data are
available, up to 5 consecutive years, or for the most recent year,
whichever is lower, is no more than 25 percent greater than the U.S.
average for the same time period, after the U.S. mortality rate is
weighted to account for dissimilar amounts of fishing effort between the
two nations in the three ETP fishing areas and for common dolphin and
other marine mammal species, except as provided in paragraph
(e)(5)(v)(F) of this section for findings made in 1990;
(F) For determining comparability where there are fewer than five
sets (including no effort) on dolphin by the U.S. fleet in a fishing
area on a species grouping that has fishing effort by the foreign nation
requesting a comparability test, the mortality rates used for
comparability will be the overall (i.e., unweighted) kill-per-set rate
of the U.S. fleet and of the foreign nation's fleet.
(G) For the 1989 fishing year and subsequent years, the nation's
observed kill of eastern spinner dolphin (Stenella longirostris) and
coastal spotted dolphin (Stenella attenuata) is no greater than 15
percent and 2 percent, respectively, of the nation's total annual
observed dolphin mortality; and
(H) The nation has complied with all reasonable requests by the
Assistant Administrator for cooperation in carrying out dolphin
population assessments in the ETP.
(vi) Period of validity. A finding is valid only for the period for
which it was issued and may be terminated before the end of the year if
the Assistant Administrator finds that the nation no longer has a
comparable regulatory program or kill rate.
(vii) Reconsideration of finding. The Assistant Administrator may
reconsider a finding upon a request from and the submission of
additional information by the harvesting nation, if the information
indicates that the nation has met the requirements under paragraph
(e)(5)(v) of this section. For a harvesting nation whose marine mammal
mortality rate was found to exceed the acceptable levels prescribed in
paragraphs (e)(5)(v)(E), (e)(5)(v)(F), or (e)(5)(v)(G) of this section,
the additional information must include data collected by an acceptable
observer program, which must demonstrate that the nation's fleet marine
mammal mortality rate improved to the acceptable level during the period
submitted for comparison, which must include, at a minimum, the most
recent:
(A) Twelve months of observer data if the species composition rate
prescribed by paragraph (e)(5)(v)(G) of this section was not acceptable;
or
(B) Six months of observer data if the average kill-per-set rate
prescribed by paragraph (e)(5)(v)(E) of this section was not acceptable.
(viii) Application for finding for non-marine-mammal intentional
sets. The Assistant Administrator's determination on a nation's
application for a finding will be announced and published in the Federal
Register. A harvesting nation which has implemented a regulatory program
that prohibits the intentional setting of any purse seine net to
encircle marine mammals and desires an initial finding under these
regulations that will allow it to import into the United States those
products listed in paragraph (e)(2)(i) of this section must provide the
Assistant Administrator with the following:
(A) Documentary evidence establishing that its regulatory program
includes:
(1) A law prohibiting the intentional setting of purse seine nets on
marine mammals (a copy of the law must be submitted);
(2) A requirement that a certificate from an observer be obtained
within 30 days of the completion of each and every trip of the nation's
purse seine vessels greater than 400 short tons (362.8 mt) carrying
capacity, stating that the observer was aboard the vessel during the
entire trip and that there were no intentional purse seine sets on
marine mammals; and
(B) A complete list of the nation's vessels and any certified
charter vessels of greater than 400 short tons (362.8 mt) carrying
capacity which purse seine for yellowfin tuna in the ETP, indicating the
status of each vessel (i.e., actively fishing in the ETP, in port for
repairs, etc.), and a list of changes to
[[Page 37]]
this fleet within 30 days when changes occur.
(ix) Application for renewal of finding for non-marine-mammal
intentional sets. A harvesting nation, which has in effect an
affirmative finding under this section, may request a renewal of its
finding for the subsequent calendar year by providing the Assistant
Administrator an annual report by November 1, covering the previous
October 1 to September 30 period, which includes the following:
(A) Vessel summary data, to include:
(1) The total number of observed trips;
(2) The percentage of all purse seine fishing trips that carried
observers under a program approved by the Assistant Administrator;
(3) The total number, if any, of observed purse seine sets on marine
mammals;
(4) A summary of the number and species, if any, of all marine
mammals killed or seriously injured in intentional purse seine sets on
marine mammals;
(5) A complete list of the nation's vessels and any certified
charter vessels of greater than 400 short tons (362.8 mt) carrying
capacity which purse seine for yellowfin tuna in the ETP, indicating the
status of each vessels as of October 1;
(B) A summary, which copies of relevant laws, of any changes in the
nation's laws or regulatory program regarding marine mammals for the
purse seine fishery in the ETP; and
(C) A summary of any enforcement actions taken to ensure compliance
with the nation's marine mammal protection laws.
(x) Review of finding for non-marine-mammal intentional sets. The
Assistant Administrator will renew an affirmative finding obtained under
paragraph (e)(5)(ix) of this section if:
(A) The harvesting nation has provided all of the information
required by paragraph (e)(5)(ix) of this section and the conditions
under which the original finding was made under paragraph (e)(5)(viii)
of this section continue to exist; and
(B) Either 100-percent observer coverage is provided for all purse
seine vessels as required by paragraph (e)(5)(viii)(A)(2) of this
section; or the harvesting nation is in a probationary status in
accordance with paragraph (e)(5)(xi)(B)(1) of this section; and
(C) The harvesting nation meets the criteria of paragraphs
(e)(5)(v)(E), and (e)(5)(v)(G) of this section; and
(D) Certificates have been provided to the Assistant Administrator
within 30 days of the completion of each and every trip of the nation's
purse seine vessels greater than 400 short tons (362.8 mt) carrying
capacity from an observer approved by the Assistant Administrator or
under the direction of the Inter-American Tropical Tuna Commission, and
verified by the Inter-American Tropical Tuna Commission, stating that
the observer was aboard the vessel during the entire trip and that there
were no intentional purse seine sets on marine mammals or the nation
received a positive reconsideration for an affirmative finding under
paragraph (e)(5)(xii)(A) of this section.
(xi) Probation and revocation. (A)(1) If it is determined that,
during any trip, a purse seine was intentionally set on marine mammals,
the nation will enter into a probationary status for 180 days, effective
upon the date the vessel returns to port to unload.
(2) If, during the probationary period of 180 days, there are any
additional intentional purse seine sets made on marine mammals, the
Assistant Administrator will immediately revoke the affirmative finding.
(B)(1) If it is determined that, during any trip, an observer is not
aboard a nation's purse seine vessel greater than 400 short tons (362.8
mt) carrying capacity fishing in the ETP, that nation will enter into a
probationary status for 1 year, effective upon the date the vessel
returns to port to unload.
(2) If, during the 1-year probationary period, a nation's purse
seine vessel returns to port to unload, and it is determined that an
observer was not aboard the vessel during a trip in the ETP, the
Assistant Administrator will immediately revoke an affirmative finding
made under paragraphs (e)(5)(viii) or (e)(5)(x) of this section.
(xii) Reconsideration. (A) The Assistant Administrator will
reconsider a revocation of an affirmative finding upon request from a
harvesting nation
[[Page 38]]
which had its affirmative finding revoked under paragraph (e)(5)(xi)(A)
of this section if:
(1) The number of marine mammals taken in purse seine nets that were
intentionally set on marine mammals does not exceed the comparability
standards established in paragraphs (e)(5)(v)(E) and (e)(5)(v)(G) of
this section; and
(2) That nation provides documentary evidence that no additional
purse seines were intentionally set on marine mammals during the 90-day
period immediately preceding the request for reconsideration.
(B) A harvesting nation which has its affirmative finding revoked
under paragraph (e)(5)(xi)(B) of this section or its reconsideration
under paragraph (e)(5)(xii)(A) of this section denied, may request
reconsideration for an affirmative finding under paragraph (e)(5)(vii)
of this section.
(xiii) Verification. The Assistant Administrator may require
verification of statements made in connection with requests to allow
importations.
(xiv) Intermediary nation. Any yellowfin tuna or yellowfin tuna
products in the classifications listed in paragraph (e)(2)(i) of this
section, from any intermediary nation, as that term is defined in
section 3 of the MMPA, may not be imported into the United States unless
the Assistant Administrator determines and publishes in the Federal
Register that the intermediary nation has provided reasonable proof and
has certified to the United States that it has not imported, in the
preceding 6 months, yellowfin tuna or yellowfin tuna products that are
subject to a ban on direct importation into the United States under
section 101(a)(2)(B) of the MMPA. A prohibition on imports under this
paragraph may be lifted by the Assistant Administrator upon a
determination announced in the Federal Register, based upon new
information supplied by the government of the intermediary nation, that
the nation has not imported, in the preceding 6 months, yellowfin tuna
or yellowfin tuna products subject to a ban on direct imports under
section 101(a)(2)(B) of the MMPA. Shipments of yellowfin tuna or
yellowfin tuna products through a nation on a through bill of lading or
in another manner that does not enter the shipments into that nation as
an importation do not make that nation an intermediary nation. The
Assistant Administrator shall act on any request to review decisions
under this paragraph (e)(5)(xiv) that are accompanied by specific and
detailed supporting information or documentation, within 30 days of
receipt of such request. For purposes of this paragraph (e)(5)(xiv),
certification and reasonable proof means the submission by a responsible
government official from the nation of a document reflecting the
nation's customs records for the preceding 6 months, together with a
certificate attesting that the document is accurate.
(xv) Pelly certification. After 6 months on an embargo being in
place against a nation under this section, that fact shall be certified
to the President for purposes of certification under section 8(a) of the
Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as
the embargo is in effect.
(xvi) Coordination. The Assistant Administrator will promptly advise
the Department of State of embargo decisions, actions and finding
determinations.
(6) Fish refused entry. If fish is denied entry under the provisions
of Sec. 216.24(e)(3), the District Director of Customs shall refuse to
release the fish for entry into the United States and shall issue a
notice of such refusal to the importer or consignee.
(7) [Reserved]
(8) Disposition of fish refused entry into the United States;
redelivered fish. Fish which is denied entry under Sec. 216.24(e)(3) or
which is delivered in accordance with Sec. 216.24(e)(7) and which is not
exported under Customs supervision within 90 days from the date of
notice of refusal of admission or date of redelivery shall be disposed
of under Customs laws and regulations. Provided however, That any
disposition shall not result in an introduction into the United States
of fish caught in violation of the Marine Mammal Protection Act of 1972.
(9) Dolphin safe requirements. (i) It is unlawful for any person to
sell, purchase, offer for sale, transport, or ship
[[Page 39]]
in the United States, any tuna or tuna product that is not dolphin safe.
(ii) For purposes of this section, tuna or a tuna product is dolphin
safe if:
(A) It does not contain tuna that was harvested on the high seas by
a vessel engaged in large-scale driftnet fishing;
(B) In the case of tuna or tuna product that contains tuna harvested
in the ETP by a purse seine vessel, either the purse seine vessel is of
less than 400 short tons (362.8 metric tons (mt)) carrying capacity or,
if the purse seine vessel is of 400 short tons (362.8 mt) carrying
capacity or greater, the tuna or tuna product is accompanied by:
(1) A completed Fisheries Certificate of Origin;
(2) A written statement by the captain of each vessel that harvested
the tuna, certifying that the vessel did not intentionally deploy a
purse seine net on, or to encircle, dolphins at any time during the
trip; a written statement, signed by either the Secretary or a
representative of the Inter-American Tropical Tuna Commission,
certifying that an observer employed by or working under contract with
the Inter-American Tropical Tuna Commission or the Secretary, was on
board the vessel during the entire trip and that the vessel did not
intentionally deploy a purse seine net on, or to encircle, dolphin at
any time during the trip; and
(3) An endorsement on the Fisheries Certificate of Origin by each
exporter, importer, and processor certifying that, to the best of his or
her knowledge and belief, the Fisheries Certificate of Origin and
attached documents, and the statements required by this paragraph
(e)(9)(ii) accurately describe the tuna products;
(C) In the case of tuna or a tuna product containing tuna harvested
outside the eastern tropical Pacific Ocean by a purse seine vessel, it
is accompanied by a written statement, executed by the captain of the
vessel, certifying that no purse seine net was intentionally deployed
on, or to encircle, dolphins during the particular voyage on which the
tuna was harvested; and
(D) In the case of tuna or a tuna product containing tuna harvested
outside the ETP by a purse seine vessel in a fishery in which the
Secretary has determined that a regular and significant association
occurs between marine mammals and tuna, and in which tuna is harvested
through the use of purse seine nets deployed on, or to encircle, marine
mammals, it is accompanied by a written statement, executed by the
captain of the vessel and by an observer, certifying that no purse seine
net was intentionally deployed on, or to encircle, marine mammals during
the particular voyage on which the tuna was harvested.
(iii) Submission of documentation--(A) Imported tuna or tuna
product. The documents required by paragraph (e)(9)(ii) of this section
must accompany the imported tuna or tuna product until no further
endorsements are required on the documentation and the documents have
been submitted to officials of the U.S. Customs Service at the time of
importation.
(B) U.S. domestic shipments. The documents required by paragraph
(e)(9)(ii) of this section must accompany tuna or tuna product, other
than imported, until no further endorsements are required on the
documentation and the documents have been submitted to the Director,
Southwest Region, National Marine Fisheries Service, 501 W. Ocean
Boulevard, Suite 4200, Long Beach, CA 90802.
(f) Observers. (1) The vessel certificate holder of any certificated
vessel shall, upon the proper notification by the National Marine
Fisheries Service, allow an observer duly authorized by the Secretary to
accompany the vessel on any or all regular fishing trips for the purpose
of conducting research and observing operations, including collecting
information which may be used in civil or criminal penalty proceedings,
forfeiture actions, or permit or certificate sanctions.
(2) Research and observation duties shall be carried out in such a
manner as to minimize interference with commercial fishing operations.
The navigator shall provide true vessel locations by latitude and
longitude, accurate to the nearest minute, upon request by the observer.
No owner, master, operator, or crew member of a certificated vessel
shall impair or in any way interfere with the research or observations
being carried out.
[[Page 40]]
(3) Marine mammals killed during fishing operations which are
accessible to crewmen and requested from the certificate holder or
master by the observer shall be brought aboard the vessel and retained
for biological processing, until released by the observer for return to
the ocean. Whole marine mammals designated as biological specimens by
the observer shall be retained in cold storage aboard the vessel until
retrieved by authorized personnel of the National Marine Fisheries
Service when the vessel returns to port for unloading.
(4) The Secretary shall provide for the payment of all reasonable
costs directly related to the quartering and maintaining of such
observers on board such vessels. A vessel certificate holder who has
been notified that the vessel is required to carry an observer, via
certified letter from the National Marine Fisheries Service, shall
notify the office from which the letter was received at least five days
in advance of the fishing voyage to facilitate observer placement. A
vessel certificate holder who has failed to comply with the provisions
of this section may not engage in fishing operations for which a general
permit is required.
(5) It is unlawful for any person to forcibly assault, impede,
intimidate, interfere with, or to influence or attempt to influence an
observer, or to harass (including sexual harassment) an observer by
conduct which has the purpose or effect of unreasonably interfering with
the observer's work performance, or which creates an intimidating,
hostile, or offensive environment. In determining whether conduct
constitutes harassment, the totality of the circumstances, including the
nature of the conduct and the context in which it occurred, will be
considered. The determination of the legality of a particular action
will be made from the facts on a case-by-case basis.
(6)(i) All observers must be provided sleeping, toilet and eating
accommodations at least equal to that provided to a full crew member. A
mattress or futon on the floor or a cot is not acceptable in place of a
regular bunk. Meal and other galley privileges must be the same for the
observer as for other crew members.
(ii) Female observers on a vessel with an all-male crew must be
accommodated either in a single-person cabin or, if reasonable privacy
can be ensured by installing a curtain or other temporary divider, in a
two-person cabin shared with a licensed officer of the vessel. If the
cabin assigned to a female observer does not have its own toilet and
shower facilities that can be provided for the exclusive use of the
observer, then a schedule for time-sharing common facilities must be
established before the placement meeting and approved by NMFS and must
be followed during the entire trip.
(iii) In the event there are one or more female crew members, the
female observer may be provided a bunk in a cabin shared solely with
female crew members, and provided toilet and shower facilities shared
solely with these female crew members.
(7)(i) A vessel certificate of inclusion holder (or vessel owner in
the case of a new application) may seek an exemption from carrying a
female observer on a vessel by applying to the Director, Southwest
Region when applying for the vessel certificate of inclusion until July
10, 1989 and establishing the following:
(A) The vessel will have an all-male crew;
(B) The vessel has fewer than two private (one-person) and semi-
private (two-person) cabins in total (excluding the captain's cabin);
(C) A temporary divider like a curtain cannot be installed in the
private or semi-private cabin (excluding the captain's cabin) to provide
reasonable privacy; and
(D) There are no other areas (excluding the captain's cabin) that
can be converted to a sleeping room without either significant expense
or significant sacrifice to the crew's quarters.
(ii) The exclusion criteria in paragraph (f)(7)(i) of this section
can be met without having to provide the captain's cabin for the
observer. The application for an exemption must also include an accurate
diagram of the vessel's living areas, and other areas possibly suitable
for sleeping. Additional documentation to support the application may
also be required, as may an inspection of the vessel. The exemption,
once granted, is
[[Page 41]]
valid for the same calendar year as the vessel certificate of inclusion,
and the exemption must be renewed annually to remain valid. The vessel
certificate of inclusion holder is responsible for reporting to the
Director, Southwest Region any changes aboard the vessel within 15 days
of the change which might affect the continued eligibility for an
exemption. The Director, Southwest Region will revoke an exemption if
the criteria for an exemption are no longer met.
(g) Penalties and rewards: Any person or vessel subject to the
jurisdiction of the United States shall be subject to the penalties
provided for under the MMPA for the conduct of fishing operations in
violation of these regulations. The Secretary shall recommend to the
Secretary of the Treasury that an amount equal to one-half of the fine
incurred but not to exceed $2,500 be paid to any person who furnishes
information which leads to a conviction for a violation of these
regulations. Any officer, employee, or designated agent of the United
States or of any State or local government who furnishes information or
renders service in the performance of his official duties shall not be
eligible for payment under this section.
[45 FR 72187, Oct. 31, 1980]
Editorial Note: For Federal Register citations affecting
Sec. 216.24, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Sec. 216.25 Exempted marine mammals and marine mammal products.
(a) The provisions of the MMPA and these regulations shall not
apply:
(1) To any marine mammal taken before December 21, 1972 \1\, or
---------------------------------------------------------------------------
\1\ In the context of captive maintenance of marine mammals, the
only marine mammals exempted under this section are those that were
actually captured or otherwise in captivity before December 21, 1972.
---------------------------------------------------------------------------
(2) To any marine mammal product if the marine mammal portion of
such product consists solely of a marine mammal taken before such date.
(b) The prohibitions contained in Sec. 216.12(c) (3) and (4) shall
not apply to marine mammals or marine mammal products imported into the
United States before the date on which a notice is published in the
Federal Register with respect to the designation of the species or stock
concerned as depleted or endangered.
(c) Section 216.12(b) shall not apply to articles imported into the
United States before the effective date of the foreign law making the
taking or sale, as the case may be, of such marine mammals or marine
mammal products unlawful.
[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59
FR 50376, Oct. 3, 1994]
Sec. 216.26 Collection of certain marine mammal parts without prior authorization.
Notwithstanding any other provision of this subpart:
(a) Any bones, teeth or ivory of any dead marine mammal may be
collected from a beach or from land within \1/4\ of a mile of the ocean.
The term ocean includes bays and estuaries.
(b) Notwithstanding the provisions of subpart D, soft parts that are
sloughed, excreted, or discharged naturally by a living marine mammal in
the wild may be collected or imported for bona fide scientific research
and enhancement, provided that collection does not involve the taking of
a living marine mammal in the wild.
(c) Any marine mammal part collected under paragraph (a) of this
section or any marine mammal part collected and imported under paragraph
(b) of this section must be registered and identified, and may be
transferred or otherwise possessed, in accordance with Sec. 216.22(c).
In registering a marine mammal part collected or imported under
paragraph (b) of this section, the person who collected or imported the
part must also state the scientific research or enhancement purpose for
which the part was collected or imported.
(d) No person may purchase, sell or trade for commercial purposes
any marine mammal part collected or imported under this section.
(e) The export of parts collected without prior authorization under
paragraph (b) of this section may occur
[[Page 42]]
if consistent with the provisions at Sec. 216.37(d) under subpart D.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61
FR 21933, May 10, 1996]
Sec. 216.27 Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.
(a) Release requirements. (1) Any marine mammal held for
rehabilitation must be released within six months of capture or import
unless the attending veterinarian determines that:
(i) The marine mammal might adversely affect marine mammals in the
wild;
(ii) Release of the marine mammal to the wild will not likely be
successful given the physical condition and behavior of the marine
mammal; or
(iii) More time is needed to determine whether the release of the
marine mammal to the wild will likely be successful. Releasability must
be reevaluated at intervals of no less than six months until 24 months
from capture or import, at which time there will be a rebuttable
presumption that release into the wild is not feasible.
(2) The custodian of the rehabilitated marine mammal shall provide
written notification prior to any release into the wild.
(i) Notification shall be provided to:
(A) The NMFS Regional Director at least 15 days in advance of
releasing any beached or stranded marine mammal, unless advance notice
is waived in writing by the Regional Director; or
(B) The Office Director at least 30 days in advance of releasing any
imported marine mammal.
(ii) Notification shall include the following:
(A) A description of the marine mammal, including its physical
condition and estimated age;
(B) The date and location of release; and
(C) The method and duration of transport prior to release.
(3) The Regional Director, or the Office Director as appropriate,
may:
(i) Require additional information prior to any release;
(ii) Change the date or location of release, or the method or
duration of transport prior to release;
(iii) Impose additional conditions to improve the likelihood of
success or to monitor the success of the release; or
(iv) Require other disposition of the marine mammal.
(4) All marine mammals must be released near wild populations of the
same species, and stock if known, unless a waiver is granted by the
Regional Director or the Office Director.
(5) All marine mammals released must be tagged or marked in a manner
acceptable to the Regional Director or the Office Director. The tag
number or description of the marking must be reported to the Regional
Director or Office Director following release.
(b) Non-releasability and postponed determinations. (1) The
attending veterinarian shall provide the Regional Director or Office
Director with a written report setting forth the basis of any
determination under paragraphs (a)(1)(i) through (iii) of this section.
(2) Upon receipt of a report under paragraph (b)(1) of this section,
the Regional Director or Office Director, in their sole discretion, may:
(i) Order the release of the marine mammal;
(ii) Order continued rehabilitation for an additional 6 months; or
(iii) Order other disposition as authorized.
(3) No later than 30 days after a marine mammal is determined
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of
this section, the person with authorized custody must:
(i) Request authorization to retain or transfer custody of the
marine mammal in accordance with paragraph (c) of this section, or;
(ii) Humanely euthanize the marine mammal or arrange any other
disposition of the marine mammal authorized by the Regional Director or
Office Director.
(4) Notwithstanding any of the provisions of this section, the
Office Director may require use of a rehabilitated marine mammal for any
activity authorized under subpart D in lieu of animals taken from the
wild.
[[Page 43]]
(5) Any rehabilitated beached or stranded marine mammal placed on
public display following a non-releasability determination under
paragraph (a)(1) of this section and pending disposition under paragraph
(c) of this section, or any marine mammal imported for medical treatment
otherwise unavailable and placed on public display pending disposition
after such medical treatment is concluded, must be held in captive
maintenance consistent with all requirements for public display.
(c) Disposition for a special exception purpose. (1) Upon receipt of
an authorization request made under paragraph (b)(3)(i) of this section,
or release notification under (a)(2), the Office Director may authorize
the retention or transfer of custody of the marine mammal for a special
exception purpose authorized under subpart D.
(2) The Office Director will first consider requests from a person
authorized to hold the marine mammal for rehabilitation. The Office
Director may authorize such person to retain or transfer custody of the
marine mammal for scientific research, enhancement, or public display
purposes.
(3) The Office Director may authorize retention or transfer of
custody of the marine mammal only if:
(i) Documentation has been submitted to the Office Director that the
person retaining the subject animal or the person receiving custody of
the subject animal by transfer, hereinafter referred to as the
recipient, complies with public display requirements of 16 U.S.C.
1374(c)(2)(A) or, for purposes of scientific research and enhancement,
holds an applicable permit, or an application for such a special
exception permit under Sec. 216.33 or a request for a major amendment
under Sec. 216.39 has been submitted to the Office Director and has been
found complete;
(ii) The recipient agrees to hold the marine mammal in conformance
with all applicable requirements and standards; and
(iii) The recipient acknowledges that the marine mammal is subject
to seizure by the Office Director:
(A) If, at any time pending issuance of the major amendment or
permit, the Office Director determines that seizure is necessary in the
interest of the health or welfare of the marine mammal;
(B) If the major amendment or permit is denied; or
(C) If the recipient is issued a notice of violation and assessment,
or is subject to permit sanctions, in accordance with 15 CFR part 904.
(4) There shall be no remuneration associated with any transfer,
provided that, the transferee may reimburse the transferor for any and
all costs associated with the rehabilitation and transport of the marine
mammal.
(5) Marine mammals undergoing rehabilitation or pending disposition
under this section shall not be subject to public display, unless such
activities are specifically authorized by the Regional Director or the
Office Director, and conducted consistent with the requirements
applicable to public display. Such marine mammals shall not be trained
for performance or be included in any aspect of a program involving
interaction with the public; and
(6) Marine mammals undergoing rehabilitation shall not be subject to
intrusive research, unless such activities are specifically authorized
by the Office Director in consultation with the Marine Mammal Commission
and its Committee of Scientific Advisors on Marine Mammals, and are
conducted pursuant to a scientific research permit.
(d) Reporting. In addition to the report required under
Sec. 216.22(b), the person authorized to hold marine mammals for
rehabilitation must submit reports to the Regional Director or Office
Director regarding release or other disposition. These reports must be
provided in the form and frequency specified by the Regional Director or
Office Director.
[61 FR 21933, May 10, 1996]
Subpart D--Special Exceptions
Sec. 216.30 [Reserved]
Sec. 216.31 Definitions.
For the purpose of this subpart, the definitions set forth in 50 CFR
part 217 shall apply to all threatened and endangered marine mammals,
unless a
[[Page 44]]
more restrictive definition exists under the MMPA or part 216.
[61 FR 21935, May 10, 1996]
Sec. 216.32 Scope.
The regulations of this subpart apply to:
(a) All marine mammals and marine mammal parts taken or born in
captivity after December 20, 1972; and
(b) All marine mammals and marine mammal parts that are listed as
threatened or endangered under the ESA.
[61 FR 21935, May 10, 1996]
Sec. 216.33 Permit application submission, review, and decision procedures.
(a) Application submission. Persons seeking a special exemption
permit under this subpart must submit an application to the Office
Director. The application must be signed by the applicant, and provide
in a properly formatted manner all information necessary to process the
application. Written instructions addressing information requirements
and formatting may be obtained from the Office Director upon request.
(b) Applications to export living marine mammals. For applicants
seeking a special exception permit to export living marine mammals, the
application must:
(1) Be submitted through the Convention on International Trade in
Endangered Fauna and Flora management authority of the foreign
government or, if different, the appropriate agency or agencies of the
foreign government that exercises oversight over marine mammals.
(2) Include a certification from the foreign government that:
(i) The information set forth in the application is accurate;
(ii) The laws and regulations of the foreign governmentinvolved
allow enforcement of the terms and conditions of the permit, and that
the foreign government will enforce all terms and conditions; and
(iii) The foreign government involved will afford comity to any
permit amendment, modification, suspension or revocation decision.
(c) Initial review. (1) NMFS will notify the applicant of receipt of
the application.
(2) During the initial review, the Office Director will determine:
(i) Whether the application is complete.
(ii) Whether the proposed activity is for purposes authorized under
this subpart.
(iii) If the proposed activity is for enhancement purposes, whether
the species or stock identified in the application is in need of
enhancement for its survival or recovery and whether the proposed
activity will likely succeed in its objectives.
(iv) Whether the activities proposed are to be conducted consistent
with the permit restrictions and permit specific conditions as described
in Sec. 216.35 and Sec. 216.36(a).
(v) Whether sufficient information is included regarding the
environmental impact of the proposed activity to enable the Office
Director:
(A) To make an initial determination under the National
Environmental Policy Act (NEPA) as to whether the proposed activity is
categorically excluded from preparation of further environmental
documentation, or whether the preparation of an environmental assessment
(EA) or environmental impact statement (EIS) is appropriate or
necessary; and
(B) To prepare an EA or EIS if an initial determination is made by
the Office Director that the activity proposed is not categorically
excluded from such requirements.
(3) The Office Director may consult with the Marine Mammal
Commission (Commission) and its Committee of Scientific Advisors on
Marine Mammals (Committee) in making these initial, and any subsequent,
determinations.
(4) Incomplete applications will be returned with explanation. If
the applicant fails to resubmit a complete application or correct the
identified deficiencies within 60 days, the application will be deemed
withdrawn. Applications that propose activities inconsistent with this
subpart will be returned with explanation, and will not be considered
further.
[[Page 45]]
(d) Notice of receipt and application review. (1) Upon receipt of a
valid, complete application, and the preparation of any NEPA
documentation that has been determined initially to be required, the
Office Director will publish a notice of receipt in the Federal
Register. The notice will:
(i) Summarize the application, including:
(A) The purpose of the request;
(B) The species and number of marine mammals;
(C) The type and manner of special exception activity proposed;
(D) The location(s) in which the marine mammals will be taken, from
which they will be imported, or to which they will be exported; and
(E) The requested period of the permit.
(ii) List where the application is available for review.
(iii) Invite interested parties to submit written comments
concerning the application within 30 days of the date of the notice.
