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Title 50 – Wildlife and Fisheries–Volume 11

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Title 50 – Wildlife and Fisheries–Volume 11


Part


chapter ii – National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce (Continued)

228

chapter iii – International Fishing and Related Activities

300

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

401

chapter v – Marine Mammal Commission

501

CHAPTER II – NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE (CONTINUED)

SUBCHAPTER C – MARINE MAMMALS

PART 228 – NOTICE AND HEARING ON SECTION 103(d) REGULATIONS


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


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

§ 228.1 Basis and purpose.

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


(1) Impose regulations governing the taking of marine mammals incidental to commercial fishing operations;


(2) Waive the moratorium and to adopt regulations with respect to the taking and importing of animals from each species of marine mammals under the Assistant Administrator’s jurisdiction;


(3) Prescribe regulations governing the taking of depleted marine mammals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sections, the Act refers the Assistant Administrator to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Assistant Administrator to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)).


(b) The purpose of this part is to establish rules of practice and procedure for all hearings conducted pursuant to section 103(d) of the Act.


§ 228.2 Definitions.

(a) Party means, for the purposes of this subpart:


(1) The Assistant Administrator or the Assistant Administrator’s representative;


(2) A person who has notified the Assistant Administrator by specified dates of his or her intent to participate in the hearing pursuant to §§ 228.5 and 228.14(b).


(b) Witness means, for the purpose of this part, any person who submits written direct testimony on the proposed regulations. A person may be both a party and a witness.


§ 228.3 Scope of regulations.

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


§ 228.4 Notice of hearing.

(a) A notice of hearing on any proposed regulations shall be published in the Federal Register, together with the Assistant Administrator’s proposed determination to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where applicable.


(b) The notice shall state:


(1) The nature of the hearing;


(2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hearing;


(3) The legal authority under which the hearing is to be held;


(4) The proposed regulations and waiver, where applicable, and a summary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d));


(5) Issues of fact which may be involved in the hearing;


(6) If a draft Environmental Impact Statement is required, the date of publication of the draft and the place(s) where the draft and comments thereon may be viewed and copied;


(7) Any written advice received from the Marine Mammal Commission;


(8) The place(s) where records and submitted direct testimony will be kept for public inspection;


(9) The final date for filing with the Assistant Administrator a notice of intent to participate in the hearing pursuant to § 228.5;


(10) The final date for submission of direct testimony on the proposed regulations and waiver, if applicable, and the number of copies required;


(11) The docket number assigned to the case which shall be used in all subsequent proceedings; and


(12) The place and date of the pre-hearing conference.


§ 228.5 Notification by interested persons.

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


§ 228.6 Presiding officer.

(a) Upon publication of the notice of hearing pursuant to § 228.4, the Assistant Administrator shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding.


(b) The presiding officer, in any proceeding under this subpart, shall have power to:


(1) Change the time and place of the hearing and adjourn the hearing;


(2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing conference to determine the issues for the hearing agenda, and cause to be published in the Federal Register a final hearing agenda;


(3) Rule upon motions, requests and admissibility of direct testimony;


(4) Administer oaths and affirmations, question witnesses and direct witnesses to testify;


(5) Modify or waive any rule (after notice) when determining that no party will be prejudiced;


(6) Receive written comments and hear oral arguments;


(7) Render a recommended decision; and


(8) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding.


(c) In case of the absence of the original presiding officer or the original presiding officer’s inability to act, the powers and duties to be performed by the original presiding officer under this subpart in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer unless otherwise ordered by the Assistant Administrator.


(d) The presiding officer may upon the presiding officer’s own motion withdraw as presiding officer in a proceeding if the presiding officer deems himself or herself to be disqualified.


(e) A presiding officer may be requested to withdraw at any time prior to the recommended decision. Upon the filing by an interested person in good faith of a timely and sufficient affidavit alleging the presiding officer’s personal bias, malice, conflict of interest or other basis which might result in prejudice to a party, the hearing shall recess. The Assistant Administrator shall immediately determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as the Assistant Administrator may deem appropriate in the circumstances.


§ 228.7 Direct testimony submitted as written documents.

(a) Unless otherwise specified, all direct testimony, including accompanying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§ 228.4), the final hearing agenda (§ 228.12), or within 15 days after the conclusion of the prehearing conference (§ 228.14) as the case may be. All direct testimony shall be in affidavit form and exhibits constituting part of such testimony, referred to in the affidavit and made a part thereof, must be attached to the affidavit. Direct testimony submitted with exhibits must state the issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the Federal Register.


(b) The direct testimony submitted shall contain:


(1) A concise statement of the witness’ interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state the witness’ relationship to the party; and


(2) Facts that are relevant and material.


(c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing.


(d) Ten copies of all direct testimony must be submitted unless the notice of the hearing specifies otherwise.


(e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number.


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


§ 228.8 Mailing address.

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


§ 228.9 Inspection and copying of documents.

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


§ 228.10 Ex parte communications.

(a) After notice of a hearing is published in the Federal Register, all communications, whether oral or written, involving any substantive or procedural issue and directed either to the presiding officer or to the Assistant Administrator, Deputy Assistant Administrator, or Chief of the Marine Mammal Division, National Marine Fisheries Service, without reference to these rules of procedure, shall be deemed ex parte communications and are not to be considered part of the record for decision.


(b) A record of oral conversations shall be made by the persons who are contacted. All communications shall be available for public viewing at the place(s) specified in the notice of hearing.


(c) The presiding office shall not consult any person or party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate.


§ 228.11 Prehearing conference.

(a) After an examination of all the direct testimony submitted pursuant to § 228.7, the presiding officer shall make a preliminary determination of issues of fact which may be addressed at the hearing.


(b) The presiding officer’s preliminary determination shall be made available at the place or places provided in the notice of the hearing (§ 228.4(b)(8)) at least 5 days before the prehearing conference.


(c) The purpose of the prehearing conference shall be to enable the presiding officer to determine, on the basis of the direct testimony submitted and prehearing discussions:


(1) Whether the presiding officer’s preliminary determination of issues of fact for the hearing has omitted any significant issues;


(2) What facts are not in dispute;


(3) Which witnesses may appear at the hearing; and


(4) The nature of the interest of each party and which parties’ interests are adverse.


(d) Only parties may participate in the hearing conference and a party may appear in person or be represented by counsel.


(e) Parties who do not appear at the prehearing conference shall be bound by the conference’s determinations.


§ 228.12 Final agenda of the hearing.

(a) After the prehearing conference, the presiding officer shall prepare a final agenda which shall be published in the Federal Register within 10 days after the conclusion of the conference. A copy of the final agenda shall be mailed to all parties.


(b) The final agenda shall list:


(1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the direct testimony submitted which bears on the issues; and


(2) A final date for submission of direct testimony on issues of fact not included in the notice of hearing if such issues are presented. The final agenda may also specify a final date for submission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing.


(c) The presiding officer shall publish with the final agenda a list of witnesses who may appear at the hearing, a list of parties, the nature of the interest of each party, and which parties’ interests are adverse on the issues presented.


§ 228.13 Determination to cancel the hearing.

(a) If the presiding officer concludes that no issues of fact are presented by the direct testimony submitted, the presiding officer shall publish such conclusion and notice in the Federal Register that a hearing shall not be held and shall also publish a date for filing written comments on the proposed regulations. Written comments may include proposed findings and conclusions, arguments or briefs.


(b) A person need not be a party to submit any written comments.


(c) Promptly after expiration of the period for receiving written comments, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the direct testimony and written comments submitted. He shall transfer to the Assistant Administrator his recommended decision, the record and a certificate stating that the record contains all the written direct testimony and comments submitted. The Assistant Administrator shall then make a final decision in accordance with these regulations (§ 228.21).


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

(a) Direct testimony to rebut testimony offered during the time period specified in the notice of hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the prehearing conference unless the presiding officer otherwise specifies in the final agenda.


(b) If the final agenda presents issues not included in the notice of the hearing published pursuant to § 228.4:


(1) Any person interested in participating at the hearing on such issues presented shall notify the Assistant Administrator by certified mail of an intent to participate not later than 10 days after publication of the final agenda. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless that person previously notified the Assistant Administrator pursuant to § 228.5; and


(2) Additional written direct testimony concerning such issues may be submitted within the time provided in the final agenda. Such direct testimony will comply with the requirements of § 228.7.


§ 228.15 Waiver of right to participate.

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


§ 228.16 Conduct of the hearing.

(a) The hearing shall be held at the time and place fixed in the notice of the hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the change in the Federal Register and shall expeditiously notify all parties by telephone or by mail: Provided, that if that change in time or place of hearing is made less than 5 days before the date previously fixed for the hearing, the presiding officer shall also announce, or cause to be announced, the change at the time and place previously fixed for the hearing.


(b) The presiding officer shall, at the commencement of the hearing, introduce into the record: the notice of hearing as published in the Federal Register; all subsequent documents published in the Federal Register; the draft Environmental Impact Statement if it is required and the comments thereon and agency responses to the comments; and a list of all parties. Direct testimony shall then be received with respect to the matters specified in the final agenda in such order as the presiding officer shall announce. With respect to direct testimony submitted as rebuttal testimony or in response to new issues presented by the prehearing conference, the presiding officer shall determine the relevancy of such testimony.


(c) The hearing shall be publicly conducted and reported verbatim by an official reporter.


(d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding officer during the hearing, he or she shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling by the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Assistant Administrator’s final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings.


(e) All motions and requests shall be addressed to, and ruled on by, the presiding officer, if made prior to his certification of the transcript or by the Assistant Administrator if made thereafter.


§ 228.17 Direct testimony.

(a) Only direct testimony submitted by affidavit as provided in these regulations and introduced at the hearing by a witness shall be considered part of the record. Such direct testimony shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof;


(b) The witness introducing direct testimony shall:


(1) State his or her name, address and occupation;


(2) State qualifications for introducing the direct testimony. If an expert, the witness shall briefly state the scientific or technical training which qualifies the witness as an expert;


(3) Identify the direct testimony previously submitted in accordance with these regulations; and


(4) Submit to appropriate cross and direct examination. Cross-examination shall be by a party whose interests are adverse on the issue presented, to the witness’, if the witness is a party, or to the interests of the party who presented the witness.


(c) A party shall be deemed to have waived the right to introduce direct testimony if such party fails to present a witness to introduce the direct testimony.


(d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States: Provided, that parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.


§ 228.18 Cross-examination.

(a) The presiding officer may:


(1) Require the cross-examiner to outline the intended scope of the cross-examination;


(2) Prohibit parties from cross-examining witnesses unless the presiding officer has determined that the cross-examiner has an adverse interest on the facts at issue to the party-witness or the party presenting the witness. For the purposes of this subsection, the Assistant Administrator’s or his or her representative’s interest shall be considered adverse to all parties;


(3) Limit the number of times any party or parties having a common interest may cross-examine an “adverse” witness on the same matter; and


(4) Exclude cross-examination questions that are immaterial, irrelevant or unduly repetitious.


(b) Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or counsel shall state his or her name, address and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be familiar with the direct testimony.


(c) Any party or party’s counsel who fails to appear at the hearing to cross-examine an “adverse” witness shall be deemed to have waived the right to cross-examine that witness.


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


§ 228.19 Oral and written arguments.

(a) The presiding officer may, in his or her discretion, provide for oral argument at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding.


(b) The presiding officer shall announce at the hearing a reasonable period of time within which any interested person may file with the presiding officer any written comments on the proposed regulations and waiver, including proposed findings and conclusions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by such party to a ruling of the presiding officer, the party shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state their arguments thereon as a part of the brief.


(c) Oral or written arguments shall be limited to issues arising from direct testimony on the record.


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

(a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Assistant Administrator. The recommended decision shall include:


(1) A statement containing a description of the history of the proceedings;


(2) Findings on the issues of fact with the reasons therefor; and


(3) Rulings on issues of law.


(b) The presiding officer shall also transmit to the Assistant Administrator the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified.


(c) Immediately after receipt of the recommended decision, the Assistant Administrator shall give notice thereof in the Federal Register, send copies of the recommended decision to all parties, and provide opportunity for the submission of comments. The recommended decision may be reviewed and/or copied in the office of the Assistant Administrator, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.


(d) Within 20 days after the notice of receipt of the recommended decision has been published in the Federal Register, any interested person may file with the Assistant Administrator any written comments on the recommended decision. All comments, including recommendations from or consultation with the Marine Mammal Commission, must be submitted during the 20-day period to the Assistant Administrator at the previously mentioned address.


§ 228.21 Assistant Administrator’s decision.

(a) Upon receipt of the recommended decision and transcript and after the 20-day period for receiving written comments on the recommended decision has passed, the Assistant Administrator shall make a final decision on the proposed regulations and waiver, where applicable. The Assistant Administrator’s decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the presiding officer. The Assistant Administrator may also remand the hearing record to the presiding officer for a fuller development of the record.


(b) The Assistant Administrator’s decision shall include:


(1) A statement containing a description of the history of the proceeding;


(2) Findings on the issues of fact with the reasons therefor; and


(3) Rulings on issues of law.


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


PART 229 – AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972


Authority:16 U.S.C. 1361 et seq.; § 229.32(f) also issued under 16 U.S.C. 1531 et seq.


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

Subpart A – General Provisions

§ 229.1 Purpose and scope.

(a) The regulations in this part implement sections 101(a)(5)(E) and 118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1371(a)(5)(E) and 1387) that provide for exceptions for the taking of marine mammals incidental to certain commercial fishing operations from the Act’s general moratorium on the taking of marine mammals.


(b) Section 118 of the Act, rather than sections 103 and 104, governs the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States, other than vessels fishing for yellowfin tuna in the eastern tropical Pacific Ocean purse seine fishery, and vessels that have valid fishing permits issued in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)).


(c) The regulations of Subpart B also govern the incidental taking by commercial fishers of marine mammals from species or stocks designated under the Act as depleted on the basis of their listing as threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).


(d) The regulations of this part do not apply to the incidental taking of California sea otters or to Northwest treaty Indian tribal members exercising treaty fishing rights.


(e) Authorizations under subpart A of this part are exemptions only from the taking prohibitions under the Act and not those under the Endangered Species Act of 1973. To be exempt from the taking prohibitions under the Endangered Species Act, specific authorization under subpart B of this part is required.


(f) Authorizations under this part do not apply to the intentional lethal taking of marine mammals in the course of commercial fishing operations except as provided for under §§ 229.4(k) and 229.5(f).


(g) The purposes of the regulations in this part are to:


(1) Reduce the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations below the potential biological removal level for a particular stock, and


(2) Reduce the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate by the statutory deadline of April 30, 2001.


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


§ 229.2 Definitions.

In addition to the definitions contained in the Act and § 216.3 of this chapter, and unless otherwise defined in this chapter, the terms in this chapter have the following meaning:


Act or MMPA means the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.).


American lobster or lobster means Homarus americanus.


Anchored gillnet means any gillnet gear, including an anchored float gillnet, sink gillnet or stab net, that is set anywhere in the water column and which is anchored, secured, or weighted to the bottom of the sea. Also called a set gillnet.


Assistant Administrator means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration.


Authorization Certificate means a document issued by the Assistant Administrator, or designee, under the authority of section 118 of the Act that authorizes the incidental, but not intentional, taking of marine mammals in Category I or II fisheries.


Bitter end means the end of a line that detaches from a weak link.


Bottom portion of the line means, for buoy lines, the portion of the line in the water column that is closest to the fishing gear.


Breaking strength means the highest tensile force which an object can withstand before breaking.


Bridle means the lines connecting a gillnet to an anchor or buoy line.


Buoy line means a line connecting fishing gear in the water to a buoy at the surface of the water.


Category I fishery means a commercial fishery determined by the Assistant Administrator to have frequent incidental mortality and serious injury of marine mammals. A commercial fishery that frequently causes mortality or serious injury of marine mammals is one that is by itself responsible for the annual removal of 50 percent or more of any stock’s potential biological removal level.


Category II fishery means a commercial fishery determined by the Assistant Administrator to have occasional incidental mortality and serious injury of marine mammals. A commercial fishery that occasionally causes mortality or serious injury of marine mammals is one that, collectively with other fisheries, is responsible for the annual removal of more than 10 percent of any marine mammal stock’s potential biological removal level and that is by itself responsible for the annual removal of between 1 and 50 percent, exclusive, of any stock’s potential biological removal level. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, the Assistant Administrator will determine whether the incidental serious injury or mortality is “occasional” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator. Eligible commercial fisheries not specifically identified in the list of fisheries are deemed to be Category II fisheries until the next list of fisheries is published.


Category III fishery means a commercial fishery determined by the Assistant Administrator to have a remote likelihood of, or no known incidental mortality and serious injury of marine mammals. A commercial fishery that has a remote likelihood of causing incidental mortality and serious injury of marine mammals is one that collectively with other fisheries is responsible for the annual removal of:


(1) Ten percent or less of any marine mammal stock’s potential biological removal level, or


(2) More than 10 percent of any marine mammal stock’s potential biological removal level, yet that fishery by itself is responsible for the annual removal of 1 percent or less of that stock’s potential biological removal level. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, the Assistant Administrator will determine whether the incidental serious injury or mortality is “remote” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area or at the discretion of the Assistant Administrator.


Commercial fishing operation means the catching, taking, or harvesting of fish from the marine environment (or other areas where marine mammals occur) that results in the sale or barter of all or part of the fish harvested. The term includes licensed commercial passenger fishing vessel (as defined in § 216.3 of this chapter) activities and aquaculture activities.


Depleted species means any species or population that has been designated as depleted under the Act and is listed in § 216.15 of this chapter or part 18, subpart E of this title, or any endangered or threatened species of marine mammal.


Driftnet, drift gillnet, or drift entanglement gear means a gillnet or gillnets that is/are unattached to the ocean bottom and not anchored, secured or weighted to the bottom, regardless of whether attached to a vessel.


Fisher or fisherman means the vessel owner or operator, or the owner or operator of gear in a nonvessel fishery.


Fishery has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).


Fishing or to fish means any commercial fishing operation activity that involves:


(1) The catching, taking, or harvesting of fish;


(2) The attempted catching, taking, or harvesting of fish;


(3) Any other activity that can reasonably be expected to result in the catching, taking, or harvesting of fish; or


(4) Any operations at sea in support of, or in preparation for, any activity described in paragraphs (1), (2), or (3) of this definition.


Fishing trip means any time spent away from port actively engaged in commercial fishing operations. The end of a fishing trip will be the time of a fishing vessel’s return to port or the return of a fisher from tending gear in a nonvessel fishery.


Fishing vessel or vessel means any vessel, boat, ship, or other craft that is used for, equipped to be used for, or of a type normally used for, fishing.


Float-line means the rope at the top of a gillnet from which the mesh portion of the net is hung.


Gillnet means fishing gear consisting of a wall of webbing (meshes) or nets, designed or configured so that the webbing (meshes) or nets are placed in the water column, usually held approximately vertically, and are designed to capture fish by entanglement, gilling, or wedging. The term “gillnet” includes gillnets of all types, including but not limited to sink gillnets, other anchored gillnets (e.g., anchored float gillnets, stab, and set nets), and drift gillnets. Gillnets may or may not be attached to a vessel.


Greater Atlantic Regional Administrator as used in this part, means the Regional Administrator for the regional fisheries office of the National Oceanic and Atmospheric Administration for the large marine ecosystem from Maine to Cape Hatteras, North Carolina directed from the Regional Office in Gloucester, Massachusetts.


Groundline, with reference to trap/pot gear, means a line connecting traps in a trap trawl, and, with reference to gillnet gear, means a line connecting a gillnet or gillnet bridle to an anchor.


Hard lay lines mean lines that are at least as stiff as
5/16 inch (0.8 cm) diameter line composed of polyester wrapped around a blend of polypropylene and polyethylene and 42 visible twists of strands per foot of line.


Incidental means, with respect to an act, a non-intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action.


Injury means a wound or other physical harm. Signs of injury to a marine mammal include, but are not limited to, visible blood flow, loss of or damage to an appendage or jaw, inability to use one or more appendages, asymmetry in the shape of the body or body position, noticeable swelling or hemorrhage, laceration, puncture or rupture of eyeball, listless appearance or inability to defend itself, inability to swim or dive upon release from fishing gear, or signs of equilibrium imbalance. Any animal that ingests fishing gear, or any animal that is released with fishing gear entangling, trailing or perforating any part of the body will be considered injured regardless of the absence of any wound or other evidence of an injury.


Insignificance threshold means the upper limit of annual incidental mortality and serious injury of marine mammal stocks by commercial fisheries that can be considered insignificant levels approaching a zero mortality and serious injury rate. An insignificance threshold is estimated as 10 percent of the Potential Biological Removal level for a stock of marine mammals. If certain parameters (e.g., maximum net productivity rate or the recovery factor in the calculation of the stock’s potential biological removal level) can be estimated or otherwise modified from default values, the Assistant Administrator may use a modification of the number calculated from the simple formula for the insignificance threshold. The Assistant Administrator may also use a modification of the simple formula when information is insufficient to estimate the level of mortality and serious injury that would have an insignificant effect on the affected population stock and provide a rationale for using the modification.


Interaction means coming in contact with fishing gear or catch. An interaction may be characterized by a marine mammal entangled, hooked, or otherwise trapped in fishing gear, regardless of whether injury or mortality occurs, or situations where marine mammals are preying on catch. Catch means fish or shellfish that has been hooked, entangled, snagged, trapped or otherwise captured by commercial fishing gear.


Large mesh gillnet means a gillnet constructed with a mesh size of 7 inches (17.78 cm) to 18 inches (45.72 cm).


Lead-line means the rope, weighted or otherwise, to which the bottom edge of a gillnet is attached.


List of Fisheries means the most recent final list of commercial fisheries published in the Federal Register by the Assistant Administrator, categorized according to the likelihood of incidental mortality and serious injury of marine mammals during commercial fishing operations.


Lobster Management Area as used in this part means the management areas defined in the American Lobster Fishery regulations found at 50 CFR 697.18.


Mesh size means the distance between inside knot to inside knot. Mesh size is measured as described in § 648.80(f)(1) of this title.


Mid-Atlantic coastal waters means waters bounded by the line defined by the following points: The southern shoreline of Long Island, New York at 72°30′ W, then due south to 33°51′ N lat., thence west to the North Carolina/South Carolina border.


Minimum population estimate means an estimate of the number of animals in a stock that:


(1) Is based on the best available scientific information on abundance, incorporating the precision and variability associated with such information; and


(2) Provides reasonable assurance that the stock size is equal to or greater than the estimate.


Modified pound net leader means a pound net leader that is affixed to or resting on the sea floor and made of a lower portion of mesh and an upper portion of only vertical lines such that the mesh size is equal to or less than 8 inches (20.3 cm) stretched mesh; at any particular point along the leader, the height of the mesh from the seafloor to the top of the mesh must be no more than one-third the depth of the water at mean lower low water directly above that particular point; the mesh is held in place by a bottom chain that forms the lowermost part of the pound net leader; the vertical lines extend from the top of the mesh up to a top line, which is a line that forms the uppermost part of the pound net leader; the vertical lines are equal to or greater than
5/16 inch (0.8 cm) in diameter and strung vertically at a minimum of every 2 feet (61 cm); and the vertical lines are hard lay lines.


Nearshore pound net means a pound net with every part of the leader (from the most offshore pole at the pound end of the leader to the most inshore pole of the leader) in less than 14 feet (4.3 m) of water at any tidal condition.


Negligible impact has the same meaning as in § 216.103 of this chapter.


Net productivity rate means the annual per capita rate of increase in a stock resulting from additions due to reproduction, less losses due to mortality.


Night means any time between one half hour before sunset and one half hour after sunrise.


NMFS means the National Marine Fisheries Service.


Nonvessel fishery means a commercial fishing operation that uses fixed or other gear without a vessel, such as gear used in set gillnet, trap, beach seine, weir, ranch, and pen fisheries.


Observer means an individual authorized by NMFS, or a designated contractor, to record information on marine mammal interactions, fishing operations, marine mammal life history information, and other scientific data, and collect biological specimens during commercial fishing activities.


Offshore pound net means a pound net with any part of the leader (from the most offshore pole at the pound end of the leader to the most inshore pole of the leader) in water greater than or equal to 14 feet (4.3 m) at any tidal condition.


Operator, with respect to any vessel, means the master, captain, or other individual in charge of that vessel.


Potential biological removal level means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors:


(1) The minimum population estimate of the stock;


(2) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and


(3) A recovery factor of between 0.1 and 1.0.


Pound net means a fixed entrapment gear attached to posts or stakes with three continuous sections from offshore to inshore consisting of:


(1) A pound made of mesh netting that entraps the fish;


(2) At least one heart made of a mesh netting that is generally in the shape of a heart and aids in funneling fish into the pound; and


(3) A leader, which is a long, straight element consisting of mesh or vertical lines that directs the fish offshore towards the pound.


Qualified individual means an individual ascertained by NMFS to be reasonably able, though training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS.


Regional Fishery Management Council means a regional fishery management council established under section 302 of the Magnuson Fishery Conservation and Management Act.


Reliable report means a credible right whale sighting report based upon which a DAM zone would be triggered.


Seine means a net that fishes vertically in the water, is pulled by hand or by power, and captures fish by encirclement and confining fish within itself or against another net, the shore or bank as a result of net design, construction, mesh size, webbing diameter, or method in which it is used. In some regions, the net is typically constructed with a capture bag in the center of the net which concentrates the fish as the net is closed.


Serious injury means any injury that will likely result in mortality.


Sink gillnet or stab net means any gillnet, anchored or otherwise, that is designed to be, or is fished on or near the bottom in the lower third of the water column.


Sinking line means, for both groundlines and buoy lines, line that has a specific gravity greater than or equal to 1.030, and, for groundlines only, does not float at any point in the water column.


Small mesh gillnet means a gillnet constructed with a mesh size of greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).


Spotter plane means a plane that is deployed for the purpose of locating schools of target fish for a fishing vessel that intends to set fishing gear on them.


Stowed means traps/pots and gillnets that are unavailable for immediate use and further, all gillnets are stored in accordance with the following:


(1) All nets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck, rail, or drum, and all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and anchors are disconnected; and


(2) Any other method of stowage authorized in writing by the Regional Administrator and subsequently published in the Federal Register.


Strategic stock means a marine mammal stock:


(1) For which the level of direct human-caused mortality exceeds the potential biological removal level;


(2) Which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973 within the foreseeable future;


(3) Which is listed as a threatened species or endangered species under the Endangered Species Act of 1973; or


(4) Which is designated as depleted under the Marine Mammal Protection Act of 1972, as amended.


Sunrise means the time of sunrise as determined for the date and location in The Nautical Almanac, prepared by the U.S. Naval Observatory.


Sunset means the time of sunset as determined for the date and location in The Nautical Almanac, prepared by the U.S. Naval Observatory.


Surface system, with reference to trap/pot and fixed gillnet gear, includes the components at the sea surface to identify the presence of stationary bottom fishing gear, and includes buoys, radar reflectors, and high flyers.


Take Reduction Plan means a plan developed to reduce the incidental mortality and serious injury of marine mammals during commercial fishing operations in accordance with section 118 of the Marine Mammal Protection Act of 1972, as amended.


Take Reduction Team means a team established to recommend methods of reducing the incidental mortality and serious injury of marine mammals due to commercial fishing operations, in accordance with section 118 of the Marine Mammal Protection Act of 1972, as amended.


Tended gear or tend means fishing gear that is physically attached to a vessel in a way that is capable of harvesting fish, or to fish with gear attached to the vessel.


Tie-down refers to twine used between the floatline and the lead line as a way to create a pocket or bag of netting to trap fish alive.


Tie loops means the loops on a gillnet panel used to connect net panels to the buoy line, groundline, bridle or each other.


Trap/Pot means any structure or other device, other than a net or longline, that is placed, or designed to be placed, on the ocean bottom and is designed for or is capable of, catching species including but not limited to lobster, crab (red, Jonah, rock, and blue), hagfish, finfish (black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), and white hake), conch/whelk, and shrimp.


Trap/pot trawl means two or more trap/pots attached to a single groundline.


Up and down line means the line that connects the float-line and lead-line at the end of each gillnet net panel.


U.S. waters means both state and Federal waters to the outer boundaries of the U.S. exclusive economic zone along the east coast of the United States from the Canadian/U.S. border southward to a line extending eastward from the southernmost tip of Florida on the Florida shore.


Vessel owner or operator means the owner or operator of:


(1) A fishing vessel that engages in a commercial fishing operation; or


(2) Fixed or other commercial fishing gear that is used in a nonvessel fishery.


Vessel of the United States has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).


Weak link means a breakable component of gear that will part when subject to a certain tension load.


[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1141, Jan. 9, 2002; 67 FR 1313, Jan. 10, 2002; 69 FR 6584, Feb. 11, 2004; 69 FR 43345, July 20, 2004; 71 FR 24796, Apr. 26, 2006; 72 FR 34642, June 25, 2007; 72 FR 57180, Oct. 5, 2007; 73 FR 51241, Oct. 2, 2008; 75 FR 7396, Feb. 19, 2010; 79 FR 36610, June 27, 2014; 80 FR 6929, Feb. 9, 2015; 86 FR 52011, Sept. 17, 2021]


§ 229.3 Prohibitions.

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


(b) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer’s responsibilities, or that creates an intimidating, hostile, or offensive environment.


(c) It is prohibited to provide false information when registering for an Authorization Certificate, applying for renewal of the Authorization Certificate, reporting the injury or mortality of any marine mammal, or providing information to any observer.


(d) It is prohibited to tamper with or destroy observer equipment in any way.


(e) It is prohibited to retain any marine mammal incidentally taken in commercial fishing operations unless authorized by NMFS personnel, by designated contractors or an official observer, or by a scientific research permit that is in the possession of the vessel operator.


(f) It is prohibited to intentionally lethally take any marine mammal in the course of commercial fishing operations unless imminently necessary in self-defense or to save the life of a person in immediate danger, and such taking is reported in accordance with the requirements of § 229.6.


(g) It is prohibited to violate any regulation in this part or any provision of section 118 of the Act.


(h) It is prohibited to own, operate, or be on board a vessel subject to the Atlantic Large Whale Take Reduction Plan except if that vessel and all fishing gear comply with all applicable provisions of § 229.32.


(i) It is prohibited to fish for, catch, take, harvest or possess fish or wildlife while on board a vessel subject to the Atlantic Large Whale Take Reduction Plan, except if that vessel and all fishing gear is in compliance with all applicable provisions of § 229.32.


(j) Any person or vessel claiming the benefit of any exemption or exception under § 229.32 has the burden of proving that the exemption or exception, is applicable.


(k)-(l) [Reserved]


(m) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the areas and for the times specified in § 229.33(a)(1), (a)(3), (a)(6), and (a)(8). This prohibition also applies to areas where pingers are required, unless the vessel owner or operator complies with the pinger provisions specified in § 229.33 (a)(2) through (a)(5) and (a)(7). This prohibition does not apply to vessels fishing with a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title).


(n) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove gillnet gear from the areas and for the times as specified in § 229.34 (b)(1)(i), (b)(2)(i), (b)(3)(i), or (b)(4)(i).


(o) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh or small mesh gillnet gear from the areas and for the times specified in § 229.34(b) unless the gear complies with the specified gear restrictions set forth in the provisions of paragraphs (b)(1)(ii) or (iii), (b)(2)(ii) or (iii), (b)(3)(ii) or (iii), or (b)(4)(ii) or (iii) of § 229.34.


(p) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies in areas where pingers are required, as specified under § 229.33 (a)(2) through (a)(5) and (a)(7), unless the operator on board the vessel during fishing operations possesses and retains on board the vessel a valid pinger training authorization issued by NMFS as specified under § 229.33(c).


(q)-(r) [Reserved]


(s) General Bottlenose Dolphin Take Reduction Plan. (1) It is prohibited to set, fish with, or possess on board a vessel unless stowed, or fail to remove, any gillnet or pound net from the waters specified in § 229.35(c) unless the gear complies with the specified restrictions set forth in § 229.35(d).


(2) It is prohibited to set, fish with, or fail to remove a modified pound net leader in the Bottlenose Dolphin Pound Net Regulated Area unless the fisherman has on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS.


(t) It is prohibited to deploy or fish with pelagic longline gear in the Mid-Atlantic Bight unless the vessel:


(1) Complies with the placard posting requirement specified in § 229.36(c); and


(2) Complies with the gear restrictions specified in § 229.36(e).


(u) It is prohibited to deploy or fish with pelagic longline gear in the Cape Hatteras Special Research Area unless the vessel is in compliance with the observer and research requirements specified in § 229.36(d).


(v) It is prohibited to deep-set from a vessel registered for use under a Hawaii longline limited access permit unless the vessel complies with the gear requirements specified in § 229.37(c)(1) and (c)(2) .


(w) It is prohibited to fish with longline gear in the Main Hawaiian Islands Longline Fishing Prohibited Area, as defined in § 229.37(d)(1).


(x) It is prohibited to deep-set in the Southern Exclusion Zone, as defined in § 229.37(d)(2), during the time the area is closed to deep-set longline fishing pursuant to § 229.37(e).


(y) It is prohibited to fish with longline gear from a vessel registered for use under a Hawaii longline limited access permit in violation of the marine mammal handling and release requirements at § 229.37(f).


[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1313, Jan. 10, 2002; 67 FR 59477, Sept. 23, 2002; 71 FR 24796, Apr. 26, 2006; 72 FR 57180, Oct. 5, 2007; 74 FR 23357, May 19, 2009; 75 FR 7396, Feb. 19, 2010; 77 FR 71284, Nov. 29, 2012; 79 FR 36610, June 27, 2014; 80 FR 6929, Feb. 9, 2015]


§ 229.4 Requirements for Category I and II fisheries.

(a) General. (1) For a vessel owner or crew members to lawfully incidentally take marine mammals in the course of a commercial fishing operation in a Category I or II fishery, the owner or authorized representative of a fishing vessel or nonvessel fishing gear must have in possession a valid Certificate of Authorization. The owner of a fishing vessel or nonvessel fishing gear is responsible for obtaining a Certificate of Authorization.