(iv) Include a NEPA statement that an initial determination has been
made that the activity proposed is categorically excluded from the
requirement to prepare an EA or EIS, that an EA was prepared resulting
in a finding of no significant impact, or that a final EIS has been
prepared and is available for review.
(2) The Office Director will forward a copy of the complete
application to the Commission for comment. If no comments are received
within 45 days (or such longer time as the Office Director may
establish) the Office Director will consider the Commission to have no
objection to issuing a permit.
(3) The Office Director may consult with any other person,
institution, or agency concerning the application.
(4) Within 30 days of publication of the notice of receipt in the
Federal Register, any interested party may submit written comments or
may request a public hearing on the application.
(5) If the Office Director deems it advisable, the Office Director
may hold a public hearing within 60 days of publication of the notice of
receipt in the Federal Register. Notice of the date, time, and place of
the public hearing will be published in the Federal Register not less
than 15 days in advance of the public hearing. Any interested person may
appear in person or through representatives and may submit any relevant
material, data, views, or comments. A summary record of the hearing will
be kept.
(6) The Office Director may extend the period during which any
interested party may submit written comments. Notice of the extension
must be published in the Federal Register within 60 days of publication
of the notice of receipt in the Federal Register.
(7) If, after publishing a notice of receipt, the Office Director
determines on the basis of new information that an EA or EIS must be
prepared, the Office Director must deny the permit unless an EA is
prepared with a finding of no significant impact. If a permit is denied
under these circumstances the application may be resubmitted with
information sufficient to prepare an EA or EIS, and will be processed as
a new application.
(e) Issuance or denial procedures. (1) Within 30 days of the close
of the public hearing or, if no public hearing is held, within 30 days
of the close of the public comment period, the Office Director will
issue or deny a special exception permit.
(2) The decision to issue or deny a permit will be based upon:
(i) All relevant issuance criteria set forth at Sec. 216.34;
(ii) All purpose-specific issuance criteria as appropriate set forth
at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
(iii) All comments received or views solicited on the permit
application; and
(iv) Any other information or data that the Office Director deems
relevant.
(3) If the permit is issued, upon receipt, the holder must date and
sign the permit, and return a copy of the original to the Office
Director. The permit shall be effective upon the permit holder's signing
of the permit. In signing the permit, the holder:
(i) Agrees to abide by all terms and conditions set forth in the
permit, and all restrictions and relevant regulations under this
subpart; and
[[Page 46]]
(ii) Acknowledges that the authority to conduct certain activities
specified in the permit is conditional and subject to authorization by
the Office Director.
(4) Notice of the decision of the Office Director shall be published
in the Federal Register within 10 days after the date of permit issuance
or denial and shall indicate where copies of the permit, if issued, may
be reviewed or obtained. If the permit issued involves marine mammals
listed as endangered or threatened under the ESA, the notice shall
include a finding by the Office Director that the permit:
(i) Was applied for in good faith;
(ii) If exercised, will not operate to the disadvantage of such
endangered or threatened species; and
(iii) Is consistent with the purposes and policy set forth in
section 2 of the ESA.
(5) If the permit is denied, the Office Director shall provide the
applicant with an explanation for the denial.
(6) Under the MMPA, the Office Director may issue a permit for
scientific research before the end of the public comment period if
delaying issuance could result in injury to a species, stock, or
individual, or in loss of unique research opportunities. The Office
Director also may waive the 30-day comment period required under the ESA
in an emergency situation where the health or life of an endangered or
threatened marine mammal is threatened and no reasonable alternative is
available. If a permit is issued under these circumstances, notice of
such issuance before the end of the comment period shall be published in
the Federal Register within 10 days of issuance.
(7) The applicant or any party opposed to a permit may seek judicial
review of the terms and conditions of such permit or of a decision to
deny such permit. Review may be obtained by filing a petition for review
with the appropriate U.S. District Court as provided for by law.
[61 FR 21935, May 10, 1996]
Sec. 216.34 Issuance criteria.
(a) For the Office Director to issue any permit under this subpart,
the applicant must demonstrate that:
(1) The proposed activity is humane and does not present any
unnecessary risks to the health and welfare of marine mammals;
(2) The proposed activity is consistent with all restrictions set
forth at Sec. 216.35 and any purpose-specific restrictions as
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
(3) The proposed activity, if it involves endangered or threatened
marine mammals, will be conducted consistent with the purposes and
policies set forth in section 2 of the ESA;
(4) The proposed activity by itself or in combination with other
activities, will not likely have a significant adverse impact on the
species or stock;
(5) Whether the applicant's expertise, facilities, and resources are
adequate to accomplish successfully the objectives and activities stated
in the application;
(6) If a live animal will be held captive or transported, the
applicant's qualifications, facilities, and resources are adequate for
the proper care and maintenance of the marine mammal; and
(7) Any requested import or export will not likely result in the
taking of marine mammals or marine mammal parts beyond those authorized
by the permit.
(b) The opinions or views of scientists or other persons or
organizations knowledgeable of the marine mammals that are the subject
of the application or of other matters germane to the application will
be considered.
[61 FR 21936, May 10, 1996]
Sec. 216.35 Permit restrictions.
The following restrictions shall apply to all permits issued under
this subpart:
(a) The taking, importation, export, or other permitted activity
involving marine mammals and marine mammal parts shall comply with the
regulations of this subpart.
(b) The maximum period of any special exception permit issued, or
any major amendment granted, is five years from the effective date of
the permit or major amendment. In accordance with the provisions of
Sec. 216.39, the period of a permit may be extended by a minor amendment
up to 12 months
[[Page 47]]
beyond that established in the original permit.
(c) Except as provided for in Sec. 216.41(c)(1)(v), marine mammals
or marine mammal parts imported under the authority of a permit must be
taken or imported in a humane manner, and in compliance with the Acts
and any applicable foreign law. Importation of marine mammals and marine
mammal parts is subject to the provisions of 50 CFR part 14.
(d) The permit holder shall not take from the wild any marine mammal
which at the time of taking is either unweaned or less than eight months
old, or is a part of a mother-calf/pup pair, unless such take is
specifically authorized in the conditions of the special exception
permit. Additionally, the permit holder shall not import any marine
mammal that is pregnant or lactating at the time of taking or import, or
is unweaned or less than eight months old unless such import is
specifically authorized in the conditions of the special exception
permit.
(e) Captive marine mammals shall not be released into the wild
unless specifically authorized by the Office Director under a scientific
research or enhancement permit.
(f) The permit holder is responsible for all activities of any
individual who is operating under the authority of the permit;
(g) Individuals conducting activities authorized under the permit
must possess qualifications commensurate with their duties and
responsibilities, or must be under the direct supervision of a person
with such qualifications;
(h) Persons who require state or Federal licenses to conduct
activities authorized under the permit must be duly licensed when
undertaking such activities;
(i) Special exception permits are not transferable or assignable to
any other person, and a permit holder may not require any direct or
indirect compensation from another person in return for requesting
authorization for such person to conduct the taking, import, or export
activities authorized under the subject permit;
(j) The permit holder or designated agent shall possess a copy of
the permit when engaged in a permitted activity, when the marine mammal
is in transit incidental to such activity, and whenever marine mammals
or marine mammal parts are in the possession of the permit holder or
agent. A copy of the permit shall be affixed to any container, package,
enclosure, or other means of containment, in which the marine mammals or
marine mammal parts are placed for purposes of transit, supervision, or
care. For marine mammals held captive and marine mammal parts in
storage, a copy of the permit shall be kept on file in the holding or
storage facility.
[61 FR 21936, May 10, 1996]
Sec. 216.36 Permit conditions.
(a) Specific conditions. (1) Permits issued under this subpart shall
contain specific terms and conditions deemed appropriate by the Office
Director, including, but not limited to:
(i) The number and species of marine mammals that are authorized to
be taken, imported, exported, or otherwise affected;
(ii) The manner in which marine mammals may be taken according to
type of take;
(iii) The location(s) in which the marine mammals may be taken, from
which they may be imported, or to which they may be exported, as
applicable, and, for endangered or threatened marine mammal species to
be imported or exported, the port of entry or export;
(iv) The period during which the permit is valid.
(2) [Reserved]
(b) Other conditions. In addition to the specific conditions imposed
pursuant to paragraph (a) of this section, the Office Director shall
specify any other permit conditions deemed appropriate.
[61 FR 21937, May 10, 1996]
Sec. 216.37 Marine mammal parts.
With respect to marine mammal parts acquired by take or import
authorized under a permit issued under this subpart:
(a) Marine mammal parts are transferrable if:
(1) The person transferring the part receives no remuneration of any
kind for the marine mammal part;
[[Page 48]]
(2) The person receiving the marine mammal part is:
(i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any
other governmental agency with conservation and management
responsibilities, who receives the part in the course of their official
duties;
(ii) A holder of a special exception permit which authorizes the
take, import, or other activity involving the possession of a marine
mammal part of the same species as the subject part; or
(iii) In the case of marine mammal parts from a species that is not
depleted, endangered or threatened, a person who is authorized under
section 112(c) of the MMPA and subpart C of this part to take or import
marine mammals or marine mammal parts;
(iv) Any other person specifically authorized by the Regional
Director, consistent with the requirements of paragraphs (a)(1) and
(a)(3) through (6) of this section.
(3) The marine mammal part is transferred for the purpose of
scientific research, maintenance in a properly curated, professionally
accredited scientific collection, or education, provided that, for
transfers for educational purposes, the recipient is a museum,
educational institution or equivalent that will ensure that the part is
available to the public as part of an educational program;
(4) A unique number assigned by the permit holder is marked on or
affixed to the marine mammal part or container;
(5) The person receiving the marine mammal part agrees that, as a
condition of receipt, subsequent transfers may only occur subject to the
provisions of paragraph (a) of this section; and
(6) Within 30 days after the transfer, the person transferring the
marine mammal part notifies the Regional Director of the transfer,
including a description of the part, the person to whom the part was
transferred, the purpose of the transfer, certification that the
recipient has agreed to comply with the requirements of paragraph (a) of
this section for subsequent transfers, and, if applicable, the
recipient's permit number.
(b) Marine mammal parts may be loaned to another person for a
purpose described in paragraph (a)(3) of this section and without the
agreement and notification required under paragraphs (a)(5) and (6) of
this section, if:
(1) A record of the loan is maintained; and
(2) The loan is for not more than one year. Loans for a period
greater than 12 months, including loan extensions or renewals, require
notification of the Regional Director under paragraph (a)(6).
(c) Unless other disposition is specified in the permit, a holder of
a special exception permit may retain marine mammal parts not destroyed
or otherwise disposed of during or after a scientific research or
enhancement activity, if such marine mammal parts are:
(1) Maintained as part of a properly curated, professionally
accredited collection; or
(2) Made available for purposes of scientific research or
enhancement at the request of the Office Director.
(d) Marine mammal parts may be exported and subsequently reimported
by a permit holder or subsequent authorized recipient, for the purpose
of scientific research, maintenance in a properly curated,
professionally accredited scientific collection, or education, provided
that:
(1) The permit holder or other person receives no remuneration for
the marine mammal part;
(2) A unique number assigned by the permit holder is marked on or
affixed to the marine mammal specimen or container;
(3) The marine mammal part is exported or reimported in compliance
with all applicable domestic and foreign laws;
(4) If exported or reimported for educational purposes, the
recipient is a museum, educational institution, or equivalent that will
ensure that the part is available to the public as part of an
educational program; and
(5) Special reports are submitted within 30 days after both export
and reimport as required by the Office Director under Sec. 216.38.
[61 FR 21937, May 10, 1996]
[[Page 49]]
Sec. 216.38 Reporting.
All permit holders must submit annual, final, and special reports in
accordance with the requirements established in the permit, and any
reporting format established by the Office Director.
[61 FR 21937, May 10, 1996]
Sec. 216.39 Permit amendments.
(a) General. Special exception permits may be amended by the Office
Director. Major and minor amendments may be made to permits in response
to, or independent of, a request from the permit holder. Amendments must
be consistent with the Acts and comply with the applicable provisions of
this subpart.
(1) A major amendment means any change to the permit specific
conditions under Sec. 216.36(a) regarding:
(i) The number and species of marine mammals that are authorized to
be taken, imported, exported, or otherwise affected;
(ii) The manner in which these marine mammals may be taken,
imported, exported, or otherwise affected, if the proposed change may
result in an increased level of take or risk of adverse impact;
(iii) The location(s) in which the marine mammals may be taken, from
which they may be imported, and to which they may be exported, as
applicable; and
(iv) The duration of the permit, if the proposed extension would
extend the duration of the permit more than 12 months beyond that
established in the original permit.
(2) A minor amendment means any amendment that does not constitute a
major amendment.
(b) Amendment requests and proposals. (1) Requests by a permit
holder for an amendment must be submitted in writing and include the
following:
(i) The purpose and nature of the amendment;
(ii) Information, not previously submitted as part of the permit
application or subsequent reports, necessary to determine whether the
amendment satisfies all issuance criteria set forth at Sec. 216.34, and,
as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
(iii) Any additional information required by the Office Director for
purposes of reviewing the proposed amendment.
(2) If an amendment is proposed by the Office Director, the permit
holder will be notified of the proposed amendment, together with an
explanation.
(c) Review of proposed amendments. (1) Major amendments. The
provisions of Sec. 216.33(d) and (e) governing notice of receipt, review
and decision shall apply to all proposed major amendments.
(2) Minor amendments. (i) After reviewing all appropriate
information, the Office Director will provide the permit holder with
written notice of the decision on a proposed or requested amendment,
together with an explanation for the decision.
(ii) If the minor amendment extends the duration of the permit 12
months or less from that established in the original permit, notice of
the minor amendment will be published in the Federal Register within 10
days from the date of the Office Director's decision.
(iii) A minor amendment will be effective upon a final decision by
the Office Director.
[61 FR 21937, May 10, 1996]
Sec. 216.40 Penalties and permit sanctions.
(a) Any person who violates any provision of this subpart or permit
issued thereunder is subject to civil and criminal penalties, permit
sanctions and forfeiture as authorized under the Acts, and 15 CFR part
904.
(b) All special exception permits are subject to suspension,
revocation, modification and denial in accordance with the provisions of
subpart D of 15 CFR part 904.
[61 FR 21938, May 10, 1996]
Sec. 216.41 Permits for scientific research and enhancement.
In addition to the requirements under Secs. 216.33 through 216.38,
permits for scientific research and enhancement are governed by the
following requirements:
(a) Applicant. (1) For each application submitted under this
section, the applicant shall be the principal investigator
[[Page 50]]
responsible for the overall research or enhancement activity. If the
research or enhancement activity will involve a periodic change in the
principal investigator or is otherwise controlled by and dependent upon
another entity, the applicant may be the institution, governmental
entity, or corporation responsible for supervision of the principal
investigator.
(2) For any scientific research involving captive maintenance, the
application must include supporting documentation from the person
responsible for the facility or other temporary enclosure.
(b) Issuance Criteria. For the Office Director to issue any
scientific research or enhancement permit, the applicant must
demonstrate that:
(1) The proposed activity furthers a bona fide scientific or
enhancement purpose;
(2) If the lethal taking of marine mammals is proposed:
(i) Non-lethal methods for conducting the research are not feasible;
and
(ii) For depleted, endangered, or threatened species, the results
will directly benefit that species or stock, or will fulfill a
critically important research need.
(3) Any permanent removal of a marine mammal from the wild is
consistent with any applicable quota established by the Office Director.
(4) The proposed research will not likely have significant adverse
effects on any other component of the marine ecosystem of which the
affected species or stock is a part.
(5) For species or stocks designated or proposed to be designated as
depleted, or listed or proposed to be listed as endangered or
threatened:
(i) The proposed research cannot be accomplished using a species or
stock that is not designated or proposed to be designated as depleted,
or listed or proposed to be listed as threatened or endangered;
(ii) The proposed research, by itself or in combination with other
activities will not likely have a long-term direct or indirect adverse
impact on the species or stock;
(iii) The proposed research will either:
(A) Contribute to fulfilling a research need or objective identified
in a species recovery or conservation plan, or if there is no
conservation or recovery plan in place, a research need or objective
identified by the Office Director in stock assessments established under
section 117 of the MMPA;
(B) Contribute significantly to understanding the basic biology or
ecology of the species or stock, or to identifying, evaluating, or
resolving conservation problems for the species or stock; or
(C) Contribute significantly to fulfilling a critically important
research need.
(6) For proposed enhancement activities:
(i) Only living marine mammals and marine mammal parts necessary for
enhancement of the survival, recovery, or propagation of the affected
species or stock may be taken, imported, exported, or otherwise affected
under the authority of an enhancement permit. Marine mammal parts would
include in this regard clinical specimens or other biological samples
required for the conduct of breeding programs or the diagnosis or
treatment of disease.
(ii) The activity will likely contribute significantly to
maintaining or increasing distribution or abundance, enhancing the
health or welfare of the species or stock, or ensuring the survival or
recovery of the affected species or stock in the wild.
(iii) The activity is consistent with:
(A) An approved conservation plan developed under section 115(b) of
the MMPA or recovery plan developed under section 4(f) of the ESA for
the species or stock; or
(B) If there is no conservation or recovery plan, with the Office
Director's evaluation of the actions required to enhance the survival or
recovery of the species or stock in light of the factors that would be
addressed in a conservation or recovery plan.
(iv) An enhancement permit may authorize the captive maintenance of
a marine mammal from a threatened, endangered, or depleted species or
stock only if the Office Director determines that:
(A) The proposed captive maintenance will likely contribute directly
to
[[Page 51]]
the survival or recovery of the species or stock by maintaining a viable
gene pool, increasing productivity, providing necessary biological
information, or establishing animal reserves required to support
directly these objectives; and
(B) The expected benefit to the species or stock outweighs the
expected benefits of alternatives that do not require removal of marine
mammals from the wild.
(v) The Office Director may authorize the public display of marine
mammals held under the authority of an enhancement permit only if:
(A) The public display is incidental to the authorized captive
maintenance;
(B) The public display will not interfere with the attainment of the
survival or recovery objectives;
(C) The marine mammals will be held consistent with all requirements
and standards that are applicable to marine mammals held under the
authority of the Acts and the Animal Welfare Act, unless the Office
Director determines that an exception is necessary to implement an
essential enhancement activity; and
(D) The marine mammals will be excluded from any interactive program
and will not be trained for performance.
(vi) The Office Director may authorize non-intrusive scientific
research to be conducted while a marine mammal is held under the
authority of an enhancement permit, only if such scientific research:
(A) Is incidental to the permitted enhancement activities; and
(B) Will not interfere with the attainment of the survival or
recovery objectives.
(c) Restrictions. (1) The following restrictions apply to all
scientific research permits issued under this subpart:
(i) Research activities must be conducted in the manner authorized
in the permit.
(ii) Research results shall be published or otherwise made available
to the scientific community in a reasonable period of time.
(iii) Research activities must be conducted under the direct
supervision of the principal investigator or a co-investigator
identified in the permit.
(iv) Personnel involved in research activities shall be reasonable
in number and limited to:
(A) Individuals who perform a function directly supportive of and
necessary to the permitted research activity; and
(B) Support personnel included for the purpose of training or as
backup personnel for persons described in paragraph (c)(1)(iv)(A).
(v) Any marine mammal part imported under the authority of a
scientific research permit must not have been obtained as the result of
a lethal taking that would be inconsistent with the Acts, unless
authorized by the Office Director.
(vi) Marine mammals held under a permit for scientific research
shall not be placed on public display, included in an interactive
program or activity, or trained for performance unless such activities:
(A) Are necessary to address scientific research objectives and have
been specifically authorized by the Office Director under the scientific
research permit; and
(B) Are conducted incidental to and do not in any way interfere with
the permitted scientific research; and
(C) Are conducted in a manner consistent with provisions applicable
to public display, unless exceptions are specifically authorized by the
Office Director.
(vii) Any activity conducted incidental to the authorized scientific
research activity must not involve any taking of marine mammals beyond
what is necessary to conduct the research (i.e., educational and
commercial photography).
(2) Any marine mammal or progeny held in captive maintenance under
an enhancement permit shall be returned to its natural habitat as soon
as feasible, consistent with the terms of the enhancement permit and the
objectives of an approved conservation or recovery plan. In accordance
with section 10(j) of the ESA, the Office Director may authorize the
release of any population of an endangered or threatened species outside
the current range of
[[Page 52]]
such species if the Office Director determines that such release will
further the conservation of such species.
[61 FR 21938, May 10, 1996]
Sec. 216.42 Photography. [Reserved]
Sec. 216.43 Public display. [Reserved]
Sec. 216.44 Applicability/transition.
(a) General. The regulations of this subpart are applicable to all
persons, including persons holding permits or other authorizing
documents issued before June 10, 1996, by NMFS for the take, import,
export, or conduct of any otherwise prohibited activity involving a
marine mammal or marine mammal part for special exception purposes.
(b) Scientific research. Any intrusive research as defined in
Sec. 216.3, initiated after June 10, 1996, must be authorized under a
scientific research permit. Intrusive research authorized by the Office
Director to be conducted on captive marine mammals held for public
display purposes prior to June 10, 1996, must be authorized under a
scientific research permit one year after June 10, 1996.
[61 FR 21939, May 10, 1996]
Sec. 216.45 General Authorization for Level B harassment for scientific research.
(a) General Authorization. (1) Persons are authorized under section
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B
harassment, as defined in Sec. 216.3, for purposes of bona fide
scientific research Provided, That:
(i) They submit a letter of intent in accordance with the
requirements of paragraph (b) of this section, receive confirmation that
the General Authorization applies in accordance with paragraph (c) of
this section, and comply with the terms and conditions of paragraph (d)
of this section; or
(ii) If such marine mammals are listed as endangered or threatened
under the ESA, they have been issued a permit under Section 10(a)(1)(A)
of the ESA and implementing regulations at 50 CFR parts 217-227,
particularly at Sec. 222.23 through Sec. 222.28, to take marine mammals
in the wild for the purpose of scientific research, the taking
authorized under the permit involves such Level B harassment of marine
mammals or marine mammal stocks, and they comply with the terms and
conditions of that permit.
(2) Except as provided under paragraph (a)(1)(ii) of this section,
no taking, including harassment, of marine mammals listed as threatened
or endangered under the ESA is authorized under the General
Authorization. Marine mammals listed as endangered or threatened under
the ESA may be taken for purposes of scientific research only after
issuance of a permit for such activities pursuant to the ESA.
(3) The following types of research activities will likely qualify
for inclusion under the General Authorization: Photo-identification
studies, behavioral observations, and vessel and aerial population
surveys (except aerial surveys over pinniped rookeries at altitudes of
less than 1,000 ft).
(b) Letter of intent. Except as provided under paragraph (a)(1)(ii)
of this section, any person intending to take marine mammals in the wild
by Level B harassment for purposes of bona fide scientific research
under the General Authorization must submit, at least 60 days before
commencement of such research, a letter of intent by certified return/
receipt mail to the Chief, Permits Division, F/PR1, Office of Protected
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.
(1) The letter of intent must be submitted by the principal
investigator (who shall be deemed the applicant). For purposes of this
section, the principal investigator is the individual who is responsible
for the overall research project, or the institution, governmental
entity, or corporation responsible for supervision of the principal
investigator.
(2) The letter of intent must include the following information:
(i) The name, address, telephone number, qualifications and
experience of the applicant and any co-investigator(s) to be conducting
the proposed research, and a curriculum vitae for each, including a list
of publications by each such investigator relevant to the
[[Page 53]]
objectives, methodology, or other aspects of the proposed research;
(ii) The species or stocks of marine mammals (common and scientific
names) that are the subject of the scientific research and any other
species or stock of marine mammals that may be harassed during the
conduct of the research;
(iii) The geographic location(s) in which the research is to be
conducted, e.g., geographic name or lat./long.;
(iv) The period(s) of time over which the research will be conducted
(up to five years), including the field season(s) for the research, if
applicable;
(v) The purpose of the research, including a description of how the
proposed research qualifies as bona fide research as defined in
Sec. 216.3; and
(vi) The methods to be used to conduct the research.
(3) The letter of intent must be signed, dated, and certified by the
applicant as follows:
In accordance with section 104(c)(3)(C) of the Marine Mammal
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and
implementing regulations (50 CFR part 216), I hereby notify the National
Marine Fisheries Service of my intent to conduct research involving only
Level B harassment on marine mammals in the wild, and request
confirmation that the General Authorization for Level B Harassment for
Scientific Research applies to the proposed research as described
herein. I certify that the information in this letter of intent is
complete, true, and correct to the best of my knowledge and belief, and
I understand that any false statement may subject me to the criminal
penalties of 18 U.S.C. 1001, or penalties under the MMPA and
implementing regulations. I acknowledge and accept that authority to
conduct scientific research on marine mammals in the wild under the
General Authorization is a limited conditional authority restricted to
Level B harassment only, and that any other take of marine mammals,
including the conduct of any activity that has the potential to injure
marine mammals (i.e., Level A harassment), may subject me to penalties
under the MMPA and implementing regulations.
(c) Confirmation that the General Authorization applies or
notification of permit requirement.
(1) Not later than 30 days after receipt of a letter of intent as
described in paragraph (b) of this section, the Chief, Permits Division,
NMFS will issue a letter to the applicant either:
(i) Confirming that the General Authorization applies to the
proposed scientific research as described in the letter of intent;
(ii) Notifying the applicant that all or part of the research
described in the letter of intent is likely to result in a taking of a
marine mammal in the wild involving other than Level B harassment and,
as a result, cannot be conducted under the General Authorization, and
that a scientific research permit is required to conduct all or part of
the subject research; or
(iii) Notifying the applicant that the letter of intent fails to
provide sufficient information and providing a description of the
deficiencies, or notifying the applicant that the proposed research as
described in the letter of intent is not bona fide research as defined
in Sec. 216.3.
(2) A copy of each letter of intent and letter confirming that the
General Authorization applies or notifying the applicant that it does
not apply will be forwarded to the Marine Mammal Commission.
(3) Periodically, NMFS will publish a summary document in the
Federal Register notifying the public of letters of confirmation issued.
(d) Terms and conditions. Persons issued letters of confirmation in
accordance with paragraph (c) of this section are responsible for
complying with the following terms and conditions:
(1) Activities are limited to those conducted for the purposes, by
the means, in the locations, and during the periods of time described in
the letter of intent and acknowledged as authorized under the General
Authorization in the confirmation letter sent pursuant to paragraph (c)
of this section;
(2) Annual reports of activities conducted under the General
Authorization must be submitted to the Chief, Permits Division (address
listed in paragraph (b) of this section) within 90 days of completion of
the last field season(s) during the calendar year or, if the research is
not conducted during a defined field season, no later than 90 days after
the anniversary date of the letter of confirmation issued under
paragraph (c) of this section. Annual reports must include:
[[Page 54]]
(i) A summary of research activities conducted;
(ii) Identification of the species and number of each species taken
by Level B harassment;
(iii) An evaluation of the progress made in meeting the objectives
of the research as described in the letter of intent; and
(iv) Any incidental scientific, educational, or commercial uses of
photographs, videotape, and film obtained as a result of or incidental
to the research and if so, names of all photographers.
(3) Authorization to conduct research under the General
Authorization is for the period(s) of time identified in the letter of
intent or for a period of 5 years from the date of the letter of
confirmation issued under paragraph (c) of this section, whichever is
less, unless extended by the Director or modified, suspended, or revoked
in accordance with paragraph (e) of this section;
(4) Activities conducted under the General Authorization may only be
conducted under the on-site supervision of the principal investigator or
co-investigator(s) named in the letter of intent. All personnel involved
in the conduct of activities under the General Authorization must
perform a function directly supportive of and necessary for the research
being conducted, or be one of a reasonable number of support personnel
included for the purpose of training or as back-up personnel;
(5) The principal investigator must notify the appropriate Regional
Director, NMFS, (Regional Director) in writing at least 2 weeks before
initiation of on-site activities. The Regional Director shall consider
this information in efforts to coordinate field research activities to
minimize adverse impacts on marine mammals in the wild. The principal
investigator must cooperate with coordination efforts by the Regional
Director in this regard;
(6) If research activities result in a taking which exceeds Level B
harassment, the applicant shall:
(i) Report the taking within 12 hours to the Director, Office of
Protected Resources, or his designee as set forth in the letter
authorizing research; and
(ii) Temporarily discontinue for 72 hours all field research
activities that resulted in the taking. During this time period, the
applicant shall consult with NMFS as to the circumstances surrounding
the taking and any precautions necessary to prevent future taking, and
may agree to amend the research protocol, as deemed necessary by NMFS.
(7) NMFS may review scientific research conducted pursuant to the
General Authorization. If requested by NMFS, the applicant must
cooperate with any such review and shall:
(i) Allow any employee of NOAA or any other person designated by the
Director, Office of Protected Resources to observe research activities;
and
(ii) Provide any documents or other information relating to the
scientific research;
(8) Any photographs, videotape, or film obtained during the conduct
of research under the General Authorization must be identified by a
statement that refers to the General Authorization or ESA permit number,
and includes the file number provided by NMFS in the confirmation
letter, the name of the photographer, and the date the image was taken.
This statement must accompany the image(s) in all subsequent uses or
sales. The annual report must note incidental scientific, educational,
or commercial uses of the images, and if there are any such uses, the
names of all photographers; and
(9) Persons conducting scientific research under authority of the
General Authorization may not transfer or assign any authority granted
thereunder to any other person.
(e) Suspension, revocation, or modification. (1) NMFS may suspend,
revoke, or modify the authority to conduct scientific research under the
General Authorization if:
(i) The letter of intent included false information or statements of
a material nature;
(ii) The research does not constitute bona fide scientific research;
(iii) Research activities result in takings of marine mammals other
than by Level B harassment;
(iv) Research activities differ from those described in the letter
of intent submitted by the applicant and letter of confirmation issued
by NMFS; or
[[Page 55]]
(v) The applicant violates any term or condition set forth in this
section.
(2) Any suspension, revocation, or modification is subject to the
requirements of 15 CFR part 904.
[59 FR 50376, Oct. 3, 1994]
Secs. 216.46-216.49 [Reserved]
Subpart E--Designated Ports
Sec. 216.50 Importation at designated ports.
(a) Any marine mammal or marine mammal product which is subject to
the jurisdiction of the National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of Commerce and is
intended for importation into the United States shall be subject to the
provisions of 50 CFR part 14.
(b) For the information of importers, designated ports of entry for
the United States are:
New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.
(c) Additionally, marine mammals or marine mammal products which are
entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the
Virgin Islands and which are not to be forwarded or transhipped within
the United States may be imported through the following ports:
Alaska--Juneau, Anchorage, Fairbanks
Hawaii--Honolulu
Puerto Rico--San Juan
Guam--Honolulu, Hi.
American Samoa--Honolulu, Hi.
Virgin Islands--San Juan, P.R.
(d) Importers are advised to see 50 CFR part 14 for importation
requirements and information.
[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]
Subpart F--Pribilof Islands, Taking for Subsistence Purposes
Sec. 216.71 Allowable take of fur seals.
Pribilovians may take fur seals on the Pribilof Islands if such
taking is
(a) For subsistence uses, and
(b) Not accomplished in a wasteful manner.
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.72 Restrictions on taking.
(a) The harvests of seals on St. Paul and St. George Islands shall
be treated independently for the purposes of this section. Any
suspension, termination, or extension of the harvest is applicable only
to the island for which it is issued.
(b) By April 1 of every third year, beginning April 1994, the
Assistant Administrator will publish in the Federal Register a summary
of the preceding 3 years of harvesting and a discussion of the number of
seals expected to be taken annually over the next 3 years to satisfy the
subsistence requirements of each island. This discussion will include an
assessment of factors and conditions on St. Paul and St. George Islands
that influence the need by Pribilof Aleuts to take seals for subsistence
uses and an assessment of any changes to those conditions indicating
that the number of seals that may be taken for subsistence each year
should be made higher or lower. Following a 30-day public comment
period, a final notification of the expected annual harvest levels for
the next 3 years will be published.
(c)(1) No fur seal may be taken on the Pribilof Islands before June
23 of each year.
(2) No fur seal may be taken except by experienced sealers using the
traditional harvesting methods, including stunning followed immediately
by exsanguination. The harvesting method shall include organized drives
of subadult males to killing fields unless it is determined by the NMFS
representatives, in consultation with the Pribilovians conducting the
harvest,
[[Page 56]]
that alternative methods will not result in increased disturbance to the
rookery or the increased accidental take of female seals.
(3) Any taking of adult fur seals or pups, or the intentional taking
of subadult female fur seals is prohibited.
(4) Only subadult male fur seals 124.5 centimeters or less in length
may be taken.
(5) Seals with tags and/or entangling debris may only be taken if so
directed by NMFS scientists.
(d) The scheduling of the harvest is at the discretion of the
Pribilovians, but must be such as to minimize stress to the harvested
seals. The Pribilovians must give adequate advance notice of their
harvest schedules to the NMFS representatives to allow for necessary
monitoring activities. Scheduling must be consistent with the following
restrictions:
(1) St. Paul Island--Seals may only be harvested from the following
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin,
Kitovi, and Reef. No haulout area may be harvested more than once per
week.
(2) St. George Island--Seals may only be harvested from the
following haulout areas: Northeast and Zapadni. Neither haulout area may
be harvested more than twice per week.
(e)(1) The Assistant Administrator is required to suspend the take
provided for in Sec. 215.31 when:
(i) He determines, after reasonable notice by NMFS representatives
to the Pribilovians on the island, that the subsistence needs of the
Pribilovians on the island have been satisfied;
or
(ii) He determines that the harvest is otherwise being conducted in
a wasteful manner; or
(iii) The lower end of the range of the estimated subsistence level
provided in the notice issued under paragraph (b) of this section is
reached.
(2) A suspension based on a determination under paragraph (e)(1)(ii)
of this section may be lifted by the Assistant Administrator if he finds
that the conditions which led to the determination that the harvest was
being conducted in a wasteful manner have been remedied.
(3) A suspension issued in accordance with paragraph (e)(1)(iii) of
this section may not exceed 48 hours in duration and shall be followed
immediately by a review of the harvest data to determine if a finding
under paragraph (e)(1)(i) of this section is warranted. If a the harvest
is not suspended under paragraph (e)(1)(i) of this section, the
Assistant Administrator must provide a revised estimate of the number of
seals required to satisfy the Pribilovians' subsistence needs.
(f) The Assistant Administrator shall terminate the take provided
for in Sec. 215.31 on August 8 of each year or when it is determined
under paragraph (e)(1)(i) of this section that the subsistence needs of
the Pribilovians on the island have been satisfied, whichever occurs
first.
[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59
FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.73 Disposition of fur seal parts.
Except for transfers to other Alaskan Natives for barter or sharing
for personal or family consumption, no part of a fur seal taken for
subsistence uses may be sold or otherwise transferred to any person
unless it is a nonedible byproduct which:
(a) Has been transformed into an article of handicraft, or
(b) Is being sent by an Alaskan Native directly, or through a
registered agent, to a tannery registered under 50 CFR 216.23(c) for the
purpose of processing, and will be returned directly to the Alaskan
Native for conversion into an article of handicraft, or
(c) Is being sold or transferred to an Alaskan Native, or to an
agent registered under 50 CFR 216.23(c) for resale or transfer to an
Alaskan Native, who will convert the seal part into a handicraft.
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.74 Cooperation with Federal officials.
Pribilovians who engage in the harvest of seals are required to
cooperate with scientists engaged in fur seal research on the Pribilof
Islands who may need assistance in recording tag or
[[Page 57]]
other data and collecting tissue or other fur seal samples for research
purposes. In addition, Pribilovians who take fur seals for subsistence
uses must, consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS
representatives on the Pribilof Islands who are responsible for
compiling the following information on a daily basis:
(a) The number of seals taken each day in the subsistence harvest,
(b) The extent of the utilization of fur seals taken, and
(c) Other information determined by the Assistant Administrator to
be necessary for determining the subsistence needs of the Pribilovians
or for making determinations under Sec. 215.32(e).
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]
Subpart G--Pribilof Islands Administration
Sec. 216.81 Visits to fur seal rookeries.
From June 1 to October 15 of each year, no person, except those
authorized by a representative of the National Marine Fisheries Service,
or accompanied by an authorized employee of the National Marine
Fisheries Service, shall approach any fur seal rookery or hauling
grounds nor pass beyond any posted sign forbidding passage.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.82 Dogs prohibited.
In order to prevent molestation of fur seal herds, the landing of
any dogs at Pribilof Islands is prohibited.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.83 Importation of birds or mammals.
No mammals or birds, except household cats, canaries and parakeets,
shall be imported to the Pribilof Islands without the permission of an
authorized representative of the National Marine Fisheries Service.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.84 [Reserved]
Sec. 216.85 Walrus and Otter Islands.
By Executive Order 1044, dated February 27, 1909, Walrus and Otter
Islands were set aside as bird reservations. All persons are prohibited
to land on these islands except those authorized by the appropriate
representative of the National Marine Fisheries Service.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.86 Local regulations.
Local regulations will be published from time to time and will be
brought to the attention of local residents and persons assigned to duty
on the Islands by posting in public places and brought to the attention
of tourists by personal notice.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.87 Wildlife research.
(a) Wildlife research, other than research on North Pacific fur
seals, including specimen collection, may be permitted on the Pribilof
Islands subject to the following conditions:
(1) Any person or agency, seeking to conduct such research shall
first obtain any Federal or State of Alaska permit required for the type
of research involved.
(2) Any person seeking to conduct such research shall obtain prior
approval of the Director, Pribilof Islands Program, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration, 1700
Westlake Avenue North, Seattle, WA 98109, by filing with the Director an
application which shall include:
(i) Copies of the required Federal and State of Alaska permits; and
(ii) A resume of the intended research program.
(3) All approved research shall be subject to all regulations and
administrative procedures in effect on the Pribilof Islands, and such
research shall not commence until approval from the Director is
received.
(4) Any approved research program shall be subject to such terms and
conditions as the Director, Pribilof Islands Program deems appropriate.
[[Page 58]]
(5) Permission to utilize the Pribilof Islands to conduct an
approved research program may be revoked by the Director, Pribilof
Islands Program at any time for noncompliance with any terms and
conditions, or for violations of any regulation or administrative
procedure in effect on the Pribilof Islands.
[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]
Subpart H--Dolphin Safe Tuna Labeling
Authority: 16 U.S.C. 1385.
Source: 61 FR 27794, June 3, 1996, unless otherwise noted.
Sec. 216.90 Purpose.
This subpart governs the requirements for labeling of tuna or tuna
products sold in or exported from the United States that suggest the
tuna was harvested in a manner not injurious to dolphins.
Sec. 216.91 Labeling requirements.
It is a violation of section 5 of the Federal Trade Commission Act
(15 U.S.C. 45) for any person subject to U.S. jurisdiction, including
any producer, exporter, importer, distributor, or seller of any tuna
product exported from the United States or offered for sale in the
United States to include on the label of that product the term ``dolphin
safe'' or any other term, phrase, or symbol that claims or suggests that
the tuna contained in the product was harvested using a fishing method
that is not harmful to dolphins, if the product:
(a) Contains tuna harvested with a large-scale driftnet; or
(b) Contains tuna harvested in the ETP by a purse seine vessel 400
short tons (362.8 metric tons) carrying capacity or greater and is
labeled in a manner that violates the standards set forth in Sec. 216.92
or Sec. 216.93.
Sec. 216.92 Purse seine vessels greater than 400 short tons (362.8 metric tons).
For purposes of Sec. 216.91(b), any tuna product containing tuna
that were harvested in the ETP by a purse seine vessel 400 short tons
(362.8 metric tons) carrying capacity or greater, must be accompanied
by:
(a) A completed Fisheries Certificate of Origin;
(b) A written statement by the captain of each vessel that harvested
the tuna, certifying that the vessel did not intentionally deploy a
purse seine net on or to encircle dolphins at any time during the trip;
(c) A written statement certifying that an observer, employed by or
working under contract with the Inter-American Tropical Tuna Commission
or the Secretary, was on board the vessel during the entire trip and
that the vessel did not intentionally deploy a purse seine net on or to
encircle dolphin at any time during the trip. The statement must be
signed by either:
(1) The Secretary; or
(2) A representative of the Inter-American Tropical Tuna Commission;
and
(d) An endorsement on the Fisheries Certificate of Origin by each
exporter, importer, and processor certifying that, to the best of his or
her knowledge and belief, the Fisheries Certificate of Origin and
attached documentation, accurately describe the tuna products.
Sec. 216.93 Submission of documentation.
The documents required by Sec. 216.92 must accompany the tuna
product whenever it is offered for sale or export, except that these
documents need not accompany the product when offered for sale if:
(a) The documents do not require further endorsement by any importer
or processor, and are submitted to officials of the U.S. Customs Service
at the time of import; or
(b) The documents are endorsed as required by Sec. 216.92(d) and
delivered to the Director, Southwest Region, or to the U.S. Customs
Service at the time of exportation.
Sec. 216.94 Requests to review documents.
At any time, the Assistant Administrator may request, in writing,
any exporter, importer, processor, distributor, or seller of any tuna or
tuna product labeled in a manner subject to the
[[Page 59]]
requirements of Sec. 216.91, to produce, within a specified time period,
all documentary evidence concerning the origin of any product that is
offered for sale as ``dolphin safe,'' including the original invoice.
Sec. 216.95 False statements or endorsements.
Any person who knowingly and willfully makes a false statement or
false endorsement required by Sec. 216.92 is liable for a civil penalty
not to exceed $100,000, that may be assessed in an action brought in any
appropriate District Court of the United States on behalf of the
Secretary.
Subpart I--General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.
Sec. 216.101 Purpose.
The regulations in this subpart implement section 101(a)(5) (A)
through (D) of the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon
request, the incidental, but not intentional, taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographic region.
Sec. 216.102 Scope.
The taking of small numbers of marine mammals under section
101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be
allowed only if the National Marine Fisheries Service:
(a) Finds, based on the best scientific evidence available, that the
total taking by the specified activity during the specified time period
will have a negligible impact on species or stock of marine mammal(s)
and will not have an unmitigable adverse impact on the availability of
those species or stocks of marine mammals intended for subsistence uses;
(b) Prescribes either regulations under Sec. 216.106, or
requirements and conditions contained within an incidental harassment
authorization issued under Sec. 216.107, setting forth permissible
methods of taking and other means of effecting the least practicable
adverse impact on the species or stock of marine mammal and its habitat
and on the availability of the species or stock of marine mammal for
subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance; and
(c) Prescribes either regulations or requirements and conditions
contained within an incidental harassment authorization, as appropriate,
pertaining to the monitoring and reporting of such taking. The specific
regulations governing certain specified activities are contained in
subsequent subparts of this part.
Sec. 216.103 Definitions.
In addition to definitions contained in the MMPA, and in Sec. 216.3,
and unless the context otherwise requires, in subsequent subparts to
this part:
Arctic waters means the marine and estuarine waters north of 60 deg.
N. lat.
Citizens of the United States and U.S. citizens mean individual U.S.
citizens or any corporation or similar entity if it is organized under
the laws of the United States or any governmental unit defined in 16
U.S.C. 1362(13). U.S. Federal, state and local government agencies shall
also constitute citizens of the United States for purposes of this part.
Incidental harassment, incidental taking and incidental, but not
intentional, taking all mean an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings that
are infrequent, unavoidable or accidental. (A complete definition of
``take'' is contained in Sec. 216.3).
Negligible impact is an impact resulting from the specified activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates of
recruitment or survival.
Small numbers means a portion of a marine mammal species or stock
whose taking would have a negligible impact on that species or stock.
[[Page 60]]
Specified activity means any activity, other than commercial
fishing, that takes place in a specified geographical region and
potentially involves the taking of small numbers of marine mammals.
Specified geographical region means an area within which a specified
activity is conducted and that has certain biogeographic
characteristics.
Unmitigable adverse impact means an impact resulting from the
specified activity:
(1) That is likely to reduce the availability of the species to a
level insufficient for a harvest to meet subsistence needs by:
(i) Causing the marine mammals to abandon or avoid hunting areas;
(ii) Directly displacing subsistence users; or
(iii) Placing physical barriers between the marine mammals and the
subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to
increase the availability of marine mammals to allow subsistence needs
to be met.
Sec. 216.104 Submission of requests.
(a) In order for the National Marine Fisheries Service to consider
authorizing the taking by U.S. citizens of small numbers of marine
mammals incidental to a specified activity (other than commercial
fishing), or to make a finding that an incidental take is unlikely to
occur, a written request must be submitted to the Assistant
Administrator. All requests must include the following information for
their activity:
(1) A detailed description of the specific activity or class of
activities that can be expected to result in incidental taking of marine
mammals;
(2) The date(s) and duration of such activity and the specific
geographical region where it will occur;
(3) The species and numbers of marine mammals likely to be found
within the activity area;
(4) A description of the status, distribution, and seasonal
distribution (when applicable) of the affected species or stocks of
marine mammals likely to be affected by such activities;
(5) The type of incidental taking authorization that is being
requested (i.e., takes by harassment only; takes by harassment, injury
and/or death) and the method of incidental taking;
(6) By age, sex, and reproductive condition (if possible), the
number of marine mammals (by species) that may be taken by each type of
taking identified in paragraph (a)(5) of this section, and the number of
times such takings by each type of taking are likely to occur;
(7) The anticipated impact of the activity upon the species or stock
of marine mammal;
(8) The anticipated impact of the activity on the availability of
the species or stocks of marine mammals for subsistence uses;
(9) The anticipated impact of the activity upon the habitat of the
marine mammal populations, and the likelihood of restoration of the
affected habitat;
(10) The anticipated impact of the loss or modification of the
habitat on the marine mammal populations involved;
(11) The availability and feasibility (economic and technological)
of equipment, methods, and manner of conducting such activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks, their habitat, and on their availability for
subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance;
(12) Where the proposed activity would take place in or near a
traditional Arctic subsistence hunting area and/or may affect the
availability of a species or stock of marine mammal for Arctic
subsistence uses, the applicant must submit either a plan of cooperation
or information that identifies what measures have been taken and/or will
be taken to minimize any adverse effects on the availability of marine
mammals for subsistence uses. A plan must include the following:
(i) A statement that the applicant has notified and provided the
affected subsistence community with a draft plan of cooperation;
(ii) A schedule for meeting with the affected subsistence
communities to discuss proposed activities and to resolve potential
conflicts regarding any
[[Page 61]]
aspects of either the operation or the plan of cooperation;
(iii) A description of what measures the applicant has taken and/or
will take to ensure that proposed activities will not interfere with
subsistence whaling or sealing; and
(iv) What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in the
operation;
(13) The suggested means of accomplishing the necessary monitoring
and reporting that will result in increased knowledge of the species,
the level of taking or impacts on populations of marine mammals that are
expected to be present while conducting activities and suggested means
of minimizing burdens by coordinating such reporting requirements with
other schemes already applicable to persons conducting such activity.
Monitoring plans should include a description of the survey techniques
that would be used to determine the movement and activity of marine
mammals near the activity site(s) including migration and other habitat
uses, such as feeding. Guidelines for developing a site-specific
monitoring plan may be obtained by writing to the Director, Office of
Protected Resources; and
(14) Suggested means of learning of, encouraging, and coordinating
research opportunities, plans, and activities relating to reducing such
incidental taking and evaluating its effects.
(b)(1) The Assistant Administrator shall determine the adequacy and
completeness of a request and, if determined to be adequate and
complete, will begin the public review process by publishing in the
Federal Register either:
(i) A proposed incidental harassment authorization; or
(ii) A notice of receipt of a request for the implementation or
reimplementation of regulations governing the incidental taking.
(2) Through notice in the Federal Register, newspapers of general
circulation, and appropriate electronic media in the coastal areas that
may be affected by such activity, NMFS will invite information,
suggestions, and comments for a period not to exceed 30 days from the
date of publication in the Federal Register. All information and
suggestions will be considered by the National Marine Fisheries Service
in developing, if appropriate, the most effective regulations governing
the issuance of letters of authorization or conditions governing the
issuance of an incidental harassment authorization.
(3) Applications that are determined to be incomplete or
inappropriate for the type of taking requested, will be returned to the
applicant with an explanation of why the application is being returned.
(c) The Assistant Administrator shall evaluate each request to
determine, based upon the best available scientific evidence, whether
the taking by the specified activity within the specified geographic
region will have a negligible impact on the species or stock and, where
appropriate, will not have an unmitigable adverse impact on the
availability of such species or stock for subsistence uses. If the
Assistant Administrator finds that the mitigating measures would render
the impact of the specified activity negligible when it would not
otherwise satisfy that requirement, the Assistant Administrator may make
a finding of negligible impact subject to such mitigating measures being
successfully implemented. Any preliminary findings of ``negligible
impact'' and ``no unmitigable adverse impact'' shall be proposed for
public comment along with either the proposed incidental harassment
authorization or the proposed regulations for the specific activity.
(d) If, subsequent to the public review period, the Assistant
Administrator finds that the taking by the specified activity would have
more than a negligible impact on the species or stock of marine mammal
or would have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses, the Assistant Administrator shall
publish in the Federal Register the negative finding along with the
basis for denying the request.
[[Page 62]]
Sec. 216.105 Specific regulations.
(a) For all petitions for regulations under this paragraph,
applicants must provide the information requested in Sec. 216.104(a) on
their activity as a whole, which includes, but is not necessarily
limited to, an assessment of total impacts by all persons conducting the
activity.
(b) For allowed activities that may result in incidental takings of
small numbers of marine mammals by harassment, serious injury, death or
a combination thereof, specific regulations shall be established for
each allowed activity that set forth:
(1) Permissible methods of taking;
(2) Means of effecting the least practicable adverse impact on the
species and its habitat and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including
requirements for the independent peer-review of proposed monitoring
plans where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses.
(c) Regulations will be established based on the best available
information. As new information is developed, through monitoring,
reporting, or research, the regulations may be modified, in whole or in
part, after notice and opportunity for public review.
Sec. 216.106 Letter of Authorization.
(a) A Letter of Authorization, which may be issued only to U.S.
citizens, is required to conduct activities pursuant to any regulations
established under Sec. 216.105. Requests for Letters of Authorization
shall be submitted to the Director, Office of Protected Resources. The
information to be submitted in a request for an authorization will be
specified in the appropriate subpart to this part or may be obtained by
writing to the above named person.
(b) Issuance of a Letter of Authorization will be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under the specific
regulations.
(c) Letters of Authorization will specify the period of validity and
any additional terms and conditions appropriate for the specific
request.
(d) Notice of issuance of all Letters of Authorization will be
published in the Federal Register within 30 days of issuance.
(e) Letters of Authorization shall be withdrawn or suspended, either
on an individual or class basis, as appropriate, if, after notice and
opportunity for public comment, the Assistant Administrator determines
that:
(1) The regulations prescribed are not being substantially complied
with; or
(2) The taking allowed is having, or may have, more than a
negligible impact on the species or stock or, where relevant, an
unmitigable adverse impact on the availability of the species or stock
for subsistence uses.
(f) The requirement for notice and opportunity for public review in
Sec. 216.106(e) shall not apply if the Assistant Administrator
determines that an emergency exists that poses a significant risk to the
wellbeing of the species or stocks of marine mammals concerned.
(g) A violation of any of the terms and conditions of a Letter of
Authorization or of the specific regulations shall subject the Holder
and/or any individual who is operating under the authority of the
Holder's Letter of Authorization to penalties provided in the MMPA.
Sec. 216.107 Incidental harassment authorization for Arctic waters.
(a) Except for activities that have the potential to result in
serious injury or mortality, which must be authorized under
Sec. 216.105, incidental harassment authorizations may be issued,
following a 30-day public review period, to allowed activities that may
result in only the incidental harassment of a small number of marine
mammals. Each such incidental harassment authorization shall set forth:
(1) Permissible methods of taking by harassment;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including
requirements for
[[Page 63]]
the independent peer-review of proposed monitoring plans where the
proposed activity may affect the availability of a species or stock for
taking for subsistence uses.
(b) Issuance of an incidental harassment authorization will be based
on a determination that the number of marine mammals taken by harassment
will be small, will have a negligible impact on the species or stock of
marine mammal(s), and will not have an unmitigable adverse impact on the
availability of species or stocks for taking for subsistence uses.
(c) An incidental harassment authorization will be either issued or
denied within 45 days after the close of the public review period.
(d) Notice of issuance or denial of an incidental harassment
authorization will be published in the Federal Register within 30 days
of issuance of a determination.
(e) Incidental harassment authorizations will be valid for a period
of time not to exceed 1 year but may be renewed for additional periods
of time not to exceed 1 year for each reauthorization.
(f) An incidental harassment authorization shall be modified,
withdrawn, or suspended if, after notice and opportunity for public
comment, the Assistant Administrator determines that:
(1) The conditions and requirements prescribed in the authorization
are not being substantially complied with; or
(2) The authorized taking, either individually or in combination
with other authorizations, is having, or may have, more than a
negligible impact on the species or stock or, where relevant, an
unmitigable adverse impact on the availability of the species or stock
for subsistence uses.
(g) The requirement for notice and opportunity for public review in
paragraph (f) of this section shall not apply if the Assistant
Administrator determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals concerned.
(h) A violation of any of the terms and conditions of an incidental
harassment authorization shall subject the holder and/or any individual
who is operating under the authority of the holder's incidental
harassment authorization to penalties provided in the MMPA.
Sec. 216.108 Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters.
(a) Holders of an incidental harassment authorization in Arctic
waters and their employees, agents, and designees must cooperate with
the National Marine Fisheries Service and other designated Federal,
state, or local agencies to monitor the impacts of their activity on
marine mammals. Unless stated otherwise within an incidental harassment
authorization, the holder of an incidental harassment authorization
effective in Arctic waters must notify the Alaska Regional Director,
National Marine Fisheries Service, of any activities that may involve a
take by incidental harassment in Arctic waters at least 14 calendar days
prior to commencement of the activity.
(b) Holders of incidental harassment authorizations effective in
Arctic waters may be required by their authorization to designate at
least one qualified biological observer or another appropriately
experienced individual to observe and record the effects of activities
on marine mammals. The number of observers required for monitoring the
impact of the activity on marine mammals will be specified in the
incidental harassment authorization. If observers are required as a
condition of the authorization, the observer(s) must be approved in
advance by the National Marine Fisheries Service.
(c) The monitoring program must, if appropriate, document the
effects (including acoustical) on marine mammals and document or
estimate the actual level of take. The requirements for monitoring
plans, as specified in the incidental harassment authorization, may vary
depending on the activity, the location, and the time.
(d) Where the proposed activity may affect the availability of a
species or stock of marine mammal for taking for
[[Page 64]]
subsistence purposes, proposed monitoring plans or other research
proposals must be independently peer-reviewed prior to issuance of an
incidental harassment authorization under this subpart. In order to
complete the peer-review process within the time frames mandated by the
MMPA for an incidental harassment authorization, a proposed monitoring
plan submitted under this paragraph must be submitted to the Assistant
Administrator no later than the date of submission of the application
for an incidental harassment authorization. Upon receipt of a complete
monitoring plan, and at its discretion, the National Marine Fisheries
Service will either submit the plan to members of a peer review panel
for review or within 60 days of receipt of the proposed monitoring plan,
schedule a workshop to review the plan. The applicant must submit a
final monitoring plan to the Assistant Administrator prior to the
issuance of an incidental harassment authorization.
(e) At its discretion, the National Marine Fisheries Service may
place an observer aboard vessels, platforms, aircraft, etc., to monitor
the impact of activities on marine mammals.
(f)(1) As specified in the incidental harassment authorization, the
holder of an incidental harassment authorization for Arctic waters must
submit reports to the Assistant Administrator within 90 days of
completion of any individual components of the activity (if any), within
90 days of completion of the activity, but no later than 120 days prior
to expiration of the incidental harassment authorization, whichever is
earlier. This report must include the following information:
(i) Dates and type(s) of activity;
(ii) Dates and location(s) of any activities related to monitoring
the effects on marine mammals; and
(iii) Results of the monitoring activities, including an estimate of
the actual level and type of take, species name and numbers of each
species observed, direction of movement of species, and any observed
changes or modifications in behavior.
(2) Monitoring reports will be reviewed by the Assistant
Administrator and, if determined to be incomplete or inaccurate, will be
returned to the holder of the authorization with an explanation of why
the report is being returned. If the authorization holder disagrees with
the findings of the Assistant Administrator, the holder may request an
independent peer review of the report. Failure to submit a complete and
accurate report may result in a delay in processing future authorization
requests.
(g) Results of any behavioral, feeding, or population studies, that
are conducted supplemental to the monitoring program, should be made
available to the National Marine Fisheries Service before applying for
an incidental harassment authorization for the following year.
Subpart J--Taking of Ringed Seals Incidental to On-Ice Seismic
Activities
Source: 63 FR 5283, Feb. 2, 1998, unless otherwise noted.
Effective Date Note: At 63 FR 5283, Feb. 2, 1998, subpart J was
revised, effective Feb. 2, 1998, to Dec. 31, 2002.
Sec. 216.111 Specified activity and specified geographical region.
Regulations in this subpart apply only to the incidental taking of
ringed seals (Phoca hispida) and bearded seals (Erignathus barbatus) by
U.S. citizens engaged in on-ice seismic exploratory and associated
activities over the Outer Continental Shelf of the Beaufort Sea of
Alaska, from the shore outward to 45 mi (72 km) and from Point Barrow
east to Demarcation Point, from January 1 through May 31 of any calendar
year.
Sec. 216.112 Effective dates.
Regulations in this subpart are effective from February 2, 1998
through December 31, 2002.
Sec. 216.113 Permissible methods.
The incidental, but not intentional, taking of ringed and bearded
seals from January 1 through May 31 by U.S. citizens holding a Letter of
Authorization, issued under Sec. 216.106, is permitted during the course
of the following activities:
[[Page 65]]
(a) On-ice geophysical seismic activities involving vibrator-type,
airgun, or other energy source equipment shown to have similar or lesser
effects.
(b) Operation of transportation and camp facilities associated with
seismic activities.
Sec. 216.114 Mitigation.
(a) All activities identified in Sec. 216.113 must be conducted in a
manner that minimizes to the greatest extent practicable adverse effects
on ringed and bearded seals and their habitat.
(b) All activities identified in Sec. 216.113 must be conducted as
far as practicable from any observed ringed or bearded seal or ringed
seal lair. No energy source must be placed over an observed ringed seal
lair, whether or not any seal is present.
Sec. 216.115 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization are required to cooperate
with the National Marine Fisheries Service and any other Federal, state,
or local agency monitoring the impacts on ringed or bearded seals.
(b) Holders of Letters of Authorization must designate qualified on-
site individuals, as specified in the Letter of Authorization, to
observe and record the presence of ringed or bearded seals and ringed
seal lairs along shot lines and around camps, and the information
required in paragraph (d) of this section.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) An annual report must be submitted to the Assistant
Administrator for Fisheries within 90 days after completing each year's
activities and must include the following information:
(1) Location(s) of survey activities.
(2) Level of effort (e.g., duration, area surveyed, number of
surveys), methods used, and a description of habitat (e.g., ice
thickness, surface topography) for each location.
(3) Numbers of ringed seals, bearded seals, or other marine mammals
observed, proximity to seismic or associated activities, and any seal
reactions observed for each location.
(4) Numbers of ringed seal lairs observed and proximity to seismic
or associated activities for each location.