(2) The granting and administration of Authorization Certificates under this part will be integrated and coordinated with existing fishery license, registration, or permit systems and related programs wherever possible. These programs may include, but are not limited to, state or interjurisdictional fisheries programs. If the administration of Authorization Certificates is integrated into a program, NMFS will publish a notice in the Federal Register announcing the integrated program and summarizing how an owner or authorized representative of a fishing vessel or non-fishing gear may register under that program or how registration will be achieved if no action is required on the part of the affected fisher. NMFS will make additional efforts to contact participants in the affected fishery via other appropriate means of notification.


(b) Registration. (1) The owner of a vessel, or for nonvessel gear fisheries, the owner of gear, who participates in a Category I or II fishery is required to be registered for a Certificate of Authorization.


(2) Unless a notice is published in the Federal Register announcing an integrated registration program, the owner of a vessel, or for nonvessel fishery, the owner of the gear must register for and receive an Authorization Certificate. To register, owners must submit the following information using the format specified by NMFS:


(i) Name, address, and phone number of owner.


(ii) Name, address, and phone number of operator, if different from owner, unless the name of the operator is not known or has not been established at the time the registration is submitted.


(iii) For a vessel fishery, vessel name, length, home port; U.S. Coast Guard documentation number or state registration number, and if applicable; state commercial vessel license number and for a nonvessel fishery, a description of the gear and state commercial license number, if applicable.


(iv) A list of all Category I and II fisheries in which the fisher may actively engage during the calendar year.


(v) A certification signed and dated by the owner of an authorized representative of the owner as follows: “I hereby certify that I am the owner of the vessel, that I have reviewed all information contained on this document, and that it is true and complete to the best of my knowledge.”


(vi) A check or money order made payable to NMFS in the amount specified in the notice of the final List of Fisheries must accompany each registration submitted to NMFS. The amount of this fee will be based on recovering the administrative costs incurred in granting an authorization. The Assistant Administrator may waive the fee requirement for good cause upon the recommendation of the Regional Director.


(3) If a notice is published in the Federal Register announcing an integrated registration program, the owner of a vessel, or for nonvessel fishery, the owner of the gear may register by following the directions provided in that notice. If a person receives a registration to which he or she is not entitled or if the registration contains incorrect, inaccurate or incomplete information, the person shall notify NMFS within 10 days following receipt. If a fisher participating in a Category I or II fishery who expects to receive automatic registration does not receive that registration within the time specified in the notice announcing the integrated registration program, the person shall notify NMFS as directed in the notice or may apply for registration by submitting the information required under paragraph (b)(1)(i) through (b)(1)(vi) of this section.


(c) Address. Unless the granting and administration of authorizations under this part 229 is integrated and coordinated with existing fishery licenses, registrations, or related programs pursuant to paragraph (a) of this section, requests for registration forms and completed registration and renewal forms should be sent to the NMFS Regional Offices as follows:


(1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, Juneau, AK 99802; telephone: 907-586-7235;


(2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; telephone: 206-526-4353;


(3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; telephone: 562-980-4001;


(4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930; telephone: 978-281-9254; or


(5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702; telephone: 727-570-5312.


(d) Issuance. (1) For integrated fisheries, an Authorization Certificate or other proof of registration will be issued annually to each fisher registered for that fishery.


(2) For all other fisheries (i.e., non-integrated fisheries), NMFS will issue an Authorization Certificate and, if necessary, a decal to an owner or authorized representative who:


(i) Submits a completed registration form and the required fee.


(ii) Has complied with the requirements of this section and §§ 229.6 and 229.7.


(iii) Has submitted updated registration or renewal registration which includes a statement (yes/no) whether any marine mammals were killed or injured during the current or previous calendar year.


(3) If a person receives a renewed Authorization Certificate or a decal to which he or she is not entitled, the person shall notify NMFS within 10 days following receipt.


(e) Authorization Certificate and decal requirements. (1) If a decal has been issued under the conditions specified in paragraph (e)(2) of this section, the decal must be attached to the vessel on the port side of the cabin or, in the absence of a cabin, on the forward port side of the hull, and must be free of obstruction and in good condition. The decal must be attached to the Authorization Certificate for nonvessel fisheries.


(2) The Authorization Certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or, in the case of nonvessel fisheries, the Authorization Certificate with decal attached, or copy must be in the possession of the person in charge of the fishing operation. The Authorization Certificate, or copy, must be made available upon request to any state or Federal enforcement agent authorized to enforce the Act, any designated agent of NMFS, or any contractor providing observer services to NMFS.


(3) Authorization Certificates and decals are not transferable. In the event of the sale or change in ownership of the vessel, the Authorization Certificate is void and the new owner must register for an Authorization Certificate and decal.


(4) An Authorization Certificate holder must notify the issuing office in writing:


(i) If the vessel or nonvessel fishing gear will engage in any Category I or II fishery not listed on the initial registration form at least 30 days prior to engaging in that fishery; and,


(ii) If there are any changes in the mailing address or vessel ownership within 30 days of such change.


(f) Reporting. Any Authorization Certificate holders must comply with the reporting requirements specified under § 229.6.


(g) Disposition of marine mammals. Any marine mammal incidentally taken must be immediately returned to the sea with a minimum of further injury, unless directed otherwise by NMFS personnel, a designated contractor or an official observer, or authorized otherwise by a scientific research permit that is in the possession of the operator.


(h) Monitoring. Authorization Certificate holders must comply with the observer or other monitoring requirements specified under § 229.7.


(i) Deterrence. When necessary to deter a marine mammal from damaging fishing gear, catch, or other private property, or from endangering personal safety, vessel owners and crew members engaged in a Category I or II fishery must comply with all deterrence provisions set forth in the Act and all guidelines and prohibitions published thereunder.


(j) Self defense. When imminently necessary in self-defense or to save the life of a person in immediate danger, a marine mammal may be lethally taken if such taking is reported to NMFS in accordance with the requirements of § 229.6.


(k) Take reduction plans and emergency regulations. Authorization Certificate holders must comply with any applicable take reduction plans and emergency regulations.


(l) Expiration. Authorization Certificates expire at the end of each calendar year.


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


§ 229.5 Requirements for Category III fisheries.

(a) General. Vessel owners and crew members of such vessels engaged only in Category III fisheries may incidentally take marine mammals without registering for or receiving an Authorization Certificate.


(b) Reporting. Vessel owners engaged in a Category III fishery must comply with the reporting requirements specified in § 229.6.


(c) Disposition of marine mammals. Any marine mammal incidentally taken must be immediately returned to the sea with a minimum of further injury unless directed otherwise by NMFS personnel, a designated contractor, or an official observer, or authorized otherwise by a scientific research permit in the possession of the operator.


(d) Monitoring. Vessel owners engaged in a Category III fishery must comply with the observer requirements specified under § 229.7(d).


(e) Deterrence. When necessary to deter a marine mammal from damaging fishing gear, catch, or other private property, or from endangering personal safety, vessel owners and crew members engaged in commercial fishing operations must comply with all deterrence provisions set forth in the Act and all guidelines and prohibitions published thereunder.


(f) Self-defense. When imminently necessary in self-defense or to save the life of a person in immediate danger, a marine mammal may be lethally taken if such taking is reported to NMFS in accordance with the requirements of § 229.6.


(g) Emergency regulations. Vessel owners engaged in a Category III fishery must comply with any applicable emergency regulations.


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


§ 229.6 Reporting requirements.

(a) Vessel owners or operators engaged in any commercial fishery must report all incidental mortality and injury of marine mammals in the course of commercial fishing operations to the Assistant Administrator, or appropriate Regional Office, by mail or other means, such as fax or overnight mail specified by the Assistant Administrator. Reports must be sent within 48 hours after the end of each fishing trip during which the incidental mortality or injury occurred, or, for nonvessel fisheries, within 48 hours of an occurrence of an incidental mortality or injury. Reports must be submitted on a standard postage-paid form as provided by the Assistant Administrator. The vessel owner or operator must provide the following information on this form:


(1) The vessel name, and Federal, state, or tribal registration numbers of the registered vessel;


(2) The name and address of the vessel owner or operator;


(3) The name and description of the fishery, including gear type and target species; and


(4) The species and number of each marine mammal incidentally killed or injured, and the date, time, and approximate geographic location of such occurrence. A description of the animal(s) killed or injured must be provided if the species is unknown.


(b) Participants in nonvessel fisheries must provide all of the information in paragraphs (a)(1) through (a)(4) of this section except, instead of providing the vessel name and vessel registration number, participants in nonvessel fisheries must provide the gear permit number.


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


§ 229.7 Monitoring of incidental mortalities and serious injuries.

(a) Purpose. The Assistant Administrator will establish a program to monitor incidental mortality and serious injury of marine mammals during the course of commercial fishing operations in order to:


(1) Obtain statistically reliable estimates of incidental mortality and serious injury;


(2) Determine the reliability of reports of incidental mortality and injury under § 229.6; and


(3) Identify changes in fishing methods or technology that may increase or decrease incidental mortality and serious injury.


(b) Observer program. Pursuant to paragraph (a) of this section, the Assistant Administrator may observe Category I and II vessels as necessary. Observers may, among other tasks:


(1) Record incidental mortality and injury, and bycatch of other nontarget species;


(2) Record numbers of marine mammals sighted; and


(3) Perform other scientific investigations, which may include, but are not limited to, sampling and photographing incidental mortalities and serious injuries.


(c) Observer requirements for participants in Category I and II fisheries. (1) If requested by NMFS or by a designated contractor providing observer services to NMFS, a vessel owner/operator must take aboard an observer to accompany the vessel on fishing trips.


(2) After being notified by NMFS, or by a designated contractor providing observer services to NMFS, that the vessel is required to carry an observer, the vessel owner/operator must comply with the notification by providing information requested within the specified time on scheduled or anticipated fishing trips.


(3) NMFS, or a designated contractor providing observer services to NMFS, may waive the observer requirement based on a finding that the facilities for housing the observer or for carrying out observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized.


(4) The vessel owner/operator and crew must cooperate with the observer in the performance of the observer’s duties including:


(i) Providing, at no cost to the observer, the United States government, or the designated observer provider, food, toilet, bathing, sleeping accommodations, and other amenities that are equivalent to those provided to the crew, unless other arrangements are approved in advance by the Regional Administrator;


(ii) Allowing for the embarking and debarking of the observer as specified by NMFS personnel or designated contractors. The operator of a vessel must ensure that transfers of observers at sea are accomplished in a safe manner, via small boat or raft, during daylight hours if feasible, as weather and sea conditions allow, and with the agreement of the observer involved;


(iii) Allowing the observer access to all areas of the vessel necessary to conduct observer duties;


(iv) Allowing the observer access to communications equipment and navigation equipment, when available on the vessel, as necessary to perform observer duties;


(v) Providing true vessel locations by latitude and longitude, accurate to the minute, or by loran coordinates, upon request by the observer;


(vi) Sampling, retaining, and storing of marine mammal specimens, other protected species specimens, or target or non-target catch specimens, upon request by NMFS personnel, designated contractors, or the observer, if adequate facilities are available and if feasible;


(vii) Notifying the observer in a timely fashion of when all commercial fishing operations are to begin and end;


(viii) Not impairing or in any way interfering with the research or observations being carried out; and


(ix) Complying with other guidelines or regulations that NMFS may develop to ensure the effective deployment and use of observers.


(5) Marine mammals or other specimens identified in paragraph (c)(4)(vi) of this section, which are readily accessible to crew members, must be brought on board the vessel and retained for the purposes of scientific research if feasible and requested by NMFS personnel, designated contractors, or the observer. Specimens so collected and retained must, upon request by NMFS personnel, designated contractors, or the observer, be retained in cold storage on board the vessel, if feasible, until removed at the request of NMFS personnel, designated contractors, or the observer, retrieved by authorized personnel of NMFS, or released by the observer for return to the ocean. These biological specimens may be transported on board the vessel during the fishing trip and back to port under this authorization.


(d) Observer requirements for participants in Category III fisheries. (1) The Assistant Administrator may place observers on Category III vessels if the Assistant Administrator:


(i) Believes that the incidental mortality and serious injury of marine mammals from such fishery may be contributing to the immediate and significant adverse impact on a species or stock listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and


(ii) Has complied with § 229.9(a)(3)(i) and (ii); or


(iii) Has the consent of the vessel owner.


(2) If an observer is placed on a Category III vessel, the vessel owner and/or operator must comply with the requirements of § 229.7(c).


(e) Alternative observer program. The Assistant Administrator may establish an alternative observer program to provide statistically reliable information on the species and number of marine mammals incidentally taken in the course of commercial fishing operations. The alternative observer program may include direct observation of fishing activities from vessels, airplanes, or points on shore.


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


§ 229.8 Publication of List of Fisheries.

(a) The Assistant Administrator will publish in the Federal Register a proposed revised List of Fisheries on or about July 1 of each year for the purpose of receiving public comment. Each year, on or about October 1, the Assistant Administrator will publish a final revised List of Fisheries, which will become effective January 1 of the next calendar year.


(b) The proposed and final revised List of Fisheries will:


(1) Categorize each commercial fishery based on the definitions of Category I, II, and III fisheries set forth in § 229.2; and


(2) List the marine mammals that have been incidentally injured or killed by commercial fishing operations and the estimated number of vessels or persons involved in each commercial fishery.


(c) The Assistant Administrator may publish a revised List of Fisheries at other times, after notification and opportunity for public comment.


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


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


§ 229.9 Emergency regulations.

(a) If the Assistant Administrator finds that the incidental mortality or serious injury of marine mammals from commercial fisheries is having, or is likely to have, an immediate and significant adverse impact on a stock or species, the Assistant Administrator will:


(1) In the case of a stock or species for which a take reduction plan is in effect –


(i) Prescribe emergency regulations that, consistent with such plan to the maximum extent practicable, reduce incidental mortality and serious injury in that fishery; and


(ii) Approve and implement on an expedited basis, any amendments to such plan that are recommended by the Take Reduction Team to address such adverse impact;


(2) In the case of a stock or species for which a take reduction plan is being developed –


(i) Prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery; and


(ii) Approve and implement, on an expedited basis, such plan, which will provide methods to address such adverse impact if still necessary;


(3) In the case of a stock or species for which a take reduction plan does not exist and is not being developed, or in the case of a Category III fishery that the Assistant Administrator believes may be contributing to such adverse impact,


(i) Prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery, to the extent necessary to mitigate such adverse impact;


(ii) Immediately review the stock assessment for such stock or species and the classification of such commercial fishery under this section to determine if a take reduction team should be established and if recategorization of the fishery is warranted; and


(iii) Where necessary to address such adverse impact on a species or stock listed as a threatened species or endangered species under the Endangered Species Act (16 U.S.C. 1531 et seq.), place observers on vessels in a Category III fishery if the Assistant Administrator has reason to believe such vessels may be causing the incidental mortality and serious injury to marine mammals from such stock.


(b) Prior to taking any action under § 229.9(a)(1) through (3), the Assistant Administrator will consult with the Marine Mammal Commission, all appropriate Regional Fishery Management Councils, state fishery managers, and the appropriate take reduction team, if established.


(c) Any emergency regulations issued under this section:


(1) Shall be published in the Federal Register and will remain in effect for no more than 180 days or until the end of the applicable commercial fishing season, whichever is earlier, except as provided in paragraph (d) of this section; and


(2) May be terminated by notification in the Federal Register at an earlier date if the Assistant Administrator determines that the reasons for the emergency regulations no longer exist.


(d) If the Assistant Administrator finds that incidental mortality and serious injury of marine mammals in a commercial fishery is continuing to have an immediate and significant adverse impact on a stock or species, the Assistant Administrator may extend the emergency regulations for an additional period of not more than 90 days or until reasons for the emergency regulations no longer exist, whichever is earlier.


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


§ 229.10 Penalties.

(a) Except as provided for in paragraphs (b) and (c) of this section, any person who violates any regulation under this part or any provision of section 118 of the MMPA shall be subject to all penalties set forth in the Act.


(b) The owner or master of a vessel that fails to comply with a take reduction plan shall be subject to the penalties of sections 105 and 107 of the Act, and may be subject to the penalties of section 106 of the Act.


(c) The owner of a vessel engaged in a Category I or II fishery who fails to ensure that a decal, or other physical evidence of such authorization issued by NMFS, is displayed on the vessel or is in possession of the operator of the vessel shall be subject to a penalty of not more than $100.


(d) Failure to comply with take reduction plans or emergency regulations issued under this part may result in suspension or revocation of an Authorization Certificate, and failure to comply with a take reduction plan or emergency regulation is also subject to the penalties of sections 105 and 107 of the Act, and may be subject to the penalties of section 106 of the Act.


(e) For fishers operating in Category I or II fisheries, failure to report all incidental injuries and mortalities within 48 hours of the end of each fishing trip, or failure to comply with requirements to carry an observer, will subject such persons to the penalties of sections 105 and 107 and may subject them to the penalties of section 106 of the Act, which will result in suspension, revocation, or denial of an Authorization Certificate until such requirements have been fulfilled.


(f) For fishers operating in Category III fisheries, failure to report all incidental injuries and mortalities within 48 hours of the end of each fishing trip will subject such persons to the penalties of sections 105 and 107, and may subject them to section 106, of the Act.


(g) Suspension, revocation or denial of Authorization Certificates. (1) Until the Authorization Certificate holder complies with the regulations under this part, the Assistant Administrator shall suspend or revoke an Authorization Certificate or deny an annual renewal of an Authorization Certificate in accordance with the provisions in 15 CFR part 904 if the Authorization Certificate holder fails to report all incidental mortality and injury of marine mammals as required under § 229.6; or fails to take aboard an observer if requested by NMFS or its designated contractors.


(2) The Assistant Administrator may suspend or revoke an Authorization Certificate or deny an annual renewal of an Authorization Certificate in accordance with the provisions in 15 CFR part 904 if the Authorization Certificate holder fails to comply with any applicable take reduction plan, take reduction regulations, or emergency regulations developed under this subpart or subparts B and C of this part or if the Authorization Certificate holder fails to comply with other requirements of these regulations;


(3) A suspended Authorization Certificate may be reinstated at any time at the discretion of the Assistant Administrator provided the Assistant Administrator has determined that the reasons for the suspension no longer apply or corrective actions have been taken.


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


§ 229.11 Confidential fisheries data.

(a) Proprietary information collected under this part is confidential and includes information, the unauthorized disclosure of which could be prejudicial or harmful, such as information or data that are identifiable with an individual fisher. Proprietary information obtained under part 229 will not be disclosed, in accordance with NOAA Administrative Order 216-100, except:


(1) To Federal employees whose duties require access to such information;


(2) To state employees under an agreement with NMFS that prevents public disclosure of the identity or business of any person;


(3) When required by court order; or


(4) In the case of scientific information involving fisheries, to employees of Regional Fishery Management Councils who are responsible for fishery management plan development and monitoring.


(5) To other individuals or organizations authorized by the Assistant Administrator to analyze this information, so long as the confidentiality of individual fishers is not revealed.


(b) Information will be made available to the public in aggregate, summary, or other such form that does not disclose the identity or business of any person in accordance with NOAA Administrative Order 216-100. Aggregate or summary form means data structured so that the identity of the submitter cannot be determined either from the present release of the data or in combination with other releases.


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


§ 229.12 Consultation with the Secretary of the Interior.

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


Subpart B – Takes of Endangered and Threatened Marine Mammals

§ 229.20 Issuance of permits.

(a) Determinations. During a period of up to 3 consecutive years, NMFS will allow the incidental, but not the intentional, taking by persons using vessels of the United States or foreign vessels that have valid fishing permits issued by the Assistant Administrator in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)), while engaging in commercial fishing operations, of marine mammals from a species or stock designated as depleted because of its listing as an endangered species or threatened species under the Endangered Species Act of 1973 if the Assistant Administrator determines that:


(1) The incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock;


(2) A recovery plan has been developed or is being developed for such species or stock pursuant to the Endangered Species Act of 1973; and


(3) Where required under regulations in subpart A of this part:


(i) A monitoring program has been established under § 229.7;


(ii) Vessels engaged in such fisheries are registered in accordance with § 229.4; and


(iii) A take reduction plan has been developed or is being developed for such species or stock in accordance with regulations at subpart C of this part.


(b) Procedures for making determinations. In making any of the determinations listed in paragraph (a) of this section, the Assistant Administrator will publish an announcement in the Federal Register of fisheries having takes of marine mammals listed under the Endangered Species Act, including a summary of available information regarding the fisheries interactions with listed species. Any interested party may, within 45 days of such publication, submit to the Assistant Administrator written data or views with respect to the listed fisheries. As soon as practicable after the end of the 45 days following publication, NMFS will publish in the Federal Register a list of the fisheries for which the determinations listed in paragraph (a) of this section have been made. This publication will set forth a summary of the information used to make the determinations.


(c) Issuance of authorization. The Assistant Administrator will issue appropriate permits for vessels in fisheries that are required to register under § 229.4 and for which determinations under the procedures of paragraph (b) of this section can be made.


(d) Category III fisheries. Vessel owners engaged only in Category III fisheries for which determinations are made under the procedures of paragraph (b) of this section will not be subject to the penalties of this Act for the incidental taking of marine mammals to which this subpart applies, as long as the vessel owner or operator of such vessel reports any incidental mortality or injury of such marine mammals in accordance with the requirements of § 229.6.


(e) Emergency authority. During the course of the commercial fishing season, if the Assistant Administrator determines that the level of incidental mortality or serious injury from commercial fisheries for which such a determination was made under this section has resulted or is likely to result in an impact that is more than negligible on the endangered or threatened species or stock, the Assistant Administrator will use the emergency authority of § 229.9 to protect such species or stock, and may modify any permit granted under this paragraph as necessary.


(f) Suspension, revocation, modification and amendment. The Assistant Administrator may, pursuant to the provisions of 15 CFR part 904, suspend or revoke a permit granted under this section if the Assistant Administrator determines that the conditions or limitations set forth in such permit are not being complied with. The Assistant Administrator may amend or modify, after notification and opportunity for public comment, the list of fisheries published in accordance with paragraph (b) of this section whenever the Assistant Administrator determines there has been a significant change in the information or conditions used to determine such a list.


(g) Southern sea otters. This subpart does not apply to the taking of Southern (California) sea otters.


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


Subpart C – Take Reduction Plan Regulations and Emergency Regulations

§ 229.30 Basis.

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


[64 FR 9088, Feb. 24, 1999]


§ 229.31 Pacific Offshore Cetacean Take Reduction Plan.

(a) Purpose and scope. The purpose of this section is to implement the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b) through (d) of this section apply to all U.S. drift gillnet fishing vessels operating in waters seaward of the coast of California or Oregon, including adjacent high seas waters. For purposes of this section, the fishing season is defined as beginning May 1 and ending on January 31 of the following year.


(b) Extenders. An extender is a line that attaches a buoy (float) to a drift gillnet’s floatline. The floatline is attached to the top of the drift gillnet. All extenders (buoy lines) must be at least 6 fathoms (36 ft; 10.9 m) in length during all sets. Accordingly, all floatlines must be fished at a minimum of 36 feet (10.9 m) below the surface of the water.


(c) Pingers. (1) For the purposes of this paragraph (c), a pinger is an acoustic deterrent device which, when immersed in water, broadcasts a 10 kHz (±2 kHz) sound at 132 dB (±4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15 milliseconds), and repeating every 4 seconds (+ .2 seconds); and remains operational to a water depth of at least 100 fathoms (600 ft or 182.88 m).


(2) While at sea, operators of drift gillnet vessels with gillnets onboard must carry enough pingers on the vessel to meet the requirements set forth under paragraphs (c)(3) through(6) of this section.


(3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of the floatline and spaced no more than 300 ft (91.44 m) apart.


(4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of the leadline and spaced no more than 300 ft (91.44 m) apart.


(5) Staggered Configuration. Pingers attached within 30 ft (9.14 m) of the floatline and within 36 ft (10.97 m) of the leadline shall be staggered such that the horizontal distance between them is no more than 150 ft (45.5 m).


(6) Any materials used to weight pingers must not change its specifications set forth under paragraph (c)(1) of this section.


(7) The pingers must be operational and functioning at all times during deployment.


(8) If requested, NMFS may authorize the use of pingers with specifications or pinger configurations differing from those set forth in paragraphs (c)(1) and (c)(3) of this section for limited, experimental purposes within a single fishing season.


(d) Skipper education workshops. After notification from NMFS, vessel operators must attend a skipper education workshop before commencing fishing each fishing season. For the 1997/1998 fishing season, all vessel operators must have attended one skipper education workshop by October 30, 1997. NMFS may waive the requirement to attend these workshops by notice to all vessel operators.


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


§ 229.32 Atlantic large whale take reduction plan regulations.

(a) Purpose and scope – (1) Whales and fixed gear fisheries. The purpose of this section is to implement the Atlantic Large Whale Take Reduction Plan to reduce incidental mortality and serious injury of fin, humpback, and right whales in specific Category I and Category II commercial fisheries from Maine through Florida. Specific Category I and II commercial fisheries within the scope of the Plan are identified and updated in the annual List of Fisheries. The measures identified in the Atlantic Large Whale Take Reduction Plan are also intended to benefit minke whales, which are not designated as a strategic stock, but are known to be taken incidentally in gillnet and trap/pot fisheries. The gear types affected by this plan include gillnets (e.g., anchored, drift, and shark) and traps/pots. The Assistant Administrator may revise the requirements set forth in this section in accordance with paragraph (i) of this section;


(2) Regulated waters – (i) U.S. Atlantic waters. The regulations in this section apply to all U.S. waters in the Atlantic except for the areas exempted in paragraph (a)(3) of this section;


(ii) Northeast Region. The Northeast Region referred to in paragraphs (b)(1) (b)(2)(i), (b)(3), and (c)(2)(iv) of this section applies to ocean waters within an area bounded on the west by land or by a rhumb line from 41°18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) and on the south by the 40°00′ N lat. line running east to the EEZ line, and bounded on the east by the EEZ north to the U.S./Canada border except for the areas and specific purposes exempted in paragraph (a)(3) of this section; and


(iii) Six-mile line. The six-mile line referred to in paragraph (c)(2)(iv) of this section is a line connecting the following points (Machias Seal to Provincetown):


Table 1 to Paragraph (a)(2)(iii)

44°31.98′ N lat., 67°9.72′ W long. (Machias Seal)

44°3.42′ N lat., 68°10.26′ W long. (Mount Desert Island)

43°40.98′ N lat., 68°48.84′ W long. (Matinicus)

43°39.24′ N lat., 69°18.54′ W long. (Monhegan)

43°29.4′ N lat., 70°5.88′ W long. (Casco Bay)

42°55.38′ N lat., 70°28.68′ W long. (Isle of Shoals)

42°49.53′ N lat., 70°32.84′ W long.

42°46.74′ N lat., 70°27.70′ W long.

42°44.18′ N lat., 70°24.91′ W long.

42°41.61′ N lat., 70°23.84′ W long.

42°38.18′ N lat., 70°24.06′ W long.

42°35.39′ N lat., 70°25.77′ W long.

42°32.61′ N lat., 70°27.91′ W long.

42°30.00′ N lat., 70°30.60′ W long.

42°17.19′ N lat., 70°34.80′ W long.

42°12.48′ N lat., 70°32.20′ W long.

42°12.27′ N lat., 70°25.98′ W long.

42°11.62′ N lat., 70°16.78′ W long.

42°12.27′ N lat., 70°10.14′ W long.

42°12.05′ N lat., 70°54.26′ W long.

42°11.20′ N lat., 70°17.86′ W long.

42°09.55′ N lat., 69°58.80′ W long. (Provincetown)

(iv) Maine pocket waters. The pocket waters referred to in paragraph (c)(2)(iv) of this section are defined as follows:


Table 2 to Paragraph (a)(2)(iv)

West of Monhegan Island in the area north of the line 43°42.17′ N lat., 69°34.27′ W long. and 43°42.25′ N lat., 69°19.3′ W long.

East of Monhegan Island in the area located north of the line 43°44′ N lat., 69°15.08′ W long. and 43°48.17′ N lat., 69°8.02′ W long.

South of Vinalhaven Island in the area located west of the line 43°52.31′ N lat., 68°40′ W long. and 43°58.12′ N lat., 68°32.95′ W long.

South of Bois Bubert Island in the area located northwest of the line 44°19.27′ N lat., 67°49.5′ W long. and 44°23.67′ N lat., 67°40.5′ W long.

(v) Maine Lobster Management Zones: The Maine Zones referred to in paragraph (c)(2)(iv) of this section include waters seaward of the Maine Exempted Waters referred to in paragraph (a)(3)(ii)(A) of this section as managed in eight Zones defined by Maine DMR. The Zones are bounded northeast by the U.S./Canada EEZ International Boundary line, offshore by the Lobster Management Area (LMA) boundary where LMA 1 meets the border of LMA 3 (LMA 1/LMA 3 boundary), and to the west by a boundary proceeding offshore from the Maine/New Hampshire state line. Individual Zone boundaries are defined as follows:


Table 3 to Paragraph (a)(2)(v)

Maine lobster management zone
Description
A – EastThe eastern and offshore boundary of Zone A East follows the International Boundary line between Canada and the United States (Maine) extending to and following the Exclusive Economic Zone boundary to approximately 44°8′ N lat., 67°18.00′ W long.

The western boundary runs from that point due north along the 67°18.00′ W long. line to Cross Island, Maine.

A – WestThe eastern boundary of Zone A West is the western boundary of Zone A East.

The western boundary of Zone A West follows: A line running from the Southern tip of Schoodic Point at 44°19.90′ N lat., and 68°03.61′ W long. and running south southeast to the LMA1/LMA3 border at 43°45.43′ N lat. and 67°50.12′ W long.

The offshore boundary is the LMA1/LMA3 boundary.

BThe eastern boundary of Zone B is the western boundary of Zone A West.
The western boundary follows a line that starts at the southernmost end of Newbury Neck following a straight line connecting the points as follows:
44°13.7′ N lat, 68°27.8 W long. (a point
1/4 mile due east of Pond Island), then to the easternmost point of Black Island then to the navigation buoy R “8” at the western entrance of York Narrows then south to Swans Island Head then continuing along the southwestern shore of Swans Island to West Point then following the western boundary of the Swans Island Lobster Conservation Area southerly to a point at 44° 01.9′ N lat, 68°28.6′ W long, then SSE to 43°32.66′ N lat., 68°17.28′ W long. where it intersects the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/LMA3 boundary.
CThe eastern boundary of Zone C is the western boundary of Zone B.
The western boundary runs along a line connecting the points as follows:
44°18.72′ N lat., 68°49.61′ W long. (Head of the Cape, Cape Rosier), SSW to 44°10.49′ N lat., 68°55.57′ W long., SW to 44°06.14′ N lat, 69°00.00′ W long., S to 44°04.51′ N lat., 69°00.01′ W long., SSE to 44° 00.79′ N lat., 68°59.48′ W long., SSE to 43°58.01′ N lat., 68°58.02′ W long., WSW to 43°57.82′ N lat., 68° 58.69′ W long., SSW to 43°56.86′ N lat., 68°58.85′ W long., SE to 43°55.30′ N lat., 68°55.00′ W long., WSW to 43°54.27′ N lat., 68°58.33′ W long., S to 43°51.00′ N lat., 68°58.31′ W long., W to 43°51.00′ N lat., 69°00.11′ W long., SSE to 43°46.57′ N lat., 68°59.30′ W long., SW to 43°44.88′ N lat., 69°01.97′ W long., SE to 43°35.08′ N lat., 68° 50.08′ W long., S to 43°19.63′ N lat., 68° 44.255′ W long. where it intersects the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/LMA3 boundary.
DThe eastern boundary of Zone D runs along the points as follows:
44° 18.72′ N, 068° 49.61′ W (Head of the Cape, Cape Rosier), SSW to 44° 10.492′ N, 068° 55.574′ W, SW to 44° 06.136′ N, 069° 00.000′ W, S to 44° 04.506′ N, 069° 00.014′ W, SSE to 44° 00.788′ N, 068° 59.475′ W, SSE to 43° 58.011′ N, 068° 58.023′ W, ENE to 43° 58.194′ N, 068° 57.381′ W, SSE to 43° 57.309′ N, 068° 57.226′ W, SE to 43° 55.688′ N, 068° 53.662′ W, WSW to 43° 55.285′ N, 068° 55.000′ W, WSW to 43° 54.265′ N, 068° 58.330′ W, S to 43° 50.997′ N, 068° 58.313′ W, W to 43° 51.001′ N, 069° 00.107′ W, SSE to 43° 46.565′ N, 068° 59.298′ W, NE to 43° 47452′ N, 068° 57.853′ W, SE to 43° 44.669′ N, 068° 54.350′ W, S to 43°19.63′ N lat., 68° 44.255′ W long. where it intersects the LMA1/LMA3 boundary.
The western boundary of Zone D starts at the southern tip of Pemaquid Point, SSW and follows a line connecting the points as follows:
43°48.1′ N lat, 69°30′W long., S to 43°39.0′ N lat, 69°30.0′ W long., S to 43°02.57′ N lat, 69°16.43′ W long., to where it intersects the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/LMA3 boundary.
EThe eastern boundary of Zone E is the western boundary of Zone C.
The western boundary of Zone E begins at Newbury Point in Small Point Harbor, Phippsburg and follows a line connecting the points as follows:
SSW to N″2′, SSE to “2BH”, S to 43°38.73′ N lat., 69°49.95′ W long., along the 3 mile line to 43°38.87′ N lat., 69°48.82′ W long, S to 42°53.51′ N lat., 69° 32.18′ W long., where it intersects the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/LMA3 boundary.
FThe eastern boundary of Zone F is the western boundary of Zone E.
The western boundary of Zone F runs in a straight line from the active Lighthouse at Two Lights Cape Elizabeth and follows a line connecting the points as follows:
43°31.80′ N lat. 70°08.56′ W long. near the C “1” East Hue & Cry buoy, WSW to 43°29.28′ N lat, 70°11.77′ W long., S to 42°36.22′ N lat. 69°52.66′ W long, where it intersects the southeastern apex of Zone G. From this point, Zone F boundary follows a straight line southeast to 42°29.85′ N−69° 40.08′ W where it meets the LMA1/LMA3 boundary.
The offshore boundary is the LMA1/LMA3 boundary.
GThe eastern boundary of Zone G is as follows:
43° 41.550′ N, 070° 14.650′ W, SSE 159° Magnetic to 43° 32.875′ N, 070° 05.920′ W, SSE to 42° 31.50′ N, −69° 43.34′ W where it meets with the southwestern boundary of Zone F.
The western boundary of Zone G is the seaward extension of the Maine – NH border and follows a line connecting the points as follows:
43°02.62′ N lat. 70°42.1′ W long., to 42°58.92′ N lat., 70°37.65′ W long., to 42°58.75′ N lat., 70°36.72′ W long., to where it intersects with the western Zone F boundary.