(5) Other information as required in a Letter of Authorization.
Sec. 216.116 Applications for Letters of Authorization.
(a) To incidentally take ringed and bearded seals pursuant to these
regulations, each company conducting seismic operations between January
1 and May 31 in the geographical area described in Sec. 216.111, must
apply for and obtain a Letter of Authorization in accordance with
Sec. 216.106.
(b) The application must be submitted to the National Marine
Fisheries Service at least 90 days before the activity is scheduled to
begin.
(c) Applications for Letters of Authorization and for renewals of
Letters of Authorization must include the following:
(1) Name of company requesting the authorization;
(2) A description of the activity including method to be used
(vibroseis, airgun, watergun), the dates and duration of the activity,
the specific location of the activity and the estimated area that will
actually be affected by the exploratory activity;
(3) Any plans to monitor the behavior and effects of the activity on
marine mammals;
(4) A description of what measures the applicant has taken and/or
will take to ensure that proposed activities will not interfere with
subsistence sealing; and
(5) What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in the
operation.
(d) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental takings
of ringed and bearded seals.
Sec. 216.117 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 for the
activity identified in Sec. 216.111 will be renewed annually upon:
[[Page 66]]
(1) Timely receipt of the reports required under Sec. 216.115(d),
which have been reviewed by the Assistant Administrator and determined
to be acceptable; and
(2) A determination that the mitigation measures required under
Sec. 216.114(b) and the Letter of Authorization have been undertaken.
(b) A notice of issuance of a Letter of Authorization or of a
renewal of a Letter of Authorization will be published in the Federal
Register within 30 days of issuance.
Sec. 216.118 Modifications to Letters of Authorization.
(a) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to a Letter of
Authorization issued pursuant to Sec. 216.106 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment. For purposes of this paragraph, renewal
of a Letter of Authorization under Sec. 216.117, without modification,
is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.111, the Letter of
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to
this section may be substantively modified without prior notice and an
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
Sec. 216.119 [Reserved]
Subparts K-L [Reserved]
Subpart M--Taking of Bottlenose Dolphins and Spotted Dolphins Incidental
to Oil and Gas Structure Removal Activities
Source: 60 FR 53145, Oct. 12, 1995, unless otherwise noted.
Redesignated at 61 FR 15887, Apr. 10, 1996.
Effective Date Note: At 60 FR 53145, Oct. 12, 1995, subpart E to
part 228 was added, effective Nov. 13, 1995 through Nov. 13, 2000. At 61
FR 15887, Apr. 10, 1996, subpart E to part 228 was redesignated as
subpart M to part 216.
Sec. 216.141 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals by U.S. citizens engaged in removing oil and gas
drilling and production structures in state waters and on the Outer
Continental Shelf in the Gulf of Mexico adjacent to the coasts of Texas,
Louisiana, Alabama, Mississippi, and Florida. The incidental, but not
intentional, taking of marine mammals by U.S. citizens holding a Letter
of Authorization is permitted during the course of severing pilings,
well conductors, and related supporting structures, and other activities
related to the removal of the oil well structure.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited annually to a
combined total of no more than 200 takings by harassment of bottlenose
dolphins (Tursiops truncatus) and spotted dolphins (Stenella frontalis
and S. attenuata).
Sec. 216.142 Effective dates.
Regulations in this subpart are effective from November 13, 1995
through November 13, 2000.
Sec. 216.143 Permissible methods of taking; mitigation.
(a) The use of the following means in conducting the activities
identified in Sec. 216.141 is permissible: Bulk explosives, shaped
explosive charges, mechanical or abrasive cutters, and underwater arc
cutters.
(b) All activities identified in Sec. 216.141 must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
effects on bottlenose dolphins, spotted dolphins, and their habitat.
When using explosives, the following mitigation measures must be
utilized:
(1)(i) If bottlenose or spotted dolphins are observed within 3,000
ft (910 m) of the platform prior to detonating charges, detonation must
be delayed
[[Page 67]]
until either the marine mammal(s) are more than 3,000 ft (910 m) from
the platform or actions (e.g., operating a vessel in the vicinity of the
dolphins to stimulate bow riding, then steering the vessel away from the
structure to be removed) are successful in removing them at least 3,000
ft (910 m) from the detonation site;
(ii) Whenever the conditions described in paragraph (b)(1)(i) of
this section occur, the aerial survey required under Sec. 216.145(b)(1)
must be repeated prior to detonation of charges if the timing
requirements of Sec. 216.145(b)(1) cannot be met.
(2) Detonation of explosives must occur no earlier than 1 hour after
sunrise and no later than 1 hour before sunset;
(3) If weather and/or sea conditions preclude adequate aerial,
shipboard or subsurface surveillance, detonations must be delayed until
conditions improve sufficiently for surveillance to be undertaken; and
(4) Detonations must be staggered by a minimum of 0.9 seconds for
each group of charges.
[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
Sec. 216.144 Prohibitions.
Notwithstanding takings authorized by Sec. 216.143 or by a Letter of
Authorization issued under Sec. 216.106, the following activities are
prohibited:
(a) The taking of a marine mammal that is other than unintentional,
except that the intentional passive herding of dolphins from the
vicinity of the platform may be authorized under section 109(h) of the
Act as described in a Letter of Authorization;
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this part or a Letter of Authorization
issued or renewed under Sec. 216.106 or Sec. 216.146;
(c) The incidental taking of any marine mammal of a species either
not specified in this subpart or whenever the incidental taking
authorization for authorized species has been reached; and
(d) The use of single explosive charges having an impulse and
pressure greater than that generated by a 50-lb (22.7 kg) explosive
charge detonated outside the rig piling.
[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
Sec. 216.145 Requirements for monitoring and reporting.
(a) Observer(s) approved by the National Marine Fisheries Service in
advance of the detonation must be used to monitor the area around the
site prior to, during, and after detonation of charges.
(b)(1) Both before and after each detonation episode, an aerial
survey by NMFS-approved observers must be conducted for a period not
less than 30 minutes within 1 hour of the detonation episode. To ensure
that no marine mammals are within the designated 3,000 ft (1,000 yd, 941
m) safety zone nor are likely to enter the designated safety zone prior
to or at the time of detonation, the pre-detonation survey must
encompass all waters within one nautical mile of the structure.
(2) A second post-detonation aerial or vessel survey of the
detonation site must be conducted no earlier than 48 hours and no later
than 1 week after the oil and gas structure is removed, unless a
systematic underwater survey, either by divers or remotely-operated
vehicles, dedicated to marine mammals and sea turtles, of the site has
been successfully conducted within 24 hours of the detonation event. The
aerial or vessel survey must be systematic and concentrate down-current
from the structure.
(3) The NMFS observer may waive post-detonation monitoring described
in paragraph (b)(2) of this section provided no marine mammals were
sighted by the observer during either the required 48 hour pre-
detonation monitoring period or during the pre-detonation aerial survey.
(c) During all diving operations (working dives as required in the
course of the removals), divers must be instructed to scan the
subsurface areas surrounding the platform (detonation) sites for
bottlenose or spotted dolphins and if marine mammals are sighted to
inform either the U.S. government observer or the agent of the holder of
the Letter of Authorization immediately upon surfacing.
[[Page 68]]
(d)(1) A report summarizing the results of structure removal
activities, mitigation measures, monitoring efforts, and other
information as required by a Letter of Authorization, must be submitted
to the Director, NMFS, Southeast Region, 9721 Executive Center Drive N,
St. Petersburg, FL 33702 within 30 calendar days of completion of the
removal of the rig.
(2) NMFS will accept the U.S. Government observer report as the
activity report if all requirements for reporting contained in the
Letter of Authorization are provided to that observer before the
observer's report is complete.
Sec. 216.146 Letters of Authorization.
(a) To incidentally take bottlenose and spotted dolphins pursuant to
these regulations, each company operating or which operated an oil or
gas structure in the geographical area described in Sec. 216.141, and
which is responsible for abandonment or removal of the platform, must
apply for and obtain a Letter of Authorization in accordance with
Sec. 216.106.
(b) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental takings
of bottlenose and spotted dolphins.
[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
Sec. 216.147 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 for the
activity identified in Sec. 216.141 will be renewed annually upon:
(1) Timely receipt of the reports required under Sec. 216.145(d),
which have been reviewed by the Assistant Administrator and determined
to be acceptable;
(2) A determination that the maximum incidental take authorizations
in Sec. 216.141(b) will not be exceeded; and
(3) A determination that the mitigation measures required under
Sec. 216.143(b) and the Letter of Authorization have been undertaken.
(b) If a species' annual authorization is exceeded, the Assistant
Administrator will review the documentation submitted with the annual
reports required under Sec. 216.145(d), to determine that the taking is
not having more than a negligible impact on the species or stock
involved.
(c) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register.
[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
Sec. 216.148 Modifications to Letters of Authorization.
(a) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to the Letter of
Authorization issued pursuant to Sec. 216.106 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment. For purposes of this paragraph, renewal
of a Letter of Authorization under Sec. 216.147, without modification,
is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.141(b), the Letter of
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to
this section may be substantively modified without prior notice and an
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
Subpart N--Taking of Marine Mammals Incidental to Underwater Detonation
of Conventional Explosives by the Department of Defense
Source: 59 FR 5126, Feb. 3, 1994, unless otherwise noted.
Redesignated at 61 FR 15887, Apr. 10, 1996.
Effective Date Note: At 59 FR 5126, Feb. 3, 1994, subpart F to part
228 was added, effective March 3, 1994 through March 3, 1999. At 61 FR
15887, Apr. 10, 1996, subpart F of part 228 was redesignated as subpart
N of part 216.
[[Page 69]]
Sec. 216.151 Specified activity, geographical region, and incidental take levels.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in the detonation of conventional military explosives
within the waters of the Outer Sea Test Range of the Naval Air Warfare
Center, Pt. Mugu, Ventura County, CA.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited annually to the
following species and species groups:
------------------------------------------------------------------------
Lethal Injury Harassment
------------------------------------------------------------------------
California Sea Lion......................... 2 38 173
Harbor Seal................................. 2 16 68
Northern Elephant Seal...................... 9 158 724
Northern Fur Seal........................... 2 13 57
Common Dolphin.............................. 1 16 67
Striped Dolphin............................. 0 2 5
Risso's Dolphin............................. 0 1 2
Pacific White-Sided Dolphin................. 3 52 236
Northern Rt. Whale Dolphin.................. 2 24 108
Dall's Porpoise............................. 0 6 18
Bottlenose Dolphin.......................... 0 4 15
Killer Whale................................ 0 0 1
Sperm Whale................................. 0 6 20
Beaked Whales............................... 0 0 3
Minke Whale................................. 0 0 4
Blue Whale.................................. 0 1 11
Fin Whale................................... 0 0 6
Sei Whale................................... 0 0 1
Humpback Whale.............................. 0 0 4
Gray Whale.................................. 0 3 40
Right Whale................................. 0 0 1
------------------------------------------------------------------------
Sec. 216.152 Effective dates.
Regulations in this subpart are effective from March 3, 1994,
through March 3, 1999.
Sec. 216.153 Permissible methods of taking; mitigation.
(a) U.S. citizens holding a Letter of Authorization issued pursuant
to Sec. 216.106 may incidentally, but not intentionally, take marine
mammals by harassment, injury or killing in the course of the detonation
of conventional explosives up to the following maximum annual level
within the area described in Sec. 216.151(a):
(1) 12 detonations of 10,000 lbs (4,536 kg);
(2) 2 detonations of 1,200 lbs (544 kg);
(3) 10 detonations of 100 lbs (45 kg);
(4) 10 detonations of 10 lbs (4.5 kg); and
(5) 20 detonations of 1 lb (0.45 kg), provided all terms,
conditions, and requirements of these regulations and such Letter of
Authorization are complied with.
(b) The activity identified in paragraph (a) of this section must be
conducted in a manner that minimizes, to the greatest extent possible,
adverse impacts on marine mammals and their habitat. When detonating
explosives, the following mitigation measures must be utilized:
(1) If marine mammals are observed within the designated safety zone
prescribed in the Letter of Authorization, or on a course that will put
them within the safety zone prior to detonation, detonation must be
delayed until the marine mammals are no longer within the safety zone.
(2) If weather and/or sea conditions preclude adequate aerial
surveillance, detonation must be delayed until conditions improve
sufficiently for aerial surveillance to be undertaken.
(3) If post-test surveys determine that an injurious or lethal take
of a marine mammal has occurred, the test procedure and the monitoring
methods must be reviewed and appropriate changes must be made prior to
conducting the next project.
[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
Sec. 216.154 Prohibitions.
Notwithstanding takings authorized by Sec. 216.153 or by a Letter of
Authorization issued under Sec. 216.106, the following activities are
prohibited:
(a) The taking of a marine mammal that is other than unintentional;
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this part or a Letter of Authorization
issued or renewed under Sec. 216.106 or Sec. 216.156; and
(c) The incidental taking of any marine mammal of a species either
not specified in this subpart or whose taking authorization for the year
has been reached.
[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887,
15890, Apr. 10, 1996]
[[Page 70]]
Sec. 216.155 Requirements for monitoring and reporting.
(a) The holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service and any other
Federal, state or local agency monitoring the impacts of the activity on
marine mammals. The holder must notify the Director, Southwest Region,
National Marine Fisheries Service, 501 West Ocean Boulevard, suite 4200,
Long Beach, CA (Telephone: (310) 980-4001), at least 2 weeks prior to
activities involving the detonation of explosives in order to satisfy
paragraph (f) of this section.
(b) The holder of the Letter of Authorization must designate a
qualified on-site individual(s) to record the effects of explosives
detonation on marine mammals that inhabit the Outer Sea Test Range.
(c) The primary test area, and if necessary, secondary and tertiary
test areas, in the Outer Sea Test Range, must be surveyed by marine
mammal biologists and other trained individuals, and the marine mammal
populations monitored, approximately 48 hours prior to a scheduled
detonation, on the day of detonation, and for a period of time specified
in the Letter of Authorization after each test or project. Monitoring
shall include, but not necessarily be limited to, aerial surveillance
sufficient to ensure that no marine mammals are within the designated
safety zone nor are likely to enter the designated safety zone prior to
or at the time of detonation.
(d)(1) Under the direction of a certified marine mammal
veterinarian, examination and recovery of any dead or injured marine
mammals will be conducted. Necropsies will be performed and tissue
samples taken from any dead animals. After completion of the necropsy,
animals not retained for shoreside examination, will be tagged and
returned to the sea. The occurrence of live marine mammals will also be
documented.
(2) Activities related to the monitoring described in paragraph
(d)(1) of this section or the Letter of Authorization issued under this
part may include the retention of marine mammals without the need for a
separate scientific research permit. The use of such marine mammals in
other scientific research may be authorized pursuant to 50 CFR parts 216
and 220.
(e) At its discretion, the National Marine Fisheries Service may
place an observer on either the towing vessel, target vessel, or both,
and on any ship or aircraft involved in marine mammal reconnaissance, or
monitoring either prior to, during, or after explosives detonation in
order to monitor the impact on marine mammals.
(f) A summary report must be submitted to the Assistant
Administrator for Fisheries, NOAA, within 90 days after the conclusion
of any explosives detonation project. This report must include the
following information:
(1) Date and time of the test(s);
(2) A summary of the pre-test and post-test activities related to
mitigating and monitoring the effects of explosives detonation on marine
mammal populations; and
(3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the
detonation and numbers that may have been harassed due to presence
within the safety zone.
(g) An annual report must be submitted to the Assistant
Administrator for Fisheries, NOAA, no later than 120 days prior to the
date of expiration of the annual Letter of Authorization in order for
issuance of a Letter of Authorization for the following year. This
annual report must contain the following information:
(1) Date and time of all tests conducted under the expiring Letter
of Authorization;
(2) A description of all pre-test and post-test activities related
to mitigating and monitoring the effects of explosives detonation on
marine mammal populations;
(3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the
detonation and numbers that may have been harassed due to presence
within the designated safety zone;
(4) If one or more species' take levels have been reached or
exceeded during the previous year, additional documentation must be
provided on the
[[Page 71]]
taking and a description of any measures that will be taken in the
following year to prevent exceeding the authorized incidental take
level.
(5) Results of any population assessment studies made on marine
mammals in the Outer Sea Test Range during the previous year.
Sec. 216.156 Renewal of Letter of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 for the
activity identified in Sec. 216.151(a) will be renewed annually upon:
(1) Timely receipt of the reports required under Sec. 216.155(f) and
(g), which have been reviewed by the Assistant Administrator for
Fisheries, NOAA, and determined to be acceptable;
(2) A determination that the maximum incidental take authorizations
in Sec. 216.151(b) will not be exceeded; and
(3) A determination that the mitigation measures required under
Sec. 216.153(b) and the Letter of Authorization have been undertaken.
(b) If a species' annual authorization is exceeded, the National
Marine Fisheries Service will review the documentation submitted with
the annual report required under Sec. 216.155(g), to determine that the
taking is not having more than a negligible impact on the species or
stock involved.
(c) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register.
[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887,
15890-15891, Apr. 10, 1996]
Sec. 216.157 Modifications to Letter of Authorization.
(a) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to the Letter of
Authorization issued pursuant to Sec. 216.106 and subject to the
provisions of this subpart shall be made until after notice and an
opportunity for public comment. For purposes of this paragraph, renewal
of a Letter of Authorization under Sec. 216.146, without modification,
is not considered a substantive modification.
(b) If the National Marine Fisheries Service determines that an
emergency exists that poses a significant risk to the well-being of the
species or stocks of marine mammals specified in Sec. 216.151, or that
significantly and detrimentally alters the scheduling of explosives
detonation within the area specified in Sec. 216.151, the Letter of
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to
this section may be substantively modified without prior notice and an
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887,
15891, Apr. 10, 1996]
Subparts O-Q [Reserved]
PART 217--GENERAL PROVISIONS--Table of Contents
Subpart A--Introduction
Sec.
217.1 Purpose of regulations.
217.2 Scope of regulations.
217.3 Other applicable laws.
217.4 When regulations apply.
Subpart B--Definitions
217.12 Definitions.
Subpart C--Addresses
217.21 Assistant Administrator.
217.22 Office of Marine Mammals and Endangered Species.
217.23 Enforcement Division.
Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544,
unless otherwise noted.
Subpart A--Introduction
Sec. 217.1 Purpose of regulations.
The regulations of parts 216 through 227 are promulgated to
implement the following statutes enforced by the National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Department of Commerce, which regulate the taking, possession,
transportation, sale, purchase,
[[Page 72]]
barter, exportation, and importation of wildlife.
(Endangered Species Act of 1973, section 11(f), 87 Stat. 884, Pub. L.
93-205; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-1)
[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]
Sec. 217.2 Scope of regulations.
The various provisions of parts 216 through 227 of this chapter are
interrelated, and particular note should be taken that the parts must be
construed with reference to each other. The regulations in parts 216
through 227 apply only for fish or wildlife under the jurisdictional
responsibilities of the Secretary of Commerce for the purpose of
carrying out the Endangered Species Act of 1973 (see part 222,
Sec. 222.23(a)). Endangered species of fish or wildlife other than those
covered by these regulations are under the jurisdiction of the Secretary
of the Interior. For rules and procedures relating to such species, see
50 CFR parts 10 through 17.
[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]
Sec. 217.3 Other applicable laws.
No statute or regulation of any State shall be construed to relieve
a person from the restrictions, conditions, and requirements contained
in parts 216 through 227 of this chapter. In addition, nothing in parts
216 through 227 of this chapter, nor any permit issued under parts 217
through 228 of this chapter, shall be construed to relieve a person from
any other requirements imposed by a statute or regulation of any State
or of the United States, including any applicable health, quarantine,
agricultural, or customs laws or regulations, or other National Marine
Fisheries Service enforced statutes or regulations.
[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]
Sec. 217.4 When regulations apply.
The regulations of parts 216 through 227 of this chapter shall apply
to all matters, including the processing of permits, arising after the
effective date of such regulations, with the following exception:
(a) Civil penalty proceedings. Except as otherwise provided in
Sec. 218.25, the civil penalty assessment procedures contained in parts
216 through 227 of this chapter shall apply only to any proceeding
instituted by notice of violation dated subsequent to the effective date
of these regulations, regardless of when the act or omission which is
the basis of a civil penalty proceeding occurred.
(b) [Reserved]
[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]
Subpart B--Definitions
Sec. 217.12 Definitions.
Accelerator funnel means a device used to accelerate the flow of
water through a shrimp trawl net.
Act means the Endangered Species Act of 1973, as amended (Pub. L.
93-205).
Approved TED means:
(1) A hard TED that complies with the generic design criteria set
forth in 50 CFR 227.72(e)(4)(i). (A hard TED may be modified as
specifically authorized by 50 CFR 227.72(e)(4)(iv)); or
(2) A soft TED that complies with the provisions of 50 CFR
227.72(e)(4)(iii); or
(3) A special hard TED which complies with the provisions of 50 CFR
227.72(e)(4)(ii).
Assistant Administrator means the Assistant Administrator for
Fisheries of the National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce, or his authorized
representative.
Atlantic Area means all waters of the Atlantic Ocean south of
36 deg.33'00.8" N. latitude (the line of the North Carolina/Virginia
border) and adjacent seas, other than waters of the Gulf Area, and all
waters shoreward thereof (including ports).
Atlantic Shrimp Fishery-Sea Turtle Conservation Area (Atlantic
SFSTCA) means the inshore and offshore waters extending to 10 nautical
miles (18.5 km) offshore along the coast of the States of Georgia and
South Carolina from the Georgia-Florida border (defined as the line
along 301/242'45.6'' N. lat.) to the North Carolina-South Carolina
border
[[Page 73]]
(defined as the line extending in a direction of 1351/234'55'' from true
north from the North Carolina-South Carolina land boundary, as marked by
the border station on Bird Island at 331/2 51'07.9'' N. lat.,
0781/232'32.6'' W. long.).
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the U.S. Coast
Guard;
(2) Any special agent or enforcement officer of the National Marine
Fisheries Service;
(3) Any officer designated by the head of a Federal or state agency
that has entered into an agreement with the Secretary or the Commandant
of the Coast Guard to enforce the provisions of the Act; or
(4) Any Coast Guard personnel accompanying and acting under the
direction of any person described in paragraph (1) of this definition.
Bait shrimper means a shrimp trawler that fishes for and retains its
shrimp catch alive for the purpose of selling it for use as bait.
Commercial activity means all activities of industry and trade,
including, but not limited to, the buying or selling of commodities and
activities conducted for the purpose of facilitating such buying and
selling: Provided, however, That it does not include the exhibition of
commodities by museums or similar cultural or historical organizations.
Country of exportation means the last country from which the animal
was exported before importation into the United States.
Country of origin means the country where the animal was taken from
the wild, or the country of natal origin of the animal.
Fish or wildlife means any member of the animal kingdom, including
without limitation any mammal, fish, bird (including any migratory,
nonmigratory, or endangered bird for which protection is also afforded
by treaty or other international agreement), amphibian, reptile,
mollusk, crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or parts
thereof.
Fishing, or to fish, means:
(1) The catching taking or harvesting of fish or wildlife;
(2) The attempted catching, taking, or harvesting of fish or
wildlife;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish or wildlife; or
(4) Any operations on any waters in support of, or in preparation
for, any activity described in paragraphs (1) through (3) of this
definition.
Footrope means a weighted rope or cable attached to the lower lip
(bottom edge) of the mouth of a trawl net along the forwardmost webbing.
Footrope length means the distance between the points at which the
ends of the footrope are attached to the trawl net, measured along the
forwardmost webbing.
Foreign commerce includes, among other things, any transaction (1)
between persons within one foreign country, or (2) between persons in
two or more foreign countries, or (3) between a person within the United
States and a person in one or more foreign countries, or (4) between
persons within the United States, where the fish or wildlife in question
are moving in any country or countries outside the United States.
Four-seam, straight-wing trawl means a design of shrimp trawl in
which the main body of the trawl is formed from a top panel, a bottom
panel, and two side panels of webbing. The upper and lower edges of the
side panels of webbing are parallel over the entire length.
Four-seam, tapered-wing trawl means a design of shrimp trawl in
which the main body of the trawl is formed from a top panel, a bottom
panel, and two side panels of webbing. The upper and lower edges of the
side panels of webbing converge toward the rear of the trawl.
Gulf Area means all waters of the Gulf of Mexico west of 81 deg. W.
longitude (the line at which the Gulf Area meets the Atlantic Area) and
all waters shoreward thereof (including ports).
Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means
the offshore waters extending to 10 nautical miles (18.5 km) offshore
along the coast of the States of Texas and Louisiana from the South Pass
of the Mississippi River (west of 891/208.5' W. long.) to the U.S.-
Mexican border.
[[Page 74]]
Hard TED means a rigid deflector grid and associated hardware
designed to be installed in a trawl net forward of the codend for the
purpose of excluding sea turtles from the net.
Headrope means a rope that is attached to the upper lip (top edge)
of the mouth of a trawl net along the forewardmost webbing.
Headrope length means the distance between the points at which the
ends of the headrope are attached to the trawl net, measured along the
forewardmost webbing.
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into any place subject to the
jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the meaning
of the tariff laws of the United States.
Inshore means marine and tidal waters landward of the 72 COLREGS
demarcation line (International Regulations for Preventing Collisions at
Sea, 1972), as depicted or noted on nautical charts published by the
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000
scale) and as described in 33 CFR part 80.
Leatherback conservation zone means all inshore and offshore waters
bounded on the south by a line along 28 deg.24.6' N. lat. (Cape
Canaveral, FL), and bounded on the north by a line along 36 deg.30.5' N.
lat. (North Carolina-Virginia border).
Length in reference to a shrimp trawler, means the distance from the
tip of the vessel's bow to the tip of its stern.
North Carolina restricted area means that portion of the offshore
waters bounded on the north by a line along 34 deg.17.6' N. latitude
(Rich Inlet, North Carolina) and 34 deg.35.7' N. latitude (Browns Inlet,
North Carolina) to a distance of 1 nautical mile seaward of the 72
COLREGS demarcation line (International Regulations for Preventing
Collisions at Sea, 1972).
Offshore means marine and tidal waters seaward of the 72 COLREGS
demarcation line (International Regulations for Preventing Collisions at
Sea, 1972), as depicted or noted on nautical charts published by the
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000
scale) and as described in 33 CFR part 80.
Permit or ``Certificate of exemption'' means any document so
designated by the National Marine Fisheries Service and signed by an
authorized official of the National Marine Fisheries Service, including
any document which modifies, amends, extends or renews any permit or
certificate of exemption.
Person means an individual, corporation, partnership, trust,
association, or any other private entity, or any officer, employee,
agent, department, or instrumentality of the Federal Government, of any
State or political subdivision thereof, or of any foreign government.
Possession means the detention and control, or the manual or ideal
custody of anything which may be the subject of property, for one's use
and enjoyment, either as owner or as the proprietor of a qualified right
in it, and either held personally or by another who exercises it in
one's place and name. Possession includes the act or state of possessing
and that condition of facts under which one can exercise his power over
a corporeal thing at his pleasure to the exclusion of all other persons.
Possession includes constructive possession which means not actual but
assumed to exist, where one claims to hold by virtue of some title,
without having actual custody.
Pre-Act endangered species part means any sperm whale oil, including
derivatives and products thereof, which was lawfully held within the
United States on December 28, 1973 in the course of a commercial
activity; or any finished scrimshaw product, if such product or the raw
material for such product was lawfully held within the United States on
December 28, 1973, in the course of a commercial activity.
Pusher-head trawl (chopsticks) means a trawl that is spread by poles
suspended in a ``V'' configuration from the bow of the trawler.
Right whale, as used in subpart D of this part, means any whale that
is a member of the western North Atlantic population of the northern
right whale species (Eubalaena glacialis).
Scrimshaw product means any art form which involves the substantial
etching or engraving of designs upon,
[[Page 75]]
or the substantial carving of figures, patterns, or designs from any
bone or tooth of any marine mammal of the order Cetacea. For purposes of
this part, polishing or the adding of minor superficial markings does
not constitute substantial etching, engraving or carving.
Secretary means the Secretary of Commerce or his authorized
representative.
Shrimp means any species of marine shrimp (Order Crustacea) found in
the Atlantic Area or the Gulf Area, including, but not limited to:
(1) Brown shrimp (Penaeus aztecus);
(2) White shrimp (P. setiferus);
(3) Pink shrimp (P. duorarum);
(4) Rock shrimp (Sicyonia brevirostris);
(5) Royal red shrimp (Hymenopenaeus robustus); and
(6) Seabob shrimp (Xiphopenaeus kroyeri).
Shrimp trawler means any vessel that is equipped with one or more
trawl nets and that is capable of, or used for, fishing for shrimp, or
whose on-board or landed catch of shrimp is more than 1 percent, by
weight, of all fish comprising its on-board or landed catch.
Skimmer trawl means a trawl that extends from the outrigger of a
vessel with a cable and a lead weight holding the trawl mouth open.
Soft TED means a panel of polypropylene or polyethylene netting
designed to be installed in a trawl net forward of the codend for the
purpose of excluding sea turtles from the net.
State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin
Islands, Guam, and the Trust Territory of the Pacific Islands.
Stretched mesh size means the distance between the centers of the
two opposite knots in the same mesh when pulled taut.
Summer flounder means the species Paralichthys dentatus.
Summer flounder fishery-sea turtle protection area means:
(1) All offshore waters, bounded on the north by a line along
37 deg.05' N. latitude (Cape Charles, VA) and bounded on the south by a
line along 33 deg.35' N. latitude (North Carolina-South Carolina
border), except as provided in paragraph (2) of this definition.
(2) [Reserved]
Summer flounder trawler means any vessel that is equipped with one
or more bottom trawl nets, and that is capable of, or used for, fishing
for flounder, or whose on-board or landed catch of flounder is more than
100 pounds (45.4 kg).
Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or attempt to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect.
Taper, in reference to the webbing used in trawls, means the angle
of a cut used to shape the webbing, expressed as the ratio between the
cuts that reduce the width of the webbing by cutting into the panel of
webbing through one row of twine (bar cuts) and the cuts that extend the
length of the panel of webbing by cutting straight aft through two
adjoining rows of twine (point cuts). For example, sequentially cutting
through the lengths of twine on opposite sides of a mesh, leaving an
uncut edge of twines all lying in the same line, produces a relatively
strong taper called ``all-bars''; making a sequence of 4-bar cuts
followed by 1-point cut produces a more gradual taper called ``4 bars to
1 point'' or ``4b1p''; similarly, making a sequence of 2-bar cuts
followed by 1-point cut produces a still more gradual taper called
``2b1p''; and making a sequence of cuts straight aft does not reduce the
width of the panel and is called a ``straight'' or ``all-points'' cut.
Taut means a condition in which there is no slack in the net
webbing.
TED (turtle excluder device) means a device designed to be installed
in a trawl net forward of the codend for the purpose of excluding sea
turtles from the net.
Test net, or try net, means a net pulled for brief periods of time
just before, or during, deployment of the primary net(s) in order to
test for shrimp concentrations or determine fishing conditions (e.g.,
presence or absence of bottom debris, jellyfish, bycatch, seagrasses,
etc.).
Tongue means any piece of webbing along the top, center, leading
edge of a trawl, whether lying behind or ahead of
[[Page 76]]
the headrope, to which a towing bridle can be attached for purposes of
pulling the trawl net and/or adjusting the shape of the trawl.
Transportation means to ship, convey, carry or transport by any
means whatever, and deliver or receive for such shipment, conveyance,
carriage, or transportation.
Triple-wing trawl means a trawl with a tongue on the top, center,
leading edge of the trawl and an additional tongue along the bottom,
center, leading edge of the trawl.
Two-seam trawl means a design of shrimp trawl in which the main body
of the trawl is formed from a top panel and a bottom panel of webbing
that are directly attached to each other down the sides of the trawl.
Underway, with respect to a vessel, means that the vessel is not at
anchor, or made fast to the shore, or aground.
United States means the several States of the United States of
America, the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
Vessel includes every description of watercraft, including
nondisplacement craft and seaplanes, used or capable of being used as a
means of transportation on water.
Vessel restricted in her ability to maneuver has the meaning
specified for this term at 33 U.S.C. 2003(g).
Whoever means the same as person.
Wildlife means the same as fish or wildlife.
Wing net (butterfly trawl) means a trawl with a rigid frame, rather
than trawl door, holding the trawl mouth open.
(Sec. 3(d), Fish and Wildlife Act of 1956, as amended, 88 Stat. 92 (16
U.S.C. 742b); sec. 11(f), Endangered Species Act of 1973, Pub. L. 93-
205, 87 Stat. 884 (16 U.S.C. 1540))
[45 FR 57132, Aug. 27, 1980]
Editorial Note: For Federal Register citations affecting
Sec. 217.12, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Subpart C--Addresses
Authority: Sec. 3(d), Fish and Wildlife Act of 1956, as amended, 88
Stat. 92 (16 U.S.C. 742b); sec. 11(f), Endangered Species Act of 1973,
Pub. L. 93-205, 87 Stat. 884 (16 U.S.C. 1540).
Source: 45 FR 57133, Aug. 27, 1980, unless otherwise noted.
Sec. 217.21 Assistant Administrator.
Mail forwarded to the Assistant Administrator for Fisheries should
be addressed:
Assistant Administrator for Fisheries, F
National Marine Fisheries Service
Washington, DC 20235.
Sec. 217.22 Office of Marine Mammals and Endangered Species.
Mail in regard to permits should be addressed to:
Office of Marine Mammals and Endangered Species, F/MM
National Marine Fisheries Service
Washington, DC 20235.
Sec. 217.23 Enforcement Division.
Mail in regard to enforcement and certificates of exemption should
be addressed to:
Enforcement Division, F/CM5
National Marine Fisheries Service
Washington, DC 20235.
PART 220--GENERAL PERMIT PROCEDURES--Table of Contents
Subpart A--Introduction
Sec.
220.1 General.
220.2 Purpose of regulations.
220.3 Scope of regulations.
220.4 Emergency variation from requirements.
Subpart B--Application for Permits
220.11 Procedure for obtaining a permit.
220.12 [Reserved]
220.13 Abandoned application.
Subpart C--Permit Administration
220.21 Issuance of permits.
220.22 Duration of permit.
220.23 [Reserved]
220.24 Renewal of permit.
220.25 Permits not transferable; agents.
220.26 Right of succession by certain persons.
220.27 Change of mailing address.
220.28 Change in name.
220.29-220.30 [Reserved]
220.31 Discontinuance of activity.
[[Page 77]]
Subpart D--Conditions
220.42 Permits are specific.
220.43 Alteration of permits.
220.44 Display of permit.
220.45 Filing of reports.
220.46 Maintenance of records.
220.47 Inspection requirement.
Subpart E--Permits Involving Endangered or Threatened Sea Turtles
220.50 Purpose.
220.51 Permit applications.
220.52 Issuance of permits.
220.53 Other requirements.
Authority: Endangered Species Act of 1973, sec. 11(f), 87 Stat. 884,
Pub. L. 93-205; act of August 31, 1951, Ch. 376. Title 5, sec. 501, 65
Stat. 290 (31 U.S.C. 483a).
Source: 39 FR 41373, Nov. 27, 1974, unless otherwise noted.
Subpart A--Introduction
Sec. 220.1 General.
Each person intending to engage in an activity for which a permit is
required by parts 217 through 222 of this chapter or the Endangered
Species Act of 1973 shall, before commencing such activity, obtain a
valid permit authorizing such activity. Each person who desires to
obtain the permit privileges authorized by parts 217 through 222 of this
chapter must make application for such permit in accordance with the
requirements of this part 220 of this chapter and the other regulations
in parts 217 through 222 of this chapter which set forth the additional
requirements for the specific permits desired. If the activity for which
permission is sought is covered by the requirements of more than one
part of parts 217 through 222 of this chapter, the requirements of each
part must be met. If the information required for each specific
permitted activity is included, one application may be accepted for all
permits required, and a single permit may be issued.
Sec. 220.2 Purpose of regulations.
The regulations contained in this part will provide uniform rules
and procedures for application, issuance, renewal, conditions, and
general administration of permits issuable pursuant to parts 217 through
222 of this chapter.
Sec. 220.3 Scope of regulations.
The provisions in this part are in addition to, and are not in lieu
of, other permit regulations of parts 217 through 222 of this chapter
and apply to all permits issued thereunder, including ``Endangered Fish
or Wildlife'' (part 222).
Sec. 220.4 Emergency variation from requirements.
The Director may approve variations from the requirements of this
part when he finds that an emergency exists and that the proposed
variations will not hinder effective administration of parts 217 through
222 of this chapter, and will not be unlawful.
Subpart B--Application for Permits
Sec. 220.11 Procedure for obtaining a permit.
The following general procedures apply to applications for permits:
(a) Forms. Applications must be submitted by letter containing all
necessary information, attachments, certification, and signature. In no
case will oral or telephone applications be accepted.
(b) Forwarding instructions. Applications must be submitted to the
Director, National Marine Fisheries Service. The address is listed in
Sec. 217.21.
(c) Time requirement. Applications must be received by the
appropriate official of the National Marine Fisheries Service at least
90 calendar days prior to the date on which the applicant desires to
have the permit made effective. The National Marine Fisheries Service
will, in all cases, attempt to process applications deemed sufficient in
the shortest possible time. The National Marine Fisheries Service does
not, however, guarantee 90 days issuance after publication in the
Federal Register of receipt of a permit application and some permits
cannot be issued within that time period.
Sec. 220.12 [Reserved]
Sec. 220.13 Abandoned application.
Upon receipt of an insufficiently or improperly executed
application, the
[[Page 78]]
applicant shall be notified of the deficiency in the application. If the
applicant fails to supply the deficient information or otherwise fails
to correct the deficiency within 60 days following the date of
notification, the application shall be considered abandoned.
Subpart C--Permit Administration
Sec. 220.21 Issuance of permits.
(a) No permit may be issued prior to the receipt of a written
application therefor, unless a written variation from the requirements,
as authorized by Sec. 220.4 is inserted into the official file of the
National Marine Fisheries Service. Any representation of an employee or
agent of the United States Government shall not be construed as a permit
unless it meets the requirements of a permit as defined in 50 CFR
217.12.
(b) The Director shall issue the appropriate permit unless--
(1) Denial of a permit has been made pursuant to subpart D of 15 CFR
part 904;
(2) The applicant has failed to disclose material information
required, or has made false statements as to any material fact, in
connection with his application;
(3) The applicant has failed to demonstrate a valid justification
for the permit or a showing of responsibility;
(4) The authorization requested potentially threatens a wildlife
population, or
(5) The Director finds through further inquiry or investigation, or
otherwise, that the applicant is not qualified.
(c) Each permit shall bear a serial number. Such number may be
reassigned to the permittee to whom issued so long as he maintains
continuity of renewal.
(d) The applicant shall be notified in writing of the denial of any
permit request, and the reasons therefor. If authorized in the notice of
denial, the applicant may submit further information, or reasons why the
permit should not be denied. Such further submissions shall not be
considered a new application. The final action by the Director shall be
considered the final administrative decision of the Department.
[39 FR 41373, Nov. 27, 1974, as amended at 49 FR 1042, Jan. 6, 1984]
Sec. 220.22 Duration of permit.
Permits shall entitle the person to whom issued to engage in the
activity specified in the permit, within the limitations of the
applicable statute and regulations contained in parts 217 through 222 of
this chapter for the period stated on the permit, unless sooner
modified, suspended, or revoked pursuant to subpart D of 15 CFR part
904.
[49 FR 1042, Jan. 6, 1984]
Sec. 220.23 [Reserved]
Sec. 220.24 Renewal of permit.
Where the permit is renewable and a permittee intends to continue
the activity described in the permit during any portion of the year
ensuing its expiration, he shall, unless otherwise notified in writing
by the Director, file a request for permit renewal, together with a
certified statement that the information in his original application is
still currently correct, or a statement of all changes in the original
application, accompanied by any required fee at least 30 days prior to
the expiration of his permit. Any person holding a valid renewable
permit, who has complied with the foregoing provision of this section,
may continue such activities as were authorized by his expired permit
until his renewal application is acted upon.
Sec. 220.25 Permits not transferable; agents.
(a) Permits issued under parts 220 through 222 are not transferable
or assignable. Some permits authorize certain activities in connection
with a business or commercial enterprise and in the event of any lease,
sale, or transfer of such business entity, the successor must obtain a
permit prior to continuing the permitted activity. However, certain
limited rights of succession are provided in Sec. 220.26.
(b) Except as otherwise stated on the face of a permit, any person
who is under the direct control of the permittee, or who is employed by
or under
[[Page 79]]
contract to the permittee for the purposes authorized by the permit, may
carry out the activity authorized by the permit.
Sec. 220.26 Right of succession by certain persons.
(a) Certain persons, other than the permittee, are granted the right
to carry on a permitted activity for the remainder of the term of a
current permit provided they comply with the provisions of paragraph (b)
of this section. Such persons are the following:
(1) The surviving spouse, child, executor, administrator, or other
legal representative of a deceased permittee; and
(2) A receiver or trustee in bankruptcy or a court designated
assignee for the benefit of creditors.
(b) In order to secure the right provided in this section, the
person or persons desiring to continue the activity shall furnish the
permit to the issuing officer for endorsement within 90 days from the
date the successor begins to carry on the activity.
Sec. 220.27 Change of mailing address.
During the term of his permit, a permittee may change his mailing
address without procuring a new permit. However, in every case
notification of the new mailing address must be forwarded to the issuing
official within 30 days after such change. This section does not
authorize the change of location of the permitted activity for which an
amendment must be obtained.
Sec. 220.28 Change in name.
A permittee continuing to conduct a permitted activity is not
required to obtain a new permit by reason of a mere change in trade name
under which a business is conducted or a change of name by reason of
marriage or legal decree: Provided, That such permittee must furnish his
permit to the issuing official for endorsement within 30 days from the
date the permittee begins conducting the permitted activity under the
new name.
Secs. 220.29-220.30 [Reserved]
Sec. 220.31 Discontinuance of activity.
When any permittee discontinues his activity, he shall, within 30
days thereof, mail his permit and a request for cancellation to the
issuing officer, and said permit shall be deemed void upon receipt. No
refund of any part of an amount paid as a permit fee shall be made where
the operations of the permittee are, for any reason, discontinued during
the tenure of an issued permit.
Subpart D--Conditions
Sec. 220.42 Permits are specific.
The authorizations on the face of a permit which set forth specific
times, dates, places, methods of taking, numbers and kinds of fish or
wildlife, location of activity, authorize certain circumscribed
transactions, or otherwise permit a specifically limited matter, are to
be strictly construed and shall not be interpreted to permit similar or
related matters outside the scope of strict construction.
Sec. 220.43 Alteration of permits.
Permits shall not be altered, erased, or mutilated, and any permit
which has been altered, erased, or mutilated shall immediately become
invalid.
Sec. 220.44 Display of permit.
Any permit issued under parts 220 through 222 shall be displayed for
inspection upon request to the Director or his agent, or to any other
person relying upon its existence.
Sec. 220.45 Filing of reports.
Permittees may be required to file reports of the activities
conducted under the permit. Any such reports shall be filed not later
than March 31 for the preceding calendar year ending December 31, or any
portion thereof, during which a permit was in force, unless the
regulations of parts 217 through 222 of this chapter or the provisions
of the permit set forth other reporting requirements.
[[Page 80]]
Sec. 220.46 Maintenance of records.
From the date of issuance of the permit, the permittee shall
maintain complete and accurate records of any taking, possession,
transportation, sale, purchase, barter, exportation, or importation of
fish or wildlife pursuant to such permit. Such records shall be kept
current and shall include names and addresses of persons with whom any
fish or wildlife has been purchased, sold, bartered, or otherwise
transferred, and the date of such transaction, and such other
information as may be required or appropriate. Such records, unless
otherwise specified, shall be entered in books, legibly written in the
English language. Such records shall be retained for 5 years from the
date of issuance of the permit.
Sec. 220.47 Inspection requirement.
Any person holding a permit under parts 217 through 222 of this
chapter shall allow the Director's agent to enter his premises at any
reasonable hour to inspect any fish or wildlife held or to inspect,
audit, or copy any permits, books, or records required to be kept by
regulations of parts 217 through 222 of this chapter or by the
Endangered Species Act of 1973.
Subpart E--Permits Involving Endangered or Threatened Sea Turtles
Source: 43 FR 32809, July 28, 1978, unless otherwise noted.
Sec. 220.50 Purpose.
This subpart establishes procedures for issuance of permits for
scientific purposes or to enhance the propagation or survival of
``endangered'' or ``threatened'' sea turtles and zoological exhibition
or educational purposes for ``threatened'' sea turtles.
Sec. 220.51 Permit applications.
Applications for permits to take, import, export or engage in any
other prohibited activity involving any species of sea turtle listed in
50 CFR 17.11 shall be submitted to the Wildlife Permit Office (WPO) of
the U.S. Fish and Wildlife Service in accordance with either, 50 CFR
17.22(a) (Endangered Species) or 50 CFR 17.32(a) (Threatened Species) as
appropriate. Applications involving activities under the jurisdiction of
the National Marine Fisheries Service (NMFS) as defined in 50 CFR
222.23(a) and 50 CFR 227.4 shall be forwarded by the WPO to NMFS.
Sec. 220.52 Issuance of permits.
(a) Applications under the jurisdiction of the WPO shall be reviewed
and acted upon in accordance with 50 CFR 17.22 or 50 CFR 17.32 as
appropriate.
(b) NMFS shall make a complete review of applications forwarded to
it by the WPO in accordance with Sec. 220.51 and determine the
appropriate action to be taken in accordance with 50 CFR 220.21(b) and
222.23(c). In instances where the application involves activities solely
within NMFS jurisdiction, NMFS shall issue permits or letters of denial
and provide WPO with copies of its actions.
(c) Where a permit application involves activities under both NMFS
and FWS jurisdiction, each agency will process the application for
activities under its jurisdiction. WPO will issue either a permit or a
letter of denial.
(d) Where a permit application for activities under NMFS
jurisdiction also requires a permit under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (TIAS
8249, July 1, 1975) (CITES) (50 CFR part 23), NMFS will process the
application for activities under its jurisdiction. WPO will issue the
final document by means of a combination ESA/CITES permit or a letter of
denial.
Sec. 220.53 Other requirements.
Permits issued by NMFS under this subpart shall be administered and
comply with the provisions of 50 CFR parts 217 through 227 as
appropriate.
PART 221--DESIGNATED PORTS--Table of Contents
Authority: Endangered Species Act of 1973, sec. 11(f), 87 Stat. 884,
Pub. L. 93-205.
Sec. 221.1 Importation and exportation at designated ports.
Any fish or wildlife (other than shellfish and fishery products
which (a) are
[[Page 81]]
not endangered or not threatened species, and (b) are imported for
purposes of human or animal consumption or taken in waters under the
jurisdiction of the United States or on the high seas for recreational
purposes) which is subject to the jurisdiction of the National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Department of Commerce and is intended for importation into or
exportation from the United States, shall not be imported or exported
except at a port or ports designated by the Secretary of the Interior.
The Secretary of the Interior may permit the importation or exportation
at nondesignated ports in the interest of the health or safety of the
fish or wildlife or for other reasons if he deems it appropriate and
consistent with the purpose of facilitating enforcement of the
Endangered Species Act and reducing the costs thereof. Importers and
exporters are advised to see 50 CFR part 14 for importation and
exportation requirements and information.
[39 FR 41375, Nov. 27, 1974]
PART 222--ENDANGERED FISH OR WILDLIFE--Table of Contents
Subpart A--Introduction
Sec.
222.1 Purpose of regulations.
222.2 Scope of regulations.
222.3 Definitions.
Subpart B--Certificates of Exemption for Pre-Act Endangered Species
Parts
222.11-1 General certificate of exemption requirements.
222.11-2 Application renewal procedure.
222.11-3 Application renewal requirements.
222.11-4 Procedures for issuance of renewals of certificates of
exemption.
222.11-5 Application for modification of certificate of exemption by
holder.
222.11-6 Amendment of certificates of exemption.
222.11-7 Procedures for suspension, revocation, or modification of
certificates of exemption.
222.11-8 Purchaser provisions.
222.11-9 Duration of certificate of exemption.
222.12 Locations covered by certificate of exemption.
222.12-1 Certificate of exemption not transferable; exception.
222.12-2 Change of address.
222.12-3 Certain continuance of business.
222.12-4 Change in trade name.
222.12-5 State or other law.
222.12-6 Right of entry and examination.
222.12-7 Records.
222.12-8 Record of receipt and disposition.
222.12-9 Importation.
222.13 Exportation.
222.13-1 Procedure by exporter.
222.13-2 Action by Customs.
222.13-3 Transportation to effect exportation.
222.13-4 Burden of proof; presumption.
Subpart C--Endangered Fish or Wildlife Permits
222.21 General permit requirement.
222.22 Permits for the incidental taking of endangered species.
222.23 Permits for scientific purposes or to enhance the propagation or
survival of the affected endangered species.
222.24 Procedures for issuance of permits.
222.25 Applications for modification of permit by permittee.
222.26 Amendment of permits by NMFS.
222.27 Procedures for suspension, revocation, or modification of
permits.
222.28 Possession of permits.
Subpart D--Special Prohibitions
222.31 Approaching humpback whales in Hawaii.
222.32 Approaching North Atlantic right whales.
222.33 Special prohibitions relating to endangered Steller sea lion
protection.
Subpart E--Incidental Capture of Endangered Sea Turtles
222.41 Policy regarding incidental capture of sea turtles.
222.42 Special prohibitions relating to leatherback sea turtles.
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
Subpart A--Introduction
Sec. 222.1 Purpose of regulations.
The regulations contained in this part identify the species or
subspecies of fish or wildlife determined to be endangered under either
the Endangered Species Conservation Act of 1969 or the Endangered
Species Act of 1973, and presently deemed endangered species under the
Endangered Species Act of 1973, which are under the jurisdiction of the
Secretary of Commerce, and establish procedures and criteria for
[[Page 82]]
issuance of permits for the taking, importation, exportation, or
otherwise prohibited acts, involving endangered fish or wildlife. The
regulations of this part implement, in part, the Endangered Species Act
of 1973, 87 Stat. 884, Pub. L. 93-205, as amended.
[45 FR 57133, Aug. 27, 1980]
Sec. 222.2 Scope of regulations.
(a) The regulations of this part apply only to endangered fish or
wildlife.
(b) The provisions in this part are in addition to, and are not in
lieu of, other regulations of parts 217 through 222 of this chapter
which may require a permit or prescribe additional restrictions or
conditions for the taking, importation, exportation, and interstate
transportation of fish or wildlife. (See also parts 220 and 221 of this
chapter.)
[45 FR 57133, Aug. 27, 1980]
Sec. 222.3 Definitions.
These definitions apply only to Sec. 222.22:
Adequately covered means, with respect to species listed pursuant to
section 4 of the ESA, that a proposed conservation plan has satisfied
the permit issuance criteria under section 10(a)(2)(B) of the ESA for
the species covered by the plan and, with respect to unlisted species,
that a proposed conservation plan has satisfied the permit issuance
criteria under section 10(a)(2)(B) of the ESA that would otherwise apply
if the unlisted species covered by the plan were actually listed. For
the Services to cover a species under a conservation plan, it must be
listed on the section 10(a)(1)(B) permit.
Changed circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan that can
reasonably be anticipated by plan developers and NMFS and that can be
planned for (e.g., the listing of new species, or a fire or other
natural catastrophic event in areas prone to such events).
Conserved habitat areas means areas explicitly designated for
habitat restoration, acquisition, protection, or other conservation
purposes under a conservation plan.
Conservation plan means the plan required by section 10(a)(2)(A) of
the ESA that an applicant must submit when applying for an incidental
take permit. Conservation plans also are known as ``habitat conservation
plans'' or ``HCPs.''
Operating conservation program means those conservation management
activities which are expressly agreed upon and described in a
conservation plan or its Implementing Agreement, if any, and which are
to be undertaken for the affected species when implementing an approved
conservation plan, including measures to respond to changed
circumstances.
Properly implemented conservation plan means any conservation plan,
Implementing Agreement and permit whose commitments and provisions have
been or are being fully implemented by the permittee.
Unforeseen circumstances means changes in circumstances affecting a
species or geographic area covered by a conservation plan that could not
reasonably have been anticipated by plan developers and NMFS at the time
of the conservation plan's negotiation and development, and that result
in a substantial and adverse change in the status of the covered
species.
[63 FR 8872, Feb. 23, 1998]
Subpart B--Certificates of Exemption for Pre-Act Endangered Species
Parts
Source: 45 FR 57134, Aug. 27, 1980, unless otherwise noted.
Sec. 222.11-1 General certificate of exemption requirements.
(a) The Assistant Administrator, pursuant to the provisions of the
Endangered Species Act, and pursuant to the provisions of this
paragraph, may exempt any pre-Act endangered species part from one or
more of the following:
(1) The prohibition, as set forth in section 9(a)(1)(A) of the Act,
to export any such species part from the United States;
(2) The prohibitions, as set forth in section 9(a)(1)(E) of the Act,
to deliver, receive, carry, transport, or ship in interstate or foreign
commerce, by any means whatsoever and in the course of
[[Page 83]]
a commercial activity any such species part;
(3) The prohibitions, as set forth in section 9(a)(1)(F) of the Act,
to sell or offer for sale in interstate or foreign commerce any such
species part.
(b) No person shall engage in any of the above activities involving
any pre-Act endangered species part without a valid certificate of
exemption, or evidence of a right thereunder, issued pursuant to this
subpart B.
(c) After January 31, 1984, no person may export; deliver, receive,
carry, transport or ship in interstate or foreign commerce in the course
of a commercial activity; or sell or offer for sale in interstate or
foreign commerce any pre-Act finished scrimshaw product unless that
person has been issued a valid certificate of exemption and the product
or the raw material for such product was held by such certificate holder
on October 13, 1982.
[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12808, Apr. 1, 1985]
Sec. 222.11-2 Application renewal procedure.
(a) Any person to whom a certificate of exemption has been issued by
the National Marine Fisheries Service and who desires to obtain a
renewal of such certificate of exemption may make application therefor
to the Assistant Administrator. The sufficiency of the application shall
be determined by the Assistant Administrator in accordance with the
requirements of this part and, in that connection, he may waive any
requirement for information, or require any elaboration for further
information deemed necessary.
(b) One copy of a completed application for renewal shall be
submitted to the Assistant Administrator for Fisheries, National Marine
Fisheries Service, Washington, DC 20235.
(c) The outside of the envelope should be marked, ATTENTION:
Enforcement Division, ``Certificate of Exemption Request.'' Assistance
may be obtained by writing or calling the Enforcement Division, NMFS, in
Washington, DC (AC 202, 634-7265). At least 15 days should be allowed
for processing. An application for a certificate of exemption shall
provide the information contained in Sec. 222.11-3 (when the information
requested is not applicable, put ``N.A.'') and such other information
that the Assistant Administrator may require.
[45 FR 57134, Aug. 27, 1980]
Sec. 222.11-3 Application renewal requirements.
(a) The following information will be used as the basis for
determining whether an application for renewal of a certificate of
exemption is complete:
(1) Title: Application for Renewal of Certificate of Exemption Under
Pub. L. 97-304.
(2) The date of application.
(3) The identity of the applicant including complete name, original
certificate of exemption number, current address, and telephone number,
including zip and area codes. If the applicant is a corporation,
partnership, or association set forth the details.
(4) The period of time for which a renewal of the certificate of
exemption is requested; however, no renewal of certificate of exemption,
or right claimed thereunder, shall be effective after the close of the
three-year period beginning on the date of the expiration of the
previous renewal of the certificate of exemption.
(5)(i) A complete and detailed up-dated inventory of all pre-Act
endangered species parts for which the applicant seeks exemption. Each
item on the inventory must be identified by the following information: a
unique serial number; the weight of the item in grams, to the nearest
whole gram; and a description in detail sufficient to permit ready
identification of the item. Small lots, not exceeding five pounds (2,270
grams), of scraps or raw material, which may include or consist of one
or more whole raw whale teeth, may be identified by a single serial
number and total weight. All finished scrimshaw items subsequently made
from a given lot of scrap may be identified by the lot serial number
plus additional digits to signify the piece number of the individual
finished item. Identification numbers will be in the following format:
00-000000-0000. The first two digits will be the last two digits of the
appropriate certificate of exemption number; the next six digits, the
serial number of the individual piece or lot of scrap or
[[Page 84]]
raw material; and the last four digits, where applicable, the piece
number of an item made from a lot of scrap or raw material. The serial
numbers for each certificate holder's inventory must begin with 000001,
and piece numbers, where applicable, must begin with 0001 for each
separate lot.
(ii) Identification numbers may be affixed to inventory items by any
means, including, but not limited to, etching the number into the item,
attaching a label or tag bearing the number to the item, or sealing the
item in a plastic bag, wrapper or other container bearing the number.
Provided that, the number must remain affixed to the item until it is
sold to an ultimate user, as defined in Sec. 222.11-8(b) of this part.
(iii) No renewals will be issued for scrimshaw products in excess of
any quantities declared in the original application for a certificate of
exemption.
(6) A certification in the following language:
I hereby certify that the foregoing information is complete, true,
and correct to the best of my knowledge and belief. I understand that
this information is submitted for the purpose of obtaining a renewal of
my certificate of exemption under the Endangered Species Act of 1973, as
amended by Pub. L. 94-359, 90 Stat. 911, Pub. L. 96-159, 93 Stat. 1225,
Pub. L. 97-304, 95 Stat. 715, and the Department of Commerce regulations
issued thereunder, and that any false statement may subject me to the
criminal penalties of 18 U.S.C. 1001, or to the penalties under the
Endangered Species Act of 1973.
(7) Signature of the applicant.
(b) Upon receipt of an incomplete or improperly executed application
for renewal, the applicant shall be notified by Certified Mail of the
deficiency in the application for renewal. If the application for
renewal is not corrected and received by the Assistant Administrator
within 30 days following the date of receipt of notification, the
application for renewal shall be considered as having been abandoned.
[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12808, Apr. 1, 1985]
Sec. 222.11-4 Procedures for issuance of renewals of certificates of exemption.
Whenever application for a renewal of a certificate of exemption is
received by the Assistant Administrator which the Assistant
Administrator deems sufficient, he shall, as soon as practicable, issue
a certificate of renewal to the applicant.
Sec. 222.11-5 Application for modification of certificate of exemption by holder.
Where circumstances have changed so that an applicant or certificate
of exemption holder desires to have any material term or condition of
his application or certificate modified, he must submit in writing full
justification and supporting information in conformance with the
provisions of this part.
Sec. 222.11-6 Amendment of certificates of exemption.
All certificates are issued subject to the condition that the
Assistant Administrator reserves the right to amend the provisions of a
certificate of exemption for just cause at any time. Such amendments
take effect on the date of notification, unless otherwise specified.
Sec. 222.11-7 Procedures for suspension, revocation, or modification of certificates of exemption.
Any violation of the applicable provisions of parts 217 through 222
of this chapter, or of the Act, or of a condition of the certificate of
exemption may subject the certificate holder to the following:
(a) The penalties provided in the Act; and
(b) Suspension, revocation, or modification of the certificate of
exemption, as provided in subpart D of 15 CFR part 904.
[49 FR 1042, Jan. 6, 1984]
Sec. 222.11-8 Purchaser provisions.