(3) Exempted waters – (i) COLREGS demarcation line. The regulations in this section do not apply to waters landward of the 72 COLREGS demarcation lines (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by the National Oceanic and Atmospheric Administration (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80 with the exception of the COLREGS lines for Casco Bay (Maine), Portsmouth Harbor (New Hampshire), Gardiners Bay and Long Island Sound (New York), and the state of Massachusetts;


(ii) Other exempted waters – (A) Maine. The regulations in this section do not apply to waters landward of a line connecting the following points (Quoddy Narrows/U.S.-Canada border to Odiornes Pt., Portsmouth, New Hampshire):


Table 4 to Paragraph (a)(3)(ii)(A)

44°49.67′ N lat., 66°57.77′ W long. (R N “2”, Quoddy Narrows)

44°48.64′ N lat., 66°56.43′ W long. (G “1” Whistle, West Quoddy Head)

44°47.36′ N lat., 66°59.25′ W long. (R N “2”, Morton Ledge)

44°45.51′ N lat., 67°02.87′ W long. (R “28M” Whistle, Baileys Mistake)

44°37.70′ N lat., 67°09.75′ W long. (Obstruction, Southeast of Cutler)

44°27.77′ N lat., 67°32.86′ W long. (Freeman Rock, East of Great Wass Island)

44°25.74′ N lat., 67°38.39′ W long. (R “2SR” Bell, Seahorse Rock, West of Great Wass Island)

44°21.66′ N lat., 67°51.78′ W long. (R N “2”, Petit Manan Island)

44°19.08′ N lat., 68°02.05′ W long. (R “2S” Bell, Schoodic Island)

44°13.55′ N lat., 68°10.71′ W long. (R “8BI” Whistle, Baker Island)

44°08.36′ N lat., 68°14.75′ W long. (Southern Point, Great Duck Island)

43°59.36′ N lat., 68°37.95′ W long. (R “2” Bell, Roaring Bull Ledge, Isle Au Haut)

43°59.83′ N lat., 68°50.06′ W long. (R “2A” Bell, Old Horse Ledge)

43°56.72′ N lat., 69°04.89′ W long. (G “5TB” Bell, Two Bush Channel)

43°50.28′ N lat., 69°18.86′ W long. (R “2 OM” Whistle, Old Man Ledge)

43°48.96′ N lat., 69°31.15′ W long. (GR C “PL”, Pemaquid Ledge)

43°43.64′ N lat., 69°37.58′ W long. (R “2BR” Bell, Bantam Rock)

43°41.44′ N lat., 69°45.27′ W long. (R “20ML” Bell, Mile Ledge)

43°36.04′ N lat., 70°03.98′ W long. (RG N “BS”, Bulwark Shoal)

43°31.94′ N lat., 70°08.68′ W long. (G “1”, East Hue and Cry)

43°27.63′ N lat., 70°17.48′ W long. (RW “WI” Whistle, Wood Island)

43°20.23′ N lat., 70°23.64′ W long. (RW “CP” Whistle, Cape Porpoise)

43°04.06′ N lat., 70°36.70′ W long. (R N “2MR”, Murray Rock)

43°02.93′ N lat., 70°41.47′ W long. (R “2KR” Whistle, Kittery Point)

43°02.55′ N lat., 70°43.33′ W long. (Odiornes Pt., Portsmouth, New Hampshire)

(B) New Hampshire. New Hampshire state waters are exempt from the minimum number of traps per trawl requirement in paragraph (c)(2)(iv) of this section. Harbor waters landward of the following lines are exempt from all the regulations in this section;


Table 5 to Paragraph (a)(3)(ii)(B)

A line from 42°53.691′ N lat., 70°48.516′ W long. to 42°53.516′ N lat., 70°48.748′ W long. (Hampton Harbor)

A line from 42°59.986′ N lat., 70°44.654′ W long. to 42°59.956′ N, 70°44.737′ W long. (Rye Harbor)

(C) Rhode Island. Rhode Island state waters are exempt from the minimum number of traps per trawl requirement in paragraph (c)(2)(iv) of this sectioN Harbor waters landward of the following lines are exempt from all the regulations in this section;


Table 6 to Paragraph (a)(3)(ii)(C)

A line from 41°22.441′ N lat., 71°30.781′ W long. to 41°22.447′ N lat., 71°30.893′ W long. (Pt. Judith Pond Inlet)

A line from 41°21.310′ N lat., 71°38.300′ W long. to 41°21.300′ N lat., 71°38.330′ W long. (Ninigret Pond Inlet)

A line from 41°19.875′ N lat., 71°43.061′ W long. to 41°19.879′ N lat., 71°43.115′ W long. (Quonochontaug Pond Inlet)

A line from 41°19.660′ N lat., 71°45.750′ W long. to 41°19.660′ N lat., 71°45.780′ W long. (Weekapaug Pond Inlet)

A line from 41°26.550′ N lat., 71°26.400′ W long. to 41°26.500′ N lat., 71°26.505′ W long. (Pettaquamscutt Inlet)

(D) New York. The regulations in this section do not apply to waters landward of a line that follows the territorial sea baseline through Block Island Sound (Watch Hill Point, RI, to Montauk Point, NY);


(E) Massachusetts. The regulations in this section do not apply to waters landward of the first bridge over any embayment, harbor, or inlet in Massachusetts. The following Massachusetts state waters are exempt from the minimum number of traps per trawl requirement in paragraph (c)(2)(iv) of this section:


(1) Exempt waters of Massachusetts Bay and Outer Cape. Heading From the New Hampshire border to 70° W longitude south of Cape Cod, waters in EEZ Nearshore Management Area 1 and the Outer Cape Lobster Management Area (as defined in the American Lobster Fishery regulations under § 697.18 of this title), from the shoreline to 3 nautical miles from shore, and including waters of Cape Cod Bay southeast of a straight line connecting 41° 55.8′ N lat., 70°8.4′ W long. and 41°47.2′ N lat., 70°19.5′ W long.; and


(2) Exempt waters of southern Massachusetts. Heading From 70° W longitude south of Cape Cod to the Rhode Island border, all Massachusetts state waters in EEZ Nearshore Management Area 2 and the Outer Cape Lobster Management Area (as defined in the American Lobster Fishery regulations 50 CFR 697.18), including Federal waters of Nantucket Sound west of 70° W long.;


(F) South Carolina. The regulations in this section do not apply to waters landward of a line connecting the following points from 32°34.717′ N lat., 80°08.565′ W long. to 32°34.686′ N lat., 80°08.642′ W long. (Captain Sams Inlet);


(4) Sinking groundline exemption. The fisheries regulated under this section are exempt from the requirement to have groundlines composed of sinking line if their groundline is at a depth equal to or greater than 280 fathoms (1,680 feet or 512.1 m);


(5) Net panel weak link and anchoring exemption. The anchored gillnet fisheries regulated under this section are exempt from the requirement to install weak links in the net panel and anchor each end of the net string if the float-line is at a depth equal to or greater than 280 fathoms (1,680 feet or 512.1 m); and


(6) Island buffer. Those fishing in waters within
1/4 nautical miles of the following Maine islands are exempt from the minimum number of traps per trawl requirement in paragraph (c)(2)(iv) of this section: Monhegan Island, Matinicus Island Group (Metinic Island, Small Green Island, Large Green Island, Seal Island, Wooden Ball Island, Matinicus Island, Ragged Island), and Isles of Shoals Island Group (Duck Island, Appledore Island, Cedar Island, Smuttynose Island).


(b) Gear marking requirements – (1) Specified areas. Fishermen permitted by Maine, New Hampshire, Massachusetts, Rhode Island, and NMFS to fish for lobster and Jonah crab using trap/pot gear in the Northeast Region will follow the color marking requirements for Federal waters as indicated in paragraph (b)(2) of this section and, except for when fishing in LMA3, will follow the color code scheme assigned to their state, indicated in paragraph (b)(3) of this section. For all other trap/pot and gillnet gear, excluding shark gillnet, the following areas are specified for gear marking purposes: Northern Inshore State Trap/Pot Waters, Cape Cod Bay Restricted Area, Massachusetts Restricted Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, Northern Nearshore Trap/Pot Waters Area, Great South Channel Restricted Trap/Pot Area, Great South Channel Restricted Gillnet Area, Great South Channel Sliver Restricted Area, Southern Nearshore Trap/Pot Waters Area, Offshore Trap/Pot Waters Area, Other Northeast Gillnet Waters Area, Mid/South Atlantic Gillnet Waters Area, Other Southeast Gillnet Waters Area, Southeast U.S. Restricted Areas, and Southeast U.S. Monitoring Area;


(i) Jordan Basin. The Jordan Basin Restricted Area is bounded by the following points connected by straight lines in the order listed:


Table 7 to Paragraph (b)(1)(i)

Point
N Lat.
W Long.
JBRA143°15′68°50′
JBRA243°35′68°20′
JBRA343°25′68°05′
JBRA443°05′68°20′
JBRA543°05′68°35′
JBRA143°15′68°50′

(ii) Jeffreys Ledge Restricted Area. The Jeffreys Ledge Restricted Area is bounded by the following points connected by a straight line in the order listed:


Table 8 to Paragraph (b)(1)(ii)

Point
N Lat.
W Long.
JLRA143°15′70°25′
JLRA243°15′70°00′
JLRA342°50′70°00′
JLRA442°50′70°25′
JLRA143°15′70°25′

(2) Markings. All specified gear in specified areas must be marked with the color code shown in paragraph (b)(3) of this section. The color must be permanently marked on or along the rope or ropes specified under paragraphs (b)(2)(i) through (iv) of this section. Each colored mark must be clearly visible when the gear is hauled or removed from the water, including if the color of the rope is the same as or similar to the respective color code;


(i) Northeast Region lobster and Jonah crab buoy line markings. Beginning May 1, 2022, for all Federal and state Northeast Region lobster and Jonah crab trap/pot gear regulated under this section, the buoy lines must be marked with a solid mark at least 36 inches (91.4 cm) in length within 2 fathoms (3.7 m) of the surface buoy. When fishing in Federal waters, all Northeast Region lobster and Jonah crab trap/pot buoy lines must have an additional green mark of at least 12 inches (30.5 cm) in length no more than 6 inches (15.2 cm) from the 36-inch (91.4 cm) mark. These long marks within 2 fathoms (3.7 m) of the buoy must be solid marks that may be applied with dyed, painted, or heat-shrink tubing, insertion of a colored rope or braided sleeve, or the line may be marked as approved in writing by the Greater Atlantic Regional Administrator. When fishing in state waters, the buoy line below the surface system must be marked by the principal port state color at least two additional times (top half, bottom half) and each mark must at least total 12 inches (30.5 cm) for a total of at least three marks in state waters. For dual permitted vessels, state regulations will determine whether green Federal markings in the surface system and buoy line below the surface system can remain on gear being fished in state waters. When in Federal waters, the buoy line below the surface system must be marked at least three additional times (top, middle, and bottom) with the state or LMA 3 specific color, and each mark must total at least 12 inches (30.5 cm) in length. An additional green mark of at least 12 inches (30.5 cm) in length denoting Northeast Region Federal waters must be placed within 6 inches (15.2 cm) of each area-specific colored mark for a total of at least eight marks in Federal waters. In marking or affixing the color code(s) for the 1-foot buoy line marks for gear regulated under this paragraph (b)(2)(i), the line may be: Dyed; painted, marked with thin colored whipping line, thin colored plastic, or heat-shrink tubing; spliced in insertion of a colored rope or braided sleeve or other material, or a thin line may be woven into or through the line; or the line may be marked as approved in writing by the Greater Atlantic Regional Administrator. An outreach guide illustrating the techniques for marking gear is available from the Greater Atlantic Regional Administrator upon request and posted on the Atlantic Large Whale Take Reduction Plan website at Fisheries.NOAA.gov/ALWTRP;


(ii) Other buoy line markings. For all other trap/pot and gillnet gear regulated under this section, the buoy line must be marked at least three times (top, middle, bottom) and each mark must total at least 12 inches (30.5 cm) in length. If the mark consists of two colors, then each color mark may be at least 6 inches (15.2 cm) for a total mark of 12 inches (30.5 cm). In marking or affixing the color code for gear regulated under this paragraph (b)(2)(ii), the line may be: Dyed, painted, marked with thin colored whipping line, thin colored plastic, or heat-shrink tubing, spliced in insertion of a colored rope or braided sleeve or other material, or a thin line may be woven into or through the line, or the line may be marked as approved in writing by the Greater Atlantic Regional Administrator. An outreach guide illustrating the techniques for marking gear is available from the Greater Atlantic Regional Administrator upon request and posted on the Atlantic Large Whale Take Reduction Plan website at Fisheries.NOAA.gov/ALWTRP;


(iii) Net panel markings. Shark gillnet gear net panels in the Southeast U.S. Restricted Area S, Southeast U.S. Monitoring Area and Other Southeast Gillnet Waters are required to be marked. The net panel must be marked along both the floatline and the leadline at least once every 100 yards (91.4 m);


(iv) Surface buoy markings. Trap/pot and gillnet gear regulated under this section must mark all surface buoys to identify the vessel or fishery with one of the following: The owner’s motorboat registration number, the owner’s U.S. vessel documentation number, the Federal commercial fishing permit number, or whatever positive identification marking is required by the vessel’s home-port state. When marking of surface buoys is not already required by state or Federal regulations, the letters and numbers used to mark the gear to identify the vessel or fishery must be at least 1 inch (2.5 cm) in height in block letters or Arabic numbers in a color that contrasts with the background color of the buoy. An outreach guide illustrating the techniques for marking gear is available from the Greater Atlantic Regional Administrator upon request and posted on the Atlantic Large Whale Take Reduction Plan website Fisheries.NOAA.gov/ALWTRP;


(3) Color code. Gear must be marked with the appropriate colors to designate gear types and areas as follows:


Table 9 to Paragraph (b)(3)

Color code scheme
Plan management area
Color
Northeast Region, Lobster and Jonah Crab Trap/Pot Gear, Applicable beginning May 1, 2022
Trawls fished by vessels permitted by the state of Maine and with a principal port identified in Maine when fished in state watersPurple.
Trawls fished by vessels permitted by the state of Maine and NMFS, with a principal port identified in Maine when fished in Federal LMA 1 waters *Purple, Green.
Trawls fished by vessels permitted by the state of New Hampshire and with a principal port identified in New Hampshire when fished in state watersYellow.
Trawls fished by vessels permitted by the state of New Hampshire and NMFS, with a principal port identified in New Hampshire when fished in Federal LMA 1 waters *Yellow, Green.
Trawls fished by vessels permitted by the state of Massachusetts and with a principal port identified in Massachusetts when fished in state watersRed.
Trawls fished by vessels permitted by the state of Massachusetts and NMFS with a principal port identified in Massachusetts when fished in Federal waters of LMA 1, OC, LMA 2 (including 2/3 overlap) *Red, Green.
Trawls fished by vessels permitted by the state of Rhode Island and with a principal port identified in Rhode Island when fished in state watersSilver/Gray.
Trawls fished by vessels permitted by the state of Rhode Island and NMFS, with a principal port identified in Rhode Island when in Federal waters of LMA 2 (including 2/3 overlap) *Silver/Gray, Green.
Trawls fished in the Northeast EEZ Offshore Management Area 3 (LMA3) excluding the 2/3 overlapBlack, Green.
Northeast Region, Other Trap/Pot gear
Massachusetts Restricted AreaRed.
Northern NearshoreRed.
Northern Inshore StateRed.
Stellwagen Bank/Jeffreys Ledge Restricted AreaRed.
Great South Channel Restricted Area overlapping with LMA 2 and/or Outer CapeRed.
Exempt Rhode Island state waters (single traps)Red and Blue.
Exempt Massachusetts state waters in LMA 1 (single traps)Red and White.
Exempt Massachusetts state waters in LMA 2 (single traps)Red and Black.
Exempt Massachusetts state waters in Outer Cape (single traps)Red and Yellow.
Isles of Shoals, ME (single traps)Red and Orange.
Great South Channel Restricted Area overlapping with LMA 2/3 and/or LMA 3Black.
Jordan BasinBlack and Purple (LMA 3), Red and Purple (LMA 1)
Jeffreys LedgeRed and Green.
Trap/Pot Gear
Southern NearshoreOrange.
Southeast Restricted Area North (state Waters)Blue and Orange.
Southeast Restricted Area North (Federal Waters)Green and Orange.
OffshoreBlack.
Gillnet excluding shark gillnet
Cape Cod Bay Restricted AreaGreen.
Stellwagen Bank/Jeffreys Ledge Restricted AreaGreen.
Great South Channel Restricted AreaGreen.
Great South Channel Restricted Sliver AreaGreen.
Other Northeast Gillnet WatersGreen.
Jordan BasinGreen and Yellow.
Jeffreys LedgeGreen and Black.
Mid/South Atlantic Gillnet WatersBlue.
Southeast U.S. Restricted Area SouthYellow.
Other Southeast Gillnet WatersYellow.
Shark Gillnet (with webbing of 5″ or greater)
Southeast U.S. Restricted Area SouthGreen and Blue.
Southeast Monitoring AreaGreen and Blue.
Other Southeast WatersGreen and Blue.

* For dual permitted vessels, state regulations will determine whether green marks can remain on gear being fished in state waters.


(c) Restrictions applicable to trap/pot gear in regulated waters – (1) Universal trap/pot gear requirements. In addition to the gear marking requirements listed in paragraph (b) of this section and the area-specific measures listed in paragraphs (c)(2) through (14) of this section, all trap/pot gear in regulated waters, including the Northern Inshore State Trap/Pot Waters Area, must comply with the universal gear requirements listed in paragraphs (c)(1)(i) through (iii) of this section;
1




1 Fishermen are also encouraged to maintain their buoy lines to be as knot-free as possible. Splices are considered to be less of an entanglement threat and are thus preferable to knots.


(i) No buoy line floating at the surface. No person or vessel may fish with trap/pot gear that has any portion of the buoy line floating at the surface at any time when the buoy line is directly connected to the gear at the ocean bottom. If more than one buoy is attached to a single buoy line or if a high flyer and a buoy are used together on a single buoy line, floating line may be used between these objects;


(ii) No wet storage of gear. Trap/pot gear must be hauled out of the water at least once every 30 days; and


(iii) Groundlines. All groundlines must be composed entirely of sinking line. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited.


(2) Area specific gear requirements. Trap/pot gear must be set according to the requirements outlined in paragraphs (c)(2)(i) through (iii) of this section and in the table to paragraph (c)(2)(iv) of this section;


(i) Single traps and multiple-trap trawls. All traps must be set according to the configuration outlined in the table to paragraph (c)(2)(iv) of this section. Trawls up to and including five traps must only have one buoy line unless specified otherwise in the table to paragraph (c)(2)(iv) of this section;


(ii) Buoy line weak links. With the exception of Northeast Region lobster and Jonah crab trap/pot trawls, all buoys, flotation devices and/or weights (except traps/pots, anchors, and leadline woven into the buoy line), such as surface buoys, high flyers, radar reflectors, subsurface buoys, toggles, window weights, etc., must be attached to the buoy line with a weak link placed either as close to each individual buoy, flotation device and/or weight as operationally feasible, or at the base of the surface system where the surface system attaches to the single buoy line, and that meets the following specifications;


(A) Weak link breaking strengths. The breaking strength of the weak links must not exceed the breaking strength listed in paragraph (c)(2)(iv) of this section for a specified management area;


(B) Approved weak links. The weak link must be chosen from the following list approved by NMFS: Swivels, plastic weak links, rope of appropriate breaking strength, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the Greater Atlantic Regional Administrator. An outreach guide illustrating the techniques for making weak links is available from the Greater Atlantic Regional Administrator upon request and posted on the Atlantic Large Whale Take Reduction Plan website Fisheries.NOAA.gov/ALWTRP; and


(C) Clean breaks. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots for the purposes of this paragraph (c)(2)(ii)(C);


(iii) Weak buoy lines and weak insertion devices. Beginning May 1, 2022, all lobster and Jonah crab trap/pot buoy lines in the management areas and configurations outlined in the table to paragraph (c)(2)(iv) of this section must use weak line or must insert weak devices along the buoy line as described in the table to paragraph (c)(2)(iv). The weak line and weak insert devices must meet the following specifications;


(A) Breaking strength. The breaking strength of the weak buoy lines and weak insertion devices must not exceed 1,700 lb (771 kgs);


(B) Approved devices and distance between weak insertions. Weak insertion devices must be inserted in the specified intervals from the surface system and must be devices chosen from the following list approved by NMFS, including any rope no thinner than 5/16 inch (8 mm) diameter that is engineered to break at 1,700 lb (771 kg) or less in a color contrasting with the primary buoy line and 3 feet (91.4 cm) or longer spliced on either end into the primary buoy line. Splices that achieve nearly the manufactured breaking strength include but are not limited to: Three or more tuck splices, an eye to loop with 3 or more tuck splices, or a butt splice. A 3-foot long hollow braided sleeve such as those known as the South Shore Sleeve installed over a parted buoy line is approved. A plastic weak link engineered to break at 1700 lb (771 kg) or less in a color that contrasts with the buoy line and with the breaking strength imprinted on the weak link is approved. The Greater Atlantic Regional Administrator will approve other materials, devices, or configurations inserted according to specifications approved in writing by the Greater Atlantic Regional Administrator. An outreach guide illustrating the techniques for making weak insert devices is available from the Greater Atlantic Regional Administrator upon request and posted on the Atlantic Large Whale Take Reduction Plan website Fisheries.NOAA.gov/ALWTRP; and


(C) Clean breaks. Weak line and weak inserts must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak insert breaks. Splices are not considered to be knots for the purposes of this paragraph (c)(2)(iii)(D).


(iv) Table of area specific trap/pot gear requirements.


Table 10 to Paragraph (c)(2)(iv)

Mgmt area; location
Minimum number traps/trawl
Minimum number of weak rope or weak insertion configuration
Northeast Region Lobster and Jonah Crab Trap/Pot, Applicable beginning May 1, 2022
Northern Inshore State; Maine Zones A, B, F, G exempt waters to 3 miles3 (1 buoy line)Weak line for the top 50 percent of the buoy line or one weak insertion device at 50 percent buoy line length from top.
Northern Inshore State; Maine Zones C, D, and E exempt waters to 3 miles2 (1 buoy line) or 4 (2 buoy lines)Weak line for the top 50 percent of the buoy line or one weak insertion device at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone A East 3 to 12 miles10 (1 buoy line) or 20 (2 buoy lines)Weak line for the top 33 percent of the buoy line or one weak insertion device at 33 percent buoy line length from top.
Northern Nearshore: Maine Zone A West 3 to 6 miles4 (1 buoy line) or 8 (2 buoy lines)Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone A West 6 to 12 miles8 (1 buoy line) or 15 (2 buoy lines)Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone B 3 to 6 miles5 (1 buoy line)Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone C, D, E 3 to 6 miles5 (1 buoy line) or 10 (2 buoy lines)Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone F and G 3 to 6 miles5 (1 buoy line) or 10 (2 buoy lines)Weak line for the top 33 percent of the buoy line or one weak insertion device at 33 percent buoy line length from top.
Northern Nearshore: Maine Zone B, D, and E 6 to 12 miles5 (1 buoy line) or 10 (2 buoy lines)Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone C 6 to 12 miles10 (1 buoy line) or 20 (2 buoy lines)Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore: Maine Zone F 6 to 12 miles5 (1 buoy line) or 10 (2 buoy lines)Weak line for the top 33 percent of the buoy line or one weak insertion device at 33 percent buoy line length from top.
Northern Nearshore: Maine Zone G 6 to 12 miles10 (1 buoy line) or 20 (2 buoy lines)Weak line for the top 33 percent of the buoy line or one weak insertion device at 33 percent buoy line length from top.
Northern Inshore State and Massachusetts Restricted Area; Massachusetts State Waters
2
No minimum number of traps per trawl. Trawls up to and including 3 or fewer traps must only have one buoy lineWeak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Northern Inshore State and Massachusetts Restricted Area; Other Massachusetts State Waters2 (1 buoy line) Trawls up to and including 3 or fewer traps must only have one buoy lineWeak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Northern Inshore State; New Hampshire State WatersNo minimum trap/trawlWeak line for the top 50 percent of the buoy line or one weak insertion device at 50 percent buoy line length from top.
Northern Nearshore; New Hampshire and Massachusetts (3-6 miles)10Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore, Massachusetts Restricted Area, and Stellwagen Bank/Jeffreys Ledge Restricted Area; LMA 1 (6-12 miles)15Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore and LMA1 Restricted Area; LMA1 (12+ miles)25Weak line for the top 33 percent of the buoy line or one weak insertion device at 33 percent buoy line length from top.
Northern Inshore State, Massachusetts Restricted Area, and Massachusetts South Island Restricted Area; OC and LMA1/OC Overlap(0-3 miles)No minimum number of traps per trawlWeak inserts every 60 ft (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Northern Nearshore and Massachusetts Restricted Area; OC (3-12 miles)15Weak line for the top 50 percent of the buoy line or two weak insertion devices, one at 25 percent and one at 50 percent buoy line length from top.
Northern Nearshore and Great South Channel Restricted Area; OC (12+ miles)20Weak line for the top 33 percent of the buoy line or one weak insertion device at 33 percent buoy line length from top.
Northern Inshore State; RI State WatersNo minimum number of traps per trawlWeak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Northern Nearshore; LMA 2 (3-12 miles)10Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Northern Nearshore, Great South Channel Restricted Area, and Massachusetts South of Island Restricted Area; LMA 2 (12+ miles)20Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Offshore, Great South Channel Restricted Area, and Massachusetts South Island Restricted Area; LMA 2/3 Overlap (12+ miles)20Weak inserts every 60 feet (18.3 m) in top 75 percent of line or full weak line through top 75 percent of line.
Northeast Region Offshore waters including Great South Channel Restricted Area, and Massachusetts South Island Restricted Area, with the exception of the Georges Basin and South Georges 50 Fathom Restricted Areas; LMA 3 including LMA3-only vessels fishing in 2/3 overlap45Weak line for the top 75 percent of one buoy line.
Northeast Region Offshore waters Georges Basin Restricted Area50Weak line for the top 75 percent of the buoy line.
Northeast Region Offshore waters South Georges 50 Fathom Restricted Area35Weak line for the top 75 percent of the buoy line.
Other Trap/Pot
Northern Inshore State; Maine State and Pocket Waters
1
2 (1 buoy line)≤600 lb.
Northern Nearshore; Maine Zones A-G (3-6 miles)
1
3 (1 buoy line)≤600 lb.
Northern Nearshore; Maine Zones A-C (6-12 miles)
1
5 (1 buoy line)≤600 lb.
Northern Nearshore; Maine Zones D-G (6-12 miles)
1
10≤600 lb.
Northern Nearshore, Offshore, and LMA1 Restricted Area; Maine Zones A-E (12+ miles)15≤600 lb (≤1500 lb in offshore, 2,000 lb if red crab trap/pot).
Northern Nearshore, Offshore, and LMA1 Restricted Area; Maine Zones F-G (12+ miles)15 (Mar 1-Oct 31) 20 (Nov 1-Feb 28/29)≤600 ls (≤1500 lb in offshore, 2,000 ls if red crab trap/pot).
Northern Inshore State and Massachusetts Restricted Area; Massachusetts State Waters
2
No minimum number of traps per trawl. Trawls up to and including 3 or fewer traps must only have one buoy line≤600 lb.
Northern Inshore State, Massachusetts Restricted Area, and Massachusetts South Island Restricted Area; Other Massachusetts State Waters2 (1 buoy line) Trawls up to and including 3 or fewer traps must only have one buoy line≤600 lb.
Northern Inshore State; New Hampshire State WatersNo minimum number of traps per trawl≤600 lb.
Northern Nearshore and Massachusetts Restricted Area and Stellwagen Bank/Jeffreys Ledge Restricted Area; LMA 1 (3-12 miles)10≤600 lb.
Northern Nearshore and LMA1 Restricted Area; LMA 1 (12+ miles)20≤600 lb.
Northern Inshore State and Massachusetts Restricted Area; LMA1/OC Overlap (0-3 miles)No minimum number of traps per trawl≤600 lb.
Northern Inshore State and Massachusetts Restricted Area; OC (0-3 miles)No minimum number of traps per trawl≤600 lb.
Northern Nearshore and Massachusetts Restricted Area; OC (3-12 miles)10≤600 lb.
Northern Nearshore and Great South Channel Restricted Area; OC (12+ miles)20≤600 lb.
Northern Inshore State; Rhode Island State WatersNo minimum number of traps per trawl≤600 lb.
Northern Nearshore, and Massachusetts South Island Restricted Area; LMA 2 (3-12 miles)10≤600 lb.
Northern Nearshore, Great South Channel Restricted Area; LMA 2 (12+ miles)20≤600 lb.
Northeast Offshore and Great South Channel Restricted Area, and Massachusetts South Island Restricted Area; LMA 2/3 Overlap (12+ miles)20≤1500 lb (2,000 lb if red crab trap/pot).
Northeast Offshore waters, Great South Channel Restricted Area, and Massachusetts South Island Restricted Area; LMA 3 (12+ miles)20≤1500 lb (2,000 lb if red crab trap/pot).
Southern Nearshore; LMA 4,5,6No minimum number of traps per trawl≤600 lb.
Southeast U.S. Restricted Area North
3 Florida State Waters
1≤200 lb.
Southeast U.S. Restricted Area North;
3 Georgia State Waters
1≤600 lb.
Southeast U.S. Restricted Area North;
3 South Carolina State Waters
1≤600 lb.
Southeast U.S. Restricted Area North;
3 Federal Waters off Florida, Georgia, South Carolina
1≤600 lb.


1 The 6-mile line, pocket waters, and Maine Zones are defined in paragraphs (a)(2)(iii) through (v) of this section.


2 Massachusetts State waters as defined as paragraph (a)(3)(ii)(E) of this section.


3 See paragraph (f)(1) of this section for description of area.


(3) Massachusetts Restricted Area – (i) Area. The Massachusetts Restricted Area is bounded landward by the Massachusetts shoreline, from points MRA1 through MRA3 bounded seaward by the designated Massachusetts state waters boundary, and then bounded by a rhumb line connecting points MRA3 through MRA11 in order as detailed in table 11 to paragraph (c)(3)(i);


Table 11 to Paragraph (c)(3)(i)

Point
N lat.
W long.
MRA142°52.32′70°48.98′
MRA242°52.58′70°43.94′
MRA342°12′70°38.69′
MRA442°12′70°30′
MRA542°30′70°30′
MRA642°30′69°45′
MRA741°56.5′69°45′
MRA841°21.5′69°16′
MRA941°15.3′69°57.9′
MRA1041°20.3′70°00′
MRA1141°40.2′70°00′

(ii) Closure to fishing with buoy lines. From February 1 to April 30, it is prohibited to fish with, set, or possess trap/pot gear in the area in this paragraph (c)(3)(i) of this section unless it is fished without buoy lines or with buoy lines that are stored on the bottom until it can be remotely released for hauling, or it is stowed in accordance with § 229.2 of this chapter. Authorizations for fishing without buoy lines must be obtained if such fishing would not be in accordance with surface marking requirements of §§ 697.21 and 648.84 of this title or other applicable fishery management regulations. The minimum number of trap/trawl gear configuration requirements specified in paragraph (c)(2)(iv) of this section remain in effect unless an exemption to those requirements is authorized.


(iii) Area-specific gear or vessel requirements. From May 1 through January 31, no person or vessel may fish with or possess trap/pot gear in the Massachusetts Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(4) South Island Restricted Area – (i) Area. The South Island Restricted Area is bounded by the following points connected by rhumb lines in the order listed, and bounded on the north by the shoreline of Nantucket, Massachusetts.


Table 12 to Paragraph (c)(4)(i)

Point
N lat.
W long.
SIRA141°20.00′ N71°19.00′ W
SIRA241°20.00′ N69°30.00′ W
SIRA340°30.00′ N69°30.00′ W
SIRA440°30.00′ N71°19.00′ W
SIRA41°20.00′ N71°19.00′ W

(ii) Closure to fishing with buoy lines. From February 1 to April 30, it is prohibited to fish with, set, or possess trap/pot gear in the area in paragraph (c)(4)(i) of this section unless it is fished without buoy lines or with buoy lines that are stored on the bottom until they can be remotely released for hauling, or the trap/pot gear is stowed in accordance with § 229.2. Authorizations for fishing without buoy lines must be obtained if such fishing would not be in accordance with surface marking requirements of 50 CFR 697.21 and 648.84. The minimum number of trap/trawl gear configuration requirements specified in paragraph (c)(2)(iv) of this section remain in effect unless an exemption to those requirements is authorized.


(iii) Area-specific gear or vessel requirements. From May 1 through January 31, no person or vessel may fish with or possess trap/pot gear in the Massachusetts South Island Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(5) Great South Channel Restricted Trap/Pot Area – (i) Area. The Great South Channel Restricted Trap/Pot Area consists of the area bounded by the following points.


Table 13 to Paragraph (c)(5)(i)

Point
N lat.
W long.
GSC141°40′69°45′
GSC241°0′69°05′
GSC341°38′68°13′
GSC442°10′68°31′
GSC141°40′69°45′

(ii) Closure to fishing with buoy lines. From April 1 through June 30, it is prohibited to fish with, set, or possess trap/pot gear in the area in paragraph (c)(5)(i) of this section unless it is fished without buoy lines or with buoy lines that are stored on the bottom until they can be remotely released for hauling, or the trap/pot gear is stowed in accordance with § 229.2. Authorizations for fishing without buoy lines must be obtained if such fishing would not be in accordance with surface marking requirements of 50 CFR 697.21 and 648.84.