(a) Any person granted a certificate of exemption, including a
renewal, under this subpart, upon a sale of any exempted pre-Act
endangered species part, must provide the purchaser in writing with a
description (including full identification number) of the part sold, and
must inform the purchaser in writing of the purchaser's obligation
[[Page 85]]
under paragraph (b) of this section, including the address given in the
certificate to which the purchaser's report is to be sent.
(b) Any purchaser of pre-Act endangered species parts included in a
valid certificate of exemption, unless an ultimate user, must within 30
days after the receipt of such parts submit a written report to the
address given in the certificate specifying the quantity of such parts
or products received, the name and address of the seller, a copy of the
invoice or other document showing the serial numbers, weight, and
descriptions of the parts or products received, the date on which such
parts or products were received, and the intended use of such parts by
the purchaser. An ultimate user, for purposes of this paragraph, means
any person who acquired such endangered species part or product for his
own consumption or personal use (including as gifts), and not for
resale.
(c) After January 31, 1984, no purchaser may export; deliver,
receive, carry or transport in interstate or foreign commerce in the
course of a commercial activity; or sell or offer for sale in interstate
or foreign commerce any endangered species part or product even though
such part or product was acquired under a certificate of exemption
either prior to or subsequent to that date.
[50 FR 12808, Apr. 1, 1985]
Sec. 222.11-9 Duration of certificate of exemption.
A certificate of exemption is valid only if renewed in accordance
with the procedures set forth in Sec. 222.11-3 of this part. All
certificates so renewed will be valid for a period beginning April 1,
1985, and ending no later than March 31, 1988. A renewed certificate of
exemption entitles the holder to engage in the business or activity
specified in the certificate of exemption, within the limitations of the
Act and the regulations contained in this subpart, for the period stated
in the certificate of exemption, unless sooner terminated.
[50 FR 12808, Apr. 1, 1985, as amended at 50 FR 25713, June 21, 1985]
Sec. 222.12 Locations covered by certificate of exemption.
The certificate of exemption covers the business or activity
specified in the certificate of exemption at the address described
therein. No certificate of exemption is required to cover a separate
warehouse facility used by the certificate of exemption holder solely
for storage of pre-Act endangered species parts, if the records required
by this subpart are maintained at the address specified in the
certificate of exemption which is served by the warehouse or storage
facility.
[50 FR 12809, Apr. 1, 1985]
Sec. 222.12-1 Certificate of exemption not transferable; exception.
Certificates of exemption issued under this subpart are not
transferable: Provided, That in the event of the lease, sale or other
transfer of the operations or activity authorized by the certificate of
exemption the successor is not required by this subpart to obtain a new
certificate of exemption prior to commencing such operations or
activity. In such case, the successor will be treated as a purchaser and
must comply with the record and reporting requirements set forth in
Sec. 222.11-8.
[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]
Sec. 222.12-2 Change of address.
A certificate of exemption holder may during the term of the
certificate of exemption move his business or activity to a new location
at which he intends regularly to carry on such business or activity,
without obtaining a new certificate of exemption. However, in every
case, notification of the new location of the business or activity must
be given in writing within 10 days of such move to the Assistant
Administrator. In each instance, the certificate of exemption must be
endorsed by the Assistant Administrator. After endorsement of the
certificate of exemption the Assistant Administrator will provide an
amended certificate of exemption to the person to whom issued.
[[Page 86]]
Sec. 222.12-3 Certain continuance of business.
A certificate of exemption holder who requests that his certificate
of exemption be amended by the Assistant Administrator for corrections
or endorsement in compliance with the provisions contained in this
subpart, may continue his operations while awaiting action by the
Assistant Administrator.
Sec. 222.12-4 Change in trade name.
A certificate holder continuing to conduct business at the location
shown on his certificate of exemption is not required to obtain a new
certificate of exemption by reason of a change in trade name under which
he conducts his business: Provided, That such certificate of exemption
holder requests in writing that his certificate of exemption be endorsed
to reflect such change of name to the Assistant Administrator within 30
days from the date the certificate of exemption holder begins his
business under the new name.
Sec. 222.12-5 State or other law.
A certificate of exemption issued under this subpart confers no
right or privilege to conduct a business or an activity contrary to
State or other law. Similarly, compliance with the provisions of any
State or other law affords no immunity under any Federal laws or
regulations of any other Federal Agency.
Sec. 222.12-6 Right of entry and examination.
Any person authorized to enforce the Act may enter during business
hours the premises, including places of storage, of any holder of a
certificate of exemption or of any purchaser for the purpose of
inspecting or examining any records or documents required to be kept by
such certificate of exemption holder or successor under this subpart,
and any endangered species parts at such premises of location.
[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]
Sec. 222.12-7 Records.
The records pertaining to pre-Act endangered species parts
prescribed by this subpart shall be in permanent form, and shall be
retained at the address shown on the certificate of exemption, or at the
principal address of a purchaser in the manner prescribed by this
subpart.
[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]
Sec. 222.12-8 Record of receipt and disposition.
(a) Holders of certificates of exemption must maintain records of
all pre-Act endangered species parts they receive, sell, transfer,
distribute or dispose of otherwise. Purchasers of pre-Act endangered
species parts, unless ultimate users, must similarly maintain records of
all such parts or products they receive.
(b) Such records as referred to in paragraph (a) of this section may
consist of invoices or other commercial records which must be filed in
an orderly manner separate from other commercial records maintained, and
be readily available for inspection. Such records must (1) show the name
and address of the purchaser, seller, or other transferor; (2) show the
type, quantity, and identity of the part or product; (3) show the date
of such sale or transfer; and (4) be retained, in accordance with the
requirements of this subpart, for a period of not less than three years
following the date of sale or transfer. Each pre-Act endangered species
part will be identified by its number on the updated inventory required
to renew a certificate of exemption.
(c)(1) Each certificate of exemption holder must submit a quarterly
report (to the address given in the certificate) containing all record
information required by paragraph (b) on all transfers of pre-Act
endangered species parts made in the previous calendar quarter, or such
other record information the Assistant Administrator may specify from
time to time.
(2) Quarterly reports are due on January 15, April 15, July 15, and
October 15. The first report is due on October 15, 1985.
(d) The Assistant Administrator may authorize the record information
to be submitted in a manner other than that prescribed in paragraph (b)
of this section when it is shown by the record
[[Page 87]]
holder that an alternate method of reporting is reasonably necessary and
will not hinder the effective administration or enforcement of this
subpart.
[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]
Sec. 222.12-9 Importation.
No pre-Act endangered species part shall be imported into the United
States, and a certificate of exemption issued in accordance with the
provisions of this subpart confers no right or privilege to import into
the United States any such part.
Sec. 222.13 Exportation.
(a) Any person desiring to export from the United States any pre-Act
endangered species part or scrimshaw product, must possess a valid
certificate of exemption issued in accordance with the provisions of
this subpart.
(b) In addition to other information, which may be required by this
subpart, the exporter will notify the Assistant Administrator by letter
which shall show the name and address of the foreign consignee, the
intended port of exportation, and a complete description of the parts to
be exported. Such information should reach the Assistant Administrator
not less than 10 days prior to shipment.
(c) No pre-Act endangered species part or scrimshaw product which is
to be exported from the United States under a certificate of exemption
issued therefor, shall be exported except at a port or ports designated
by the Secretary of the Interior. The Secretary of the Interior may
permit the exportation at non-designated ports for any reason if he
deems it appropriate and consistent with the purposes of the Endangered
Species Act, as amended, or it will facilitate the administration or
enforcement of the Act and reducing the costs thereof. Exporters are
advised to see 50 CFR part 14 for a listing of the designated ports.
Sec. 222.13-1 Procedure by exporter.
Shipment may not be made until the requirements of Sec. 222.13 are
met by the exporter. A copy of the certificate of exemption, and any
endorsements thereto, must be sent by the exporter to the District
Director of Customs at the port of exportation, and must precede or
accompany the shipment in order to permit appropriate inspection prior
to lading.
Sec. 222.13-2 Action by Customs.
Upon receipt of a certificate of exemption authorizing the
exportation of pre-Act endangered species parts or scrimshaw products,
the District Director of Customs may order such inspection as deemed
necessary prior to lading of the merchandise. If satisfied that the
shipment is proper and agrees with the information contained in the
certificate, and any endorsement thereto, the District Director of
Customs will clear the merchandise for export. The certificate, and any
endorsements, will be forwarded to the Chief, Enforcement Division, F/
CM5 National Marine Fisheries Service, Washington, DC 20235.
Sec. 222.13-3 Transportation to effect exportation.
Notwithstanding any provision of this subpart, it shall not be
required that authorization be obtained from the Assistant Administrator
for the transportation in interstate or foreign commerce of pre-Act
endangered species parts to effect an exportation of such parts
authorized under the provisions of this subpart.
Sec. 222.13-4 Burden of proof; presumption.
Any person claiming the benefit of any exemption or certificate of
exemption under the Act or regulations, shall have the burden of proving
that the exemption or certificate is applicable, has been granted, and
was valid and in force at the time of the alleged violation.
Subpart C--Endangered Fish or Wildlife Permits
Source: 39 FR 41375, Nov. 27, 1974, unless otherwise noted.
Sec. 222.21 General permit requirement.
No person shall take, import, export, or engage in any other
prohibited activity involving, any species or subspecies of fish or
wildlife which the Secretary has determined to be endangered under the
Endangered Species
[[Page 88]]
Act of 1973, as evidenced by its inclusion on the list of endangered
fish or wildlife (see 50 CFR chapter I, part 17) or which the Secretary
of the Interior determined to be endangered under the Endangered Species
Conservation Act of 1969 and which are now under the jurisdictional
responsibilities of the Secretary of Commerce, without a valid permit
issued pursuant to this part.
(Pub. L. 94-359)
[41 FR 36028, Aug. 26, 1976]
Sec. 222.22 Permits for the incidental taking of endangered species.
(a) Scope. (1) The Assistant Administrator may issue permits to take
endangered marine species incidentally to an otherwise lawful activity
under section 10(a)(1)(B) of the Endangered Species Act of 1973. The
regulations in this section apply only to those endangered species under
the jurisdiction of the Secretary of Commerce identified in
Sec. 222.23(a).
(2) If the applicant represents an individual or a single entity,
such as a corporation, the Assistant Administrator will issue an
individual incidental take permit. If the applicant represents a group
or organization whose members conduct the same or a similar activity in
the same geographical area with similar impacts on endangered marine
species, the Assistant Administrator will issue a general incidental
take permit. To be covered by a general incidental take permit, each
individual conducting the activity must have a certificate of inclusion
issued under paragraph (f) of this section.
(b) Permit application procedures. Applications should be sent to
the Assistant Administrator for Fisheries, National Marine Fisheries
Service, 1335 East West Highway, Silver Spring, MD 20910. The
sufficiency of the application will be determined by the Assistant
Administrator in accordance with the requirements of this section. At
least 120 days should be allowed for processing. Each application must
be signed and dated and include the following:
(1) The type of application, either:
(i) Application for an Individual Incidental Take Permit under the
Endangered Species Act of 1973, or
(ii) Application for a General Incidental Take Permit under the
Endangered Species Act of 1973.
(2) The name, address and telephone number of the applicant. If the
applicant is a partnership, corporate entity or is representing a group
or organization, the applicable details.
(3) The species or stocks, by common and scientific name, and a
description of the status, distribution, seasonal distribution, habitat
needs, feeding habits and other biological requirements of the affected
species or stocks.
(4) A detailed description of the proposed activity, including the
anticipated dates, duration and specific location. If the request is for
a general incidental take permit, an estimate of the total level of
activity expected to be conducted.
(5) A conservation plan, based on the best scientific and commercial
data available, which specifies
(i) The anticipated impact (i.e., amount, extent and type of
anticipated taking) of the proposed activity on the species or stocks;
(ii) The anticipated impact of the proposed activity on the habitat
of the species or stocks and the likelihood of restoration of the
affected habitat;
(iii) The steps (specialized equipment, methods of conducting
activities, or other means) that will be taken to monitor, minimize and
mitigate such impacts, and the funding available to implement such
measures; and
(iv) The alternative actions to such taking that were considered and
the reasons why those alternatives are not being used.
(v) A list of all sources of data used in preparation of the plan,
including reference reports, environmental assessments and impact
statements, and personal communications with recognized experts on the
species or activity who may have access to data not published in current
literature.
(c) Issuance criteria. (1) In determining whether to issue a permit,
the Assistant Administrator will consider the following:
(i) The status of the affected species or stocks;
(ii) The potential severity of direct, indirect and cumulative
impacts on the
[[Page 89]]
species or stocks and habitat as a result of the proposed activity;
(iii) The availability of effective monitoring techniques;
(iv) The use of the best available technology for minimizing or
mitigating impacts; and
(v) The views of the public, scientists and other interested parties
knowledgeable of the species or stocks or other matters related to the
application.
(2) To issue the permit, the Assistant Administrator must find that:
(i) The taking will be incidental;
(ii) The applicant will, to the maximum extent practicable, monitor,
minimize and mitigate the impacts of such taking;
(iii) The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild;
(iv) The applicant has amended the conservation plan to include any
measures (not originally proposed by the applicant) that the Assistant
Administrator determines are necessary or appropriate; and
(v) There are adequate assurances that the conservation plan will be
funded and implemented, including any measures required by the Assistant
Administrator.
(d) Permit conditions. In addition to the general conditions set
forth in part 220 of this chapter, every permit issued under this
section will contain such terms and conditions as the Assistant
Administrator deems necessary and appropriate, including, but not
limited to the following:
(1) Reporting requirements or rights of inspection for determining
whether the terms and conditions are being complied with;
(2) The species and number of animals covered;
(3) The authorized method of taking;
(4) The procedures to be used to handle or dispose of any animals
taken; and
(5) The payment of a fee to reimburse the National Marine Fisheries
Service the cost of processing the application.
(e) Duration of permits. The duration of permits issued under this
section will be such as to provide adequate assurances to the permit
holder to commit funding necessary for the activities authorized by the
permit, including conservation activities. In determining the duration
of a permit, the Assistant Administrator will consider the duration of
the proposed activities, as well as the possible positive and negative
effects associated with issuing a permit of the proposed duration on
listed species, including the extent to which the conservation plan is
likely to enhance the habitat of the endangered species or increase the
long-term survivability of the species.
(f) Certificates of inclusion. (1) Any individual who wishes to
conduct an activity covered by a general incidental take permit must
apply to the Assistant Administrator for a certificate of inclusion.
Each application must be signed and dated and include the following:
(i) The general incidental take permit under which the applicant
wants coverage.
(ii) The name, address and telephone number of the applicant. If the
applicant is a partnership or a corporate entity, the applicable
details.
(iii) A description of the activity the applicant seeks to have
covered under the general incidental take permit including the
anticipated dates, duration, and specific location; and
(iv) A signed certification that the applicant has read and
understands the general incidental take permit and the conservation
plan, will comply with their terms and conditions, and will fund and
implement applicable measures of the conservation plan.
(2) To issue a certificate of inclusion, the Assistant Administrator
must find that:
(i) The applicant will be engaged in the activity covered by the
general permit and
(ii) The applicant has made adequate assurances that the applicable
measures of the conservation plan will be funded and implemented.
(g) Assurances provided to permittee in case of changed or
unforeseen circumstances. The assurances in this paragraph (g) apply
only to incidental take permits issued in accordance with paragraph (c)
of this section where the conservation plan is being properly
implemented, and apply only with respect to species adequately covered
by the
[[Page 90]]
conservation plan. These assurances cannot be provided to Federal
agencies. This rule does not apply to incidental take permits issued
prior to March 25, 1998. The assurances provided in incidental take
permits issued prior to March 25, 1998 remain in effect, and those
permits will not be revised as a result of this rulemaking.
(1) Changed circumstances provided for in the plan. If additional
conservation and mitigation measures are deemed necessary to respond to
changed circumstances and were provided for in the plan's operating
conservation program, the permittee will implement the measures
specified in the plan.
(2) Changed circumstances not provided for in the plan. If
additional conservation and mitigation measures are deemed necessary to
respond to changed circumstances and such measures were not provided for
in the plan's operating conservation program, NMFS will not require any
conservation and mitigation measures in addition to those provided for
in the plan without the consent of the permittee, provided the plan is
being properly implemented.
(3) Unforeseen circumstances. (i) In negotiating unforeseen
circumstances, NMFS will not require the commitment of additional land,
water, or financial compensation or additional restrictions on the use
of land, water, or other natural resources beyond the level otherwise
agreed upon for the species covered by the conservation plan without the
consent of the permittee.
(ii) If additional conservation and mitigation measures are deemed
necessary to respond to unforeseen circumstances, NMFS may require
additional measures of the permittee where the conservation plan is
being properly implemented, but only if such measures are limited to
modifications within conserved habitat areas, if any, or to the
conservation plan's operating conservation program for the affected
species, and maintain the original terms of the conservation plan to the
maximum extent possible. Additional conservation and mitigation measures
will not involve the commitment of additional land, water or financial
compensation or additional restrictions on the use of land, water, or
other natural resources otherwise available for development or use under
the original terms of the conservation plan without the consent of the
permittee.
(iii) NMFS will have the burden of demonstrating that unforeseen
circumstances exist, using the best scientific and commercial data
available. These findings must be clearly documented and based upon
reliable technical information regarding the status and habitat
requirements of the affected species. NMFS will consider, but not be
limited to, the following factors:
(A) Size of the current range of the affected species;
(B) Percentage of range adversely affected by the conservation plan;
(C) Percentage of range conserved by the conservation plan;
(D) Ecological significance of that portion of the range affected by
the conservation plan;
(E) Level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the conservation
plan; and
(F) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
(h) Nothing in this rule will be construed to limit or constrain the
Assistant Administrator, any Federal, State, local, or tribal government
agency, or a private entity, from taking additional actions at its own
expense to protect or conserve a species included in a conservation
plan.
[55 FR 20606, May 18, 1990, as amended at 63 FR 8872, Feb. 23, 1998]
Sec. 222.23 Permits for scientific purposes or to enhance the propagation or survival of the affected endangered species.
(a) The Director, National Marine Fisheries Service, may issue
permits for scientific purposes or to enhance the propagation or
survival of the affected endangered species which authorize, under such
terms and conditions as he may prescribe, taking, importation, or
certain other acts with respect to endangered species otherwise
prohibited by section 9 of the Endangered Species Act of 1973. The
[[Page 91]]
species listed as endangered under either the Endangered Species
Conservation Act of 1969 or the Endangered Species Act of 1973 and
currently under the jurisdiction of the Secretary of Commerce are:
Shortnose sturgeon (Acipenser brevirostrum); Totoaba (Cynoscian
macdonaldi), Snake River sockeye salmon (Oncorhynchusnerka), Umpqua
River cutthroat trout (Oncorhynchus clarki clarki); Southern California
steelhead (Oncorhynchus mykiss), which includes all naturally spawned
populations of steelhead (and their progeny) in streams from the Santa
Maria River, San Luis Obispo County, California (inclusive) to Malibu
Creek, Los Angeles County, California (inclusive); Upper Columbia River
steelhead (Oncorhynchus mykiss), which includes the Wells Hatchery stock
and all naturally spawned populations of steelhead (and their progeny)
in streams in the Columbia River Basin upstream from the Yakima River,
Washington, to the United States-Canada Border; Sacramento River winter-
run chinook salmon (Oncorhynchus tshawytscha); Western North Pacific
(Korean) gray whale (Eschrichtius robustus), Blue whale (Balaenoptera
musculus), Humpback whale (Megaptera novaeangliae), Bowhead whale
(Balaenamysticetus), Right whales (Eubalaena spp.), Fin or finback whale
(Balaenoptera physalus), Sei whale (Balaenoptera borealis), Sperm whale
(Physeter catodon); Cochito (Phocoena Sinus), Chinese river dolphin
(Lipotes vexillifer); Indus River dolphin (Platanista minor); Caribean
monk seal (Monachus tropicalis) Hawaiian monk seal (Monachus
schauinslandi); Mediterranean monk seal (Monachus monachus); Saimaa seal
(Phoca hispida saimensis); Steller sea lion (Eumetopias jubatus),
western population, which consists of Steller sea lions from breeding
colonies located west of 144 deg. W. long.; Leatherback sea turtle
(Dermochelys coriacea), Pacific hawksbill sea turtle (Eretmochelys
imbricata bissa), Atlantic hawksbill sea turtle (Eretmochelys imbricata
imbricata), Atlantic ridley sea turtle (Lepidochelys kempii). Green sea
turtle (Chelonia mydas) breeding colony populations in Florida and on
the Pacific coast of Mexico, and the olive ridley sea turtle
(Lepidochelys olivacea) breeding colony population on the Pacific coast
of Mexico. Of these, the National Marine Fisheries Service has sole
agency jurisdiction for sea turtles while the turtles are in the water
and the U.S. Fish and Wildlife Service has jurisdiction for sea turtles
while the turtles are on land. Within the jurisdiction of a State, more
restrictive State laws or regulations in regard to endangered species
shall prevail in regard to taking. Proof of compliance with applicable
State laws will be required before a permit will be issued.
(b) Application procedures. To obtain such a permit, an application
must be made to the Director in accordance with this subpart, except for
marine mammal permits which shall be issued in accordance with the
provisions of part 216, subpart D of this chapter, and sea turtle
permits which shall be issued in accordance with part 220, subpart E of
this chapter. The sufficiency of the application shall be determined by
the Director in accordance with the requirements of this part and, in
that connection, he may waive any requirement for information, or
require any elaboration or further information deemed necessary. The
following information will be used as the basis for determining whether
an application is complete and whether a permit for scientific purposes
or to enhance the propagation or survival of the affected endangered
species should be issued by the Director. An original and four copies of
the completed application shall be submitted to the Director, National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration (NOAA), U.S. Department of Commerce, Washington, DC
20235. Assistance may be obtained by writing the Director or calling the
Marine Mammal and Endangered Species Division in Washington, DC (202-
343-9445 and effective December 2, 1974, it will become 202-634-7529).
At least 45 days should be allowed for processing. An application for a
permit shall provide the following information (when the information
requested is not applicable put ``N.A.'') and such other information
that the Director may require:
(1) Title: As applicable, either:
[[Page 92]]
(i) Application for Permit for Scientific Purposes under the
Endangered Species Act of 1973; or
(ii) Application for Permit to Enhance the Propagation or Survival
of the Endangered Species Under the Endangered Species Act of 1973.
(2) The date of the application.
(3) The identity of the applicant including complete name, address,
and telephone number. If the applicant is a partnership or a corporate
entity set forth the details. If the endangered species is to be
utilized by a person other than the Applicant, set forth the name of
that person and such other information as would be required if such
person were an Applicant.
(4) A description of the purpose of the proposed acts, including:
(i) A detailed justification of the need for the endangered species,
including a discussion of possible alternatives, whether or not under
the control of the applicant; and
(ii) A detailed description of how the species will be used.
(5) A detailed description of the project, or program, in which the
endangered species is to be used, including:
(i) The period of time over which the project or program will be
conducted;
(ii) A list of the names and addresses of the sponsors or
cooperating institutions and the scientists involved;
(iii) A copy of the formal research proposal or contract if one has
been prepared;
(iv) A statement of whether the proposed project or program has
broader significance than the individual researcher's goals (i.e., does
the proposed project or program respond directly or indirectly to
recommendation of any national or international scientific body charged
with research or management of the endangered species, and, if so,
how?); and
(v) A description of the arrangements, if any, for the disposition
of any dead specimen or its skeleton or other remains, for the continued
benefit to science, in a museum or other institutional collection.
(6) A description of the endangered species which is the subject of
the application, including the following:
(i) A list of each species and the number of each, including the
common and scientific name; the subspecies (if applicable); population
group, and range;
(ii) A physical description of each animal, including the age, size,
and sex;
(iii) A list of the probable dates of capture or other taking,
importation, exportation, and other acts which require a permit, for
each animal, and the location of capture or other taking, importation,
exportation, and other acts which require a permit, as specifically as
possible;
(iv) A description of the status of the stock of each species
related insofar as possible to the location or area of taking;
(v) A description of the manner of taking for each animal, including
the gear to be used;
(vi) The name and qualifications of the persons or entity which will
capture or otherwise take the animals;
(vii) If the capture or other taking is to be done by a contractor,
a statement as to whether a qualified member of your staff (include
name(s) and qualifications) will supervise or observe the capture or
other taking. Accompany such statement with a copy of the proposed
contract or a letter from the contractor indicating agreement to capture
or otherwise taken the animals, should a permit be granted;
(7) A description of the manner of transportation of any live animal
taken, imported, exported, or shipped in interstate commerce, including:
(i) Mode of transportation;
(ii) Name of transportation company;
(iii) Length of time in transit for the transfer of the animal(s)
from the capture site to the holding facility;
(iv) Length of time in transit for any future move or transfer of
the animal(s) that is planned;
(v) The qualifications of the common carrier or agent used for
transportation of the animals;
(vi) A description of the pen, tank, container, cage, cradle, or
other devices used, both to hold the animal at the capture site and
during transportation;
(vii) Special care before and during transportation, such as salves,
antibiotics, moisture; and
[[Page 93]]
(viii) A statement as to whether the animals will be accompanied by
a veterinarian or other similarly qualified person, and the
qualifications of such person.
(8) Describe the contemplated care and maintenance of any live
animals sought, including a complete description of the facilities where
any such animals will be maintained including:
(i) The dimensions of the pools or other holding facilities and the
number, sex, and age of animals by species to be held in each;
(ii) The water supply, amount, and quality;
(iii) The diet, amount and type, for all animals;
(iv) Sanitation practices used;
(v) Qualifications and experience of the staff; and
(vi) A written certification from a licensed veterinarian
knowledgeable about the species (or related species) or group which is
the subject of the application, or from a recognized expert on the
species (or related species) or group covered in the application that he
has personally reviewed the amendments for transporting and maintaining
the animal(s) and that in his opinion they are adequate to provide for
the well-being of the animal; and
(vii) The availability in the future of a consulting expert or
veterinarian meeting paragraph (b)(8)(vi) requirements of this section;
(9) A statement of willingness to participate in a cooperative
breeding program and maintain or contribute data to a stud book.
(10) A statement of how the applicant's proposed project or program
will enhance or benefit the wild population.
(11) For the 5 years preceding the date of this application, provide
a detailed description of all mortalities involving species which were
under the control of or utilized by the applicant and are either
presently listed as endangered species or are taxonomically related
within the Order to the species which is the subject of this
application, including:
(i) A list of all endangered species and species related to the
species which is the subject of this application; captured, transported,
maintained, or utilized by the applicant for scientific purposes or to
enhance the propagation or survival of the affected species, and/or for
all such species caused to be captured, transported, maintained, or
utilized for scientific purposes or to enhance the propagation or
survival of the affected species, by the Applicant;
(ii) The numbers of mortalities among such animals by species, by
date, location of capture, i.e., from which population, and location of
such mortalities;
(iii) The cause(s) of any such mortalities; and
(iv) The steps which have been taken by Applicant to avoid or
decrease any such mortalities.
(12) A certification in the following language:
I hereby certify that the foregoing information is complete, true
and correct to the best of my knowledge and belief. I understand that
this information is submitted for the purpose of obtaining a permit
under the Endangered Species Act of 1973 (87 Stat. 864, Pub. L. 93-205,
16 U.S.C. 1531 et seq.) and regulations promulgated thereunder, and that
any false statement may subject me to the criminal penalties of 18
U.S.C. 1001, or to penalties under the Endangered Species Act of 1973.
(13) The applicant and/or an officer thereof must sign the
application.
(c) Issuance criteria. The Director shall specifically consider,
among other criteria, the following in determining whether to issue a
permit for scientific purposes or to enhance the propagation or survival
of the affected endangered species:
(1) Whether the permit was applied for in good faith;
(2) Whether the permit if granted and exercised will not operate to
the disadvantage of the endangered species;
(3) Whether the permit would be consistent with the purposes and
policy set forth in section 2 of the Act;
(4) Whether the permit would further a bona fide and necessary or
desirable scientific purpose or enhance the propagation or survival of
the endangered species, taking into account the benefits anticipated to
be derived on behalf of the endangered species;
(5) The status of the population of the requested species, and the
effect of the proposed action on the population, both direct and
indirect;
[[Page 94]]
(6) If a live animal is to be taken, transported, or held in
captivity--the applicant's qualifications for the proper care and
maintenance of the species and the adequacy of his facilities;
(7) Whether alternative non-endangered species or population stocks
can and should be used;
(8) Whether the animal was born in captivity or was (or will be)
taken from the wild;
(9) Provision for disposition of the species if and when the
applicant's project or program terminates;
(10) How the applicant's needs, program, and facilities compare and
relate to proposed and ongoing projects and programs;
(11) Whether the expertise, facilities, or other resources available
to the applicant appear adequate to successfully accomplish the
objectives stated in the application;
(12) Opinions or views of scientists or other persons or
organizations knowledgeable of the species which is the subject of the
application or of other matters germane to the application; and
(d) Permits applied for under this section shall contain terms and
conditions as the Director may deem appropriate, including:
(1) The number and kind of species which are covered;
(2) The location and manner of taking;
(3) Port of entry or export;
(4) The methods of transportation, care and maintenance to be used
with live species;
(5) Any requirements for reports or rights of inspections with
respect to any activities carried out pursuant to the permit;
(6) The transferability or assignability of the permit;
(7) The sale or other disposition of the species, its progeny or the
species product;
(8) A reasonable fee covering the costs of issuance of such permit,
including reasonable inspections and an appropriate apportionment of
overhead and administrative expenses of the Department of Commerce. All
such fees will be deposited in the Treasury to the credit of the
appropriation which is current and chargeable for the cost of furnishing
the service.
[39 FR 41375, Nov. 27, 1974]
Editorial Note: For Federal Register citations affecting
Sec. 222.23, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Sec. 222.24 Procedures for issuance of permits.
(a) Whenever application for a permit is received by the Director
which the Director deems sufficient, he shall, as soon as practicable,
publish a notice thereof in the Federal Register. Information received
by the Director as a part of the application shall be available to the
public as a matter of public record at every stage of the proceeding. An
interested party may within 30 days after the date of publication of
such notice, submit to the Director his written data, views, or
arguments with respect to the taking, importation, or other action
proposed in the application and may request a hearing in connection with
the action to be taken thereon.
(b) If a request for a hearing is made within the 30-day period
referred to in paragraph (a) of this section, or if the Director
determines that a hearing would otherwise be advisable, the Director
may, within 60 days after the date of publication of the notice referred
to in paragraph (a) of this section, afford to such requesting party or
parties an opportunity for a hearing. Such hearing shall also be open to
participation by any interested members of the public. Notice of the
date, time, and place of such hearing shall be published in the Federal
Register not less than 15 days in advance of such hearing. Any
interested person may appear in person or through representatives at the
hearing and may submit any relevant material, data, views, comments,
arguments, or exhibits. A summary record of the hearing shall be kept.
(c) Except as provided in subpart D of 15 CFR part 904, as soon as
practicable but not later than 30 days after the close of the hearing
(or if no hearing is held, as soon as practicable after the end of the
30 days succeeding publication of the notice referred to in paragraph
(a) of this section) the Director
[[Page 95]]
shall issue or deny issuance of the permit. Notice of the decision of
the Director shall be published in the Federal Register within 10 days
after the date of the issuance or denial and indicate where copies of
the permit, if issued, may be obtained.
(d) If a permit is issued, the Director shall publish notice thereof
in the Federal Register, including his finding that (1) such permit was
applied for in good faith, (2) if granted and exercised will not operate
to the disadvantage of such endangered species, and (3) will be
consistent with the purposes and policy set forth in section 2 of the
Endangered Species Act of 1973. The requirements of this paragraph
pertain solely to the permits issued under Sec. 222.23.
(e) The Director may waive the thirty-day period in an emergency
situation where the health or life of an endangered animal is threatened
and no reasonable alternative is available to the applicant, but notice
of any such waiver shall be published by the Director in the Federal
Register within ten days following the issuance of the certificate of
exemption or permit.
[39 FR 41375, Nov. 27, 1974, as amended at 42 FR 28139, June 2, 1977; 49
FR 1042, Jan. 6, 1984; 55 FR 20607, May 18, 1990]
Sec. 222.25 Applications for modification of permit by permittee.
Where circumstances have changed so that an applicant or permittee
desires to have any term or condition of his application or permit
modified, he must submit in writing full justification and supporting
information in conformance with the provisions of this part and the part
under which the permit has been issued or requested. Such applications
for modification are subject to the same issuance criteria as are
original applications, as provided in Secs. 222.22(c) and 222.23(c).
[39 FR 41375, Nov. 27, 1974, as amended at 55 FR 20607, May 18, 1990]
Sec. 222.26 Amendment of permits by NMFS.
All permits are issued subject to the condition that the National
Marine Fisheries Service reserves the right to amend the provisions of a
permit for just cause at any time during its term. Such amendments take
effect on the date of notification, unless otherwise specified.
[39 FR 41375, Nov. 27, 1974]
Sec. 222.27 Procedures for suspension, revocation, or modification of permits.
Any violation of the applicable provisions of parts 217 through 222
of this chapter, or of the Act, or of a condition of the permit may
subject the certificate holder to the following:
(a) The penalties provided in the Act; and
(b) Suspension, revocation, or modification of the permit, as
provided in subpart D of 15 CFR part 904.
[49 FR 1043, Jan. 6, 1984, as amended at 55 FR 20607, May 18, 1990]
Sec. 222.28 Possession of permits.
(a) Any permit issued under these regulations must be in the
possession of the person to whom it is issued (or an agent of such
person) during:
(1) The time of the authorized taking, importation, exportation, or
other act;
(2) The period of any transit of such person or agent which is
incident to such taking, importation, exportation, or other act; and
(3) Any other time while any animal under such permit is in the
possession of such person or agent.
(b) A duplicate copy of the issued permit must be physically
attached to the tank, container, package, enclosure, or other means of
containment, in which the animal is placed for purposes of storage,
transit, supervision, or care.
[39 FR 41375, Nov. 27, 1974]
Subpart D--Special Prohibitions
Sec. 222.31 Approaching humpback whales in Hawaii.
Except as provided in subpart C (Endangered Fish or Wildlife
Permits) of this part it is unlawful for any person subject to the
jurisdiction of the United States to commit, to attempt to commit, to
solicit another to commit, or to cause to be committed, within 200
nautical miles (370.4 km) of the Islands of Hawaii, any of the following
acts with respect to humpback whales (Megaptera novaeangliae):
[[Page 96]]
(a) Operate any aircraft within 1,000 ft (300 m) of any humpback
whale; or
(b) Approach by any means, within 100 yd (90 m) of any humpback
whale; or
(c) Cause a vessel or other object to approach within 100 yd (90 m)
of a humpback whale; or
(d) Disrupt the normal behavior or prior activity of a whale by any
other act or omission. A disruption of normal behavior may be manifested
by, among other actions on the part of the whale, a rapid change in
direction or speed; escape tactics such as prolonged diving, underwater
course changes, underwater exhalation, or evasive swimming patterns;
interruptions of breeding, nursing, or resting activities, attempts by a
whale to shield a calf from a vessel or human observer by tail swishing
or by other protective movement; or the abandonment of a previously
frequented area.
[60 FR 3775, Jan. 19, 1995]
Sec. 222.32 Approaching North Atlantic right whales.
(a) Prohibitions. Except as provided under paragraph (c) of this
section, it is unlawful for any person subject to the jurisdiction of
the United States to commit, attempt to commit, to solicit another to
commit, or cause to be committed any of the following acts:
(1) Approach (including by interception) within 500 yards (460 m) of
a right whale by vessel, aircraft, or any other means;
(2) Fail to undertake required right whale avoidance measures
specified under paragraph (b) of this section.
(b) Right whale avoidance measures. Except as provided under
paragraph (c) of this section, the following avoidance measures must be
taken if within 500 yards (460 m) of a right whale:
(1) If underway, a vessel must steer a course away from the right
whale and immediately leave the area at a slow safe speed;
(2) An aircraft must take a course away from the right whale and
immediately leave the area at a constant airspeed.
(c) Exceptions. The following exceptions apply to this section, but
any person who claims the applicability of an exception has the burden
of proving that the exception is applicable:
(1) Paragraphs (a) and (b) of this section do not apply if a right
whale approach is authorized by NMFS through a permit issued under
subpart C (Endangered Fish or Wildlife Permits) of this part or through
a similar authorization.
(2) Paragraphs (a) and (b) of this section do not apply where
compliance would create an imminent and serious threat to a person,
vessel, or aircraft.
(3) Paragraphs (a) and (b) of this section do not apply when
approaching to investigate a right whale entanglement or injury, or to
assist in the disentanglement or rescue of a right whale, provided that
permission is received from NMFS or a NMFS designee prior to the
approach.
(4) Paragraphs (a) and (b) of this section do not apply to an
aircraft unless the aircraft is conducting whale watch activities or is
being operated for that purpose.
(5) Paragraph (b) of this section does not apply to the extent that
a vessel is restricted in her ability to maneuver, and because of the
restriction, cannot comply with paragraph (b) of this section.
[62 FR 6738, Feb. 13, 1997]
Sec. 222.33 Special prohibitions relating to endangered Steller sea lion protection.
General. The regulatory provisions set forth in part 227, which
govern threatened Steller sea lions, shall also apply to the western
population of Steller sea lions, which consists of all Steller sea lions
from breeding colonies located west of 144 deg.W. long.
[62 FR 24355, May 5, 1997]
Subpart E--Incidental Capture of Endangered Sea Turtles
Sec. 222.41 Policy regarding incidental capture of sea turtles.
Shrimp fishermen in the southeastern United States and the Gulf of
Mexico who comply with rules for threatened sea turtles specified in
Sec. 227.72(e) of this subchapter will not be subject
[[Page 97]]
to civil penalties under the Act for incidental captures of endangered
sea turtles by shrimp trawl gear.
[52 FR 24251, June 29, 1987]
Sec. 222.42 Special prohibitions relating to leatherback sea turtles.
Special prohibitions relating to leatherback sea turtles are
provided at Sec. 227.72(e)(2)(iv) of this chapter.
[60 FR 25623, May 12, 1995]
PART 225--FEDERAL/STATE COOPERATION IN THE CONSERVATION OF ENDANGERED AND THREATENED SPECIES--Table of Contents
Sec.
225.1 Purpose of regulations.
225.2 Scope of regulations.
225.3 Definitions.
225.4 Cooperation with the States.
225.5 Cooperative agreement.
225.6 Allocation of funds.
225.7 Financial assistance.
225.8 Availability of funds.
225.9 Payments.
225.10 Assurances.
225.11 Submission of documents.
225.12 Project evaluation.
225.13 Contracts.
225.14 Inspection.
Authority: Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C.
1531-1543, Pub. L. 93-205.
Source: 41 FR 24354, June 16, 1976, unless otherwise noted.
Sec. 225.1 Purpose of regulations.
The regulations in this part implement section 6 of the Endangered
Species Act of 1973, 87 Stat. 884, 16 U.S.C. 1531 through 1543, Pub. L.
93-205 which provides, under certain circumstances, for cooperative
agreements with and financial assistance to the States.
Sec. 225.2 Scope of regulations.
This part applies to endangered and threatened species under the
jurisdiction of the Department of Commerce (see 50 CFR 222.23(a)).
Sec. 225.3 Definitions.
In addition to the definitions contained in the Act, and unless the
context otherwise requires, in this part 225:
(a) Act means the Endangered Species Act of 1973, 87 Stat. 884, 16
U.S.C. 1531 through 1543, Pub. L. 93-205.
(b) Agreements mean signed documented statements of the actions to
be taken by the State(s) and the Director in furthering certain purposes
of the Act. They include:
(1) A Cooperative Agreement entered into pursuant to section 6(c) of
the Act and, where appropriate, containing provisions found in section
6(d)(2) of the Act.
(2) A Grant-In-Aid Award which includes a statement of the actions
to be taken in connection with the conservation of endangered or
threatened species receiving Federal financial assistance, objectives
and costs of such actions, and costs to be borne by the Federal
Government and by the State(s).
(c) Application for Federal Assistance means a description of work
to be accomplished, including objectives and needs, expected results and
benefits, approach, cost, location and time required for completion.
(d) Director means the Director of the National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Department of
Commerce, or his authorized designee.
(e) Program means a State-developed plan for the conservation and
management of all resident species which are deemed by the Secretary to
be endangered or threatened and those which are deemed by the State to
be endangered or threatened, which includes goals, priorities,
strategies, actions, and funding necessary to accomplish the objectives
on an individual species basis.
(f) Project means a substantial undertaking to conserve the various
endangered or threatened species.
(g) Project segment means an essential part or a division of a
project, usually separated as a period of time, occasionally as a unit
of work.
(h) Resident species means, for purposes of these regulations, with
respect to a State, a species which exists in the wild in that State
during any part of its life.
(i) Secretary means the Secretary of Commerce or his authorized
designee.
[[Page 98]]
Sec. 225.4 Cooperation with the States.
The Director shall cooperate with any State which establishes and
maintains an adequate and active program for the conservation of
endangered and threatened species. In order for a State program to be
deemed an adequate and active program, the Director must find and
reconfirm, on an annual basis, that:
(a) Authority resides in a State agency to conserve resident species
determined by the State agency or the Director to be endangered or
threatened;
(b) The State agency has established an acceptable conservation
program, consistent with the purposes and policies of the Act, for all
resident species in the State which are deemed by the Director to be
endangered or threatened; and has furnished a copy of such program
together with all pertinent details, information and data requested to
the Director;
(c) The State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident species;
(d) The State agency is authorized to establish programs, including
the acquisition of land or aquatic habitat or interests therein, for the
conservation of resident endangered or threatened species; and
(e) Provisions are made for public participation in designating
resident species as endangered or threatened.
Sec. 225.5 Cooperative agreement.
Following receipt of an application by a State for a Cooperative
Agreement and a determination by the Director that the State program for
endangered and threatened species is adequate and active, the Director
shall enter into an Agreement with the State. A Cooperative Agreement is
necessary before a Grant-In-Aid Award can be approved for endangered or
threatened species projects. The Cooperative Agreement must be
reconfirmed annually to insure that it reflects new laws, species lists,
rules or regulations, and programs, and to demonstrate that the program
is still active and adequate. In order for a State to receive financial
assistance, such Cooperative Agreement must also contain:
(a) The actions that are to be taken by the Director and the State;
(b) The benefits that are expected to be derived in connection with
the conservation of endangered or threatened species; and
(c) The estimated cost of these actions.
Sec. 225.6 Allocation of funds.
The Director shall allocate funds, appropriated for the purpose of
carrying out section 6 of the Act, to various States using the following
as the basis for his determination:
(a) The international commitments of the United States to protect
endangered or threatened species;
(b) The readiness of a State to proceed with a conservation program
consistent with the objectives and purposes of the Act;
(c) The number of federally listed endangered and threatened species
within a State;
(d) The potential for restoring endangered and threatened species
within a State; and
(e) The relative urgency to initiate a program to restore and
protect an endangered or threatened species in terms of survival of the
species.
Sec. 225.7 Financial assistance.
(a) Before any Federal funds may be obligated for any project to be
undertaken in a State, the State must have entered into a Cooperative
Agreement. Subsequent to such agreement, the Director may further agree
with a State(s) to provide financial assistance in the development and
implementation of acceptable projects for the conservation of endangered
and threatened species. Documents to provide financial assistance will
consist of an Application for Federal Assistance and a Grant-In-Aid
Award. The availability of Federal funds under a Grant-In-Aid Award
shall be contingent upon the continued existence of the Cooperative
Agreement.
(b) To meet the requirements of the Act, the Application for Federal
Assistance shall certify that the State agency submitting the project is
committed to its execution and that it has been reviewed by the
appropriate State officials and is in compliance with other
[[Page 99]]
requirements of the Office of Management and Budget Circular No. A-95
(as revised and published in the Federal Register on January 13, 1976
(41 FR 2052)).
(c) The mutual obligations by the cooperating agencies will be set
forth in a Grant-In-Aid Award executed between the State and the
Director. The Grant-In-Aid Award shall cover the proposed financing and
the work items described in the documents supporting it. The form and
content for both the Application for Federal Assistance and the Grant-
In-Aid Award are provided in the Federal Aid Handbook No. 22.
Sec. 225.8 Availability of funds.
Funds allocated to a State are available for obligation during the
fiscal year for which they are allocated and until the close of the
succeeding fiscal year. For the purpose of this section, obligation of
allocated funds occurs when a Grant-In-Aid Award is signed by the
Director.
Sec. 225.9 Payments.
The payment of the Federal share of costs incurred in the conduct of
activities included under a Grant-In-Aid Award shall be in accordance
with the Treasury Circular 1075.
(a) Federal payments under the Act shall not exceed 75 percent of
the program costs as stated in the agreement; except, the Federal share
may be increased to 90 percent when two or more States having a common
interest in one or more endangered or threatened resident species, the
conservation of which may be enhanced by cooperation of such States,
jointly enter into an agreement with the Director.
(b) The State share of program costs may be in the form of cash or
in-kind contributions, including real property, subject to standards
established by the Director as provided in Federal Management Circular
74-7.
(c) Payments of funds, including payment of such preliminary costs
and expenses as may be incurred in connection with projects, shall not
be made unless all documents that may be necessary or required in the
administration of the Act shall have first been submitted to and
approved by the Director. Payments shall be made for expenditures
reported and certified by the State agency. Payments shall be made only
to the State office or official designated by the State agency and
authorized under the laws of the State to receive public funds for the
State.
(d) Vouchers and forms provided by the Director and certified as
therein prescribed, showing amounts expended and the amount of Federal
Aid funds claimed to be due on account thereof, shall be submitted to
the Director by the State agency.
[41 FR 24354, June 16, 1976, as amended at 49 FR 30074, July 26, 1984]
Sec. 225.10 Assurances.
A State shall certify that it will comply with all applicable
Federal laws, regulations, and requirements as they relate to the
application, acceptance, and use of Federal funds for projects under the
Act in accordance with Federal Management Circular 74-7.
Sec. 225.11 Submission of documents.
Documents required by section 6 of the Act or by these regulations
shall be addressed to the Director, National Marine Fisheries Service,
Washington, DC 20235.
Sec. 225.12 Project evaluation.
Any difference of opinion about a proposed project or appraised
value of land to be acquired or any other related matter will be
considered by qualified representatives of the Director and the State.
Final determination in the event of continued disagreement rests with
the Director.
Sec. 225.13 Contracts.
The State may use its own regulations in obtaining services provided
they adhere to Federal laws and the requirements set forth in Federal
Management Circular 74-7. The State is the responsible authority without
recourse to the Director regarding settlement of contractual issues.
Sec. 225.14 Inspection.
Supervision of each project by the State shall include adequate and
continuous inspection. The project will be subject to periodic Federal
inspection.
[[Page 100]]
PART 226--DESIGNATED CRITICAL HABITAT--Table of Contents
Subpart A--Introduction
Sec.
226.1 Purpose of regulations.
226.2 Scope of regulations.
Subpart B--Critical Habitat for Marine Mammals
226.11 Northwestern Hawaiian Islands.
226.12 North Pacific Ocean.
226.13 North Atlantic Ocean.
Subpart C--Critical Habitat for Fish
226.21 Sacramento River winter-run chinook salmon (Oncorhynchus
tshawytscha).
226.22 Snake River sockeye salmon (oncorhynchus nerka), Snake River
spring/summer chinook salmon (oncorhynchus tshawytscha), Snake
River fall chinook salmon (oncorhynchus tshawytscha).
226.23 Umpqua River cutthroat trout (Oncorhynchus clarki clarki).
Subpart D--Critical Habitat for Marine Reptiles
226.71 Sandy Point, St. Croix, U.S. Virgin Islands.
226.72 Green Sea Turtle (Chelonia mydas).
226.73 Hawksbill Sea Turtle (Eretmochelys imbricata).
Table 1 to Part 226
Table 2 to Part 226
Table 3 to Part 226
Table 4 to Part 226
Figure 1 to Part 226
Figure 2 to Part 226
Figure 3 to Part 226
Figure 4 to Part 226
Figure 5 to Part 226
Figure 6 to Part 226
Figure 7 to Part 226
Figure 8 to Part 226
Figure 9 to Part 226
Authority: 16 U.S.C. 1533.
Source: 44 FR 17711, Mar. 23, 1979, unless otherwise noted.
Subpart A--Introduction
Sec. 226.1 Purpose of regulations.
The regulations contained in this part identify those habitats
designated as critical under section 7 of the Endangered Species Act, as
amended, by the Assistant Administrator for Fisheries, National Oceanic
and Atmospheric Administration, for those endangered and threatened
species under the jurisdiction of the Secretary of Commerce. The list of
these species is found in 50 CFR 222.23(a) for endangered species and 50
CFR 227.4 for threatened species.
Sec. 226.2 Scope of regulations.
(a) The critical habitat designations contained in this part apply
only to the endangered and threatened species listed in this part.
(b) Regulations implementing section 7 of the Endangered Species
Act, as amended, are found in 50 CFR part 402.
(c) The provisions in this part are in addition to, and not in lieu
of other regulations of parts 217 through 227 and 402 of this chapter.
Subpart B--Critical Habitat for Marine Mammals
Sec. 226.11 Northwestern Hawaiian Islands.
Hawaiian Monk Seal
(Monachus schauinslandi)
All beach areas, sand spits and islets, including all beach crest
vegetation to its deepest extent inland, lagoon waters, inner reef
waters, and ocean waters out to a depth of 20 fathoms around the
following:
Kure Atoll (28 deg.24' N, 178 deg.20' W)
Midway Islands, except Sand Island and its harbor (28 deg.14' N,
177 deg.22' W)
Pearl and Hermes Reef (27 deg.55' N, 175 deg. W)
Lisianski Island (26 deg.46' N, 173 deg.58' W)
Laysan Island (25 deg.46' N, 171 deg.44' W)
Maro Reef (25 deg.25' N, 170 deg.35' W)
Gardner Pinnacles (25 deg.00' N, 168 deg.00' W)
French Frigate Shoals (23 deg.45' N, 166 deg.00' W)
Necker Island (23 deg.34' N, 164 deg.42' W)
Nihoa Island (23 deg.03.5' N, 161 deg.55.5' W).
[[Page 101]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.000
[[Page 102]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.001
[[Page 103]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.002
[[Page 104]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.003
[[Page 105]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.004
[[Page 106]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.005
[[Page 107]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.006
[[Page 108]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.007
[53 FR 18990, May 26, 1988]
[[Page 109]]
Sec. 226.12 North Pacific Ocean.
Steller Sea Lion (Eumetopias jubatus)
(a) Alaska rookeries, haulouts, and associated areas. In Alaska, all
major Steller sea lion rookeries identified in Table 1 and major
haulouts identified in Table 2 and associated terrestrial, air, and
aquatic zones. Critical habitat includes a terrestrial zone that extends
3,000 feet (0.9 km) landward from the baseline or base point of each
major rookery and major haulout in Alaska. Critical habitat includes an
air zone that extends 3,000 feet (0.9 km) above the terrestrial zone of
each major rookery and major haulout in Alaska, measured vertically from
sea level. Critical habitat includes an aquatic zone that extends 3,000
feet (0.9 km) seaward in State and Federally managed waters from the
baseline or basepoint of each major rookery and major haulout in Alaska
that is east of 144 deg. W. longitude. Critical habitat includes an
aquatic zone that extends 20 nm (37 km) seaward in State and Federally
managed waters from the baseline or basepoint of each major rookery and
major haulout in Alaska that is west of 144 deg. W. longitude.
(b) California and Oregon rookeries and associated areas. In
California and Oregon, all major Steller sea lion rookeries identified
in Table 1 and associated air and aquatic zones. Critical habitat
includes an air zone that extends 3,000 feet (0.9 km) above areas
historically occupied by sea lions at each major rookery in California
and Oregon, measured vertically from sea level. Critical habitat
includes an aquatic zone that extends 3,000 feet (0.9 km) seaward in
State and Federally managed waters from the baseline or basepoint of
each major rookery in California and Oregon.
(c) Three special aquatic foraging areas in Alaska. Three special
aquatic foraging areas in Alaska, including the Shelikof Strait area,
the Bogoslof area, and the Seguam Pass area.
(1) Critical habitat includes the Shelikof Strait area in the Gulf
of Alaska which is identified in Figure 2 and consists of the area
between the Alaska Peninsula and Tugidak, Sitkinak, Aiaktilik, Kodiak,
Raspberry, Afognak and Shuyak Islands (connected by the shortest lines);
bounded on the west by a line connecting Cape Kumlik (56 deg.38"/
157 deg.27'W) and the southwestern tip of Tugidak Island (56 deg.24'N/
154 deg.41'W) and bounded in the east by a line connecting Cape Douglas
(58 deg.51'N/153 deg.15'W) and the northernmost tip of Shuyak Island
(58 deg.37'N/152 deg.22'W).
(2) Critical habitat includes the Bogoslof area in the Bering Sea
shelf which is identified in Figure 3 and consists of the area between
170 deg.00'W and 164 deg.00'W, south of straight lines connecting
55 deg.00'N/170 deg.00'W and 55 deg.00'N/168 deg.00'W; 55 deg.30'N/
168 deg.00'W and 55 deg.30'N/166 deg.00'W; 56 deg.00'N/166 deg.00'W and
56 deg.00'N/164 deg.00'W and north of the Aleutian Islands and straight
lines between the islands connecting the following coordinates in the
order listed:
52 deg.49.2'N/169 deg.40.4'W
52 deg.49.8'N/169 deg.06.3'W
53 deg.23.8'N/167 deg.50.1'W
53 deg.18.7'N/167 deg.51.4'W
53 deg.59.0'N/166 deg.17.2'W
54 deg.02.9'N/166 deg.03.0'W
54 deg.07.7'N/165 deg.40.6'W
54 deg.08.9'N/165 deg.38.8'W
54 deg.11.9'N/165 deg.23.3'W
54 deg.23.9'N/164 deg.44.0'W
(3) Critical habitat includes the Seguam Pass area which is
identified in Figure 4 and consists of the area between 52 deg.00'N and
53 deg.00'N and between 173 deg.30'W and 172 deg.30'W.
[58 FR 45278, Aug. 27, 1993]
Sec. 226.13 North Atlantic Ocean.
Northern Right Whale (Eubalaena glacialis)
(a) Great South Channel. The area bounded by 41 deg.40' N/69 deg.45'
W; 41 deg.00' N/69 deg.05' W; 41 deg.38' N/68 deg.13' W; and 42 deg.10'
N/68 deg.31' W (Figure 6 to part 226).
(b) Cape Cod Bay, Massachusetts. The area bounded by 42 deg.04.8' N/
70 deg.10' W; 42 deg.12' N/70 deg.15' W; 42 deg.12' N/70 deg.30' W;
41 deg.46.8' N/70 deg.30' W and on the south and east by the interior
shore line of Cape Cod, Massachusetts (Figure 7 to part 226).
(c) Southeastern United States. The coastal waters between
31 deg.15' N and 30 deg.15' N from the coast out 15 nautical miles; and
the coastal waters between 30 deg.15' N and 28 deg.00' N from the coast
out 5 nautical miles (Figure 8 to part 226).
[59 FR 28805, June 3, 1994]
[[Page 110]]
Subpart C--Critical Habitat for Fish
Source: 58 FR 33218, June 16, 1993, unless otherwise noted.
Sec. 226.21 Sacramento River winter-run chinook salmon (Oncorhynchus tshawytscha).
The following waterways, bottom and water of the waterways and
adjacent riparian zones: The Sacramento River from Keswick Dam, Shasta
County (River Mile 302) to Chipps Island (River Mile 0) at the westward
margin of the Sacramento-San Joaquin Delta, all waters from Chipps
Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay,
Suisun Bay, and Carquinez Strait, all waters of San Pablo Bay westward
of the Carquinez Bridge, and all waters of San Francisco Bay (north of
the San Francisco/Oakland Bay Bridge) from San Pablo Bay to the Golden
Gate Bridge.
Sec. 226.22 Snake River sockeye salmon (oncorhynchus nerka), Snake River spring/summer chinook salmon (oncorhynchus tshawytscha), Snake River fall chinook
salmon (oncorhynchus tshawytscha).
The following areas consisting of the water, waterway bottom, and
adjacent riparian zone of specified lakes and river reaches in
hydrologic units presently or historically accessible to listed Snake
River salmon (except reaches above impassable natural falls, and
Dworshak and Hells Canyon Dams). Adjacent riparian zones are defined as
those areas within a horizontal distance of 300 feet (91.4 m) from the
normal line of high water of a stream channel (600 feet or 182.8 m, when
both sides of the stream channel are included) or from the shoreline of
a standing body of water. Figure 5 identifies the general geographic
extent of larger rivers, lakes, and streams within hydrologic units
designated as critical habitat for Snake River sockeye, spring/summer
chinook, and fall chinook salmon. Note that Figure 5 does not constitute
the definition of critical habitat, but instead is provided as a general
reference to guide Federal agencies and interested parties in locating
the general boundaries of critical habitat for listed Snake River
salmon. The complete text delineating critical habitat for each species
follows. Hydrologic units (table 3) are those defined by the Department
of the Interior (DOI), U.S. Geological Survey (USGS) publication,
``Hydrologic Unit Maps, United States Geological Survey Water Supply
Paper 2294, 1987'', and the following DOI, USGS, 1:500,000 scale
hydrologic unit map: State of Oregon, 1974; State of Washington, 1974;
State of Idaho, 1974, which are incorporated by reference. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of
the USGS publication and maps may be obtained from the USGS, Map Sales,
Box 25286, Denver, CO 80225. Copies may be inspected at NMFS, Endangered
Species Branch, Environmental and Technical Services Division, 911 NE.
11th Avenue, room 620, Portland, OR 97232, NMFS, Office of Protected
Resources, 1335 East-West Highway, Silver Spring, MD 20910, or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(a) Snake River Sockeye Salmon (Oncorhynchus nerka). The Columbia
River from a straight line connecting the west end of the Clatsop jetty
(south jetty, Oregon side) and the west end of the Peacock jetty (north
jetty, Washington side) and including all Columbia River estuarine areas
and river reaches upstream to the confluence of the Columbia and Snake
Rivers; all Snake River reaches from the confluence of the Columbia
River upstream to the confluence of the Salmon River; all Salmon River
reaches from the confluence of the Snake River upstream to Alturas Lake
Creek; Stanley, Redfish, Yellow Belly, Pettit, and Alturas Lakes
(including their inlet and outlet creeks); Alturas Lake Creek, and that
portion of Valley Creek between Stanley Lake Creek and the Salmon River.
Critical habitat is comprised of all river lakes and reaches presently
or historically accessible (except reaches above impassable natural
falls, and Dworshak and Hells Canyon Dams) to Snake River sockeye salmon
in the following hydrologic units: Lower Salmon, Lower Snake, Lower
Snake-Asotin,
[[Page 111]]
Lower Snake-Tucannon, Middle Salmon-Chamberlain, Middle Salmon-Panther,
and Upper Salmon. Critical habitat borders on or passes through the
following counties in Oregon: Clatsop, Columbia, Gillium, Hood River,
Morrow, Multnomah, Sherman, Umatilla, Wallowa, Wasco; the following
counties in Washington: Asotin, Benton, Clark, Columbia, Cowlitz,
Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla,
Whitman; and the following counties in Idaho: Blaine, Custer, Idaho,
Lemhi, Lewis, Nez Perce.