(iii) Area-specific gear or vessel requirements. From July 1 through March 31, no person or vessel may fish with or possess trap/pot gear in the Great South Channel Restricted Trap/Pot Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(6) Lobster Management Area One Restricted Area – (i) Area. The Lobster Management Area One Restricted Area (LMRA1) is bounded by the following points connected by rhumblines in the order listed.


Table 14 to Paragraph (c)(6)(i)

Point
N lat.
W long.
LMA1RA 143°06′69°36.77′
LMA1RA 243°44′68°21.6′
LMA1RA 343°32.68′68°17.27′
LMA1RA 442°53.52′69°32.16′
LMA1RA 143°06′69°36.77′

(ii) Restrictions to fishing with buoy lines. From October 1 to January 31, it is prohibited to fish with, set, or possess trap/pot gear in the area in paragraph (c)(6)(i) of this section unless it is fished without buoy lines or with buoy lines that are stored on the bottom until they can be remotely released for hauling, or the trap/pot gear is stowed in accordance with § 229.2. Authorizations for fishing without buoy lines must be obtained if such fishing would not be in accordance with surface marking requirements of 50 CFR 697.21 and 648.84. The minimum number of trap/trawl gear configuration requirements specified in paragraph (c)(2)(iv) of this section remain in effect unless an exemption to those requirements is authorized.


(iii) Area-specific gear or vessel requirements. From February 1 through September 30, no person or vessel may fish with or possess trap/pot gear in the LMA 1 Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(7) Stellwagen Bank/Jeffreys Ledge Restricted Area – (i) Area. The Stellwagen Bank/Jeffreys Ledge Restricted Area includes all Federal waters of the Gulf of Maine, except those designated as the Massachusetts Restricted Area in paragraph (c)(3) of this section, that lie south of 43°15′ N lat. and west of 70°00′ W long.


(ii) Year round area-specific gear or vessel requirements. No person or vessel may fish with or possess trap/pot gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(8) Georges Basin Restricted Area – (i) Area. The Georges Basin Restricted Area (GBRA) referred to in paragraph (c)(2)(iv) of this section is bounded by rhumb lines connecting the following points in the order listed in table 15 to paragraph (c)(8)(i).


Table 15 to Paragraph (c)(8)(i)

Point
N lat.
W long.
GBRA 142°03.00′67°40.02′
GBRA 242°30.00′67°40.02′
GBRA 342°30.00′67°27.00′
GBRA 442°09.30′67°08.70′
GBRA 142°03.00′67°40.02′

(ii) [Reserved]


(iii) Area-specific gear or vessel requirements. Beginning May 1 2022, no person or vessel may fish with or possess trap/pot gear in the Georges Basin Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(9) South Georges 50 Fathom Restricted Area – (i) Area. The South Georges 50 Fathom Restricted Area curve line referred to in paragraph (c)(2)(iv) of this section is an area bounded in the south by the 40 degree southern border of the Northeast Region, bounded seaward by the EEZ, and bounded in the north by rhumb lines connecting the following points in the order listed in table 16 to paragraph (c)(9)(i).


Table 16 to Paragraph (c)(9)(i)

Point
N lat.
W long.
SGRA 140°00.00′71°49.86′
SGRA 240°06.47′71°24.69′
SGRA 340°06.49′71°24.62′
SGRA 440°20.82′71°03.52′
SGRA 540°20.89′71°03.42′
SGRA 640°21.16′70°35.17′
SGRA 740°21.16′70°35.02′
SGRA 840°16.84′70°07.34′
SGRA 940°16.81′70°07.17′
SGRA 1040°09.92′69°40.43′
SGRA 1140°09.87′69°40.25′
SGRA 1240°14.72′69°12.77′
SGRA 1340°14.74′69°12.63′
SGRA 1440°19.83′68°45.19′
SGRA 1540°19.86′68°45.05′
SGRA 1640°31.55′68°21.25′
SGRA 1740°31.63′68°21.10′
SGRA 1840°34.09′67°52.94′
SGRA 1940°34.11′67°52.76′
SGRA 2040°38.45′67°24.98′
SGRA 2140°38.46′67°24.90′
SGRA 2240°50.05′67°00.91′
SGRA 2340°50.14′67°00.73′
SGRA 2441°00.10′66°35.45′
SGRA 2541°00.21′66°35.18′
SGRA 2641°14.84′66°21.82′

(ii) Area-specific gear or vessel requirements. Beginning May 1, 2022, no person or vessel may fish with or possess trap/pot gear in the South Georges 50 Fathom Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(10) Offshore Trap/Pot Waters Area – (i) Area. The Offshore Trap/Pot Waters Area includes all Federal waters of the EEZ Offshore Management Area known as Lobster Management Area 3, including the area known as the Area 2/3 Overlap and Area 3/5 Overlap as defined in the American Lobster Fishery regulations at 50 CFR 697.18, with the exception of the Great South Channel Restricted Trap/Pot Area, Southeast Restricted Area, Georges Basin Restricted Area, South Georges 50 Fathom Restricted Area, and extending south along the 100-fathom (600-ft or 182.9-m) depth contour from 35°14′ N lat. South to 27°51′ N lat., and east to the eastern edge of the EEZ.


(ii) Year-round area-specific gear or vessel requirements. No person or vessel may fish with or possess trap/pot gear in the Northeast Region portion of Offshore Trap/Pot Waters Area that overlaps an area from the U.S./Canada border south to a straight line from 41°18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) south to 40°00′ N lat., and then east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and the area-specific requirements listed in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(iii) Seasonal area-specific gear or vessel requirements. From September 1 to May 31, no person or vessel may fish with or possess trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area bounded on the north by a straight line from 41°18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) south to 40°00′ N lat. and then east to the eastern edge of the EEZ, and bounded on the south by a line at 32°00′ N lat., and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, and area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(iv) Seasonal area-specific gear or vessel requirements. From November 15 to April 15, no person or vessel may fish with or possess trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area from 32°00′ N lat. south to 29°00′ N lat. and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(v) Seasonal area-specific gear or vessel requirements. From December 1 to March 31, no person or vessel may fish with or possess trap/pot gear in the Offshore Trap/Pot Waters Area that overlaps an area from 29°00′ N lat. south to 27°51′ N lat. and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) in this section, or unless the gear is stowed as specified in § 229.2.


(11) Northern Inshore State Trap/Pot Waters Area – (i) Area. The Northern Inshore State Trap/Pot Waters Area includes the state waters of Rhode Island, Massachusetts, New Hampshire, and Maine, with the exception of Massachusetts Restricted Area and those waters exempted under paragraph (a)(3) of this section. Federal waters west of 70°00′ N lat. in Nantucket Sound are also included in the Northern Inshore State Trap/Pot Waters Area.


(ii) Year-round area-specific gear or vessel requirements. No person or vessel may fish with or possess trap/pot gear in the Northern Inshore State Trap/Pot Waters Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(12) Northern Nearshore Trap/Pot Waters Area – (i) Area. The Northern Nearshore Trap/Pot Waters Area includes all Federal waters of EEZ Nearshore Management Area 1, Area 2, and the Outer Cape Lobster Management Area (as defined in the American Lobster Fishery regulations at 50 CFR 697.18), with the exception of the Great South Channel Restricted Trap/Pot Area, Massachusetts Restricted Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, and Federal waters west of 70°00′ N lat. in Nantucket Sound (included in the Northern Inshore State Trap/Pot Waters Area) and those waters exempted under paragraph (a)(3) of this section.


(ii) Year-round area-specific gear or vessel requirements. No person or vessel may fish with or possess trap/pot gear in the Northern Nearshore Trap/Pot Waters Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section, or unless the gear is stowed as specified in § 229.2.


(13) Southern Nearshore Trap/Pot Waters Area – (i) Area. The Southern Nearshore Trap/Pot Waters Area includes all state and Federal waters that fall within EEZ Nearshore Management Area 4, EEZ Nearshore Management Area 5, and EEZ Nearshore Management Area 6 (as defined in the American Lobster Fishery regulations in § 697.18 of this title, and excluding the Area 3/5 Overlap), and inside the 100-fathom (600-ft or 182.9-m) depth contour line from 35°30′ N lat. south to 27°51′ N lat. and extending inshore to the shoreline or exemption line, with the exception of those waters exempted under paragraph (a)(3) of this section and those waters in the Southeast Restricted Area defined in paragraph (f)(1) of this section.


(ii) Year-round area-specific gear or vessel requirements. No person or vessel may fish with or possess trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that is east of a straight line from 41°18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) south to 40°00′ N lat., unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(iii) Seasonal area-specific gear or vessel requirements. From September 1 to May 31, no person or vessel may fish with or possess trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that overlaps an area bounded on the north by a straight line from 41°18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) south to 40°00′ N lat. and then east to the eastern edge of the EEZ, and bounded on the south by 32°00′ N lat., and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(iv) Seasonal area-specific gear or vessel requirements. From November 15 to April 15, no person or vessel may fish with or possess trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that overlaps an area from 32°00′ N lat. south to 29°00′ N lat. and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(v) Seasonal area-specific gear or vessel requirements. From December 1 to March 31, no person or vessel may fish with or possess trap/pot gear in the Southern Nearshore Trap/Pot Waters Area that overlaps an area from 29°00′ N lat. south to 27°51′ N lat. and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(14) Restrictions applicable to the red crab trap/pot fishery – (i) Area. The red crab trap/pot fishery is regulated in the waters identified in paragraphs (c)(10)(i) and (c)(14)(i) of this section.


(ii) Year-round area-specific gear or vessel requirements. No person or vessel may fish with or possess red crab trap/pot gear in the area identified in paragraph (c)(14)(i) of this section that overlaps an area from the U.S./Canada border south to a straight line from 41° 18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) south to 40°00′ N lat., and then east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(iii) Seasonal area-specific gear or vessel requirements. From September 1 to May 31, no person or vessel may fish with or possess red crab trap/pot gear in the area identified in paragraph (c)(14)(i) of this section that overlaps an area bounded on the north by a straight line from 41°18.2′ N lat., 71°51.5′ W long. (Watch Hill Point, RI) south to 40°00′ N lat. and then east to the eastern edge of the EEZ, and bounded on the south by a line at 32°00′ N lat., and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(iv) Seasonal area-specific gear or vessel requirements. From November 15 to April 15, no person or vessel may fish with or possess red crab trap/pot gear in the area identified in paragraph (c)(14)(i) of this section that overlaps an area from 32°00′ N lat. south to 29°00′ N lat. and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


(v) Seasonal area-specific gear or vessel requirements. From December 1 to March 31, no person or vessel may fish with or possess red crab trap/pot gear in the area identified in paragraph (c)(14)(i) of this section that overlaps an area from 29°00′ N lat. south to 27°51′ N lat. and east to the eastern edge of the EEZ, unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal trap/pot gear requirements specified in paragraph (c)(1) of this section, the area-specific requirements in paragraph (c)(2) of this section or unless the gear is stowed as specified in § 229.2.


[86 FR 52011, Sept. 17, 2021]


§ 229.33 Harbor Porpoise Take Reduction Plan Regulations – New England.

(a) Restrictions – (1) Northeast Closure Area – (i) Area restrictions. From August 15 through September 13, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Northeast Closure Area. This restriction does not apply to vessels fishing with a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Northeast Closure Area is bounded by straight lines connecting the following points in the order stated:


Northeast Closure Area

Point
N. Lat.
W. Long.
NE144°27.3′68°55.0′ (ME shoreline)
NE243°29.6′68°55.0′
NE344°04.4′67°48.7′
NE444°06.9′67°52.8′
NE544°31.2′67°02.7′
NE644°45.8′67°02.7′ (ME shoreline)

(2) Mid-Coast Management Area – (i) Area restrictions. From September 15 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Mid-Coast Management Area, unless the gillnet gear is equipped with pingers in accordance with paragraphs (b) and (c) of this section. This prohibition does not apply to vessels fishing with a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Mid-Coast Management Area is the area bounded by straight lines connecting the following points in the order stated:


Mid-Coast Management Area

Point
N. Lat.
W. Long.
MC142°30.0′70°50.1′ (MA shoreline)
MC242°30.0′70°15.0′
MC342°40.0′70°15.0′
MC442°40.0′70°00.0′
MC543°00.0′70°00.0′
MC643°00.0′69°30.0′
MC743°30.0′69°30.0′
MC843°30.0′69°00.0′
MC944°17.8′69°00.0′ (ME shoreline)

(3) Massachusetts Bay Management Area – (i) Area restrictions. From November 1 through February 28/29 and from April 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Massachusetts Bay Management Area, unless the gillnet gear is equipped with pingers in accordance with paragraphs (b) and (c) of this section. From March 1 through March 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Massachusetts Bay Management Area. These restrictions do not apply to vessels fishing with a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Massachusetts Bay Management Area is bounded by straight lines connecting the following points in the order stated:


Massachusetts Bay Management Area

Point
N. Lat.
W. Long.
MB142°30.0′70°50.1′ (MA shoreline)
MB242°30.0′70°30.0′
MB342°15.0′70°30.0′
MB442°15.0′70°00.0′
MB542°00.0′70°00.0′
MB642°00.0′70°01.2′ (MA shoreline)
MB742°00.0′70°04.8′ (MA shoreline)
MB842°00.0′70°42.2′ (MA shoreline)

(4) Stellwagen Bank Management Area – (i) Area restrictions. From November 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Stellwagen Bank Management Area, unless the gillnet gear is equipped with pingers in accordance with paragraphs (b) and (c) of this section. This restriction does not apply to vessels fishing with a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Stellwagen Bank Management Area is bounded by straight lines connecting the following points in the order stated:


Stellwagen Bank Management Area

Point
N. Lat.
W. Long.
SB142°30.0′70°30.0′
SB242°30.0′70°15.0′
SB342°15.0′70°15.0′
SB442°15.0′70°30.0′
SB142°30.0′70°30.0′

(5) Southern New England Management Area – (i) Area restrictions. From December 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Southern New England Management Area, unless the gillnet gear is equipped with pingers in accordance with paragraphs (b) and (c) of this section. This prohibition does not apply to vessels fishing with a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Southern New England Management Area is bounded by straight lines connecting the following points in the order stated:


Southern New England Management Area

Point
N. Lat.
W. Long.
SNE1Western boundary as specified
1.
SNE240°00.0′72°30.0′
SNE340°00.0′69°30.0′
SNE442°15.0′69°30.0′
SNE542°15.0′70°00.0′
SNE641°58.3′70°00.0′ (MA shoreline)


1 Bounded on the west by a line running from the Rhode Island shoreline at 41°18.2′ N. lat. and 71°51.5′ W. long. (Watch Hill, RI), southwesterly through Fishers Island, NY, to Race Point, Fishers Island, NY; and from Race Point, Fishers Island, NY; southeasterly to the intersection of the 3-nautical mile line east of Montauk Point; southwesterly along the 3-nautical mile line to the intersection of 72°30.0′ W. long.


(6) Cape Cod South Closure Area – (i) Area restrictions. From March 1 through March 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Cape Cod South Closure Area. This prohibition does not apply to vessels fishing with a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Cape Cod South Closure Area is bounded by straight lines connecting the following points in the order stated:


Cape Cod South Closure Area

Point
N. Lat.
W. Long.
CCS141°19.6′71°45.0′ (RI shoreline)
CCS240°40.0′71°45.0′
CCS340°40.0′70°30.0′
CCS441°20.9′70°30.0′
CCS541°23.1′70°30.0′
CCS641°33.1′70°30.0′ (MA shoreline)

(7) Offshore Management Area – (i) Area restrictions. From November 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Offshore Management Area, unless the gillnet gear is equipped with pingers in accordance with paragraphs (b) and (c) of this section. This restriction does not apply to vessels fishing with a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Offshore Management Area is bounded by straight lines connecting the following points in the order stated:


Offshore Management Area

Point
N. Lat.
W. Long.
OFS142°50.0′69°30.0′
OFS243°10.0′69°10.0′
OFS343°10.0′67°40.0′
OFS443°05.8′67°40.0′ (EEZ boundary)
OFS542°53.1′67°44.5′ (EEZ boundary)
OFS642°47.3′67°40.0′ (EEZ boundary)
OFS742°10.0′67°40.0′
OFS842°10.0′69°30.0′
OFS142°50.0′69°30.0′

(8) Cashes Ledge Closure Area – (i) Area restrictions. During the month of February, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Cashes Ledge Closure Area. This restriction does not apply to vessels fishing with a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title).


(ii) Area boundaries. The Cashes Ledge Closure Area is bounded by straight lines connecting the following points in the order stated:


Cashes Ledge Closure Area

Point
N. Lat.
W. Long.
CL142°30.0′69°00.0′
CL242°30.0′68°30.0′
CL343°00.0′68°30.0′
CL443°00.0′69°00.0′
CL142°30.0′69°00.0′

(b) Pingers – (1) Pinger specifications. For the purposes of this subpart, a pinger is an acoustic deterrent device which, when immersed in water, broadcasts a 10 kHz (plus or minus 2 kHz) sound at 132 dB (plus or minus 4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (plus or minus 15 milliseconds), and repeating every 4 seconds (plus or minus 0.2 seconds).


(2) Pinger attachment. An operating and functional pinger must be attached at each end of a string of gillnets and at the bridle of every net, or every 300 feet (91.4 m or 50 fathoms), whichever is closer.


(c) Pinger training and authorization. The operator of a vessel may not fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies in closed areas where pingers are required as specified under paragraph (b) of this section, unless the operator has satisfactorily received pinger training and possesses and retains on board the vessel a valid pinger training authorization issued by NMFS.


(d) [Reserved]


(e) Research permits. An exemption to the requirements set forth in this section may be acquired for the purposes of conducting scientific or gear research within the restricted areas described in this section. A scientific research permit must be acquired through NMFS’s existing permit application process, administered by NMFS.


(f) Other special measures. The Assistant Administrator may, after consultation with the Take Reduction Team, revise the requirements of this section through notification published in the Federal Register if:


(1) NMFS determines that pinger operating effectiveness in the commercial fishery is inadequate to reduce bycatch below the stock’s PBR level.


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


[75 FR 7396, Feb. 19, 2010, as amended at 78 FR 61826, Oct. 4, 2013]


§ 229.34 Harbor Porpoise Take Reduction Plan Regulations – Mid-Atlantic.

(a)(1) Regulated waters. The regulations in this section apply to all waters in the Mid-Atlantic bounded on the east by 72°30′ W. long. at the southern coast of Long Island, NY at 40°50.1′ N. lat. and on the south by the NC/SC border (33°51.1′ N. lat.), except for the areas exempted in paragraph (a)(2) of this section.


(2) Exempted waters. The regulations within this section are not applicable to waters landward of the first bridge over any embayment, harbor, or inlet, or to waters landward of the following lines:


New York

40°45.70′ N., 72°45.15′ W. to 40°45.72′ N., 72°45.30′ W. (Moriches Bay Inlet)

40°37.32′ N., 73°18.40′ W. to 40°38.00′ N., 73°18.56′ W. (Fire Island Inlet)

40°34.40′ N., 73°34.55′ W. to 40°35.08′ N., 73°35.22′ W. (Jones Inlet)

New Jersey/Delaware

39°45.90′ N., 74°05.90′ W. to 39°45.15′ N., 74°06.20′ W. (Barnegat Inlet)

39°30.70′ N., 74°16.70′ W. to 39°26.30′ N., 74°19.75′ W. (Beach Haven to Brigantine Inlet)

38°56.20′ N., 74°51.70′ W. to 38°56.20′ N., 74°51.90′ W. (Cape May Inlet)

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


Maryland/Virginia

38°19.48′ N., 75°05.10′ W. to 38°19.35′ N., 75°05.25′ W. (Ocean City Inlet)

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


37°11.10′ N., 75°49.30′ W. to 37°10.65′ N., 75°49.60′ W. (Little Inlet)

37°07.00′ N., 75°53.75′ W. to 37°05.30′ N., 75°56.′ W. (Smith Island Inlet)

North Carolina

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


(b) Restrictions – (1) Waters off New Jersey Management Area. The Waters off New Jersey Management Area is bounded by straight lines connecting the following points in the order stated:


Waters Off New Jersey Management Area

Point
N. Lat.
W. Long.
WNJ140°50.1′72°30.0′ (NY shoreline)
WNJ238°47.0′72°30.0′
WNJ338°47.0′75°05.0′ (DE shoreline)

(i) Closure. From April 1 through April 20, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear from the Waters off New Jersey Management Area.


(ii) Gear limitations and requirements – large mesh gillnet gear. From January 1 through April 30, except during April 1 through April 20, as described in paragraph (b)(1)(i) of this section, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear in the Waters off New Jersey Management Area, unless the gear complies with the specified gear characteristics described in paragraphs (b)(1)(ii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Waters off New Jersey Management Area with large mesh gillnet gear on board, unless the gear complies with the specified gear characteristics described in paragraphs (b)(1)(ii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 4,800 ft (1,463.0 m).


(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.44 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel, or deployed by the vessel, does not exceed 80.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 16.


(F) Tie-down system. The gillnet gear is equipped with tie-downs spaced not more than 24 ft (7.3 m) apart along the floatline, and each tie-down is not more than 48 inches (18.90 cm) in length from the point where it connects to the floatline to the point where it connects to the lead line.


(iii) Gear limitations and requirements – small mesh gillnet gear. From January 1 through April 30, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any small mesh gillnet gear in the Waters off New Jersey Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(1)(iii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Waters off New Jersey Management Area with small mesh gillnet gear on board, unless the gear complies with the specified gear characteristics described in paragraphs (b)(1)(iii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 3,000 ft (914.4 m) in length.


(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 45.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 10.


(F) Tie-down system. Tie-downs are prohibited.


(2) Mudhole North Management Area. The Mudhole North Management Area is bounded by straight lines connecting the following points in the order stated:


Mudhole North Management Area

Point
N. Lat.
W. Long.
MN140°28.1′74°00.0′ (NJ shoreline)
MN240°30.0′74°00.0′
MN340°30.0′73°20.0′
MN440°05.0′73°20.0′
MN540°05.0′74°02.0′ (NJ shoreline)

(i) Closures. From February 15 through March 15, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large or small mesh gillnet gear from the Mudhole North Management Area. In addition, from April 1 through April 20, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear from the Mudhole North Management Area.


(ii) Gear limitations and requirements – large mesh gillnet gear. From January 1 through April 30, except during February 15 through March 15 and April 1 through April 20 as described in paragraph (b)(2)(i) of this section, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear in the Mudhole North Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(2)(ii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Mudhole North Management Area with large mesh gillnet gear on board, unless the gear complies with the specified gear characteristics described in paragraphs (b)(2)(ii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 3,900 ft (1,188.7 m).


(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.44 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 80.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 13.


(F) Tie-down system. The gillnet gear is equipped with tie-downs spaced not more than 24 ft (7.3 m) apart along the floatline, and each tie-down is not more than 48 inches (18.90 cm) in length from the point where it connects to the floatline to the point where it connects to the lead line.


(iii) Gear limitations and requirements – small mesh gillnet gear. From January 1 through April 30, except during February 15 through March 15 as described in paragraph (b)(2)(i) of this section, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any small mesh gillnet gear in the Mudhole North Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(2)(iii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Mudhole North Management Area with small mesh gillnet gear on board unless the gear complies with the specified gear characteristics described in paragraphs (b)(2)(iii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 3,000 ft (914.4 m) in length.


(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 45.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 10.


(F) Tie-down system. Tie-downs are prohibited.


(3) Mudhole South Management Area. The Mudhole South Management Area is bounded by straight lines connecting the following points in the order stated:


Mudhole South Management Area

Point
N. Lat.
W. Long.
MS140°05.0′73°31.0′
MS240°05.0′73°00.0′
MS339°51.0′73°00.0′
MS439°51.0′73°31.0′
MS140°05.0′73°31.0′

(i) Closures. From February 1 through March 15, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large or small mesh gillnet gear in the Mudhole South Management Area. In addition, from April 1 through April 20, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear from the Mudhole South Management Area.


(ii) Gear limitations and requirements – large mesh gillnet gear. From January 1 through April 30, except during February 1 through March 15 and April 1 through April 20 as described in paragraph (b)(3)(i) of this section, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear in the Mudhole South Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(3)(ii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Mudhole South Management Area with large mesh gillnet gear on board, unless the gear complies with the specified gear characteristics described in paragraphs (b)(3)(ii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 3,900 ft (1,188.7 m).


(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.44 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 80.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 13.


(F) Tie-down system. The gillnet gear is equipped with tie-downs spaced not more than 24 ft (7.3 m) apart along the floatline, and each tie-down is not more than 48 inches (18.90 cm) in length from the point where it connects to the floatline to the point where it connects to the lead line.


(iii) Gear limitations and requirements – small mesh gillnet gear. From January 1 through April 30 of each year, except during February 1 through March 15 as described in paragraph (b)(3)(i) of this section, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any small mesh gillnet gear in the Mudhole South Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(3)(iii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Mudhole South Management Area with small mesh gillnet gear on board unless the gear complies with the specified gear characteristics described in paragraphs (b)(3)(iii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 3,000 ft (914.4 m) in length.


(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 45.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 10.


(F) Tie-down system. Tie-downs are prohibited.


(4) Southern Mid-Atlantic Management Area. The Southern Mid-Atlantic Management Area is bounded by straight lines connecting the following points in the order stated:


Southern Mid-Atlantic Management Area

Point
N. Lat.
W. Long.
SMA138°47.0′75°05.0′ (DE shoreline)
SMA238°47.0′72°30.0′
SMA333°51.1′72°30.0′
SMA433°51.1′78°32.5′ (NC/SC border)

(i) Closures. From February 15 through March 15, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear from the Southern Mid-Atlantic Management Area.


(ii) Gear limitations and requirements – large mesh gillnet gear. From February 1 through April 30, except during February 15 through March 15 as described in paragraph (b)(4)(i) of this section, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any large mesh gillnet gear in the Southern Mid-Atlantic Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(4)(ii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Southern Mid-Atlantic Management Area with large mesh gillnet gear on board, unless the gear complies with the specified gear characteristics described in paragraphs (b)(4)(ii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is not more than 3,900 ft (1,188.7 m) in length.


(B) Twine size. The twine is at least 0.035 inches (0.90 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 80.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 13.


(F) Tie-down system. The gillnet gear is equipped with tie-downs spaced not more than 24 ft (7.3 m) apart along the floatline, and each tie-down is not more than 48 inches (18.90 cm) in length from the point where it connects to the floatline to the point where it connects to the lead line.


(iii) Gear limitations and requirements – small mesh gillnet gear. From February 1 through April 30, no person may fish with, set, haul back, possess on board a vessel unless stowed in accordance with § 229.2, or fail to remove any small mesh gillnet gear in the Southern Mid-Atlantic Management Area unless the gear complies with the specified gear characteristics described in paragraphs (b)(4)(iii)(A) through (F) of this section. During this period, no vessel may enter or remain in the Southern Mid-Atlantic Management Area with small mesh gillnet gear on board, unless the gear complies with the specified gear characteristics described in paragraphs (b)(4)(iii)(A) through (F) of this section, or is stowed in accordance with § 229.2. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:


(A) Floatline length. The floatline is no longer than 2,118 ft (645.6 m).


(B) Twine size. The twine is at least 0.031 inches (0.81 mm) in diameter.


(C) Size of nets. Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.


(D) Number of nets. The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 45.


(E) Number of nets per string. The total number of nets or net panels in a net string does not exceed 7.


(F) Tie-down system. Tie-downs are prohibited.


(c) Research permits. An exemption to the requirements set forth in this section may be acquired for the purposes of conducting scientific or gear research within the restricted areas described in this section. A scientific research permit must be acquired through NMFS’ existing permit application process, administered by NMFS.


(d) Other special measures. The Assistant Administrator may revise the requirements of this section through notification published in the Federal Register if NMFS determines that the boundary or timing of a closed area is inappropriate, or that gear modifications are not reducing bycatch to below the stock’s PBR level.


[75 FR 7399, Feb. 19, 2010]


§ 229.35 Bottlenose Dolphin Take Reduction Plan.

(a) Purpose and scope. The purpose of this section is to implement the Bottlenose Dolphin Take Reduction Plan (BDTRP) to reduce incidental mortality and serious injury of strategic stocks of bottlenose dolphins within the Western North Atlantic coastal morphotype in specific Category I and II commercial fisheries from New Jersey through Florida. Specific Category I and II commercial fisheries within the scope of the BDTRP are indentified and updated in the annual List of Fisheries. Gear restricted by this section includes small, medium, and large mesh gillnets and pound nets. The geographic scope of the BDTRP is all tidal and marine waters within 6.5 nautical miles (12 km) of shore from the New York-New Jersey border southward to Cape Hatteras, North Carolina, and within 14.6 nautical miles (27 km) of shore from Cape Hatteras, southward to, and including the east coast of Florida down to the fishery management council demarcation line between the Atlantic Ocean and the Gulf of Mexico (as described in § 600.105 of this title).


(b) Definitions. In addition to the definitions contained in the Act, §§ 216.3 and 229.2 of this chapter, the terms defined in this section shall have the following definitions, even if a contrary definition exists in the Act, § 216.3, or § 229.2:


Beach means landward of and including the mean low water line.


Beach/water interface means the mean low water line.


Bottlenose Dolphin Pound Net Regulated Area means all Virginia marine waters of the Atlantic Ocean within 3 nautical miles (5.56 km) of shoreline and all adjacent tidal waters, bounded on the north by 38°01.6′ N. (Maryland/Virginia border) and on the south by 36°33′ N (Virginia/North Carolina border); and all southern Virginia waters of the mainstem Chesapeake Bay bounded on the south and west by the Hampton Roads Bridge Tunnel across the James River and the Coleman Memorial Bridge across the York River; and north and east by the following points connected by straight lines in the order listed:


Point
Area description
1Where 37°19.0′ N. lat. meets the shoreline of the Severn River fork, near Stump Point, Virginia (western portion of Mobjack Bay), which is approximately 76°26.75′ W. long.
237°19.0′ N. lat., 76°13.0′ W. long.
337°13.0′ N. lat., 76°13.0′ W. long.
4Where 37°13.0′ N. lat. meets the eastern shoreline of Chesapeake Bay, Virginia, near Elliotts Creek, which is approximately 76°00.75′ W. long.

Large mesh gillnet means a gillnet constructed with a mesh size greater than or equal to 7-inches (17.8 cm) stretched mesh.


Medium mesh gillnet means a gillnet constructed with a mesh size of greater than 5-inches (12.7 cm) to less than 7-inches (17.8 cm) stretched mesh.


New Jersey, Delaware, and Maryland State waters means the area consisting of all marine and tidal waters, within 3 nautical miles (5.56 km) of shore, bounded on the north by 40o 30′ N. (New York/New Jersey border at the coast) and on the south by 38o 01.6′ N. (Maryland/Virginia border at the coast).


Night means any time between one hour after sunset and one hour prior to sunrise.


Northern North Carolina State waters means the area consisting of all marine and tidal waters, within 3 nautical miles (5.56 km) of shore, bounded on the north by 36° 33′ N. (Virginia/North Carolina border at the coast) and on the south by 34° 35.4′ N. (Cape Lookout, North Carolina).


Northern Virginia State waters means the area consisting of all marine and tidal waters, within 3 nautical miles (5.56 km) of shore, bounded on the north by 38° 01.6′ N. (Virginia/Maryland border at the coast) and on the south by 37° 07.23′ N. (Cape Charles Light on Smith Island in the Chesapeake Bay mouth).


Small mesh gillnet means a gillnet constructed with a mesh size of less than or equal to 5-inches (12.7 cm) stretched mesh.


South Carolina, Georgia, and Florida waters means the area consisting of all marine and tidal waters, within 14.6 nautical miles (27 km) of shore, bounded on the north by a line extending in a direction of 135°34′55″ from true north from the North Carolina/South Carolina border at 33°51′07.9″ N. and 78°32′32.6″ W., and on the south by the fishery management council demarcation line between the Atlantic Ocean and the Gulf of Mexico (as described in § 600.105 of this title).


Southern North Carolina State waters means the area consisting of all marine and tidal waters, within 3 nautical miles (5.56 km) of shore, bounded on the north by 34°35.4′ N. (Cape Lookout, North Carolina), and on the south by a line extending in a direction of 135°34′55″ from true north from the North Carolina/South Carolina border at 33°51′07.9″ N. and 78°32′32.6″ W.


Southern Virginia State waters means the area consisting of all marine and tidal waters, within 3 nautical miles (5.56 km) of shore, bounded on the north by 37° 07.23′ N. (Cape Charles Light on Smith Island in the Chesapeake Bay mouth) and on the south by 36° 33′ N. (Virginia/North Carolina border at the coast).


(c) BDTRP regulated waters – (1) Gillnets. The regulations pertaining to gillnets in this section apply to New Jersey, Delaware, and Maryland State waters; Northern North Carolina State waters; Northern Virginia State waters; South Carolina, Georgia, and Florida waters; Southern North Carolina State waters; and Southern Virginia State waters as defined in § 229.35(b), except for the waters identified in § 229.34(a)(2), with the following modification and addition. From Chincoteague to Ship Shoal Inlet in Virginia (37° 52′ N. 75° 24.30′ W. to 37° 11.90′ N. 75° 48.30′ W) and South Carolina, Georgia, and Florida waters, those waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by the National Oceanic and Atmospheric Administration (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80 are excluded from the regulations.


(2) Pound nets. The regulations pertaining to pound nets in this section apply to the Bottlenose Dolphin Pound Net Regulated Area.


(d) Regional management measures – (1) New Jersey, Delaware, and Maryland State waters – (i) Medium and large mesh gillnets. From June 1 through October 31, in New Jersey, Delaware, and Maryland state waters, no person may fish with any medium or large mesh anchored gillnet gear at night unless such person remains within 0.5 nautical mile (0.93 km) of the closest portion of each gillnet and removes all such gear from the water and stows it on board the vessel before the vessel returns to port.


(ii) [Reserved]


(2) Virginia state waters – (i) Medium and large mesh gillnets. From June 1 through October 31, in Southern Virginia State waters and Northern Virginia State waters, no person may fish with any medium or large mesh anchored gillnet gear at night unless such person remains within 0.5 nautical mile (0.93 km) of the closest portion of each gillnet and removes all such gear from the water and stows it on board the vessel before the vessel returns to port.