(b) Snake River Spring/Summer Chinook Salmon (Oncorhynchus
tshawytscha). The Columbia River from a straight line connecting the
west end of the Clatsop jetty (south jetty, Oregon side) and the west
end of the Peacock jetty (north jetty, Washington side) and including
all Columbia River estuarine areas and river reaches proceeding upstream
to the confluence of the Columbia and Snake Rivers; all Snake River
reaches from the confluence of the Columbia River upstream to Hells
Canyon Dam. Critical habitat also includes river reaches presently or
historically accessible (except reaches above impassable natural falls,
and Dworshak and Hells Canyon Dams) to Snake River spring/summer chinook
salmon in the following hydrologic units: Hells Canyon, Imnaha, Lemhi,
Little Salmon, Lower Grande Ronde, Lower Middle Fork Salmon, Lower
Salmon, Lower Snake-Asotin, Lower Snake-Tucannon, Middle Salmon-
Chamberlain, Middle Salmon-Panther, Pahsimeroi, South Fork Salmon, Upper
Middle Fork Salmon, Upper Grande Ronde, Upper Salmon, Wallowa. Critical
habitat borders on or passes through the following counties in Oregon:
Baker, Clatsop, Columbia, Gillium, Hood River, Morrow, Multnomah,
Sherman, Umatilla, Union, Wallowa, Wasco; the following counties in
Washington: Asotin, Benton, Clark, Columbia, Cowlitz, Franklin,
Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla, Whitman; and
the following counties in Idaho: Adams, Blaine, Custer, Idaho, Lemhi,
Lewis, Nez Perce, Valley.
(c) Snake River Fall Chinook Salmon (Oncorhynchus tshawytscha). The
Columbia River from a straight line connecting the west end of the
Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock
jetty (north jetty, Washington side) and including all Columbia River
estuarine areas and river reaches proceeding upstream to the confluence
of the Columbia and Snake Rivers; the Snake River, all river reaches
from the confluence of the Columbia River, upstream to Hells Canyon Dam;
the Palouse River from its confluence with the Snake River upstream to
Palouse Falls; the Clearwater River from its confluence with the Snake
River upstream to its confluence with Lolo Creek; the North Fork
Clearwater River from its confluence with the Clearwater River upstream
to Dworshak Dam. Critical habitat also includes river reaches presently
or historically accessible (except reaches above impassable natural
falls, and Dworshak and Hells Canyon Dams) to Snake River fall chinook
salmon in the following hydrologic units; Clearwater, Hells Canyon,
Imnaha, Lower Grande Ronde, Lower North Fork Clearwater, Lower Salmon,
Lower Snake, Lower Snake-Asotin, Lower Snake-Tucannon, and Palouse.
Critical habitat borders on or passes through the following counties in
Oregon: Baker, Clatsop, Columbia, Gillium, Hood River, Morrow,
Multnomah, Sherman, Umatilla, Wallowa, Wasco; the following counties in
Washington: Adams, Asotin, Benton, Clark, Columbia, Cowlitz, Franklin,
Garfield, Klickitat, Lincoln, Pacific, Skamania, Spokane, Wahkiakum,
Walla, Whitman; and the following counties in Idaho: Adams, Benewah,
Clearwater, Idaho, Latah, Lewis, Nez Perce, Shoshone, Valley.
[58 FR 68551, Dec. 28, 1993, as amended at 63 FR 1393, Jan. 9, 1998]
Sec. 226.23 Umpqua River cutthroat trout (Oncorhynchus clarki clarki).
(a) The following areas consisting of the water, waterway bottom,
and adjacent riparian zone of specified lakes and river reaches in
hydrologic units presently accessible to listed Umpqua River cutthroat
trout. Adjacent riparian zones are defined as those areas within a slope
distance of 300 ft. (91.4 m) from the normal line of high water of a
stream channel (600 ft. or 182.8 m,
[[Page 112]]
when both sides of the stream channel are included) or from the
shoreline of a standing body of water. Figure 9 to this part identifies
the general geographic extent of larger rivers, lakes, and streams
within hydrologic units designated as critical habitat for Umpqua River
cutthroat trout. Note that Figure 9 does not constitute the definition
of critical habitat but, instead, is provided as a general reference to
guide Federal agencies and interested parties in locating the general
boundaries of critical habitat for listed Umpqua River cutthroat trout.
The complete text delineating the critical habitat for the species
follows. Hydrologic units are those defined by the Department of the
Interior (DOI), U.S. Geological Survey (USGS) publication, ``Hydrologic
Unit Maps, Water Supply Paper 2294, 1986, and the following DOI, USGS,
1:500,000 scale hydrologic unit map: State of Oregon (1974) which is
incorporated by reference. This incorporation by reference was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies of the USGS publication and maps may be
obtained from the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies
may be inspected during normal business hours at NMFS, Protected
Resources Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-
2737, or NMFS, Office of Protected Resources, 1315 East-West Highway,
Silver Spring, MD 20910, or at the Office of the Federal Register, 800
North Capitol Street, NW., Suite 700, Washington, DC.
(b) Geographic boundaries. All river reaches accessible to listed
Umpqua River cutthroat trout in the Umpqua River from a straight line
connecting the west end of the South jetty and the west end of the North
jetty and including all Umpqua River estuarine areas (including the
Smith River) and tributaries proceeding upstream from the Pacific Ocean
to the confluence of the North and South Umpqua Rivers; the North Umpqua
River, including all tributaries, from its confluence with the mainstem
Umpqua River to Soda Springs dam; the South Umpqua River, including all
tributaries, from its confluence with the mainstem Umpqua River to its
headwaters (including Cow Creek, tributary to the South Umpqua River).
Critical habitat includes all river reaches below longstanding,
naturally impassable barriers (i.e., waterfalls in existence for several
hundred years) in the following hydrologic units: North Umpqua, South
Umpqua, and Umpqua. Critical habitat borders on or passes through the
following counties in Oregon: Douglas, Lane, Coos, Jackson, and Klamath
counties. Perennial rivers and creeks within the defined areas are also
included in the critical habitat designation (but are not specifically
named), unless otherwise noted. Critical habitat maps are available upon
request from NMFS, Protected Resources Division, 525 NE Oregon St.,
Suite 500, Portland, OR 97232-2737, telephone (503/230-5422).
[63 FR 1393, Jan. 9, 1998]
Subpart D--Critical Habitat for Marine Reptiles
Sec. 226.71 Sandy Point, St. Croix, U.S. Virgin Islands.
Leatherback Sea Turtle (dermochelys coriacea)
The waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands,
up to and inclusive of the waters from the hundred fathom curve
shoreward to the level of mean high tide with boundaries at
17 deg.42'12" North and 64 deg.50'00" West.
Sec. 226.72 Green Sea Turtle (Chelonia mydas).
(a) Culebra Island, Puerto Rico--Waters surrounding the island of
Culebra from the mean high water line seaward to 3 nautical miles (5.6
km). These waters include Culebra's outlying Keys including Cayo Norte,
Cayo Ballena, Cayos Geniqui, Isla Culebrita, Arrecife Culebrita, Cayo de
Luis Pena, Las Hermanas, El Mono, Cayo Lobo, Cayo Lobito, Cayo
Botijuela, Alcarraza, Los Gemelos, and Piedra Steven.
(b) [Reserved]
[63 FR 46701, Sept. 2, 1998]
Effective Date Note: At 63 FR 46701, Sept. 2, 1998, Sec. 226.72 was
added, effective Oct. 2, 1998.
[[Page 113]]
Sec. 226.73 Hawksbill Sea Turtle (Eretmochelys imbricata).
(a) Mona and Monito Islands, Puerto Rico--Waters surrounding the
islands of Mona and Monito, from the mean high water line seaward to 3
nautical miles (5.6 km).
(b) [Reserved].
[63 FR 46701, Sept. 2, 1998]
Effective Date Note: At 63 FR 46701, Sept. 2, 1998, Sec. 226.73 was
added, effective Oct. 2, 1998.
[[Page 114]]
Table 1 to Part 226
Major Steller sea lion rookery sites are identified in the following
table. Where two sets of coordinates are given, the baseline extends in
a clockwise direction from the first set of geographic coordinates along
the shoreline at mean lower-low water to the second set of coordinates.
Where only one set of coordinates is listed, that location is the base
point.
[[Page 115]]
----------------------------------------------------------------------------------------------------------------
Boundaries to--
State/region/site ----------------------------------------------------------------------
Latitude Longitude Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
Western Aleutians:
Agattu I.:
Cape Sabak \1\............... 52 23.5N........ 173 43.5E....... 52 22.0N........ 173 41.0E
Gillon Point \1\............. 52 24.0N........ 173 21.5E.......
Attu I.\1\....................... 52 54.5N........ 172 28.5E....... 52 57.5N........ 172 31.5E
Buldir I.\1\..................... 52 20.5N........ 175 57.0E....... 52 23.5N........ 172 51.0E
Central Aleutians:
Adak I.\1\....................... 51 36.5N........ 176 59.0W....... 51 38.0N........ 176 59.5W
Agligadak I.\1\.................. 52 06.5N........ 172 54.0W.......
Amchitka I.:\1\
Column Rock \1\.............. 51 32.5N........ 178 49.5E.......
East Cape \1\................ 51 22.5N........ 179 28.0E....... 51 21.5N........ 179 25.0E
Ayugadak I.\1\................... 51 45.5N........ 178 24.5E.......
Gramp Rock \1\................... 51 29.0N........ 178 20.5W.......
Kasatochi I.\1\.................. 52 10.0N........ 175 31.5W....... 52 10.5N........ 175 29.0W
Kiska I.:
Lief Cove \1\................ 51 57.5N........ 177 21.0E....... 51 56.5N........ 177 20.0E
Cape St. Stephen \1\......... 51 52.5N........ 177 13.0E....... 51 53.5N........ 177 12.0E
Seguam I./Saddleridge \1\........ 52 21.0N........ 172 35.0W....... 52 21.0N........ 172 33.0W
Semisopochnoi I.:
Pochnoi Pt \1\............... 51 58.5N........ 179 45.5E....... 51 57.0N........ 179 46.0E
Petrel Pt \1\................ 52 01.5N........ 179 37.5E....... 52 01.5E........ 179 39.0E
Tag I.\1\........................ 51 33.5N........ 178 34.5W.......
Ulak I.\1\....................... 51 20.0N........ 178 57.0W....... 51 18.5N........ 178 59.5W
Yunaska I.\1\.................... 52 42.0N........ 170 38.5W....... 52 41.0N........ 170 34.5W
Eastern Aleutian:
Adugak I.\1\..................... 52 55.0N........ 169 10.5W.......
Akun I./Billings Head \1\........ 54 18.0N........ 165 32.5W....... 54 18.0N........ 165 31.5W
Akutan I./Cape Morgan \1\........ 54 03.5N........ 166 00.0W....... 54 05.5N........ 166 05.0W
Bogoslof I.\1\ \2\............... 53 56.0N........ 168 02.0W.......
Ogchul I.\1\..................... 53 00.0N........ 168 24.0W.......
Sea Lion Rocks. (Amak) \1\....... 55 28.0N........ 163 12.0W.......
Ugamak I.\1\..................... 54 14.0N........ 164 48.0W....... 54 13.0N........ 164 48.0W
Bering Sea:
Walrus I.\1\..................... 57 11.0N........ 169 56.0W.......
Western Gulf of Alaska:
Atkins I.\1\..................... 55 03.5N........ 159 18.5W.......
Chernabura I.\1\................. 54 47.5N........ 159 31.0W....... 54 45.5N........ 159 33.5W
Clubbing Rocks (N) \1\........... 54 43.0N........ 162 26.5W.......
Clubbing Rocks (S) \1\........... 54 42.0N........ 162 26.5W.......
Pinnacle Rock \1\................ 54 46.0N........ 161 46.0W.......
Central Gulf of Alaska:
Chirikof I.\1\................... 55 46.5N........ 155 39.5W....... 55 46.5N........ 155 43.0W
Chowiet I.\1\.................... 56 00.5N........ 156 41.5W....... 56 00.5N........ 156 42.0W
Marmot I.\1\..................... 58 14.5N........ 151 47.5W....... 58 10.0N........ 151 51.0W
[[Page 116]]
Outer I.\1\...................... 59 20.5N........ 150 23.0W....... 59 21.0N........ 150 24.5W
Sugarloaf I.\1\.................. 58 53.0N........ 152 02.0W.......
Eastern Gulf of Alaska:
Seal Rocks \1\................... 60 10.0N........ 146 50.0W.......
Fish I.\1\....................... 59 53.0N........ 147 20.5W.......
Southeast Alaska:
Forrester I...................... 54 51.0N........ 133 32.0W....... 54 52.5N........ 133 35.5W
Hazy I........................... 55 52.0N........ 134 34.0W....... 55 51.5N........ 134 35.0W
White Sisters.................... 57 38.0N........ 136 15.5W.......
Oregon:
Rogue Reef: Pyramid Rock............. 42 26.4N........ 124 28.1W.......
Orford Reef:
Long Brown Rock.................. 42 47.3N........ 124 36.2W.......
Seal Rock........................ 42 47.1N........ 124 35.4W.......
California:
Ano Nuevo I.......................... 37 06.3N........ 122 20.3W.......
Southeast Farallon I................. 37 41.3N........ 123 00.1W.......
Sugarloaf I. & Cape Mendocino........ 40 26.0N........ 124 24.0W ......
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.
[58 FR 45278, Aug. 27, 1993]
[[Page 117]]
Table 2 to Part 226
Major Steller sea lion haulout sites in Alaska are identified in the
following table. Where two sets of coordinates are given, the baseline
extends in a clockwise direction from the first set of geographic
coordinates along the shoreline at mean lower-low water to the second
set of coordinates. Where only one set of coordinates is listed, that
location is the basepoint.
[[Page 118]]
----------------------------------------------------------------------------------------------------------------
Boundaries to--
State/region/site ----------------------------------------------------------------------
Latitude Longitude Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
Western Aleutians:
Alaid I.\1\...................... 52 45.0N........ 173 56.5E....... 52 46.5N........ 173 51.5E
Attu/Chirikof Pt.\1\............. 52 30.0N........ 173 26.7E....... ................ ...............
Shemya I.\1\..................... 52 44.0N........ 174 09.0E....... ................ ...............
Central Aleutians:
Amatignak I.\1\.................. 51 13.0N........ 179 08.0E....... ................ ...............
Amlia I:
East \1\..................... 52 05.0N........ 172 58.5W....... 52 06.0N........ 172 57.0W
Sviech. Harbor \1\........... 52 02.0N........ 173 23.0W....... ................ ...............
Amukta I. & Rocks \1\............ 52 31.5N........ 171 16.5W....... 52 26.5N........ 171 16.5W
Anagaksik I.\1\.................. 51 51.0N........ 175 53.5W....... ................ ...............
Atka I.\1\....................... 52 23.5N........ 174 17.0W....... 52 24.5N........ 174 07.5W
Bobrof I.\1\..................... 51 54.0N........ 177 27.0W....... ................ ...............
Chagulak I.\1\................... 52 34.0N........ 171 10.5W....... ................ ...............
Chuginadak I.\1\................. 52 46.5N........ 169 44.5W....... 52 46.5N........ 169 42.0W
Great Sitkin I.\1\............... 52 06.0N........ 176 10.5W....... 52 07.0N........ 176 08.5W
Kagamil I.\1\.................... 53 02.5N........ 169 41.0W....... ................ ...............
Kanaga I:
North Cape \1\............... 51 56.5N........ 177 09.0W....... ................ ...............
Ship Rock \1\................ 51 47.0N........ 177 22.5W....... ................ ...............
Kavalga I.\1\.................... 51 34.5N........ 178 51.5W....... 51 34.5N........ 178 49.5W
Kiska I./Sirius Pt.\1\........... 52 08.5N........ 177 36.5E....... ................ ...............
Kiska I./Sobaka & Vega \1\....... 51 50.0N........ 177 20.0E....... 51 48.5N........ 177 20.5E
Little Sitkin I.\1\.............. 51 59.5N........ 178 30.0E....... ................ ...............
Little Tanaga I.\1\.............. 51 50.5N........ 176 13.0W....... 51 49.0N........ 176 13.0W
Sagigik I.\1\.................... 52 00.5N........ 173 08.0W....... ................ ...............
Seguam I:
South \1\.................... 52 19.5N........ 172 18.0W....... 52 15.0N........ 172 37.0W
Finch Pt.\1\................. 52 23.5N........ 172 25.5W....... 52 23.5N........ 172 24.0W
Segula I.\1\..................... 52 00.0N........ 178 06.5E....... 52 03.5N........ 178 09.0E
Tanaga I.\1\..................... 51 55.0N........ 177 58.5W....... 51 55.0N........ 177 57.0W
Tanadak I. (Amlia) \1\........... 52 04.5N........ 172 57.0W....... ................ ...............
Tanadak I. (Kiska) \1\........... 51 57.0N........ 177 47.0E....... ................ ...............
Ugidak I.\1\..................... 51 35.0N........ 178 30.5W....... ................ ...............
Uliaga I.\1\..................... 53 04.0N........ 169 47.0W....... 53 05.0N........ 169 46.0W
Unalga & Dinkum Rocks \1\........ 51 34.0N........ 179 04.0W....... 51 34.5N........ 179 03.0W
Eastern Aleutians:
Akutan I./Reef-Lava \1\.......... 54 10.5N........ 166 04.5W....... 54 07.5N........ 166 06.5W
Amak I.\1\....................... 55 24.0N........ 163 07.0W....... 55 26.0N........ 163 10.0W
Cape Sedanka & Island \1\........ 53 50.5N........ 166 05.0W....... ................ ...............
Emerald I.\1\.................... 53 17.5N........ 167 51.5W....... ................ ...............
Old Man Rocks \1\................ 53 52.0N........ 166 05.0W....... ................ ...............
Polivnoi Rock \1\................ 53 16.0N........ 167 58.0W....... ................ ...............
Tanginak I.\1\................... 54 13.0N........ 165 19.5W....... ................ ...............
Tigalda I.\1\.................... 54 08.5N........ 164 58.5W....... ................ ...............
[[Page 119]]
Umnak I./Cape Aslik \1\.......... 53 25.0N........ 168 24.5W....... ................ ...............
Bering Sea:
Cape Newenham \1\................ 58 39.0N........ 162 10.5W....... ................ ...............
Hall I.\1\....................... 60 37.0N........ 173 00.0W....... ................ ...............
Round I.\1\...................... 58 36.0N........ 159 58.0W....... ................ ...............
St. Paul I:
Northeast Point \1\.......... 57 15.0N........ 170 06.5W....... ................ ...............
Sea Lion Rock \1\............ 57 06.0N........ 170 17.5W....... ................ ...............
St. George I:
S Rookery \1\................ 56 33.5N........ 169 40.0W....... ................ ...............
Dalnoi Point \1\............. 56 36.0N........ 169 46.0W....... ................ ...............
St. Lawrence I:
S Punuk I.\1\................ 64 04.0N........ 168 51.0W....... ................ ...............
SW Cape \1\.................. 63 18.0N........ 171 26.0W....... ................ ...............
Western Gulf of Alaska:
Bird I. \1\...................... 54 40.5N........ 163 18.0W....... ..............
Castle Rock \1\.................. 55 17.0N........ 159 30.0W....... ................ ...............
Caton I.\1\...................... 54 23.5N........ 162 25.5W....... ................ ...............
Jude I.\1\....................... 55 16.0N........ 161 06.0W....... ................ ...............
Lighthouse Rocks \1\............. 55 47.5N........ 157 24.0W....... ................ ...............
Nagai I.\1\...................... 54 52.5N........ 160 14.0W....... 54 56.0N........ 160 15.0W
Nagai Rocks \1\.................. 55 50.0N........ 155 46.0W....... ................ ...............
Sea Lion Rocks (Unga) \1\........ 55 04.5N........ 160 31.0W....... ................ ...............
South Rock \1\................... 54 18.0N........ 162 43.5W....... ................ ...............
Spitz I.\1\...................... 55 47.0N........ 158 54.0W....... ................ ...............
The Whaleback \1\................ 55 16.5N........ 160 06.0W....... ................ ...............
Central Gulf of Alaska:
Cape Barnabas \1\................ 57 10.0N........ 152 55.0W....... 57 07.5N........ 152 55.0W
Cape Chiniak \1\................. 57 35.0N........ 152 09.0W....... 57 37.5N........ 152 09.0W
Cape Gull \1\ \2\................ 58 13.5N........ 154 09.5W....... 58 12.5N........ 154 10.5W
Cape Ikolik \1\ \2\.............. 57 17.0N........ 154 47.5W....... ................ ...............
Cape Kuliak \1\ \2\.............. 58 08.0N........ 154 12.5W....... ................ ...............
Cape Sitkinak \1\................ 56 32.0N........ 153 52.0W....... ................ ...............
Cape Ugat \1\ \2\................ 57 52.0N........ 153 51.0W....... ................ ...............
Gore Point \1\................... 59 12.0N........ 150 58.0W....... ................ ...............
Gull Point \1\................... 57 21.5N........ 152 36.5W....... 57 24.5N........ 152 39.0W
Latax Rocks \1\.................. 58 42.0N........ 152 28.5W....... 58 40.5N........ 152 30.0W
Long I.\1\....................... 57 45.5N........ 152 16.0W....... ................ ...............
Nagahut Rocks \1\................ 59 06.0N........ 151 46.0W....... ................ ...............
Puale Bay \1\ \2\................ 57 41.0N........ 155 23.0W....... ................ ...............
Sea Lion Rocks (Marmot) \1\...... 58 21.0N........ 151 48.5W....... ................ ...............
Sea Otter I.\1\.................. 58 31.5N........ 152 13.0W....... ................ ...............
Shakun Rock \1\ \2\.............. 58 33.0N........ 153 41.5W....... ................ ...............
Sud I.\1\........................ 58 54.0N........ 152 12.5W....... ................ ...............
Sutwik I.\1\..................... 56 32.0N........ 157 14.0W....... 56 32.0N........ 157 20.0W
Takli I. \1\ \2\................. 58 03.0N........ 154 27.5W....... 58 03.0N........ 154 30.0W
Two-headed I.\1\................. 56 54.5N........ 153 33.0W....... 56 53.5N........ 153 35.5W
Ugak I.\1\....................... 57 23.0N........ 152 15.5W....... 57 22.0N........ 152 19.0W
Ushagat I. \1\................... 58 55.0N........ 152 22.0W....... ..............
Eastern Gulf of Alaska:
Cape Fairweather................. 58 47.5N........ 137 56.3W....... ..............
[[Page 120]]
Cape St. Elias \1\............... 59 48.0N........ 144 36.0W....... ................ ...............
Chiswell Islands \1\............. 59 36.0N........ 149 34.0W....... ................ ...............
Graves Rock...................... 58 14.5N........ 136 45.5W.......
Hook Point \1\................... 60 20.0N........ 146 15.5W....... ................ ...............
Middleton I.\1\.................. 59 26.5N........ 146 20.0W....... ................ ...............
Perry I.\1\...................... 60 39.5N........ 147 56.0W....... ................ ...............
Point Eleanor \1\................ 60 35.0N........ 147 34.0W....... ................ ...............
Point Elrington \1\.............. 59 56.0N........ 148 13.5W....... ................ ...............
Seal Rocks \1\................... 60 10.0N........ 146 50.0W....... ................ ...............
The Needle \1\................... 60 07.0N........ 147 37.0W....... ................ ...............
Southeast Alaska:
Benjamin I....................... 58 33.5N........ 134 54.5W....... ................ ...............
Biali Rock....................... 56 43.0N........ 135 20.5W....... ................ ...............
Biorka I......................... 56 50.0N........ 135 34.0W....... ..............
Cape Addington................... 55 26.5N........ 133 49.5W....... ..............
Cape Cross....................... 57 55.0N........ 136 34.0W.......
Cape Ommaney..................... 56 10.5N........ 134 42.5W.......
Coronation I..................... 55 56.0N........ 134 17.0W.......
Gran Point....................... 59 08.0N........ 135 14.5W.......
Lull Point....................... 57 18.5N........ 134 48.5W.......
Sunset I......................... 57 30.5N........ 133 35.0W....... ................ ...............
Timbered I....................... 55 42.0N........ 133 48.0W....... ................ ...............
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas.
[58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]
[[Page 121]]
Table 3.--Hydrologic Units \1\ Containing Critical Habitat for Endangered Snake River Sockeye Salmon and
Threatened Snake River Spring/Summer and Fall Chinook Salmon
----------------------------------------------------------------------------------------------------------------
Hydrologic unit number
--------------------------------
Spring/
Hydrologic unit name Sockeye summer Fall
salmon chinook chinook
salmon salmon
----------------------------------------------------------------------------------------------------------------
Hells Canyon................................................................... ......... 17060101 17060101
Imnaha......................................................................... ......... 17060102 17060102
Lower Snake--Asotin............................................................ 17060103 17060103 17060103
Upper Grande Ronde............................................................. ......... 17060104 .........
Wallowa........................................................................ ......... 17060105 .........
Lower Grande Ronde............................................................. ......... 17060106 17060106
Lower Snake--Tucannon.......................................................... 17060107 17060107 17060107
Palouse........................................................................ ......... ......... 17060108
Lower Snake.................................................................... 17060110 17060110 17060110
Upper Salmon................................................................... 17060201 17060201 .........
Pahsimeroi..................................................................... ......... 17060202 .........
Middle Salmon--Panther......................................................... 17060203 17060203 .........
Lemhi.......................................................................... ......... 17060204 .........
Upper Middle Fork Salmon....................................................... ......... 17060205 .........
Lower Middle Fork Salmon....................................................... ......... 17060206 .........
Middle Salmon--Chamberlain..................................................... 17060207 17060207 .........
South Fork Salmon.............................................................. ......... 17060208 .........
Lower Salmon................................................................... 17060209 17060209 17060209
Little Salmon.................................................................. ......... 17060210 .........
Clearwater..................................................................... ......... ......... 17060306
Lower North Fork Clearwater.................................................... ......... ......... 17060308
----------------------------------------------------------------------------------------------------------------
\1\ Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS);
State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974.
[58 FR 68552, Dec. 28, 1993]
Table 4.--Hydrologic Units \1\ Containing Critical Habitat for
Endangered Umpqua River Cutthroat Trout and Counties Contained in Each
Hydrologic Unit.
------------------------------------------------------------------------
Hydrologic Counties contained in
Hydrologic unit name unit No. hydrologic unit
------------------------------------------------------------------------
North Umpqua........................ 17100301 Douglas, Lane,
Klamath.
South Umpqua........................ 17100302 Douglas, Jackson,
Coos.
Umpqua.............................. 17100303 Douglas, Lane, Coos.
------------------------------------------------------------------------
\1\ 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale
State of Oregon (1974) hydrologic unit map (available from USGS).
[63 FR 1394, Jan. 9, 1998]
[[Page 122]]
Figures to Part 226
[GRAPHIC] [TIFF OMITTED] TC01JY91.008
[58 FR 45282, Aug. 27, 1993]
[[Page 123]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.009
[58 FR 45283, Aug. 27, 1993]
[[Page 124]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.010
[58 FR 45284, Aug. 27, 1993]
[[Page 125]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.011
[58 FR 45285, Aug. 27, 1993]
[[Page 126]]
Figure 5: Designated critical habitat, Snake River salmon
[GRAPHIC] [TIFF OMITTED] TC01JY91.012
[58 FR 68552, Dec. 28, 1993]
[[Page 127]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.013
[59 FR 28805, June 3, 1994]
[[Page 128]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.014
[59 FR 28805, June 3, 1994]
[[Page 129]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.015
[59 FR 28805, June 3, 1994]
[[Page 130]]
[GRAPHIC] [TIFF OMITTED] TR09JA98.004
[63 FR 1394, Jan. 9, 1998]
[[Page 131]]
PART 227--THREATENED SPECIES--Table of Contents
Subpart A--General Provisions
Sec.
227.1 Purpose.
227.2 Scope.
227.3 Definitions.
227.4 Enumeration of threatened species.
Subpart B--Threatened Marine Mammals
227.11 Guadalupe fur seal.
227.12 Steller sea lion.
Subpart C--Threatened Marine and Anadromous Fish
227.21 Threatened salmon.
227.22 Southern Oregon/Northern California Coast (SONCC) coho salmon.
Subpart D--Threatened Marine Reptiles
227.71 Prohibitions.
227.72 Exceptions to prohibitions.
Figure 1 to Part 227--NMFS TED
Figure 2 to Part 227--Cameron TED
Figure 3 to Part 227--Matagorda TED
Figure 4 to Part 227--Georgia TED
Figure 5 to Part 227--Net Diagram for the Excluder Panel of the Parker
Soft TED
Figures 6--9b to Part 227 [Reserved]
Figure 10 to Part 227--Flounder TED
Figure 11 to Part 227--Jones TED
Figure 12a to Part 227--Attachment of the Exit Hole Cover
Figure 12b to Part 227--Grid TED Leatherback Modification
Figure 13 to Part 227--Single Grid Hard TED Escape Opening
Figure 14a to Part 227--Maximum Angle of Deflector Bars with Straight
Bars Attached to the Bottom of the Frame
Figure 14b to Part 227--Maximum Angle of Deflector Bars with Bent Bars
Attached to the Bottom of the Frame
Figure 15 to Part 227--Maximum Angle of Deflector Bars with Bars
Unattached to the Bottom of the Frame
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also issued
under 16 U.S.C. 1361 et seq.
Source: 43 FR 32809, July 28, 1978, unless otherwise noted.
Editorial Note: For a document relating to adoption of alternative
scientific testing protocol for evaluating TEDs see 55 FR 41092, Oct. 9,
1990.
Subpart A--General Provisions