(ii) Pound nets. (A) Year-round, any offshore pound net in the Bottlenose Dolphin Pound Net Regulated Area must use a modified pound net leader.


(B) Year-round, any nearshore and offshore pound nets set in the Bottlenose Dolphin Pound Net Regulated Area must have all three continuous sections as defined in 50 CFR 229.2, except that one or more sections may be missing for a maximum period of 10 days for purposes of setting, removing, and/or repairing pound nets.


(C) The pound net licensee and the vessel operator of any offshore pound net set in the Bottlenose Dolphin Pound Net Regulated Area must have completed modified pound net leader compliance training and possess on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS. NMFS retains discretion to provide exemptions in limited circumstances where appropriate. Notice will be given by NMFS announcing the times and locations of modified pound net leader compliance training.


(3) Southern Virginia State waters – (i) Large mesh gillnets. From November 1 through December 31, in Southern Virginia State waters, no person may fish with, possess on board a vessel unless stowed, or fail to remove from the water, any large mesh gillnet gear at night.


(ii) [Reserved]


(4) Northern North Carolina State waters – (i) Small mesh gillnets. From May 1 through October 31, in Northern North Carolina State waters, no person may fish with any small mesh gillnet gear longer than 1,000 feet (304.8 m).


(ii) Medium mesh gillnets. From November 1 through April 30 of the following year, in Northern North Carolina State waters, no person may fish with any medium mesh gillnet at night.


(iii) Large mesh gillnets. (A) From April 15 through December 15, in Northern North Carolina State waters, no person may fish with any large mesh gillnet.


(B) From December 16 through April 14 of the following year, in Northern North Carolina State waters, no person may fish with any large mesh gillnet without tie-downs at night.


(5) Southern North Carolina State waters – (i) Medium mesh gillnets. From November 1 through April 30 of the following year, in Southern North Carolina State waters, no person may fish with any medium mesh gillnet at night.


(ii) Large mesh gillnets. (A) From April 15 through December 15, in Southern North Carolina State waters, no person may fish with any large mesh gillnet.


(B) From December 16 through April 14 of the following year, in Southern North Carolina State waters, no person may fish, possess on board unless stowed, or fail to remove from the water, any large mesh gillnet at night.


(6) South Carolina, Georgia, and Florida waters – (i) Gillnets. Year-round, in South Carolina, Georgia, and Florida waters, no person may fish with any gillnet gear unless such person remains within 0.25 nautical miles (0.46 km) of the closest portion of the gillnet. Gear shall be removed from the water and stowed on board the vessel before the vessel returns to port.


(ii) [Reserved]


[71 FR 24796, Apr. 26, 2006, as amended at 73 FR 77533, Dec. 19, 2008; 77 FR 45270, July 31, 2012; 80 FR 6929, Feb. 9, 2015]


§ 229.36 Atlantic Pelagic Longline Take Reduction Plan (PLTRP).

(a) Purpose and scope. The purpose of this section is to implement the PLTRP to reduce incidental mortality and serious injury of long-finned and short-finned pilot whales and Risso’s dolphins in the Atlantic pelagic longline fishery off the U.S. east coast, a component of the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery.


(1) Persons subject to this section. The regulations in this section apply to the owner and operator of any vessel that has been issued or is required to be issued an Atlantic HMS tunas, swordfish, or shark permit under § 635.4 of this title and that has pelagic longline gear onboard as described under § 635.21(c) of this title.


(2) Geographic scope. The geographic scope of the PLTRP is the Atlantic Federal EEZ off the U.S. East Coast. The regulations specified in paragraphs (b) through (d) of this section apply throughout the Atlantic Federal EEZ off the U.S. East Coast. The regulation specified in paragraph (e) of this section applies to all U.S. Atlantic pelagic longline vessels operating in the EEZ portion of the Mid-Atlantic Bight.


(b) Definitions. In addition to the definitions contained in the MMPA and §§ 216.3 and 229.2 of this chapter, the following definitions apply.


(1) Cape Hatteras Special Research Area (CHSRA) means all waters inside and including the rectangular boundary described by the following lines: 35° N. lat., 75° W. long., 36° 25′ N. lat., and 74° 35′ W. long.


(2) Mid-Atlantic Bight means the area bounded by straight lines connecting the mid-Atlantic states’ internal waters and extending to 71° W. long. between 35° N. lat. and 43° N. lat.


(3) Observer means an individual authorized by NMFS, or a designated contractor, placed aboard a commercial fishing vessel to record information on marine mammal interactions, fishing operations, marine mammal life history information, and other scientific data; to collect biological specimens; and to perform other scientific investigations.


(4) Pelagic longline has the same meaning as in § 635.2 of this title.


(c) Marine Mammal Handling and Release Placard. The placard, “Marine Mammal Handling/Release Guidelines: A Quick Reference for Atlantic Pelagic Longline Gear,” must be kept posted inside the wheelhouse and on the working deck. You may contact the NMFS Southeast Regional Office at (727) 824-5312 to request additional copies of the placard.


(d) CHSRA – (1) Special observer requirements. If you deploy or fish with pelagic longline gear in the CHSRA, or intend to do so, you must call NMFS Southeast Fisheries Science Center (SEFSC), 1-888-254-2558, at least 48 hours, but no more than 96 hours, prior to embarking on your fishing trip. This requirement is in addition to any existing selection and notification requirement for observer coverage by the Pelagic Observer Program. If, upon calling in, you are informed by the NMFS SEFSC that no observer will be assigned and that no special research requirements will apply for that trip, then you need not wait until your stated date and time of departure and may depart on your fishing trip immediately. If you are assigned an observer, you must take the observer during that fishing trip. If you do not take the observer, you are prohibited from deploying or fishing with pelagic longline gear in the CHSRA for that fishing trip. You must comply with all provisions of § 229.7, Monitoring of incidental mortalities and serious injuries. In addition, all provisions of 50 CFR 600.746, Observers, apply. No waivers will be granted under § 229.7(c)(3) or § 600.746(f). A vessel that would otherwise be required to carry an observer, but is inadequate or unsafe for purposes of carrying an observer and for allowing operation of normal observer functions, is prohibited from deploying or fishing with pelagic longline gear in the CHSRA.


(2) Special research requirements. In addition to observing normal fishing activities, observers may conduct additional scientific investigations aboard your vessel designed to support the goals of the PLTRP. The observer will inform you of the specific additional investigations that may be conducted during your trip. An observer may direct you to modify your fishing behavior, gear, or both. Instead of carrying an observer, you may be required to carry and deploy gear provided by NMFS or an observer or modify your fishing practices. By calling in per § 229.36(d)(1), you are agreeing to take an observer. You are also acknowledging you are both willing and able to participate in research, as per this paragraph, in the CHSRA consistent with the PLTRP without any compensation. If you are assigned any special research requirements, you must participate in the research for the duration of the assignment. If you do not participate in the research, you are prohibited from deploying or fishing with pelagic longline gear in the CHSRA for that fishing trip.


(3) Exception for transit. If pelagic longline gear is appropriately stowed, a vessel may transit through the CHSRA without meeting the observer and research requirements specified in § 229.36(d)(1) and § 229.36(d)(2). For the purpose of this paragraph, transit means non-stop progression through the area. Pelagic longline gear is appropriately stowed if all gangions, hooks, and buoys are disconnected from the mainline; hooks are not baited; longline left on the drum is covered with a tarp; and all other gear components are either stowed below deck or secured on deck and covered with a tarp.


(e) Gear restrictions. No person may deploy a pelagic longline that exceeds 20 nautical miles (nm) (37.04 km) in length in the Mid-Atlantic Bight, including in the CHSRA, unless they have a written letter of authorization from the Director, NMFS Southeast Fishery Science Center to use a pelagic longline exceeding 20 nm (37.04 km) in the CHSRA in support research for reducing bycatch of marine mammals in the pelagic longline fishery.


[74 FR 23358, May 19, 2009]


§ 229.37 False Killer Whale Take Reduction Plan.

(a) Purpose and scope. The purpose of this section is to implement the False Killer Whale Take Reduction Plan to reduce mortality and serious injury of the Hawaii Pelagic and Hawaii Insular stocks of false killer whales in the Hawaii-based deep-set and shallow-set pelagic longline fisheries. The requirements in this section apply to vessel owners and operators, and vessels registered for use with Hawaii longline limited access permits issued under § 665.801(b) of this title.


(b) Definitions. In addition to the definitions contained in § 229.2, terms in this section have the following meanings:


(1) Deep-set or Deep-setting has the same meaning as the definition at § 665.800 of this title.


(2) Longline gear has the same meaning as the definition at § 665.800 of this title.


(c) Gear requirements. (1) While deep-setting, the owner and operator of a vessel registered for use under a Hawaii longline limited access permit must use only hooks meeting the following specifications:


(i) Circle hook with hook shank containing round wire that can be measured with a caliper or other appropriate gauge, with a wire diameter not to exceed 4.5 mm (0.177 in); and


(ii) Offset not to exceed 10 degrees.


(2) While deep-setting, owners and operators of vessels registered for use under a valid Hawaii longline limited access permit must use leaders and branch lines that all have a diameter of 2.0 mm or larger if the leaders and branch lines are made of monofilament nylon. If any other material is used for a leader or branch line, that material must have a breaking strength of at least 400 lb (181 kg).


(d) Prohibited area management. (1) Main Hawaiian Islands Longline Fishing Prohibited Area. Longline fishing is prohibited in the portion of the EEZ around Hawaii bounded by straight lines connecting the following coordinated in the order listed:


Point
N. lat.
W. long.
A18°05′155°40′
B18°20′156°25′
C20°00′157°30′
D20°40′161°40′
E21°40′161°55′
F23°00′161°30′
G23°05′159°30′
H22°55′157°30′
I21°30′155°30′
J19°50′153°50′
K19°00′154°05′
A18°05′155°40′

(2) Southern Exclusion Zone. Deep-set longline fishing is prohibited in the Southern Exclusion Zone when the zone is closed to protect false killer whales pursuant to the procedures outlined in paragraph (e) of this section. The Southern Exclusion Zone is the portion of the EEZ around Hawaii bounded by 165° 00′ W. longitude on the west, 154° 30′ W. longitude on the east, the Papahanaumokuakea Marine National Monument and the Main Hawaiian Islands Longline Fishing Prohibited Area on the north, and the EEZ boundary on the south.


(e) Southern Exclusion Zone trigger and procedures. (1) The Assistant Administrator will publish in the Federal Register the expected observer coverage for a fishing year, the potential biological removal level for the Hawaii Pelagic stock of false killer whales, and the associated trigger calculated using the specifications in paragraph (e)(2) of this section. This trigger will remain in effect until superseded by publication of a revised trigger.


(2) As used in this section, trigger means the number of observed false killer whale mortalities or serious injuries in the deep-set longline fishery that occur in the EEZ around Hawaii, and that serves as the bycatch threshold for closing the Southern Exclusion Zone to deep-set longline fishing. The trigger is calculated as the larger of these two values:


(i) Two; or


(ii) The smallest number of observed false killer whale mortalities or serious injuries that, when extrapolated based on the percentage observer coverage in the deep-set longline fishery for that year, exceeds the Hawaii Pelagic false killer whale stock’s potential biological removal level.


(3) Unless otherwise subject to paragraph (e)(4) of this section, if there is an observed false killer whale mortality or serious injury in the EEZ around Hawaii on a declared deep-set longline trip that meets the established trigger for a given fishing year, the Southern Exclusion Zone will be closed to deep-set longline fishing until the end of that fishing year.


(4) If during the same calendar year following closure of the Southern Exclusion Zone in accordance with paragraph (e)(3) of this section, there is one observed false killer whale mortality or serious injury on a declared deep-set longline trip anywhere in the EEZ around Hawaii, then NMFS shall immediately convene the False Killer Whale Take Reduction Team.


(5) If in the subsequent calendar year following closure of the Southern Exclusion Zone in accordance with paragraph (e)(3) of this section, there is an observed false killer whale mortality or serious injury in the EEZ around Hawaii on a declared deep-set longline trip that meets the established trigger for a given fishing year, the Southern Exclusion Zone will be closed to deep-set longline fishing until the area is reopened by the Assistant Administrator as per criteria in paragraph (e)(7) of this section.


(6) Upon determining that closing the Southern Exclusion Zone is warranted pursuant to the procedures in paragraphs (e)(1) through (e)(5) of this section, the Assistant Administrator will provide notice to Hawaii longline permit holders and the False Killer Whale Take Reduction Team, publish a notice in the Federal Register, and post information on the NMFS Pacific Islands Regional Office web site. The notice will announce that the fishery will be closed beginning at a specified date, which is not earlier than 7 days and not later than 15 days, after the date of filing the closure notice for public inspection at the Office of the Federal Register.


(7) Reopening criteria. If the Southern Exclusion Zone is closed pursuant to the procedure in paragraphs (e)(1) through (e)(6) of this section, the Assistant Administrator would reopen the Southern Exclusion Zone if one or more of the follow criteria were met:


(i) The Assistant Administrator determines, upon consideration of the False Killer Whale Take Reduction Team’s recommendations and evaluation of all relevant circumstances, that reopening of the Southern Exclusion Zone is warranted;


(ii) In the 2-year period immediately following the date of the Southern Exclusion Zone closure, the deep-set longline fishery has zero observed false killer whale incidental mortalities and serious injuries within the remaining open areas of the EEZ around Hawaii;


(iii) In the 2-year period immediately following the date of the closure, the deep-set longline fishery has reduced its total rate of false killer whale incidental mortality and serious injury (including the EEZ around Hawaii, the high seas, and the EEZ around Johnston Atoll (but not Palmyra Atoll) by an amount equal to or greater than the rate that would be required to reduce false killer whale incidental mortality and serious injury within the EEZ around Hawaii to below the Hawaii Pelagic false killer whale stock’s potential biological removal level; or


(iv) The average estimated level of false killer whale incidental mortality and serious injury in the deep-set longline fishery within the remaining open areas of the EEZ around Hawaii for up to the 5 most recent years is below the potential biological removal level for the Hawaii Pelagic stock of false killer whales at that time.


(8) Upon determining that reopening the Southern Exclusion Zone is warranted pursuant to the procedures in paragraph (e)(7) of this section, the Assistant Administrator will provide notice to Hawaii longline permit holders and the False Killer Whale Take Reduction Team, publish a notice in the Federal Register, and post information on the NMFS Pacific Islands Regional Office web site. The notice will announce that the fishery will be reopened beginning at a specified date, which is not earlier than 7 days and not later than 15 days, after the date of filing the closure notice for public inspection at the Office of the Federal Register.


(f) Marine mammal handling and release. (1) Each year, both the owner and the operator of a vessel registered for use with a longline permit issued under § 665.801 of this title must attend and be certified for completion of a workshop conducted by NMFS on interaction mitigation techniques for sea turtles, seabirds, and marine mammals, as required under § 665.814 of this title.


(2) Longline vessel operators (captains) must supervise and be in visual and/or verbal contact with the crew during any handling or release of marine mammals.


(3) A NMFS-approved placard setting forth marine mammal handling and/or release procedures must be posted on the longline vessel in a conspicuous place that is regularly accessible and visible to the crew.


(4) A NMFS-approved placard instructing vessel crew to notify the captain in the event of a marine mammal interaction must be posted on the longline vessel in a conspicuous place that is regularly accessible and visible to the crew.


[77 FR 71285, 71286, Nov. 29, 2012, as amended at 77 FR 71286, 71286, Nov. 29, 2012]


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


[64 FR 3434, Jan. 22, 1999]


SUBCHAPTER D – WHALING

PART 230 – WHALING PROVISIONS


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


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

§ 230.1 Purpose and scope.

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


§ 230.2 Definitions.

Aboriginal subsistence whaling means whaling authorized by paragraph 13 of the Schedule annexed to and constituting a part of the Convention.


Assistant Administrator means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration.


Authorized officer means:


(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard;


(2) Any special agent or enforcement officer of the National Marine Fisheries Service;


(3) Any officer designated by the head of a Federal or state agency that has entered into an agreement with the Secretary of Commerce or the Commandant of the Coast Guard to enforce the provisions of the Whaling Convention Act; or


(4) Any Coast Guard personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.


Calf means any whale less than 1 year old or having milk in its stomach.


Commission means the International Whaling Commission established by article III of the Convention.


Convention means the International Convention for the Regulation of Whaling signed at Washington on December 2, 1946.


Cooperative agreement means a written agreement between the National Oceanic and Atmospheric Administration and a Native American whaling organization for the cooperative management of aboriginal subsistence whaling operations.


Landing means bringing a whale or any parts thereof onto the ice or land in the course of whaling operations.


Native American whaling organization means an entity recognized by the National Oceanic and Atmospheric Administration as representing and governing Native American whalers for the purposes of cooperative management of aboriginal subsistence whaling.


Regulations of the Commission means the regulations in the Schedule annexed to and constituting a part of the Convention, as modified, revised, or amended by the Commission from time to time.


Stinker means a dead, unclaimed whale found upon a beach, stranded in shallow water, or floating at sea.


Strike means hitting a whale with a harpoon, lance, or explosive device.


Wasteful manner means a method of whaling that is not likely to result in the landing of a struck whale or that does not include all reasonable efforts to retrieve the whale.


Whale products means any unprocessed part of a whale and blubber, meat, bones, whale oil, sperm oil, spermaceti, meal, and baleen.


Whaling means the scouting for, hunting, striking, killing, flensing, or landing of a whale, and the processing of whales or whale products.


Whaling captain or captain means any Native American who is authorized by a Native American whaling organization to be in charge of a vessel and whaling crew.


Whaling crew means those Native Americans under the control of a captain.


Whaling village means any U.S. village recognized by the Commission as having a cultural and/or subsistence need for whaling.


§ 230.3 General prohibitions.

(a) No person shall engage in whaling in a manner that violates the Convention, any regulation of the Commission, or this part.


(b) No person shall engage in whaling without first having obtained a license or scientific research permit issued by the Assistant Administrator.


(c) No person shall ship, transport, purchase, sell, offer for sale, import, export, or possess any whale or whale products taken or processed in violation of the Convention, any regulation of the Commission, or this part, except as specified in § 230.4(f).


(d) No person shall fail to make, keep, submit, or furnish any record or report required of him/her by the Convention, any regulation of the Commission, or this part.


(e) No person shall refuse to permit any authorized officer to enforce the Convention, any regulation of the Commission, or this part.


§ 230.4 Aboriginal subsistence whaling.

(a) No person shall engage in aboriginal subsistence whaling, except a whaling captain licensed pursuant to § 230.5 or a member of a whaling crew under the control of a licensed captain.


(b) No whaling captain shall engage in whaling that is not in accordance with the regulations of the Commission, this part, and the relevant cooperative agreement.


(c) No whaling captain shall engage in whaling for any calf or any whale accompanied by a calf.


(d) No whaling captain shall engage in whaling without an adequate crew or without adequate supplies and equipment.


(e) No person may receive money for participation in aboriginal subsistence whaling.


(f) No person may sell or offer for sale whale products from whales taken in an aboriginal subsistence hunt, except that authentic articles of Native handicrafts may be sold or offered for sale.


(g) No whaling captain shall continue to whale after:


(1) The quota set for his/her village by the relevant Native American whaling organization is reached;


(2) The license under which he/she is whaling is suspended as provided in § 230.5(b); or


(3) The whaling season for that species has been closed pursuant to § 230.6.


(h) No whaling captain shall claim domicile in more than one whaling village.


(i) No person may salvage a stinker without complying with the provisions of § 230.7.


(j) No whaling captain shall engage in whaling with a harpoon, lance, or explosive dart that does not bear a permanent distinctive mark identifying the captain as the owner thereof.


(k) No whaling captain shall engage in whaling in a wasteful manner.


§ 230.5 Licenses for aboriginal subsistence whaling.

(a) A license is hereby issued to whaling captains identified by the relevant Native American whaling organization.


(b) The Assistant Administrator may suspend the license of any whaling captain who fails to comply with the regulations in this part.


§ 230.6 Quotas and other restrictions.

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


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


§ 230.7 Salvage of stinkers.

(a) Any person salvaging a stinker shall submit to the Assistant Administrator or his/her representative an oral or written report describing the circumstances of the salvage within 12 hours of such salvage. He/she shall provide promptly to the Assistant Administrator or his/her representative each harpoon, lance, or explosive dart found in or attached to the stinker. The device shall be returned to the owner thereof promptly, unless it is retained as evidence of a possible violation.


(b) There shall be a rebuttable presumption that a stinker has been struck by the captain whose mark appears on the harpoon, lance, or explosive dart found in or attached thereto, and, if no strike has been reported by such captain, such strike shall be deemed to have occurred at the time of recovery of the device.


§ 230.8 Reporting by whaling captains.

(a) The relevant Native American whaling organization shall require each whaling captain licensed pursuant to § 230.5 to provide a written statement of his/her name and village of domicile and a description of the distinctive marking to be placed on each harpoon, lance, and explosive dart.


(b) Each whaling captain shall provide to the relevant Native American whaling organization an oral or written report of whaling activities including but not limited to the striking, attempted striking, or landing of a whale and, where possible, specimens from landed whales. The Assistant Administrator is authorized to provide technological assistance to facilitate prompt reporting and collection of specimens from landed whales, including but not limited to ovaries, ear plugs, and baleen plates. The report shall include at least the following information:


(1) The number, dates, and locations of each strike, attempted strike, or landing.


(2) The length (taken as the straight-line measurement from the tip of the upper jaw to the notch between the tail flukes) and the sex of the whales landed.


(3) The length and sex of a fetus, if present in a landed whale.


(4) An explanation of circumstances associated with the striking or attempted striking of any whale not landed.


(c) If the relevant Native American whaling organization fails to provide the National Marine Fisheries Service the required reports, the Assistant Administrator may require the reports to be submitted by the whaling captains directly to the National Marine Fisheries Service.


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

SUBCHAPTER F – AID TO FISHERIES

PART 253 – FISHERIES ASSISTANCE PROGRAMS


Authority:46 U.S.C. 53701 and 16 U.S.C. 4101 et seq.


Source:75 FR 78623, Dec. 16, 2010, unless otherwise noted.

Subpart A – General

§ 253.1 Purpose.

(a) The regulations in this part pertain to fisheries assistance programs. Subpart B of this part governs the Fisheries Finance Program (FFP or the Program), which makes capacity neutral long-term direct fisheries and aquaculture loans. The FFP conducts all credit investigations, makes all credit determinations and holds and services all credit collateral.


(b) Subpart C of this part implements Public Law 99-659 (16 U.S.C. 4100 et seq.), which has two objectives:


(1) Promote and encourage State activities in support of the management of interjurisdictional fishery resources identified in interstate or Federal fishery management plans; and


(2) Promote and encourage management of interjurisdictional fishery resources throughout their range.


(3) The scope of this part includes guidance on making financial assistance awards to States or Interstate Commissions to undertake projects in support of management of interjurisdictional fishery resources in both the executive economic zone (EEZ) and State waters, and to encourage States to enter into enforcement agreements with either the Department of Commerce or the Department of the Interior.


Subpart B – Fisheries Finance Program

§ 253.10 General definitions.

The terms used in this subpart have the following meanings:


Act means Chapter 537 of Title 46 of the U.S. Code, (46 U.S.C. 53701-35), as may be amended from time to time.


Actual cost means the sum of all amounts for a project paid by an obligor (or related person), as well as all amounts that the Program determines the obligor will become obligated to pay, as such amounts are calculated by § 253.16.


Applicant means the individual or entity applying for a loan (the prospective obligor).


Application means the documents provided to or requested by NMFS from an applicant to apply for a loan.


Application fee means 0.5 percent of the dollar amount of financing requested.


Approval in principle letter (AIP) means a written communication from NMFS to the applicant expressing the agency’s commitment to provide financing for a project, subject to all applicable regulatory and Program requirements and in accordance with the terms and conditions contained in the AIP.


Aquaculture facility means land, structures, appurtenances, laboratories, water craft built in the U.S., and any equipment used for the hatching, caring for, or growing fish, under controlled circumstances for commercial purposes, as well as the unloading, receiving, holding, processing, or distribution of such fish.


Capital Construction Fund (CCF), as described under 46 U.S.C. 53501-17, allows owners of eligible vessels to reserve capital for replacement vessels, additional vessels, reconstruction of vessels, or reconstructed vessels, built in the United States and documented under the laws of the United States, for operation in the fisheries of the United States.


Captain means a vessel operator or a vessel master.


Charter fishing means fishing from a vessel carrying a “passenger for hire,” as defined in 46 U.S.C. 2101(21a), such passenger being engaged in recreational fishing, from whom consideration is provided as a condition of carriage on the vessel, whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person having an interest in the vessel.


Citizen means a “citizen of the United States,” as described in 46 U.S.C. 104, or an entity who is a citizen for the purpose of documenting a vessel in the coastwise trade under 46 U.S.C. 50501.


Crewman means any individual, other than a captain, a passenger for hire, or a fisheries observer working on a vessel that is engaged in fishing.


Demand means a noteholder’s request that a debtor or guarantor pay a note’s full principal and interest balance.


Facility means a fishery or an aquaculture facility.


Fish means finfish, mollusks, crustaceans and all other forms of aquatic animal and plant life, other than marine mammals and birds.


Fisheries harvest authorization means any transferable permit, license or other right, approval, or privilege to engage in fishing.


Fishery facility means land, land structures, water craft that do not engage in fishing, and equipment used for transporting, unloading, receiving, holding, processing, preserving, or distributing fish for commercial purposes (including any water craft used for charter fishing).


Fishing means:


(1) The catching, taking, or harvesting of fish;


(2) The attempted catching, taking, or harvesting of fish;


(3) Any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish;


(4) Any operations at sea in support of, or in preparation for, any activity described in paragraphs (1) through (3) of this section.


(5) Fishing does not include any scientific research activity which is conducted by a scientific research vessel.


Fishing industry for the purposes of this part, means the broad sector of the national economy comprised of persons or entities that are engaged in or substantially associated with fishing, including aquaculture, charter operators, guides, harvesters, outfitters, processors, suppliers, among others, without regard to the location of their activity or whether they are engaged in fishing for wild stocks or aquaculture.


Guarantee means a guarantor’s contractual promise to repay indebtedness if an obligor fails to repay as agreed.


Guarantee fee means one percent of a guaranteed note’s average annual unpaid principal balance.


Guaranteed note means a promissory note from an obligor to a noteholder, the repayment of which the United States guarantees.


IFQ means Individual Fishing Quota, which is a Federal permit under a limited access system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the total allowable catch of a fishery that may be received or held for exclusive use by a person. IFQ does not include community development quotas.


Noteholder means a guaranteed note payee.


Obligor means a party primarily liable for payment of the principal of or interest on an obligation, used interchangeably with the terms “note payor” or “notemaker.”


Origination year means the year in which an application for a loan is accepted for processing.


Program means the Fisheries Finance Program, Financial Services Division, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.


Project means:


(1) The refinancing or construction of a new fishing vessel or the financing or refinancing of a fishery or aquaculture facility or the refurbishing or purchase of an existing vessel or facility, including, but not limited to, architectural, engineering, inspection, delivery, outfitting, and interest costs, as well as the cost of any consulting contract the Program requires;


(2) The purchase or refinance of any limited access privilege, IFQ, fisheries access right, permit, or other fisheries harvest authorization, for which the actual cost of the purchase of such authorization would be eligible under the Act for direct loans;


(3) Activities (other than fishing capacity reduction, as set forth in part 600.1000 of this title) that assist in the transition to reduced fishing capacity;


(4) Technologies or upgrades designed to improve collection and reporting of fishery-dependent data, to reduce bycatch, to improve selectivity or reduce adverse impacts of fishing gear, or to improve safety; or


(5) Any other activity that helps develop the U.S. fishing industry, including, but not limited to, measures designed or intended to improve a vessel’s fuel efficiency, to increase fisheries exports, to develop an underutilized fishery, or to enhance financial stability, financial performance, growth, productivity, or any other business attribute related to fishing or fisheries.


RAM means the Restricted Access Management division in the Alaska Regional Office of NMFS or the office that undertakes the duties of this division to issue or manage quota shares.


Refinancing means newer debt that either replaces older debt or reimburses applicants for previous expenditures.


Refinancing/assumption fee means a one time fee assessed on the principal amount of an existing FFP note to be refinanced or assumed.


Refurbishing means any reconstruction, reconditioning, or other improvement of existing vessels or facilities, but does not include routine repairs or activities characterized as maintenance.


Security documents mean all documents related to the collateral securing the U.S. Note’s repayment and all other assurances, undertakings, and contractual arrangements associated with financing or guarantees provided by NMFS.


Underutilized fishery means any stock of fish (a) harvested below its optimum yield or (b) limited to a level of harvest or cultivation below that corresponding to optimum yield by the lack of aggregate facilities.


U.S. means the United States of America and, for citizenship purposes, includes the fifty states, Commonwealth of Puerto Rico, American Samoa, the Territory of the U.S. Virgin Islands, Guam, the Republic of the Marshal Islands, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States, or any political subdivision of any of them.


U.S. Note means a promissory note payable by the obligor to the United States.


Useful life means the period during which project property will, as determined by the Program, remain economically productive.


Vessel means any vessel documented under U.S. law and used for fishing.


Wise use means the development, advancement, management, conservation, and protection of fishery resources, that is not inconsistent with the National Standards for Fishery Conservation and Management (16 U.S.C. 1851) and any other relevant criteria, as may be specified in applicable statutes, regulations, Fishery Management Plans, or NMFS guidance.


§ 253.11 General FFP credit standards and requirements.

(a) Principal. Unless explicitly stated otherwise in these regulations or applicable statutes, the amount of any loan may not exceed 80 percent of actual cost, as such term is described in § 253.16; provided that the Program may approve an amount that is less, in accordance with its credit determination.


(b) Interest rate. Each loan’s annual interest rate will be 2 percent greater than the U.S. Department of Treasury’s cost of borrowing public funds of an equivalent maturity at the time the loan closes.


(c) Ability and experience requirements. An obligor and the majority of its principals must demonstrate the ability, experience, resources, character, reputation, and other qualifications the Program deems necessary for successfully operating the project property and protecting the Program’s interest in the project.


(d) Lending restrictions. Unless it can document that unique or extraordinary circumstances exist, the Program will not provide financing:


(1) For venture capital purposes; or


(2) To an applicant who cannot document successful fishing industry ability and experience of a duration, degree, and nature that the Program deems necessary to successfully repay the requested loan.


(e) Income and expense projections. The Program, using conservative income and expense projections for the project property’s operation, must determine that projected net earnings can service all debt, properly maintain the project property, and protect the Program’s interest against risks of loss, including the industry’s cyclical economics.


(f) Working capital. The Program must determine that a project has sufficient initial working capital to achieve net earnings projections, fund all foreseeable contingencies, and protect the Program’s interest in the project. In making its determination, the Program will use a conservative assessment of an applicant’s financial condition, and at the Program’s discretion, some portion of projected working capital needs may be met by something other than current assets minus liabilities (i.e., by a line or letter of credit, non-current assets readily capable of generating working capital, a guarantor with sufficient financial resources, etc.).


(g) Audited financial statements. Audited financial statements will ordinarily be required for any obligor with large or financially complex operations, as determined by the program, whose financial condition the Program believes cannot be otherwise assessed with reasonable certainty.


(h) Consultant services. Expert consulting services may be necessary to help the Program assess a project’s economic, technical, or financial feasibility. The Program will notify the applicant if an expert is required. The Program will select and employ the necessary consultant, but require the applicant to reimburse the Program for any fees charged by the consultant. In the event that an application requires expert consulting services, the loan will not be closed until the applicant fully reimburses the Program for the consulting fees. This cost may, at the Program’s discretion, be included in the amount of the note. For a declined application, the Program may reimburse itself from the application fee as described in § 253.12, including any portion known as the commitment fee that could otherwise be refunded to the applicant.


(i) Property inspections. The Program may require adequate condition and valuation inspection of all property used as collateral as the basis for assessing the property’s worth and suitability for lending. The Program may also require these at specified periods during the life of the loan. These must be conducted by competent and impartial inspectors acceptable to the Program. Inspection cost(s) will be at an applicant’s expense. Those occurring before application approval may be included in actual cost, as actual cost is described in § 253.16.


(j) Collateral. The Program shall have first lien(s) on all primary project property pledged as collateral. The Program, at its discretion, may request additional collateral and will consider any additional collateral in its credit determinations.


(k) No additional liens. All primary project property pledged as collateral, including any additional collateral, shall be free of additional liens, unless the Program, at the request of the applicant, expressly waives this requirement in writing.


(l) General FFP credit standards apply. Unless explicitly stated otherwise in these rules, all FFP direct lending is subject to the above general credit standards and requirements found in §§ 253.12 through 253.30. The Program may adjust collateral, guarantee and other requirements to reflect individual credit risks.


(m) Adverse legal proceedings. The Program, at its own discretion, may decline or hold in abeyance any loan approval or disbursement(s) to any applicant found to have outstanding lawsuits, citations, hearings, liabilities, appeals, sanctions or other pending actions whose negative outcome could significantly impact, in the opinion of the Program, the financial circumstances of the applicant.


§ 253.12 Credit application.

(a) Applicant. (1) An applicant must be a U.S. citizen and be eligible to document a vessel in the coastwise trade: and


(2) Only the legal title holder of project property, or its parent company (or the lessee of an appropriate long-term lease) may apply for a loan; and


(3) An applicant and the majority of its principals must generally have the ability, experience, resources, character, reputation, and other qualifications the Program deems necessary for successfully operating, utilizing, or carrying out the project and protecting the Program’s interest; and


(4) Applicants should apply to the appropriate NMFS Regional Financial Services Branch to be considered.


(b) Application fee. An application fee of 0.5 percent of the dollar amount of an application is due when the application is formally accepted. Upon submission, 50 percent of the application fee, known as the “filing fee,” is non-refundable; the remainder, known as the “commitment fee,” may be refunded if the Program declines an application or an applicant withdraws its application before the Program issues an AIP letter, as described in § 253.13(e). The Program will not issue an AIP letter if any of the application fee remains unpaid. No portion of the application fee shall be refunded once the Program issues an AIP letter.


(c) False statement. A false statement on an application is grounds for denial or termination of funds, grounds for possible punishment by a fine or imprisonment as provided in 18 U.S.C. 1001 and an event of a security default.


§ 253.13 Initial investigation and approval.

(a) The Program shall undertake a due diligence investigation of every application it receives to determine if, in the Program’s sole judgment, the application is both:


(1) Eligible for a loan because it meets applicable loan requirements; and


(2) Qualified for a loan because the project is deemed an acceptable credit risk.


(b) The Program will approve eligible and qualified applicants by evaluating the information obtained during the application and investigation process.


(c) Among other investigations, applicants may be subject to a background check, fisheries violations check and credit review. Background checks are intended to reveal if any key individuals associated with the applicant have been convicted of or are presently facing criminal charges such as fraud, theft, perjury, or other matters which significantly reflect on the applicant’s honesty or financial integrity.


(d) The Program, at its own discretion, may decline or delay approval of any loans or disbursements to any applicant found to have outstanding citations, notices of violations, or other pending legal actions or unresolved claims.


(e) The Program may place any terms and conditions on such approvals that the Program, in its sole discretion, deems necessary and appropriate.


(f) Credit decision. (1) The Program shall issue to approved applicants an AIP letter, which shall describe the terms and conditions of the loan, including (but not limited to) loan amounts, maturities, additional collateral, repayment sources or guarantees. Such terms and conditions are at the Program’s sole discretion and shall also be incorporated in security documents that the Program prepares. An applicant’s non-acceptance of any terms and conditions may result in an applicant’s disqualification.


(2) Any application the Program deems ineligible or unqualified will be declined.


§ 253.14 Loan documents.

(a) U.S. Note. (1) The U.S. Note will be in the form the Program prescribes.


(2) The U.S. Note evidences the obligor’s indebtedness to the United States.


(i) For financing approved after October 11, 1996, the U.S. Note evidences the obligor’s actual indebtedness to the U.S.; and


(ii) For financing originating before October 11, 1996, that continues to be associated with a Guaranteed Note, the U.S. Note shall evidence the obligor’s actual indebtedness to the U.S. upon the Program’s payment of any or all of the sums due under the Guaranteed Note or otherwise disbursed on the obligor’s behalf.


(iii) The U.S. Note will, among other things, contain provisions to add to its principal balance all amounts the Program advances or incurs, including additional interest charges and costs incurred to protect its interest or accommodate the obligor.


(3) The U.S. Note shall be assignable by the Program, at its sole discretion.


(b) Security documents. (1) Each security document will be in the form the Program prescribes.


(2) The Program will, at a minimum, require the pledge of adequate collateral, generally in the form of a security interest or mortgage against all property associated with a project or security as otherwise required by the Program.


(3) The Program will require such other security as it deems necessary and appropriate, given the circumstances of each obligor and the project.


(4) The security documents will, among other things, contain provisions to secure the repayment of all additional amounts the Program advances or incurs to protect its interest or accommodate the obligor, including additional interest charges and fees.


§ 253.15 Recourse against parties.

(a) Form. Recourse by borrowers or guarantors may be by a repayment guarantee, irrevocable letter of credit, additional tangible or intangible collateral, or other form acceptable to the Program.


(b) Principals accountable. The principal parties in interest, who ultimately stand most to benefit from the project, will ordinarily be held financially accountable for the project’s performance. The Program may require recourse against:


(1) All major shareholders of a closely-held corporate obligor;


(2) The parent corporation of a subsidiary corporate obligor;


(3) The related business entities of the obligor if the Program determines that the obligor lacks substantial pledged assets other than the project property or is otherwise lacking in any credit factor required to approve the application;


(4) Any or all major limited partners;


(5) Non-obligor spouses of applicants or obligors in community property states; and/or


(6) Against any others it deems necessary to protect its interest.


(c) Recourse against parties. Should the Program determine that a secondary means of repayment from other sources is necessary (including the net worth of parties other than the obligor), the Program may require secured or unsecured recourse against any such secondary repayment sources.


(d) Recourse unavailable. Where appropriate recourse is unavailable, the conservatively projected net liquidating value of the obligor’s assets (as such assets are pledged to the Program) must, in the Program’s credit judgment, substantially exceed all projected Program exposure or other risks of loss.


§ 253.16 Actual cost.

Actual cost shall be determined as follows:


(a) The actual cost of a vessel shall be the sum of:


(1) The total cost of the project depreciated on a straight-line basis, over the project property’s useful life, using a 10-percent salvage value; and


(2) The current market value of appurtenant limited access privileges or transferable limited access privileges vested in the name of the obligor, the subject vessel or their owners, provided that such privileges are utilized by or aboard the subject vessel and will be pledged as collateral for the subject FFP financing.


(b) The actual cost of a facility shall be the sum of:


(1) The total cost of the project, not including land, depreciated on a straightline basis over the Project Property’s useful life, using a 10-percent salvage value;


(2) The current market value of the land that will be pledged as collateral for the subject FFP financing, provided that such land is utilized by the facility; and


(3) The net present value of the payments due under a long term lease of land or marine use rights, provided that they meet the following requirements:


(i) The project property must be located at such leased space or directly use such marine use rights;


(ii) Such lease or marine use right must have a duration the Program deems sufficient; and


(iii) The lease or marine use right must be assigned to the Program such that the Program may foreclose and transfer such lease to another party.


(c) The actual cost of a transferable limited access privilege shall be determined as follows:


(1) For financing the purchase of limited access privileges, the actual cost shall be the purchase cost.


(2) For refinancing limited access privileges, the actual cost shall be the current market value.


(d) The actual cost of any Project that includes any combination of items described in paragraphs (a), (b) or (c) of this section shall be the sum of such calculations.


§ 253.17 Insurance.

(a) All insurable collateral property and other risks shall be continuously insured so long as any balance of principal or interest on a Program loan or guarantee remains outstanding.


(b) Insurers must be acceptable to the Program.


(c) Insurance must be in such forms and amounts and against such risks the Program deems necessary to protect the United States’ interest.


(d) Insurance must be endorsed to include the requirements the Program deems necessary and appropriate.


(1) Normally and as appropriate, the Program will be named as an additional insured, mortgagee, or loss payee, for the amount of its interest; any waiver of this requirement must be in writing;


(2) Cancellation will require adequate advance written notice;


(3) The Program will be adequately protected against other insureds’ breaches of policy warranties, negligence, omission, etc., in the case of marine insurance, vessel seaworthiness will be required;


(4) The insured must provide coverage for any other risk or casualty the Program may require.


§ 253.18 Closing.

(a) Approval in principle letters. Every closing will be in strict accordance with a final approval in principle letter.


(b) Contracts. Promissory notes, security documents, and any other documents the Program may require will be on standard Program forms that may not be altered without Program written approval. The Program will ordinarily prepare all contracts, except certain pledges involving real property or other matters involving local law, which will be prepared by each obligor’s attorney at the direction and approval of the Program.


(c) Additional requirements. At its discretion the Program may require services from applicant’s attorneys, other contractors or agents. Real property services required from an applicant’s attorney or agent may include, but are not limited to: Title search, title insurance, mortgage and other document preparation, document execution and recording, escrow and disbursement, and legal opinions and other assurances. The Program will notify the applicant in advance if any such services are required of the applicant’s attorneys, contractors or other agents. Applicants are responsible for all attorney’s fees, as well as those of any other private contractor. Attorneys and other contractors must be satisfactory to the Program.


(d) Closing schedules. The Program will not be liable for adverse interest-rate fluctuations, loss of commitments, or other consequences of an inability by any of the parties to meet the closing schedule.


§ 253.19 Dual-use CCF.

The Program may require the pledge of a CCF account or annual deposits of some portion of the project property’s net income into a dual-use CCF. A dual-use CCF provides the normal CCF tax-deferral benefits, but also gives the Program control of CCF withdrawals, recourse against CCF deposits, ensures an emergency refurbishing reserve (tax-deferred) for project property, and provides additional collateral.


§ 253.20 Fees.

(a) Application fee. See §§ 253.10 and 253.12(b).


(b) Guarantee fee. For existing Guaranteed Loans, an annual guarantee fee will be due in advance and will be based on the guaranteed note’s repayment provisions for the prospective year. The first annual guarantee fee is due at guarantee closing. Each subsequent guarantee fee is due and payable on the guarantee closing’s anniversary date. Each is fully earned when due, and shall not subsequently be refunded for any reason.


(c) Refinancing or assumption fee. The Program will assess a fee of one quarter of one (1) percent of the note to be refinanced or assumed. This fee is due upon application for refinancing or assumption of a guaranteed or direct loan. Upon submission, the fee shall be non-refundable. The Program may waive a refinancing or assumption fee’s payment when the refinancing or assumption’s primary purpose will benefit the United States.


(d) Where payable. Fees are payable by check to “U.S. Department of Commerce/NOAA.” Other than those collected at application or closing, fees are payable by mailing checks to the “U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service,” to such address as the Program may designate. To ensure proper crediting, each check should include the official case number the Program assigns.


§ 253.21 Demand by guaranteed noteholder and payment.

Every demand by the guaranteed noteholder must be delivered in writing to the Program and must include the noteholder’s certified record of the date and amount of each payment made on the guaranteed note and the manner of its application. The only period during which a guaranteed noteholder can make demand for a payment default begins on the thirty-first day of the payment default and continues through the ninetieth day of a payment default. The noteholder must possess evidence of the demand’s timely delivery.


§ 253.22 Program operating guidelines.

The Program may issue policy and administrative guidelines, as the need arises.


§ 253.23 Default and liquidation.

Upon default under the terms of any note, guarantee, security agreement, mortgage, or other security document the Program shall take remedial actions including, but not limited to, where appropriate, retaking or arrest of collateral, foreclosure, restructuring, debarment, referral for debt collection, or liquidation as it deems best able to protect the U.S. Government’s interest.


§ 253.24 Enforcement violations and adverse actions.

(a) Compliance with applicable law. All applicants and Program participants shall comply with applicable law.


(b) Applicant disqualification. (1) Any issuance of any citation or Notice of Violation and Assessment by NMFS enforcement or other enforcement authority may constitute grounds for the Program to:


(i) Delay application or approval processing;


(ii) Delay loan closing;


(iii) Delay disbursement of loan proceeds;


(iv) Disqualify an applicant or obligor; or


(v) Declare default.


(2) The Program will not approve loans or disburse funds to any applicant found to have an outstanding, final and unappealable fisheries fine or other unresolved penalty until either: Such fine is paid or penalty has been resolved; or the applicant enters into an agreement to pay the penalty and makes all payments or installments as they are due. Failure to pay or resolve any such fine or penalty in a reasonable period of time will result in the applicant’s disqualification.


(c) Foreclosure in addition to other penalties. In the event that a person with an outstanding balance on a Program loan or guarantee violates any ownership, lease, use, or other provision of applicable law, such person may be subject to foreclosure of property, in addition to any fines, sanctions, or other penalties.


§ 253.25 Other administrative requirements.

(a) Debt Collection Act. In accordance with the provisions of the Debt Collection Improvement Act of 1996, a person may not obtain any Federal financial assistance in the form of a loan (other than a disaster loan) or loan guarantee if the person has an outstanding debt (other than a debt under the Internal Revenue Code of 1986) with any Federal agency which is in a delinquent status, as determined under standards prescribed by the Secretary of the Treasury.


(b) Certifications. Applicants must submit a completed Form CD-511, “Certifications Regarding Debarment, Suspension and Other Responsibility Matters; Drug-Free Workplace Requirements and Lobbying,” or its equivalent or successor form, if any.


(c) Taxpayer identification. An applicant classified for tax purposes as an individual, limited liability company, partnership, proprietorship, corporation, or legal entity is required to submit along with the application a taxpayer identification number (TIN) (social security number, employer identification number as applicable, or registered foreign organization number). Recipients who either fail to provide their TIN or provide an incorrect TIN may have application processing or funding suspended until the requirement is met.


(d) Audit inquiry. An audit of a Program loan may be conducted at any time. Auditors, selected at the discretion of the Program or other agency of the United States, shall have access to any and all books, documents, papers and records of the obligor or any other party to a financing that the auditor(s) deem(s) pertinent, whether written, printed, recorded, produced or reproduced by any mechanical, magnetic or other process or medium.


(e) Paperwork Reduction Act. The application requirements contained in these rules have been approved under OMB control number 0648-0012. The applications for the halibut/sablefish QS crew member eligibility certificate have been approved under OMB control number 0648-0272. Notwithstanding any other provisions of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.


§ 253.26 Traditional loans.

(a) Eligible projects. Financing or refinancing up to 80 percent of a project’s actual cost shall be available to any citizen who is determined to be eligible and qualified under the Act and these rules, except –


(1) The Program will not finance the cost of new vessel construction.


(2) The Program will not finance a vessel refurbishing project that materially increases an existing vessel’s harvesting capacity.


(b) Financing or refinancing. (1) Projects, other than those specified in paragraphs (a) (1) and (a)(2) of this section, may be financed, as well as refinanced.


(2) Notwithstanding paragraph (a)(1) of this section, the Program may refinance the construction cost of a vessel whose construction cost has already been financed (or otherwise paid) prior to the submission of a loan application.


(3) Notwithstanding paragraph (a)(2) of this section, the Program may refinance the refurbishing cost of a vessel whose initial refurbishing cost has already been financed (or otherwise paid) prior to the submission of a loan application.


(4) The Program may finance or refinance the purchase or refurbishment of any vessel or facility for which the Secretary has:


(i) Accelerated and/or paid outstanding debts or obligations;


(ii) Acquired; or


(iii) Sold at foreclosure.


(c) Existing vessels and facilities. The Program may finance the purchase of an existing vessel or existing fishery facility if such vessel or facility will be refurbished in the United States and will be used in the fishing industry.


(d) Fisheries modernization. Notwithstanding any of this part, the Program may finance or refinance any:


(1) Activities that assist in the transition to reduced fishing capacity; or


(2) Technologies or upgrades designed to:


(i) Improve collection and reporting of fishery-dependent data;


(ii) Reduce bycatch;


(iii) Improve selectivity;


(iv) Reduce adverse impacts of fishing gear; or


(v) Improve safety.


(e) Guaranty transition. Upon application by the obligor, any guaranteed loans originated prior to October 11, 1996, may be refinanced as direct loans, regardless of the original purpose of the guaranteed loan.


(f) Maturity. Maturity may not exceed 25 years, but shall not exceed the project property’s useful life. The Program, at its sole discretion, may set a shorter maturity period.


(g) Credit standards. Traditional loans are subject to all Program general credit standards and requirements. Collateral, guarantee and other requirements may be adjusted in accordance with the Program’s assessment of individual credit risks.


§ 253.27 IFQ financing.

The Program may finance or refinance the project cost of purchasing, including the reimbursement of obligors for expenditures previously made for purchasing, individual fishing quotas in accordance with the applicable sections of the Magnuson-Stevens Fishery Conservation and Management Act or any other statute.


§ 253.28 Halibut sablefish IFQ loans.

(a) Specific definitions. For the purposes of this section, the following definitions apply:


(1) Entry-level fishermen means fishermen who do not own any IFQ in the year they apply for a loan.


(2) Fishermen who fish from small vessels means fishermen wishing to purchase IFQ for use on Category B, Category C, or Category D vessels, but who do not own, in whole or in part, any Category A or Category B vessels, as such vessels are defined in 50 CFR 679.40(a)(5) of this title.


(3) Halibut sablefish quota share means a halibut or sablefish permit, the face amount of which is used as the basis for the annual calculation of a person’s halibut or sablefish IFQ, also abbreviated as “HSQS” or “halibut/sablefish QS.”


(4) Halibut/Sablefish IFQ means the annual catch limit of halibut or sablefish that may be harvested by a person who is lawfully allocated halibut or sablefish quota share, a harvest privilege for a specific portion of the total allowable catch of halibut or sablefish.


(b) Entry level fishermen. The Program may finance up to 80 percent of the cost of purchasing HSQS by an entry level fisherman who:


(1) Does not own any halibut/sablefish QS during the origination year;


(2) Applies for a loan to purchase a quantity of halibut/sablefish QS that is not greater than the equivalent of 8,000 lb. (3,628.7 kg) of IFQ during the origination year;


(3) Possesses the appropriate transfer eligibility documentation duly issued by RAM for HSQS;


(4) Intends to be present aboard the vessel, as may be required by applicable regulations; and


(5) Meets all other Program eligibility, qualification, lending and credit requirements.


(c) Fishermen fishing from small vessels. The Program may finance up to 80 percent of the cost of purchasing HSQS by a fisherman who fishes from a small vessel, provided that any such fisherman shall:


(1) Apply for a loan to purchase halibut or sablefish QS for use on vessel Categories B, C, or D, as defined under 50 CFR 679.40(a)(5) of this title;


(2) Not own an aggregate quantity of halibut/sablefish QS (including the loan QS) of more than the equivalent of 50,000 lb. (22,679.6 kg) of IFQ during the origination year;


(3) Not own, in whole or in part, directly or indirectly (including through stock or other ownership interest) any vessel of the type that would have been assigned Category A or Category B HSQS under 50 CFR 679.40(a)(5);


(4) Possess the appropriate transfer eligibility documentation duly issued by the RAM for HSQS;


(5) Intend to be present aboard the vessel, as may be required by applicable regulations, as IFQ associated with halibut/sablefish QS financed by the loan is harvested; and


(6) Meet all other Program eligibility, qualification, lending and credit requirements.


(d) Refinancing. (1) The Program may refinance any existing debts associated with HSQS an applicant currently holds, provided that –


(i) The HSQS being refinanced would have been eligible for Program financing at the time the applicant purchased it, and


(ii) The applicant meets the Program’s applicable lending requirements.


(2) The refinancing is in an amount up to 80 percent of HSQS’ current market value; however, the Program will not disburse any amount that exceeds the outstanding principal balance, plus accrued interest (if any), of the existing HSQS debt being refinanced.


(3) In the event that the current market value of HSQS and principal loan balance do not meet the 80 percent requirement in paragraph (d)(2) of this section, applicants seeking refinancing may be required to provide additional down payment.


(e) Maturity. Loan maturity may not exceed 25 years, but may be shorter depending on credit and other considerations.


(f) Repayment. Repayment will be by equal quarterly installments of principal and interest.


(g) Security. Although quota share(s) will be the primary collateral for a HSQS loan, the Program may require additional security pledges to maintain the priority of the Program’s security interest. The Program, at its option, may also require all parties with significant ownership interests to personally guarantee loan repayment for any applicant that is a corporation, partnership, or other entity. Subject to the Program’s credit risk determination, some projects may require additional security, collateral, or credit enhancement.


(h) Crew member transfer eligibility certification. The Program will accept RAM certification as proof that applicants are eligible to hold HSQS. The application of any person determined by RAM to be unable to receive such certification will be declined. Applicants who fail to obtain appropriate transfer eligibility certification within 45 working days of the date of application may lose their processing priority.


(i) Program credit standards. HSQS loans, regardless of purpose, are subject to all Program general credit standards and requirements. Collateral, guarantee and other requirements may be adjusted to individual credit risks.


§ 253.29 CDQ loans.

(a) FFP actions. The Program may finance or refinance up to 80 percent of a project’s actual cost.


(b) Eligible projects. Eligible projects include the purchase of all or part of ownership interests in fishing or processing vessels, shoreside fish processing facilities, permits, quota, and cooperative rights in any of the Bering Sea and Aleutian Islands fisheries.


(c) Eligible entities. The following communities, in accordance with applicable law and regulations are eligible to participate in the loan program:


(1) The villages of Akutan, Atka, False Pass, Nelson Lagoon, Nikolski, and Saint George through the Aleutian Pribilof Island Community Development Association.


(2) The villages of Aleknagik, Clark’s Point, Dillingham, Egegik, Ekuk, Ekwok, King Salmon/Savonoski, Levelock, Manokotak, Naknek, Pilot Point, Port Heiden, Portage Creek, South Naknek, Togiak, Twin Hills, and Ugashik through the Bristol Bay Economic Development Corporation.


(3) The village of Saint Paul through the Central Bering Sea Fishermen’s Association.


(4) The villages of Chefornak, Chevak, Eek, Goodnews Bay, Hooper Bay, Kipnuk, Kongiganak, Kwigillingok, Mekoryuk, Napakiak, Napaskiak, Newtok, Nightmute, Oscarville, Platinum, Quinhagak, Scammon Bay, Toksook Bay, Tuntutuliak, and Tununak through the Coastal Villages Region Fund.


(5) The villages of Brevig Mission, Diomede, Elim, Gambell, Golovin, Koyuk, Nome, Saint Michael, Savoonga, Shaktoolik, Stebbins, Teller, Unalakleet, Wales, and White Mountain through the Norton Sound Economic Development Corporation.


(6) The villages of Alakanuk, Emmonak, Grayling, Kotlik, Mountain Village, and Nunam Iqua through the Yukon Delta Fisheries Development Association.


(7) Any new groups established by applicable law.


(d) Loan terms. (1) CDQ loans may have terms up to thirty years, but shall not exceed the project property’s useful life. The Program, at its sole discretion, may set a shorter maturity period.


(2) CDQ loans are subject to all Program general credit standards and requirements. Collateral, guarantee and other requirements may be adjusted to individual credit risks.


§ 253.30 Crab IFQ loans.

(a) Specific definitions. For the purposes of this section, the following definitions apply:


(1) Crab means those crab species managed under the Fishery Management Plan for Bering Sea/Aleutian Island (BSAI) King and Tanner Crab.


(2) Crab FMP means the Fishery Management Plan for BSAI King and Tanner Crab.


(3) Crab quota share means a BSAI King and Tanner Crab permit, the base amount of which is used as a basis for the annual calculation of a person’s Crab IFQ, also abbreviated as “Crab QS.”


(b) Crab captains or crewmen. The Program may finance up to 80 percent of the cost of purchasing Crab QS by a citizen:


(1) Who is or was:


(i) A captain of a crab fishing vessel, or


(ii) A crew member of a crab fishing vessel;


(2) Who has been issued the appropriate documentation of eligibility by RAM;


(3) Whose aggregate holdings of QS will not exceed any limit on Crab QS holdings that may be in effect in the Crab FMP implementing regulations or applicable statutes in effect at the time of loan closing; and will not hold either individually or collectively, based on the initial QS pool, as published in 50 CFR part 680, Table 8; and


(4) Who, at the time of initial application, meets all other applicable eligibility requirements to fish for crab or hold Crab QS contained in the Crab FMP implementing regulations or applicable statutes in effect at the time of loan closing.


(c) Refinancing. (1) The Program may refinance any existing debts associated with Crab QS that an applicant currently holds, provided that:


(i) The Crab QS being refinanced would have been eligible for Program financing at the time the applicant purchased it;


(ii) The applicant meets the Program’s applicable lending requirements; and


(iii) The applicant would meet the requirements found in the Crab FMP implementing regulations at the time any such refinancing loan would close.


(2) The Program may refinance an amount up to 80 percent of Crab QS’s current market value; however, the Program will not disburse any amount that exceeds the outstanding principal balance, plus accrued interest (if any), of the existing Crab QS debt being refinanced.


(3) In the event that the current market value of Crab QS and current principal balance do not meet the 80 percent requirement in paragraph (c)(2) of this section, applicants seeking refinancing may be required to provide additional down payment.


(d) Maturity. Loan maturity may not exceed 25 years, but may be shorter depending on credit and other considerations.


(e) Repayment. Repayment schedules will be set by the loan documents.


(f) Security. Although the quota share will be the primary collateral for a Crab QS loan, the Program may require additional security pledges to maintain the priority of the Program’s security interest. The Program, at its option, may also require all parties with significant ownership interests to personally guarantee loan repayment for any applicant that is a corporation, partnership, or other entity. Subject to the Program’s credit risk determination, some projects may require additional security, collateral, or credit enhancement.


(g) Crew member transfer eligibility certification. The Program will accept RAM transfer eligibility certification as proof that applicants are eligible to hold Crab QS. The application of any person determined by RAM to be unable to receive such certification will be declined. Applicants who fail to obtain appropriate transfer eligibility certification within 45 working days of the date of application may lose their processing priority.


(h) Crab Quota Share Ownership Limitation. A program obligor must comply with all applicable maximum amounts, as may be established by NMFS regulations, policy or North Pacific Fishery Management Council action.


(i) Program credit standards. Crab QS loans are subject to all Program general credit standards and requirements. Collateral, guarantee and other requirements may be adjusted to individual credit risks.


§ 253.31 Harvesting rights loans.

(a) Specific definitions. For the purposes of this section, the following definitions apply:


(1) Harvesting right(s) means any privilege to harvest fish in a fishery that is federally managed under a limited access system.


(2) Limited access system has the same meaning given to that term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802).


(b) Loan requirements and limitations. These loan requirements and limitations apply to individuals or entities who seek to finance or refinance the acquisition of harvesting rights.


(1) The borrower must meet all regulatory and statutory requirements to hold the harvesting rights at the time any such loan or refinancing loan would close.


(2) NMFS will accept and consider the input of a Regional Fishery Management Council at any time regarding the availability of loans in a fishery under the Council’s authority.


(i) The Council may submit an explanation to NMFS, in writing, as to why the availability of financing for harvesting rights in a fishery would harm the achievement of the goals and objectives of the Fishery Management Plan applicable to the fishery. If NMFS accepts the Council’s reasoning, harvesting rights loans will not be provided, or will cease to be provided, in that fishery.


(ii) If NMFS determines that harvesting rights loans will not be provided in a fishery, NMFS will publish a notice in the Federal Register notifying the public that new loans will not be made in that fishery.


(iii) In such a scenario, pending applications will be returned and loan fees returned as exceptional circumstances justify the action.


(3) The harvesting rights to be financed must be issued in a manner in which they can be individually identified such that a valid and specific security interest can be recorded. This determination shall be solely made by the Program.


(c) Refinancing. (1) The Program may refinance any existing debts associated with harvesting rights a borrower currently holds, provided that:


(i) The harvesting rights being refinanced would have been eligible for Program financing at the time the borrower purchased them, if Program financing had been available;


(ii) The borrower meets all other applicable lending requirements; and


(iii) The refinancing is in an amount up to 80 percent of the harvesting rights’ current market value, as determined at the sole discretion of the Program, and subject to the limitation that the Program will not disburse any amount that exceeds the outstanding principal balance, plus accrued interest (if any), of the existing harvesting rights’ debt being refinanced or its fair market value, whichever is less.


(2) In the event that the current market value of harvesting rights and principal loan balance do not meet the 80 percent requirement in paragraph (c)(1)(iii) of this section, borrowers seeking refinancing may be required to provide additional down payment.


(d) Maturity. Loan maturity may not exceed 25 years, but may be shorter depending on credit and other considerations.


(e) Repayment. Repayment will be by equal quarterly installments of principal and interest.


(f) Security. Although harvesting right(s) will be the primary collateral for a loan, the Program may require additional security pledges to maintain the priority of the Program’s security interest. The Program, at its option, may also require all parties with significant ownership interests to personally guarantee loan repayment for any borrower that is a corporation, partnership, or other entity, including collateral to secure the guarantees. Some projects may require additional security, collateral, or credit enhancement as determined, in the sole discretion, by the Program.


(g) Program credit standards. Harvesting rights loans, regardless of purpose, are subject to all Program general credit standards and requirements. Collateral, guarantee and other requirements may be adjusted to individual credit risks.


[83 FR 24232, May 25, 2018]


§§ 253.32-253.49 [Reserved]

Subpart C – Interjurisdictional Fisheries

§ 253.50 Definitions.

The terms used in this subpart have the following meanings:


Act means the Interjurisdictional Fisheries Act of 1986, Public Law 99-659 (Title III).


Adopt means to implement an interstate fishery management plan by State action or regulation.


Commercial fishery failure means a serious disruption of a fishery resource affecting present or future productivity due to natural or undetermined causes. It does not include either:


(1) The inability to harvest or sell raw fish or manufactured and processed fishery merchandise; or


(2) Compensation for economic loss suffered by any segment of the fishing industry as the result of a resource disaster.


Enforcement agreement means a written agreement, signed and dated, between a state agency and either the Secretary of the Interior or Secretary of Commerce, or both, to enforce Federal and state laws pertaining to the protection of interjurisdictional fishery resources.


Federal fishery management plan means a plan developed and approved under the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).


Fisheries management means all activities concerned with conservation, restoration, enhancement, or utilization of fisheries resources, including research, data collection and analysis, monitoring, assessment, information dissemination, regulation, and enforcement.


Fishery resource means finfish, mollusks, and crustaceans, and any form of marine or Great Lakes animal or plant life, including habitat, other than marine mammals and birds.


Interjurisdictional fishery resource means:


(1) A fishery resource for which a fishery occurs in waters under the jurisdiction of one or more states and the U.S. Exclusive Economic Zone; or


(2) A fishery resource for which an interstate or a Federal fishery management plan exists; or


(3) A fishery resource which migrates between the waters under the jurisdiction of two or more States bordering on the Great Lakes.


Interstate Commission means a commission or other administrative body established by an interstate compact.


Interstate compact means a compact that has been entered into by two or more states, established for purposes of conserving and managing fishery resources throughout their range, and consented to and approved by Congress.


Interstate Fisheries Research Program means research conducted by two or more state agencies under a formal interstate agreement.


Interstate fishery management plan means a plan for managing a fishery resource developed and adopted by the member states of an Interstate Marine Fisheries Commission, and contains information regarding the status of the fishery resource and fisheries, and recommends actions to be taken by the States to conserve and manage the fishery resource.


Landed means the first point of offloading fishery resources.


NMFS Regional Director means the Director of any one of the five National Marine Fisheries Service regions.


Project means an undertaking or a proposal for research in support of management of an interjurisdictional fishery resource or an interstate fishery management plan.


Research means work or investigative study, designed to acquire knowledge of fisheries resources and their habitat.


Secretary means the Secretary of Commerce or his/her designee.


State means each of the several states, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, or the Commonwealth of the Northern Mariana Islands.


State agency means any department, agency, commission, or official of a state authorized under the laws of the State to regulate commercial fisheries or enforce laws relating to commercial fisheries.


Value means the monetary worth of fishery resources used in developing the apportionment formula, which is equal to the price paid at the first point of landing.


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


§ 253.51 Apportionment.

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


(1) The equally weighted average value is determined by the following formula:




(2) Upon appropriation of funds by Congress, the Secretary will take the following actions:


(i) Determine each state’s share according to the apportionment formula.


(ii) Certify the funds to the respective NMFS Regional Director.


(iii) Instruct NMFS Regional Directors to promptly notify states of funds’ availability.


(b) No state, under the apportionment formula in paragraph (a) of this section, that has a ratio of one-third of 1 percent or higher may receive an apportionment for any fiscal year that is less than 1 percent of the total amount of funds available for that fiscal year.


(c) If a State’s ratio under the apportionment formula in paragraph (b) of this section is less than one-third of 1 percent, that state may receive funding if the state:


(1) Is signatory to an interstate fishery compact;


(2) Has entered into an enforcement agreement with the Secretary and/or the Secretary of the Interior for a fishery that is managed under an interstate fishery management plan;


(3) Borders one or more of the Great Lakes;


(4) Has entered into an interstate cooperative fishery management agreement and has in effect an interstate fisheries management plan or an interstate fisheries research Program; or


(5) Has adopted a Federal fishery management plan for an interjurisdictional fishery resource.


(d) Any state that has a ratio of less than one-third of 1 percent and meets any of the requirements set forth in paragraphs (c)(1) through (5) of this section may receive an apportionment for any fiscal year that is not less than 0.5 percent of the total amount of funds available for apportionment for such fiscal year.


(e) No state may receive an apportionment under this section for any fiscal year that is more than 6 percent of the total amount of funds available for apportionment for such fiscal year.


(f) Unused apportionments. Any part of an apportionment for any fiscal year to any state:


(1) That is not obligated during that year;


(2) With respect to which the state notifies the Secretary that it does not wish to receive that part; or


(3) That is returned to the Secretary by the state, may not be considered to be appropriated to that state and must be added to such funds as are appropriated for the next fiscal year. Any notification or return of funds by a state referred to in this section is irrevocable.


§ 253.52 State projects.

(a) General – (1) Designation of state agency. The Governor of each state shall notify the Secretary of which agency of the state government is authorized under its laws to regulate commercial fisheries and is, therefore, designated receive financial assistance awards. An official of such agency shall certify which official(s) is authorized in accordance with state law to commit the state to participation under the Act, to sign project documents, and to receive payments.


(2) States that choose to submit proposals in any fiscal year must so notify the NMFS Regional Director before the end of the third quarter of that fiscal year.


(3) Any state may, through its state agency, submit to the NMFS Regional Director a completed NOAA Grants and Cooperative Agreement Application Package with its proposal for a project, which may be multiyear. Proposals must describe the full scope of work, specifications, and cost estimates for such project.


(4) States may submit a proposal for a project through, and request payment to be made to, an Interstate Fisheries Commission. Any payment so made shall be charged against the apportionment of the appropriate state(s). Submitting a project through one of the Commissions does not remove the matching funds requirement for any state, as provided in paragraph (c) of this section.


(b) Evaluation of projects. The Secretary, before approving any proposal for a project, will evaluate the proposal as to its applicability, in accordance with 16 U.S.C. 4104(a)(2).


(c) State matching requirements. The Federal share of the costs of any project conducted under this subpart, including a project submitted through an Interstate Commission, cannot exceed 75 percent of the total estimated cost of the project, unless:


(1) The state has adopted an interstate fishery management plan for the fishery resource to which the project applies; or


(2) The state has adopted fishery regulations that the Secretary has determined are consistent with any Federal fishery management plan for the species to which the project applies, in which case the Federal share cannot exceed 90 percent of the total estimated cost of the project.


(d) Financial assistance award. If the Secretary approves or disapproves a proposal for a project, he or she will promptly give written notification, including, if disapproved, a detailed explanation of the reason(s) for the disapproval.


(e) Restrictions. (1) The total cost of all items included for engineering, planning, inspection, and unforeseen contingencies in connection with any works to be constructed as part of such a proposed project shall not exceed 10 percent of the total cost of such works, and shall be paid by the state as a part of its contribution to the total cost of the project.


(2) The expenditure of funds under this subpart may be applied only to projects for which a proposal has been evaluated under paragraph (b) of this section and approved by the Secretary, except that up to $25,000 each fiscal year may be awarded to a state out of the state’s regular apportionment to carry out an “enforcement agreement.” An enforcement agreement does not require state matching funds.


(f) Prosecution of work. All work must be performed in accordance with applicable state laws or regulations, except when such laws or regulations are in conflict with Federal laws or regulations such that the Federal law or regulation prevails.


§ 253.53 Other funds.

(a) Funds for disaster assistance. (1) The Secretary shall retain sole authority in distributing any disaster assistance funds made available under section 308(b) of the Act. The Secretary may distribute these funds after he or she has made a thorough evaluation of the scientific information submitted, and has determined that a commercial fishery failure of a fishery resource arising from natural or undetermined causes has occurred. Funds may only be used to restore the resource affected by the disaster, and only by existing methods and technology. Any fishery resource used in computing the states’ amount under the apportionment formula in § 253.601(a) will qualify for funding under this section. The Federal share of the cost of any activity conducted under the disaster provision of the Act shall be limited to 75 percent of the total cost.


(2) In addition, pursuant to section 308(d) of the Act, the Secretary is authorized to award grants to persons engaged in commercial fisheries for uninsured losses determined by the Secretary to have been suffered as a direct result of a fishery resource disaster. Funds may be distributed by the Secretary only after notice and opportunity for public comment of the appropriate limitations, terms, and conditions for awarding assistance under this section. Assistance provided under this section is limited to 75 percent of an uninsured loss to the extent that such losses have not been compensated by other Federal or State Programs.


(b) Funds for interstate commissions. Funds authorized to support the efforts of the three chartered Interstate Marine Fisheries Commissions to develop and maintain interstate fishery management plans for interjurisdictional fisheries will be divided equally among the Commissions.


§ 253.54 Administrative requirements.

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


PART 259 – CAPITAL CONSTRUCTION FUND TAX REGULATIONS


Authority:46 U.S.C. 53501, formerly 46 U.S.C. App. 1177 and 1177-1.



Source:82 FR 24565, May 30, 2017, unless otherwise noted.

§ 259.1 Definitions.

As used in this part:


Act means Chapter 535 of Title 46 of the U.S. Code (46 U.S.C. 53501-53517), as may be amended from time to time.


Agreement means the contract to participate in the program between the approved CCF applicant (party) and the Secretary.


Agreement vessel means any eligible vessel or qualified vessel which is subject to an Agreement.


Citizen of the United States means any person who is a United States citizen and any corporation or partnership organized under the laws of any state which meets the requirements for documenting vessels in the U.S. coastwise trade.


Commercial fishing means fishing in which the fish harvested, either in whole or in part, are intended to enter commerce or enter commerce through sale, barter or trade.


Depository means the bank or brokerage account(s) listed in the Agreement where the CCF funds will be physically held.


Eligible vessel means –


(1) A vessel –


(i) Constructed in the United States (and, if reconstructed, reconstructed in the United States), constructed outside of the United States but documented under the laws of the United States on April 15, 1970, or constructed outside the United States for use in the United States foreign trade pursuant to a contract made before April 15, 1970;


(ii) Documented under the laws of the United States if 5 net tons or greater; and


(iii) Operated in the foreign or domestic commerce of the United States or in the fisheries of the United States; and


(2) A commercial fishing vessel or vessel which will carry fishing parties for hire –


(i) Constructed in the United States and, if reconstructed, reconstructed in the United States;


(ii) State registered if at least 2 net tons but fewer than 5 net tons or Documented under the laws of the United States if 5 net tons or greater;


(iii) Owned by a citizen of the United States;


(iv) Having its home port in the United States; and


(v) Operated in the commercial fisheries of the United States.


Extension period means the first day following the end of the Filing period and ending on the last day of the party’s last filing extension.


Filing period means the first day following the end of the Tax Year and ending on the party’s last day to file their tax return absent a filing extension.


Limited Access System means a system that limits participation in a fishery to those satisfying certain eligibility criteria or requirements contained in a fishery management plan or associated regulation.


Qualified vessel means –


(1) A vessel –


(i) Constructed in the United States (and, if reconstructed, reconstructed in the United States), constructed outside of the United States but documented under the laws of the United States on April 15, 1970, or constructed outside the United States for use in the United States foreign trade pursuant to a contract made before April 15, 1970;


(ii) Documented under the laws of the United States if 5 net tons or greater; and


(iii) Agreed, between the Secretary and the person maintaining the capital construction fund established under 46 U.S.C. 53503, to be operated in the fisheries of the United States; and


(2) A commercial fishing vessel or vessel which will carry fishing parties for hire –


(i) Constructed in the United States and, if reconstructed, reconstructed in the United States;


(ii) State registered if at least 2 net tons but fewer than 5 net tons or Documented under the laws of the United States if 5 net tons or greater;


(iii) Owned by a citizen of the United States;


(iv) Having its home port in the United States; and


(v) Operated in the commercial fisheries of the United States; and


(3) Gear which is permanently fixed to the vessel. The expenditure for gear and certain nets which are not fixed to the vessel (pots, traps, longline, seine nets, gill set nets and gill drift nets) is excluded from the amount eligible for qualified withdrawals of CCF funds.


Schedule A means the section of the Agreement that designates the income producing vessel from which deposits are made to a designated account.


Schedule B means the section of the Agreement that designates the qualified project for which the CCF funds are to be expended.


Secretary means the Secretary of Commerce with respect to eligible or qualified vessels operated or to be operated in the fisheries of the United States.


Tax due date means the date the party’s Federal tax return must be filed, including extensions, with the Internal Revenue Service.


Tax year means the period between January 1 and December 31 for Calendar year filers or the designated fiscal year for fiscal year filers.


United States means the United States of America and, for citizenship purposes, includes the Commonwealth of Puerto Rico, American Samoa, Guam, the U.S. Virgin Islands, the Republic of the Marshall Islands, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States, or any political subdivision of any of them.


§ 259.2 Applying for a Capital Construction Fund Agreement (“Agreement”).

(a) General qualifications. To be eligible to enter into an Agreement an applicant must:


(1) Be a citizen of the United States (citizenship requirements are those necessary for documenting vessels in the coastwise trade within the meaning of section 2 of the Shipping Act, 1916, as amended);


(2) Own or lease one or more eligible vessels (as defined at 46 U.S.C. 53501) operating in the foreign or domestic commerce of the United States;


(3) Have an acceptable plan to acquire, construct, or reconstruct one or more qualified vessels (as defined at 46 U.S.C. 53501). The plan must be a firm representation of the applicant’s actual intentions. Qualified vessels must be for commercial operation in the fisheries of the United States. If the vessel is 5 net tons or over, it must be documented with a fishery trade endorsement. Dual documentation in both the fisheries and the coastwise trade of the United States is permissible. Any vessel which will carry fishing parties for hire must be inspected and certified (under 46 CFR part 176) by the U.S. Coast Guard as qualified to carry more than six passengers. If the vessel weighs fewer than 5 net tons the party must demonstrate to the Secretary’s satisfaction that the carrying of fishing parties for hire will constitute its primary activity.


(b) Content of application. Applicants seeking an Agreement must submit a formal application providing the following information:


(1) Name and Tax Identification Number (TIN) of applicant;


(2) Proof of U.S. citizenship;


(3) The first taxable year for which the Agreement is to apply (see § 259.4 for the latest time at which applications for an Agreement relating to the previous taxable year may be received);


(4) The following information regarding each eligible vessel which is to be incorporated in Schedule A of the Agreement:


(i) Name of vessel,


(ii) Official number or, in the case of vessels weighing under 5 net tons, the State registration number, where required,


(iii) Type of vessel (i.e., catching vessel, processing vessel, transporting vessel, charter vessel, barge, passenger carrying fishing vessel, etc.),


(iv) General characteristics (i.e., net tonnage, fish-carrying capacity, age, length, type of fishing gear, number of passengers carried or in the case of vessels operating in the foreign or domestic commerce the various uses of the vessel, etc.),


(v) Whether it is owned or leased and, if leased, the name of the owner, and a copy of the lease,


(vi) Date and place of construction,


(vii) If reconstructed, date of redelivery and place of reconstruction,


(viii) Trade (or trades) in which the vessel is documented and date last documented,


(ix) The fishery of operation (which in this section means each species or group of species). Each species must be specifically identified by the acceptable common names of fish, shellfish, or other living marine resources which each vessel catches, processes, or transports or will catch, process, or transport for commercial purposes such as marketing or processing the catch),


(x) The area of operation (which for fishing vessels means the general geographic areas in which each vessel will catch, process, or transport, or charter for each species or group of species of fish, shellfish, or other living marine resources),


(5) The specific objectives to be achieved by the accumulation of assets in a Capital Construction Fund (to be incorporated in Schedule B of the Agreement) including:


(i) Number of vessels,


(ii) Type of vessel (i.e., catching, processing, transporting, or passenger carrying fishing vessels),


(iii) General characteristics (i.e., net tonnage, fish-carrying capacity, age, length, type of fishing gear, number of passengers carried),


(iv) Cost of projects,


(v) Amount of indebtedness to be paid for vessels to be constructed, acquired, or reconstructed (all notes, mortgages, or other evidence of indebtedness must be submitted as soon as available, together with sufficient additional evidence to establish that full proceeds of the indebtedness to be paid from a CCF account under an Agreement, were used solely for the purpose of the construction, acquisition, or reconstruction of Schedule B vessels),


(vi) Date of construction, acquisition, or reconstruction,


(vii) Fishery of operation (which in this section means each species or group of species must be specifically identified by acceptable common name of fish, shellfish, or other living marine resources), and


(viii) Area of operation (which in this section means the general geographic areas in which each vessel will operate for each species or group of species of fish, shellfish, or other living marine resources),


(c) Filing. The application must be signed and submitted to the Financial Services Division of the National Marine Fisheries Service. As a general rule, the Agreement must be executed and entered into by the taxpayer on or prior to the due date for the filing of the Federal tax return in order to be effective for the tax year to which that return relates. It is in the Applicant’s best interest to file at least 45 days in advance of such date.


§ 259.3 Acquisition, construction, or reconstruction.

CCF funds cannot be used for any vessel acquisition, construction, or reconstruction that increases harvesting capacity in a fishery or fisheries, other than in a limited access system in which the fisheries management authority establishes harvesting limits.


(a) Acquisition. CCF funds can be used to acquire any used qualified vessel that will fish in a limited access system in which the fisheries management authority establishes harvesting limits. If the fishery or fisheries is not a limited access system, CCF funds can only be used to replace an existing, recently sunken, or scrapped vessel and its existing harvesting capacity. The replaced vessel must lose its fisheries trade endorsement and the vessel owner must notify the Coast Guard Documentation Center of that fact.


(b) Construction. CCF funds can be used to construct a new qualified vessel that will fish in a limited access system in which the fisheries management authority establishes harvesting limits. If the fishery or fisheries is not a limited access system, CCF funds can only be used to replace an existing, recently sunken, or scrapped vessel and its existing harvesting capacity. The replaced vessel must lose its fisheries trade endorsement and the vessel owner must notify the Coast Guard Documentation Center of that fact.


(c) Reconstruction. Reconstruction may include rebuilding, replacing, reconditioning, refurbishing, repairing, converting and/or improving any portion of a vessel. A reconstruction project must, however, either substantially prolong the useful life of the reconstructed vessel, increase its value, materially increase its safety, reliability, or energy efficiency, or adapt it to a different commercial use in the fishing trade or industry. No vessel more than 25 years old at the time of withdrawal shall be a qualified vessel for the purpose of reconstruction unless a special showing is made, to the Secretary’s discretionary satisfaction, that the type and degree of reconstruction intended will result in an efficient and productive vessel with an economically useful life of at least 10 years beyond the date reconstruction is completed.


(d) Time permitted for construction or reconstruction. Construction or reconstruction must be completed within 18 months from the date construction or reconstruction first commences, unless otherwise consented to by the Secretary.


§ 259.4 Constructive deposits and withdrawals; ratification of withdrawals (as qualified) made without first having obtained Secretary’s consent; first tax year for which an Agreement is effective.

(a) Constructive deposits and withdrawals (before Agreement executed date). Constructive deposits and withdrawals are deemed to have been deposited to and withdrawn from a designated CCF account even though the funds were not physically deposited. Constructive deposits and withdrawals shall be permissible only during the “Tax Year” for which a written application for an Agreement is submitted to the Secretary. Once the Secretary executes the Agreement, the constructive deposit and withdrawal period ends. All deposits must be physically deposited into a designated CCF account.


(1) All qualified deposits and expenditures occurring within the period specified directly above, that are within the eligible ceilings specified at 46 U.S.C. 53505, may be consented to by the Secretary as constructive deposits and withdrawals. In order for the Secretary to provide his or her consent for constructive deposit and withdrawal treatment, the applicant must include a written request with the application and provide sufficient supporting data to enable the Secretary to evaluate the request. This written request must be submitted no later than the “Extension Period” for that party’s initial tax year.


(2) [Reserved]


(b) Constructive deposits and withdrawals (after the Agreement effective date). The Secretary shall not permit constructive deposits or withdrawals after the effective date of an Agreement. Deposits made after the effective date of an Agreement must be physically deposited into a dedicated CCF account.


(c) First tax year for which an Agreement is effective. In order for an Agreement to be effective for any applicant’s “Tax Year,” the written application must be submitted to the Secretary before the end of the “Filing Period” or “Extension Period” for that tax year, whichever applies. If the written application is received by the Secretary, after the end of the “Filing Period” or “Extension Period,” whichever applies, then the Agreement will be first effective for the next succeeding “Tax Year.”


(1) It is in the applicant’s best interest to submit his or her written application at least 45 days in advance of the end of his or her tax due date. If the written application is submitted too close to the tax due date, and the Secretary is not ultimately able to execute the Agreement, the applicant must bear the burden of negotiating with the Internal Revenue Service for relief. The Secretary shall regard any penalties related to this denied application as due to the applicant’s failure to apply for an Agreement in a timely manner.


(2) [Reserved]


(d) Ratification of withdrawals, as qualified, made without first having obtained Secretary’s prior consent. Any withdrawals made after the effective date of an Agreement without the Secretary’s consent are automatically non-qualified withdrawals, unless the Secretary subsequently consents to them by ratification.


(1) The Secretary may ratify, as qualified, any withdrawal made without the Secretary’s prior consent, provided the withdrawal would have resulted in the Secretary’s consent had it been requested before withdrawal.


(2) The Secretary may issue his or her retroactive consent, if appropriate, as work priorities permit. However, if the Secretary is unable to issue retroactive consent for withdrawals made without his or her consent, then those withdrawals, and any associated penalties, will be deemed due to the party’s failure to apply in a timely manner.


(3) It is recommended that a party submit his or her request for withdrawal at least 45 days in advance of the expected date of withdrawal. Withdrawals made without the Secretary’s consent, in reliance on obtaining the Secretary’s consent, are made purely at a party’s own risk. Should any withdrawal made without the Secretary’s consent prove, for any reason, to be one which the Secretary will not or cannot consent to ratify, then the result will be an unqualified withdrawal and/or an involuntary termination of the Agreement.


(4) Should a party withdraw CCF funds for a project not previously deemed an eligible Schedule B objective without having first obtained the Secretary’s consent, the Secretary may entertain an application to amend the Agreement’s Schedule B objectives as the prerequisite to consenting by ratification to the withdrawal.


(5) Redeposit of any withdrawals made without the Secretary’s consent, and for which such consent is not subsequently given (either by ratification or otherwise), shall not be permitted. If the non-qualified withdrawal adversely affects the Agreement’s general status the Secretary may terminate the Agreement.


§ 259.5 Maximum deposit amounts and time to deposit.

(a) Other than the maximum annual ceilings established by the Act, the Secretary shall not establish an annual ceiling. However, deposits can no longer be made once a party has deposited 100 percent of the anticipated cost of all Schedule B objectives unless the Agreement is then amended to establish additional Schedule B objectives.


(b) Ordinarily, the Secretary shall permit deposits to accumulate prior to commencement of any given Schedule B objective for a maximum of ten years. However, at the Secretary’s sole discretion and based on good and sufficient cause shown, the time period may be extended.


§ 259.6 Termination of inactive and zero balance accounts.

(a) If a Schedule B objective has not commenced within 10 years from the date the Agreement was established, and has not been extended by written approval of the Secretary, the Agreement is considered inactive and subject to termination.


(b) If the account balance of all depositories of an Agreement is zero dollars 10 years after the date it was established, and has not been extended through amendment, the Agreement is considered inactive and subject to termination unless its Schedule B objective has commenced.


(c) A certified letter will be sent to holders of Agreements identified for termination informing them that the agreement will terminate 60 days after the date of the letter unless the deficiencies identified in the letter are addressed.


§ 259.7 Annual deposit and withdrawal reports required.

(a) The Secretary will require from each party an annual deposit and withdrawal report for each CCF depository. Failure to submit such reports may be cause for involuntary termination of the party’s Agreement.


(1) A final deposit and withdrawal report at the end of the tax year, which shall be submitted not later than 30 days after expiration of the due date, for filing the party’s Federal income tax return. The report must be made on a form prescribed by the Secretary using a separate form for each CCF depository.


(2) Each report must bear a certification that the deposit and withdrawal information given includes all annual deposit and withdrawal activity for each CCF depository. Negative reports must be submitted in those cases where there is no deposit and/or withdrawal activity.


(b) The Secretary, at his or her discretion, may, after due notice, disqualify withdrawals and/or involuntarily terminate the Agreement for the participant’s failure to submit the required annual deposit and withdrawal reports.


(c) Additionally, each party shall submit, not later than 30 days after expiration of the party’s tax due date, a copy of the party’s Federal Income Tax Return filed with IRS for the preceding tax year. Failure to submit the Federal Income Tax Return shall, after due notice, be cause for the same adverse action specified in paragraph (b) of this section.


§ 259.8 CCF accounts.

(a) General. Each CCF account in a scheduled depository shall have an account number, which must be reflected on the reports required by § 259.7. All CCF accounts shall be reserved only for CCF transactions. There shall be no intermingling of CCF and non-CCF transactions and there shall be no pooling of 2 or more CCF accounts without the prior consent of the Secretary. Safe deposit boxes, safes, or the like shall not be eligible CCF depositories without the Secretary’s consent, which shall be granted solely at his or her discretion.


(b) Assignment. The use of funds held in a CCF depository for transactions in the nature of a countervailing balance, compensating balance, pledge, assignment, or similar security arrangement shall constitute a material breach of the Agreement unless prior written consent of the Secretary is obtained.


(c) Depositories. Section 53506(a) of the Act provides that amounts in a CCF account must be kept in a depository or depositories specified in the Agreements and be subject to such trustee or other fiduciary requirements as the Secretary may require. Unless otherwise specified in the Agreement, the party may select the type or types of accounts in which the assets of the Fund may be deposited.


§ 259.9 Conditional consents to withdrawal qualification.

The Secretary may conditionally consent to the qualification of a withdrawal. This consent is conditioned upon the timely submission, to the Secretary, of the items requested by the Secretary in the withdrawal approval letter. Failure to provide these items in a timely manner, and after due notice, will result in nonqualification of the withdrawal and/or involuntary termination of the Agreement.


§ 259.10 Miscellaneous.

(a) Wherever the Secretary prescribes time constraints, the postmark date shall control if mailed. If a private delivery service is used, including Federal Express or United Parcel Service, the date listed on the label shall control. Submission of CCF transactions by email or facsimile is only allowable when an original signature is not required.


(b) All CCF information received by the Secretary shall be held strictly confidential to the extent permitted by law, except that it may be published or disclosed in statistical form provided such publication does not disclose, directly or indirectly, the identity of the fund holder.


(c) While recognizing that precise regulations are necessary in order to treat similarly situated parties similarly, the Secretary also realizes that precision in regulations can sometimes cause inequitable effects to result from unavoidable, unintended, or minor discrepancies between the regulations and the circumstances they attempt to govern. The Secretary will, consequently, at his or her discretion, as a matter of privilege and not as a matter of right, attempt to afford relief to parties where literal application of the purely procedural, as opposed to substantive, aspects of these regulations would otherwise work an inequitable hardship. This privilege will be sparingly granted and no party should act in reliance on its being granted.


(d) These §§ 259.1 through 259.10 are applicable to all Agreements first entered into (or amended) on or after the date these sections are adopted.


(e) These §§ 259.1 through 259.10 are specifically incorporated in all Agreements existing prior to the date these sections are adopted.


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

PART 260 – INSPECTION AND CERTIFICATION


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


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

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

§ 260.1 Administration of regulations.

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




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


[36 FR 21037, Nov. 3, 1971]


Definitions

§ 260.6 Terms defined.

Words in the regulations in this part in the singular form shall be deemed to import the plural and vice versa, as the case may demand. For the purposes of the regulations in this part, unless the context otherwise requires, the following terms shall have the following meanings:


Acceptance number. “Acceptance number” means the number in a sampling plan that indicates the maximum number of deviants permitted in a sample of a lot that meets a specific requirement.


Act. “Act” means the applicable provisions of the Agricultural Marketing Act of 1946 (60 Stat. 1087 et seq., as amended; 7 U.S.C. 1621 et seq.).


Applicant. “Applicant” means any interested party who requests inspection service under the regulations in this part.


Case. “Case” means the number of containers (cased or uncased) which, by the particular industry are ordinarily packed in a shipping container.


Certificate of loading. “Certificate of loading” means a statement, either written or printed, issued pursuant to the regulations in this part, relative to check-loading of a processed product subsequent to inspection thereof.


Certificate of sampling. “Certificate of sampling” means a statement, either written or printed issued pursuant to the regulations in this part, identifying officially drawn samples and may include a description of condition of containers and the condition under which the processed product is stored.


Class. “Class” means a grade or rank of quality.


Condition. “Condition” means the degree of soundness of the product which may affect its merchantability and includes, but is not limited to those factors which are subject to change as a result of age, improper preparation and processing, improper packaging, improper storage, or improper handling.


Department. “Department” means the U.S. Department of Commerce.


Deviant. “Deviant” means a sample unit affected by one or more deviations or a sample unit that varies in a specifically defined manner from the requirements of a standard, specification, or other inspection document.


Deviation. “Deviation” means any specifically defined variation from a particular requirement.


Director. “Director” means the Director of the National Marine Fisheries Service.


Establishment. “Establishment” means any premises, buildings, structures, facilities, and equipment (including vehicles) used in the processing, handling, transporting, and storage of fish and fishery products.


Inspection certificate. “Inspection certificate” means a statement, either written or printed, issued pursuant to the regulations in this part, setting forth in addition to appropriate descriptive information relative to a processed product, and the container thereof, the quality and condition, or any part thereof, of the product and may include a description of the conditions under which the product is stored.


Inspection service. “Inspection service” means:


(1) The sampling pursuant to the regulations in this part;


(2) The determination pursuant to the regulations in this part of:


(i) Essential characteristics such as style, type, size, or identity of any processed product which differentiates between major groups of the same kind;


(ii) The class, quality, and condition of any processed product, including the condition of the container thereof by the examination of appropriate samples;


(3) The issuance of any certificate of sampling, inspection certificates, or certificates of loading of a processed product, or any report relative to any of the foregoing; or


(4) Performance by an inspector of any related services such as to observe the preparation of the product from its raw state through each step in the entire process; or observe conditions under which the product is being harvested, prepared, handled, stored, processed, packed, preserved, transported, or held; or observe sanitation as a prerequisite to the inspection of the processed product, either on a contract basis or periodic basis; or checkload the inspected processed product in connection with the marketing of the product, or any other type of service of a consultative or advisory nature related herewith.


Inspector. “Inspector” means any employee of the Department authorized by the Secretary or any other person licensed by the Secretary to investigate, sample, inspect, and certify in accordance with the regulations in this part to any interested party the class, quality and condition of processed products covered in this part and to perform related duties in connection with the inspection service.


Interested party. “Interested party” means any person who has a financial interest in the commodity involved.


Licensed sampler. “Licensed sampler” means any person who is authorized by the Secretary to draw samples of processed products for inspection service, to inspect for identification and condition of containers in a lot, and may, when authorized by the Secretary, perform related services under the act and the regulations in this part.


Lot. “Lot” has the following meanings:


(1) For the purpose of charging fees and issuing certificates, “Lot” means any number of containers of the same size and type which contain a processed product of the same type and style located in the same or adjacent warehouses and which are available for inspection at any one time: Provided, That:


(i) Processed products in separate piles which differ from each other as to grade or other factors may be deemed to be separate lots;


(ii) Containers in a pile bearing an identification mark different from other containers of such processed product in that pile, if determined to be of lower grade or deficient in other factors, may be deemed to be a separate lot; and


(iii) If the applicant requests more than one inspection certificate covering different portions of such processed product, the quantity of the product covered by each certificate shall be deemed to be a separate lot.


(2) For the purpose of sampling and determining the grade or compliance with a specification, “Lot” means each pile of containers of the same size and type containing a processed product of the same type and style which is separated from other piles in the same warehouse, but containers in the same pile bearing an identification mark different from other containers in that pile may be deemed to be a separate lot.


Official establishment. “Official establishment” means any establishment which has been approved by National Marine Fisheries Service, and utilizes inspection service on a contract basis.


Officially drawn sample. “Officiallydrawn sample” means any sample that has been selected from a particular lot by an inspector, licensed sampler, or by any other person authorized by the Secretary pursuant to the regulations in this part.


Person. “Person” means any individual, partnership, association, business trust, corporation, any organized group of persons (whether incorporated or not), the United States (including, but not limited to, any corporate agencies thereof), any State, county, or municipal government, any common carrier, and any authorized agent of any of the foregoing.


Plant. “Plant” means the premises, buildings, structures, and equipment (including, but not being limited to, machines, utensils, and fixtures) employed or used with respect to the manufacture or production of processed products.


Processed product. “Processed product” means any fishery product or other food product covered under the regulations in this part which has been preserved by any recognized commercial process, including, but not limited to, canning, freezing, dehydrating, drying, the addition of chemical substances, or by fermentation.


Quality. “Quality” means the inherent properties of any processed product which determine the relative degree of excellence of such product, and includes the effects of preparation and processing, and may or may not include the effects of packing media, or added ingredients.


Rejection number. “Rejection number” means the number in a sampling plan that indicates the minimum number of deviants in a sample that will cause a lot to fail a specific requirement.


Sample. “Sample” means any number of sample units to be used for inspection.


Sample unit. “Sample unit” means a container and/or its entire contents, a portion of the contents of a container or other unit of commodity, or a composite mixture of a product to be used for inspection.


Sampling. “Sampling” means the act of selecting samples of processed products for the purpose of inspection under the regulations in this part.


Secretary. “Secretary” means the Secretary of the Department or any other officer or employee of the Department authorized to exercise the powers and to perform the duties of the Secretary in respect to the matters covered by the regulations in this part.


Shipping container. “Shipping container” means an individual container designed for shipping a number of packages or cans ordinarily packed in a container for shipping or designed for packing unpackaged processed products for shipping.


Unofficially drawn sample. “Unofficially drawn sample” means any sample that has been selected by any person other than an inspector or licensed sampler, or by any other person not authorized by the Director pursuant to the regulations in this part.


Wholesome. “Wholesome” means the minimum basis of acceptability for human food purposes, of any fish or fishery product as defined in section 402 of the Federal Food, Drug, and Cosmetic Act, as amended.


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


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

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


Official certificate. “Official certificate” means any form of certification, either written or printed, including those defined in § 260.6, used under this part to certify with respect to the inspection, class, grade, quality, size, quantity, or condition of products (including the compliance of products with applicable specifications).


Official device. “Official device” means a stamping appliance, branding device, stencil, printed label, or any other mechanically or manually operated tool that is approved by the Director for the purpose of applying any official mark or other identification to any product or the packaging material thereof.


Official identification. “Official identification” means any United States (U.S.) standard designation of class, grade, quality, size, quantity, or condition specified in this part or any symbol, stamp, label, or seal indicating that the product has been graded or inspected and/or indicating the class, grade, quality, size, quantity, or condition of the product approved by the Director and authorized to be affixed to any product, or affixed to or printed on the packaging material of any product.


Official mark. “Official mark” means the grade mark, inspection mark, combined form of inspection and grade mark, and any other mark, or any variations in such marks, including those prescribed in § 260.86, approved by the Secretary and authorized to be affixed to any product, or affixed to or printed on the packaging material of any product, stating that the product was graded or inspected or both, or indicating the appropriate U.S. Grade or condition of the product, or for the purpose of maintaining the identity of products graded or inspected or both under this part.


Official memorandum. “Official memorandum” means any initial record of findings made by an authorized person in the process of grading, inspecting, or sampling pursuant to this part, any processing or plant-operation report made by an authorized person in connection with grading, inspecting, or sampling under this part, and any report made by an authorized person of services performed pursuant to this part.


Inspection Service

§ 260.12 Where inspection service is offered.

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


§ 260.13 Who may obtain inspection service.

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


§ 260.14 How to make application.

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


§ 260.15 Information required in connection with application.

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


§ 260.16 Filing of application.

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


§ 260.17 Record of filing time.

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


§ 260.18 When application may be rejected.

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


§ 260.19 When application may be withdrawn.

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


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


§ 260.20 Disposition of inspected sample.

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


§ 260.21 Basis of inspection and grade or compliance determination.

(a) Inspection service shall be performed on the basis of the appropriate U.S. standards for grades of processed products, Federal, Military, Veterans Administration or other government agency specifications, written contract specification, or any written specification or instruction which is approved by the Secretary.


(b) Unless otherwise approved by the Director compliance with such grade standards, specifications, or instructions shall be determined by evaluating the product, or sample, in accordance with the requirements of such standards, specifications, or instructions: Provided, That when inspection for quality is based on any U.S. grade standard which contains a scoring system the grade to be assigned to a lot is the grade indicated by the average of the total scores of the sample units: Provided further, That:


(1) Such sample complies with the applicable standards of quality promulgated under the Federal Food, Drug, and Cosmetic Act;


(2) Such sample complies with the product description;


(3) Such sample meets the indicated grade with respect to factors of quality which are not rated by score points; and


(4) With respect to those factors of quality which are rated by score points, each of the following requirements is met:


(i) None of the sample units falls more than one grade below the indicated grade because of any quality factor to which a limiting rule applies;


(ii) None of the sample units falls more than 4 score points below the minimum total score for the indicated grade; and


(iii) The number of sample units classed as deviants does not exceed the applicable acceptance number indicated in the sampling plans contained in § 260.61. A “deviant,” as used in this paragraph, means a sample unit that falls into the next grade below the indicated grade but does not score more than 4 points below the minimum total score for the indicated grade.


(5) If any of the provisions contained in paragraphs (b)(3) and (4) of this section are not met the grade is determined by considering such provisions in connection with succeedingly lower grades until the grade of the lot, if assignable, is established.


§ 260.22 Order of inspection service.

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


§ 260.23 Postponing inspection service.

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


§ 260.24 Financial interest of inspector.

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


§ 260.25 Forms of certificates.

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


§ 260.26 Issuance of certificates.

(a) An inspection certificate may be issued only by an inspector: Provided, That, another employee of the inspection service may sign any such certificate covering any processed product inspected by an inspector when given power of attorney by such inspector and authorized by the Secretary, to affix the inspector’s signature to an inspection certificate which has been prepared in accordance with the facts set forth in the notes, made by the inspector, in connection with the inspection.


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


§ 260.27 Issuance of corrected certificates.

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


§ 260.28 Issuance of an inspection report in lieu of an inspection certificate.

A letter report in lieu of an inspection certificate may be issued by an inspector when such action appears to be more suitable than an inspection certificate: Provided, That, the issuance of such report is approved by the Secretary.


§ 260.29 Disposition of inspection certificates.

The original of any inspection certificate, issued under the regulations in this part, and not to exceed four copies thereof, if requested prior to issuance, shall be delivered or mailed promptly to the applicant, or person designated by the applicant. All other copies shall be filed in such manner as the Secretary may designate. Additional copies of any such certificates may be supplied to any interested party as provided in § 260.78.


§ 260.30 Report of inspection results prior to issuance of formal report.

Upon request of any interested party, the results of an inspection may be telegraphed or telephoned to him, or to any other person designated by him, at his expense.


Appeal Inspection

§ 260.36 When appeal inspection may be requested.

An application for an appeal inspection may be made by any interested party who is dissatisfied with the results of an inspection as stated in an inspection certificate, if the lot of processed products can be positively identified by the inspection service as the lot from which officially drawn samples were previously inspected. Such application shall be made within thirty (30) days following the day on which the previous inspection was performed, except upon approval by the Secretary the time within which an application for appeal inspection may be made, may be extended.


§ 260.37 Where to file for an appeal inspection and information required.

(a) Application for an appeal inspection may be filed with:


(1) The inspector who issued the inspection certificate on which the appeal covering the processed product is requested; or


(2) The inspector in charge of the office of inspection at or nearest the place where the processed product is located.


(b) The application for appeal inspection shall state the location of the lot of processed products and the reasons for the appeal; and date and serial number of the certificate covering inspection of the processed product on which the appeal is requested, and such application may be accompanied by a copy of the previous inspection certificate and any other information that may facilitate inspection. Such application may be made orally (in person or by telephone), in writing, or by telegraph. If made orally, written confirmation shall be made promptly.


§ 260.38 When an application for an appeal inspection may be withdrawn.

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


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


§ 260.39 When appeal inspection may be refused.

An application for an appeal inspection may be refused if:


(a) The reasons for the appeal inspection are frivolous or not substantial;


(b) The quality or condition of the processed product has undergone a material change since the inspection covering the processed product on which the appeal inspection is requested;


(c) The lot in question is not, or cannot be made accessible for the selection of officially drawn samples;


(d) The lot relative to which appeal inspection is requested cannot be positively identified by the inspector as the lot from which officially drawn samples were previously inspected; or


(e) There is noncompliance with the regulations in this part. Such applicant shall be notified promptly of the reason for such refusal.


§ 260.40 Who shall perform appeal inspection.

An appeal inspection shall be performed by an inspector or inspectors (other than the one from whose inspection the appeal is requested) authorized for this purpose by the Secretary and, whenever practical, such appeal inspection shall be conducted jointly by two such inspectors: Provided, That the inspector who made the inspection on which the appeal is requested may be authorized to draw the samples when another inspector or licensed sampler is not available in the area where the product is located.


§ 260.41 Appeal inspection certificate.

After an appeal inspection has been completed, an appeal inspection certificate shall be issued showing the results of such appeal inspection; and such certificate shall supersede the inspection certificate previously issued for the processed product involved. Each appeal inspection certificate shall clearly identify the number and date of the inspection certificate which it supersedes. The superseded certificate shall become null and void upon the issuance of the appeal inspection certificate and shall no longer represent the quality or condition of the processed product described therein. The inspector or inspectors issuing an appeal inspection certificate shall forward notice of such issuance to such persons as he considers necessary to prevent misuse of the superseded certificate if the original and all copies of such superseded certificate have not previously been delivered to the inspector or inspectors issuing the appeal inspection certificate. The provisions in the regulations in this part concerning forms of certificates, issuance of certificates, and disposition of certificates shall apply to appeal inspection certificates, except that copies of such appeal inspection certificates shall be furnished all interested parties who received copies of the superseded certificate.


Licensing of Samplers and Inspectors

§ 260.47 Who may become licensed sampler.

Any person deemed to have the necessary qualifications may be licensed as a licensed sampler to draw samples for the purpose of inspection under the regulations in this part. Such a license shall bear the printed signature of the Secretary, and shall be countersigned by an authorized employee of the Department. Licensed samplers shall have no authority to inspect processed products under the regulations in this part except as to identification and condition of the containers in a lot. A licensed sampler shall perform his duties pursuant to the regulations in this part as directed by the Director.


§ 260.48 Application to become a licensed sampler.

Application to become a licensed sampler shall be made to the Secretary on forms furnished for that purpose. Each such application shall be signed by the applicant in his own handwriting, and the information contained therein shall be certified by him to be true, complete, and correct to the best of his knowledge and belief, and the application shall contain or be accompanied by:


(a) A statement showing his present and previous occupations, together with names of all employers for whom he has worked, with periods of service, during the 10 years previous to the date of his application;


(b) A statement that, in his capacity as a licensed sampler, he will not draw samples from any lot of processed products with respect to which he or his employer is an interested party;


(c) A statement that he agrees to comply with all terms and conditions of the regulations in this part relating to duties of licensed samplers; and


(d) Such other information as may be requested.


§ 260.49 Inspectors.

Inspections will ordinarily be performed by employees under the Secretary who are employed as Federal Government employees for that purpose. However, any person employed under any joint Federal-State inspection service arrangement may be licensed, if otherwise qualified, by the Secretary to make inspections in accordance with this part on such processed products as may be specified in his license. Such license shall be issued only in a case where the Secretary is satisfied that the particular person is qualified to perform adequately the inspection service for which such person is to be licensed. Each such license shall bear the printed signature of the Secretary and shall be countersigned by an authorized employee of the Department. An inspector shall perform his duties pursuant to the regulations in this part as directed by the Director.


§ 260.50 Suspension or revocation of license of licensed sampler or licensed inspector.

Pending final action by the Secretary, the Director may, whenever he deems such action necessary, suspend the license of any licensed sampler, or licensed inspector, issued pursuant to the regulations in this part, by giving notice of such suspension to the respective licensee, accompanied by a statement of the reasons therefor. Within 7 days after the receipt of the aforesaid notice and statement of reasons by such licensee, he may file an appeal, in writing, with the Secretary supported by any argument or evidence that he may wish to offer as to why his license should not be suspended or revoked. After the expiration of the aforesaid 7 day period and consideration of such argument and evidence, the Secretary shall take such action as he deems appropriate with respect to such suspension or revocation.


§ 260.51 Surrender of license.

Upon termination of his services as a licensed sampler or licensed inspector, or suspension or revocation of his license, such licensee shall surrender his license immediately to the office of inspection serving the area in which he is located. These same provisions shall apply in a case of an expired license.


Sampling

§ 260.57 How samples are drawn by inspectors or licensed samplers.

An inspector or a licensed sampler shall select samples, upon request, from designated lots of processed products which are so placed as to permit thorough and proper sampling in accordance with the regulations in this part. Such person shall, unless otherwise directed by the Secretary, select sample units of such products at random, and from various locations in each lot in such manner and number, not inconsistent with the regulations in this part, as to secure a representative sample of the lot. Samples drawn for inspection shall be furnished by the applicant at no cost to the Department.


§ 260.58 Accessibility for sampling.

Each applicant shall cause the processed products for which inspection is requested to be made accessible for proper sampling. Failure to make any lot accessible for proper sampling shall be sufficient cause for postponing inspection service until such time as such lot is made accessible for proper sampling.


§ 260.59 How officially drawn samples are to be identified.

Officially drawn samples shall be marked by the inspector or licensed sampler so such samples can be properly identified for inspection.


§ 260.60 How samples are to be shipped.

Unless otherwise directed by the Secretary, samples which are to be shipped to any office of inspection shall be forwarded to the office of inspection serving the area in which the processed prodcuts from which the samples were drawn is located. Such samples shall be shipped in a manner to avoid, if possible, any material change in the quality or condition of the sample of the processed product. All transportation charges in connection with such shipments of samples shall be at the expense of the applicant and wherever practicable, such charges shall be prepaid by him.


§ 260.61 Sampling plans and procedures for determining lot compliance.

(a) Except as otherwise provided for in this section in connection with in-plant inspection and unless otherwise approved by the Secretary, samples shall be selected from each lot in the exact number of sample units indicated for the lot size in the applicable single sampling plan or, at the discretion of the inspection service, any comparable multiple sampling plan: Provided, That at the discretion of the inspection service the number of sample units selected may be increased to the exact number of sample units indicated for any one of the larger sample sizes provided for in the appropriate plans.


(b) Under the single sampling plans with respect to any specified requirement:


(1) If the number of deviants (as defined in connection with the specific requirements) in the sample does not exceed the acceptance number prescribed for the sample size the lot meets the requirement;


(2) If the number of deviants (as defined in connection with the specific requirement) in the sample exceeds the acceptance number prescribed for the sample size the lot fails the requirement.


(c) Under the multiple sampling plans inspection commences with the smallest sample size indicated under the appropriate plan and with respect to any specified requirement:


(1) If the number of deviants (as defined in connection with the specific requirement) in the sample being considered does not exceed the acceptance number prescribed for that sample size the lot meets the requirement;


(2) If the number of deviants (as defined in connection with the specific requirement) in the sample being considered equals or exceeds the rejection number prescribed for that sample size the lot fails the requirement; or


(3) If the number of deviants (as defined in connection with the specific requirement) in the sample being considered falls between the acceptance and rejection numbers of the plan, additional sample units are added to the sample so that the sample thus cumulated equals the next larger cumulative sample size in the plan. It may then be determined that the lot meets or fails the specific requirement by considering the cumulative sample and applying the procedures outlined in paragraphs (c)(1) and (2) of this section or by considering successively larger samples cumulated in the same manner until the lot meets or fails the specific requirement.


(d) If in the conduct of any type of in-plant inspection the sample is examined before the lot size is known and the number of sample units exceeds the prescribed sample size for such lot but does not equal any of the prescribed larger sample sizes the lot may be deemed to meet or fail a specific requirement in accordance with the following procedure:


(1) If the number of deviants (as defined in connection with the specific requirement) in the nonprescribed sample does not exceed the acceptance number of the next smaller sample size the lot meets the requirements;


(2) If the number of deviants (as defined in connection with the specific requirement) in the nonprescribed sample equals the acceptance number prescribed for the next larger sample size additional sample units shall be selected to increase the sample to the next larger prescribed sample size;


(3) If the number of deviants (as defined in connection with the specific requirement) in the nonprescribed sample exceeds the acceptance number prescribed for the next larger sample size the lot fails the requirement.


(e) In the event that the lot compliance determination provisions of a standard or specification are based on the number of specified deviations instead of deviants the procedures set forth in this section may be applied by substituting the word “deviation” for the word “deviant” wherever it appears.


(f) Sampling plans referred to in this section are those contained in Tables I, II, III, IV, V, and VI which follow or any other plans which are applicable. For processed products not included in these tables, the minimum sample size shall be the exact number of sample units prescribed in the table, container group, and lot size that, as determined by the inspector, most closely resembles the product, type, container size and amount of product to be samples.


Single Sampling Plans and Acceptance Levels

Table I – Canned or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable

Container size group
Lot size (number of containers)









group 1
Any type of container of less volume than that of a No. 300 size can (300 × 407)3,600 or less3,601-14,40014,401-48,00048,001-96,000 96,001-156,000156,001-228,000228,001-300,000300,001-420,000Over 420,000
group 2
Any type of container of a volume equal to or exceeding that of a No. 300 size can, but not exceeding that of a No. 3 cylinder size can (404 × 700)2,400 or less2,401-12,00012,001-24,00024,001-48,000 48,001-72,00072,001-108,000108,001-168,000168,001-240,000Over 240,000
group 3
Any type of container of a volume exceeding that of a No. 3 cylinder size can, but not exceeding that of a No. 12 size can (603 × 812)1,200 or less1,201-7,2007,201-15,00015,001-24,00024,001-36,00036,001-60,00060,001-84,00084,001-120,000Over 120,000
group 4
Any type of container of a volume exceeding that of a No. 12 size can, but not exceeding that of a 5-gallon container200 or less201-800801-1,6001,601-2,4002,401-3,6003,601-8,0008,001-16,00016,001-28,000 Over 28,000
group 5
Any type of container of a volume exceeding that of a 5-gallon container25 or less26-8081-200201-400401-800801-1,2001,201-2,0002,001-3,200Over 3,200
Single sampling plans
1
Sample size (number of sample units)
2
3613212938486072
Acceptance number01234567


1 For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to table VI of this section.


2 The sample units for the various container size groups are as follows: Groups 1, 2, and 3 – 1 container and its entire contents. Groups 4 and 5 – approximately 2 pounds of product. When determined by the inspector that a 2-pound sample unit is inadequate, a larger sample unit may be substituted.


Table II – Frozen or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable

Container size group
Lot size (number of containers)









group 1
Any type of container of 1 pound or less net weight2,400 or less2,401-12,00012,001-24,00024,001-48,00048,001-72,00072,001-108,000108,001-168,000168,001-240,000Over 240,000
group 2
Any type of container over 1 pound but not over 4 pounds net weight1,800 or less1,801-8,4008,401-18,00018,001-36,00036,001-60,00060,001-96,00096,001-132,000132,001-168,000Over 168,000
group 3
Any type of container over 4 pounds but not over 10 pounds net weight900 or less901-3,6003,601-10,80010,801-18,00018,001-36,00036,001-60,00060,001-84,00084,001-120,000Over 120,000
group 4
Any type of container over 10 pounds but not over 100 pounds net weight200 or less201-800801-1,6001,601-2,4002,401-3,6003,601-8,0008,001-16,00016,001-28,000Over 28,000
group 5
Any type of container over 100 pounds net weight25 or less26-8081-200201-400401-800801-1,2001,201-2,0002,001-3,200Over 3,200
Single sampling plans
1
Sample size (number of sample units)
2
3613212938486072
Acceptance number012345678


1 For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to table VI of this section.


2 The sample units for the various container size groups are as follows: Groups 1, 2, and 3 – 1 container and its entire contents. Groups 4 and 5 – approximately 3 pounds of product. When determined by the inspector that a 3-pound sample unit is inadequate, a larger sample unit or 1 or more containers and their entire contents may be substituted for 1 or more sample units of 3 pounds.


Table III – Canned, Frozen, or Otherwise Processed Fishery and Related Products, and Products Thereof of a Comminuted, Fluid, or Homogeneous State

Container size group
1
Lot size (number of containers)









group 1
Any type of container of 12 ounces or less5,400 or less5,401-21,60021,601-62,40062,401-112,000112,001-174,000174,001-240,000240,001-360,000360,001-480,000Over 480,000
group 2
Any type of container over 12 ounces but not over 60 ounces3,600 or less3,601-14,40014,401-48,00048,001-96,00096,001-156,000156,001-228,000228,001-300,000300,001-420,000Over 420,000
group 3
Any type of container over 60 ounces but not over 160 ounces1,800 or less1,801-8,4008,401-18,00018,001-60,00036,001-60,00060,001-96,00096,001-132,000132,001-168,000Over 168,000
group 4
Any type of container over 160 ounces but not over 10 gallons or 100 pounds whichever is applicable200 or less201-800801-1,6001,601-3,2003,201-8,0008,001-16,00016,001-24,00024,001-32,000Over 32,000
group 5
Any type of container over 10 gallons or 100 pounds whichever is applicable25 or less26-8081-200201-400401-800801-1,2001,201-2,0002,001-3,200Over 3,200
Single sampling plans
2
Sample size (number of sample units)
3
3613212938486072
Acceptance number012345678


1 Ounces pertain to either fluid ounces of volume or avoirdupois ounces of net weight whichever is applicable for the product involved.


2 For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to table VI of this section.


3 The sample units for the various container size groups are as follows: Groups 1, 2, and 3 – 1 container and its entire contents. A smaller sample unit may be substituted in group 3 at the inspector’s discretion. Groups 4, 5, and 6 – approximately 16 ounces of product. When determined by the inspector that a 16-ounce sample unit is inadequate, a larger sample unit may be substituted.


Table IV – Dehydrated Fishery and Related Products

Container size group
Lot size (number of containers)









group 1
Any type of container of 1 pound or less net weight1,800 or less1,801-8,4008,401-18,00018,001-36,00036,001-60,00060,001-96,00096,001-132,000132,001-168,000Over 168,000
group 2
Any type of container over 1 pound but not over 6 pounds net weight900 or less901-3,6003,601-10,80010,801-18,00018,001-36,00036,001-60,00060,001-84,00084,001-120,000Over 120,000
group 3
Any type of container over 6 pounds but not over 20 pounds net weight200 or less201-800801-1,6001,601-3,2003,201-8,0008,001-16,00016,001-24,00024,001-32,000Over 32,000
group 4
Any type of container over 20 pounds but not over 100 pounds net weight48 or less49-400401-1,2001,201-2,0002,001-2,8002,801-6,0006,001-9,6009,601-15,000Over 15,000
group 5
Any type of container over 100 pounds net weight16 or less17-8081-200201-400401-800801-1,2001,201-2,0002,001-3,200Over 3,200
Single sampling plans
1
Sample size (number of sample units)
2
3613212938486072
Acceptance number012345678


1 For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to table VI of this section.


2 The sample units for the various container size groups are as follows: Group 1 – 1 container and its entire contents. Groups 2, 3, 4, and 5 – 1 container and its entire contents or a smaller sample unit when determined by the inspector to be adequate.


Table V – Single Sampling Plans for Use in Increasing Sample Size Beyond 72 Sample Units

Sample size, n8496108120132144156168180192204216230244258272286300314328342356370384400
Acceptance numbers, c9101112131415161718192021222324252627282930313233

Multiple Sampling Plans
1

Table VI – Multiple Sampling Plans Comparable to the Indicated Single Sampling Plans

Indicated single sampling plan:
Single sample size, n 6 13 21 29 38 48 60 72
Acceptance numbers, c 1 2 3 4 5 6 7 8
Cumulative sample sizes, nc, and acceptance numbers, c,nccrnccrnccrnccrnccrnccrnccrnccr
and rejection numbers, r, for multiple sampling.402803100312041404160418052205
6021003141416042005241528163217
8121213181420152616322638274228
1423222524253226403848385239
2645283638374848584862510
323644675678688972610
3656 82910


1 These multiple sampling plans may be used in lieu of the single sampling plans listed at the heading of each column.


§ 260.62 Issuance of certificate of sampling.

Each inspector and each licensed sampler shall prepare and sign a certificate of sampling to cover the samples drawn by the respective person, except that an inspector who inspects the samples which he has drawn need not prepare a certificate of sampling. One copy of each certificate of sampling prepared shall be retained by the inspector or licensed sampler (as the case may be) and the original and all other copies thereof shall be disposed of in accordance with the instructions of the Secretary.


§ 260.63 Identification of lots sampled.

Each lot from which officially drawn samples are selected shall be marked in such manner as may be prescribed by the Secretary, if such lots do not otherwise possess suitable identification.


Fees and Charges

§ 260.69 Payment fees and charges.

Fees and charges for any inspection service shall be paid by the interested party making the application for such service, in accordance with the applicable provisions of the regulations in this part, and, if so required by the person in charge of the office of inspection serving the area where the services are to be performed, an advance of funds prior to rendering inspection service in an amount suitable to the Secretary, or a surety bond suitable to the Secretary, may be required as a guarantee of payment for the services rendered. All fees and charges for any inspection service, performed pursuant to the regulations in this part shall be paid by check, draft, or money order made payable to the National Marine Fisheries Service. Such check, draft, or money order shall be remitted to the appropriate regional or area office serving the geographical area in which the services are performed, within ten (10) days from the date of billing, unless otherwise specified in a contract between the applicant and the Secretary, in which latter event the contract provisions shall apply.


[36 FR 21038, Nov. 3, 1971]


§ 260.70 Schedule of fees.

(a) Unless otherwise provided in a written agreement between the applicant and the Secretary, the fees to be charged and collected for any inspection service performed under the regulations in this part at the request of the United States, or any other agency or instrumentality thereof, will be published as a notice in the Federal Register and will be in accordance with § 260.81.


(b) Fees are reviewed annually to ascertain that the hourly fees charged are adequate to recover the costs of the services rendered.


(1) The TYPE I (Contract Inspection) hourly fee is determined by dividing the estimated annual costs by the estimated annual billable hours.


(2) The TYPE II (Lot Inspection) hourly fee is determined by adding a factor of 50 percent to the TYPE I fee, to cover additional costs (down-time, etc.) associated with conducting lot inspection services.


(3) The TYPE III (Miscellaneous and Consulting) hourly fee is determined by adding a factor of 25 percent to the TYPE I fee, to cover the additional costs (down-time, etc.) associated with conducting miscellaneous inspection services.


[48 FR 24901, June 3, 1983]


§ 260.71 [Reserved]

§ 260.72 Fees for inspection service performed under cooperative agreement.

The fees to be charged and collected for any inspection or similar service performed under cooperative agreement shall be those provided for by such agreement.


§ 260.73 Disposition of fees for inspections made under cooperative agreement.

Fees for inspection under a cooperative agreement with any State or person shall be disposed of in accordance with the terms of such agreement. Such portion of the fees collected under a cooperative agreement as may be due the United States shall be remitted in accordance with § 260.69.


§ 260.74 Fee for appeal inspection.

The fee to be charged for an appeal inspection shall be at the rates prescribed in this part for other inspection services: Provided, That, if the result of any appeal inspection made for any applicant, other than the United States or any agency or instrumentality thereof, discloses that a material error was made in the inspection on which the appeal is made, no inspection fee shall be assessed.


§ 260.76 [Reserved]

§ 260.77 Fees for score sheets.

If the applicant for inspection service requests score sheets showing in detail the inspection of each container or sample inspected and listed thereon, such score sheets may be furnished by the inspector in charge of the office of inspection serving the area where the inspection was performed; and such applicant shall be changed at the rate of $2.75 for each 12 sampled units, or fraction thereof, inspected and listed on such score sheets.


§ 260.78 Fees for additional copies of inspection certificates.

Additional copies of any inspection certificate other than those provided for in § 260.29, may be supplied to any interested party upon payment of a fee of $2.75 for each set of five (5) or fewer copies.


§ 260.79 Travel and other expenses.

Charges may be made to cover the cost of travel and other expenses incurred in connection with the performance of any inspection service, including appeal inspections: Provided, That, if charges for sampling or inspection are based on an hourly rate, an additional hourly charge may be made for travel time including time spent waiting for transportation as well as time spent traveling, but not to exceed 8 hours of travel time for any one person for any one day: And provided further, That, if travel is by common carrier, no hourly charge may be made for travel time outside the employee’s official work hours.


§ 260.80 Charges for inspection service on a contract basis.

Irrespective of fees and charges prescribed in the foregoing sections, the Secretary may enter into a written memorandum of understanding or contract, whichever may be appropriate, with any administrative agency charged with the administration of a marketing order effective pursuant to the Agricultural Marketing Agreement Act of 1937, as revised (16 U.S.C. 661 et seq.) for the making of inspections pursuant to said agreement or order on such basis as will reimburse the National Marine Fisheries Service of the Department for the full cost of rendering such inspection service as may be determined by the Secretary. Likewise, the Secretary may enter into a written memorandum of understanding or contract, whichever may be appropriate, with an administrative agency charged with the administration of a similar program operated pursuant to the laws of any State.


[36 FR 21038, Nov. 3, 1971]


§ 260.81 Readjustment and increase in hourly rates of fees.

(a) When Federal Pay Act increases occur, the hourly rates for inspection fees will automatically be increased on the effective date of the pay act by an amount equal to the increase received by the average GS grade level of fishery product inspectors receiving such pay increases.


(b) The hourly rates of fees to be charged for inspection services will be subject to review and reevaluation for possible readjustment not less than every 3 years: Provided, That, the hourly rates of fees to be charged for inspection services will be immediately reevaluated as to need for readjustment with each Federal Pay Act increase.


[35 FR 15925, Oct. 9, 1970]


Miscellaneous

§ 260.84 Policies and procedures.

The policies and procedures pertaining to any of the inspection services are contained within the NMFS Fishery Products Inspection Manual. The policies and procedures are available from the Secretary to any interested party by writing to Document Approval and Supply Services Branch, Inspection Services Division, P.O. Drawer 1207, 3207 Frederic St., Pascagoula, MS 39568-1207.


[61 FR 9369, Mar. 8, 1996]


§ 260.86 Approved identification.

(a) Grade marks: The approved grade mark or identification may be used on containers, labels, or otherwise indicated for any processed product that:


(1) Has been packed under inspection as provided in this part to assure compliance with the requirements for wholesomeness established for the raw product and of sanitation established for the preparation and processing operations, and (2) has been certified by an inspector as meeting the requirements of such grade, quality or classification.


The grade marks approved for use shall be similar in form and design to the examples of Figures 1 to 5 of this section.

Shield using red, white, and blue background or other colors appropriate for label.


Figure 1
Shield with plain background.


Figure 2

Figure 3

Figure 4

Figure 5

(b) Inspection marks: The approved inspection marks may be used on containers, labels, or otherwise indicated for any processed product that:


(1) Has been packed under inspection as provided in this part to assure compliance with the requirements for wholesomeness established for the raw product and of sanitation established for the preparation and processing operations, and (2) has been certified by an inspector as meeting the requirements of such quality or grade classification as may be approved by the Secretary.


The inspection marks approved for use shall be similar in form and design to the examples in Figures 6, 7, and 8 of this section.

Statement enclosed within a circle.


Figure 6
Statement without the use of the circle.


Figure 7
Statement without the use of the circle.


Figure 8

(c) Combined grade and inspection marks: The grade marks set forth in paragraph (a) of this section, and the inspection marks, Figures 7 and 8, set forth in paragraph (b) of this section, may be combined into a consolidated grade and inspection mark for use on processed products that have been packed under inspection as provided in this part.


(d) Products not eligible for approved identification: Processed products which have not been packed under inspection as provided in this part shall not be identified by approved grade or inspection marks, but such products may be inspected on a lot inspection basis as provided in this part and identified by an authorized representative of the Department by stamping the shipping cases and inspection certificate(s) covering such lot(s) as appropriate, with marks similar in form and design to the examples in Figures 9 and 10 of this section.



Figure 9

Figure 10

(e) Removal of labels bearing inspection marks: At the time a lot of fishery products is found to be mislabeled and the labels on the packages are not removed within ten (10) consecutive calendar days, the following procedure shall be applicable:


(1) The processor, under the supervision of the inspector, shall clearly and conspicuously mark all master cases in the lot by means of a “rejected by USDC Inspector” stamp provided by the Department.


(2) The processor shall be held accountable to the Department for all mislabeled products until the products are properly labeled.


(3) Clearance for the release of the relabeled products shall be obtained by the processor from the inspector.


(f) Users of inspection services having an inventory of labels which bear official approved identification marks stating “U.S. Department of the Interior” or otherwise referencing the Interior Department, will be permitted to use such marks until December 31, 1971, except that upon written request the Director, National Marine Fisheries Service, may extend such period for the use of specific labels.


[36 FR 4609, Mar. 10, 1971]


§ 260.88 Political activity.

All inspectors and licensed samplers are forbidden, during the period of their respective appointments or licenses, to take an active part in political management or in political campaigns. Political activities in city, county, State, or national elections, whether primary or regular, or in behalf of any party or candidate, or any measure to be voted upon, are prohibited. This applies to all appointees or licensees, including, but not limited to, temporary and cooperative employees and employees on leave of absence with or without pay. Willful violation of this section will constitute grounds for dismissal in the case of appointees and revocation of licenses in the case of licensees.


§ 260.90 Compliance with other laws.

None of the requirements in the regulations in this part shall excuse failure to comply with any Federal, State, county, or municipal laws applicable to the operation of food processing establishments and to processed food products.


§ 260.91 Identification.

Each inspector and licensed sampler shall have in his possession at all times and present upon request, while on duty, the means of identification furnished by the Department to such person.


§ 260.93 Debarment and suspension.

(a) Debarment. Any person may be debarred from using or benefiting from the inspection service provided under the regulations of this subchapter or under the terms of any inspection contract, and such debarment may apply to one or more plants under his control, if such person engages in one or more of the following acts or activities:


(1) Misrepresenting, misstating, or withholding any material or relevant facts or information in conjunction with any application or request for an inspection contract, inspection service, inspection appeal, lot inspection, or other service provided for under the regulations of this subchapter.


(2) Using on a processed product any label which displays any official identification, official device, or official mark, when the label is not currently approved for use by the Director or his delegate.


(3) Using on a processed product any label which displays the words “Packed Under Federal Inspection, U.S. Department of Commerce”, or which displays any official mark, official device, or official identification, or which displays a facsimile of the foregoing, when such product has not been inspected under the regulations of this subchapter.


(4) Making any statement or reference to the U.S. Grade of any processed product or any inspection service provided under the regulations of this subchapter on the label or in the advertising of any processed product, when such product has not been inspected under the regulations of this subchapter.


(5) Making, using, issuing or attempting to issue or use in conjunction with the sale, shipment, transfer or advertisement of a processed product any certificate of loading, certificate of sampling, inspection certificate, official device, official identification, official mark, official document, or score sheet which has not been issued, approved, or authorized for use with such product by an inspector.


(6) Using any of the terms “United States”, “Officially graded”, “Officially inspected”, “Government inspected”, “Federally inspected”, “Officially sampled”, or words of similar import or meanings, or using any official device, official identification, or official mark on the label, on the shipping container, or in the advertising of any processed product, when such product has not been inspected under the regulations of this subchapter.


(7) Using, attempting to use, altering or reproducing any certificate, certificate form, design, insignia, mark, shield, device, or figure which simulates in whole or in part any official mark, official device, official identification, certificate of loading, certificate of sampling, inspection certificate or other official certificate issued pursuant to the regulations of this subchapter.


(8) Assaulting, harassing, interfering, obstructing or attempting to interfere or obstruct any inspector or sampler in the performance of his duties under the regulations of this subchapter.


(9) Violating any one or more of the terms of any inspection contract or the provisions of the regulations of this subchapter.


(10) Engaging in acts or activities which destroy or interfere with the purposes of the inspection program or which have the effect of undermining the integrity of the inspection program.


(b) Temporary suspension. (1) Whenever the Director has reasonable cause to believe that any person has engaged in any act or activity described in paragraph (a) of this section, and in such act or activity, in the judgment of the Director, would cause serious and irreparable injury to the inspection program and services provided under the regulations of this subchapter, the Director may, without a hearing, temporarily suspend, either before or after the institution of a debarment hearing, the inspection service provided under the regulations of this subchapter or under any inspection contract for one or more plants under the control of such person. Notice of suspension shall be served by registered or certified mail, return receipt requested, and the notice shall specifically state those acts or activities of such person which are the bases for the suspension. The suspension shall become effective five (5) days after receipt of the notice.


(2) Once a person has received a notice of a temporary suspension, a debarment hearing will be set for 30 days after the effective date of the suspension. Within 60 days after the completion of the debarment hearing, the Hearing Examiner shall determine, based upon evidence of record, whether the temporary suspension shall be continued or terminated. A temporary suspension shall be terminated by the Hearing Examiner if he determines that the acts or activities, which were the bases for the suspension, did not occur or will not cause serious and irreparable injury to the inspection program and services provided under the regulations of this subchapter. This determination of the Hearing Examiner on the continuation or termination of the temporary suspension shall be final and there shall be no appeal of this determination. The initial decision by the Hearing Examiner on the debarment shall be made in accordance with paragraph (b)(1), Decisions, of this section.


(3) After a debarment hearing has been instituted against any person by a suspension, such suspension will remain in effect until a final decision is rendered on the debarment in accordance with the regulations of this section or the temporary suspension is terminated by the Hearing Examiner.


(4) When a debarment hearing has been instituted against any person not under suspension, the Director may, in accordance with the regulations of this paragraph (b) temporarily suspend such person, and the suspension will remain in effect until a final decision on the debarment is rendered in accordance with the regulations of this section or the temporary suspension is terminated by the Hearing Examiner.


(c) Hearing Examiner. All hearing shall be held before a Hearing Examiner appointed by the Secretary or the Director.


(d) Hearing. If one or more of the acts or activities described in paragraph (a) of this section have occurred, the Director may institute a hearing to determine the length of time during which the person shall be debarred and those plants to which the debarment shall apply. No person may be debarred unless there is a hearing, as prescribed in this section, and it has been determined by the Hearing Examiner, based on evidence of record, that the one or more of the activities described in paragraph (a) of this section have occurred. Any debarment or suspension must be instituted within two (2) years of the time when such acts or activities described in paragraph (a) of this section have occurred.


(e) Notice of hearing. The Director shall notify such person of the debarment hearing by registered or certified mail, return receipt requested. The notice shall set forth the time and place of the hearing, the specific acts or activities which are the basis for the debarment hearing, the time period of debarment being sought, and those plants to which the debarment shall apply. Except for the debarment hearing provided for in paragraph (b) of this section the hearing will be set for a time not longer than 120 days after receipt of the notice of hearing.


(f) Time and place of hearing. The hearing shall be held at a time and place fixed by the Director: Provided, however, The Hearing Examiner may, upon a proper showing of inconvenience, change the time and place of the hearing. Motions for change of time or place of the hearing must be mailed to or served upon the Hearing Examiner no later than 10 days before the hearing.


(g) Right to counsel. In all proceedings under this section, all persons and the Department of Commerce shall have the right to be represented by counsel, in accordance with the rules and regulations set forth in title 43, Code of Federal Regulations, part 1.


(h) Form, execution, and service of documents. (1) All papers to be filed under the regulations in this section shall be clear and legible; and shall be dated, signed in ink, contain the docket description and title of the proceeding, if any, and the address of the signatory. Five copies of all papers are required to be filed. Documents filed shall be executed by:


(i) The person or persons filing same,


(ii) by an authorized officer thereof if it be a corporation or,


(iii) by an attorney or other person having authority with respect thereto.


(2) All documents, when filed, shall show that service has been made upon all parties to the proceeding. Such service shall be made by delivering one copy to each party in person or by mailing by first-class mail, properly addressed with postage prepaid. When a party has appeared by attorney or other representative, service on such attorney or other representative will be deemed service upon the party. The date of service of document shall be the day when the matter served is deposited in the U.S. mail, shown by the postmark thereon, or is delivered in person, as the case may be.


(3) A person is deemed to have appeared in a hearing by the filing with the Director a written notice of his appearance or his authority in writing to appear on behalf of one of the persons to the hearing.


(4) The original of every document filed under this section and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:



I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by: (1) Mailing postage prepaid, (2) delivering in person, a copy to each party.


Dated at __________ this _____ day of ______, 19__


Signature ________________

(i) Procedures and evidence. (1) All parties to a hearing shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the Hearing Examiner at the outset of or during the hearing.


(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this section, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary.


(j) Duties of Hearing Examiner. The Hearing Examiner shall have the authority and duty to:


(1) Take or cause depositions to be taken.


(2) Regulate the course of the hearings.


(3) Prescribe the order in which evidence shall be presented.


(4) Dispose of procedural requests or similar matters.


(5) Hear and initially rule upon all motions and petitions before him.


(6) Administer oaths and affirmations.


(7) Rule upon offers of proof and receive competent, relevant, material, reliable, and probative evidence.


(8) Control the admission of irrelevant, immaterial, incompetent, unreliable, repetitious, or cumulative evidence.


(9) Hear oral arguments if the Hearing Examiner determined such requirement is necessary.


(10) Fix the time for filing briefs, motions, and other documents to be filed in connection with hearings.


(11) Issue the initial decision and dispose of any other pertinent matters that normally and properly arise in the course of proceedings.


(12) Do all other things necessary for an orderly and impartial hearing.


(k) The record. (1) The Director will designate an official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and briefs filed therewith, shall be filed with the Director. Transcripts of testimony will be available in any proceeding under the regulations of this section, at rates fixed by the contract between the United States of America and the reporter. If the reporter is an employee of the Department of Commerce, the rate will be fixed by the Director.


(2) The transcript of testimony and exhibits, together with all briefs, papers, and all rulings by the Hearing Examiner shall constitute the record. The initial decision will be predicated on the same record, as will be final decision.


(l) Decisions. (1) The Hearing Examiner shall render the initial decision in all debarment proceedings before him. The same Hearing Examiner who presides at the hearing shall render the initial decision except when such Examiner becomes unavailable to the Department of Commerce. In such case, another Hearing Examiner will be designated by the Secretary or Director to render the initial decision. Briefs, or other documents, to be submitted after the hearing must be received not later than twenty (20) days after the hearing, unless otherwise extended by the Hearing Examiner upon motion by a party. The initial decision shall be made within sixty (60) days after the receipt of all briefs. If no appeals from the initial decision is served upon the Director within ten (10) days of the date of the initial decision, it will become the final decision on the 20th day following the date of the initial decision. If an appeal is received, the appeal will be transmitted to the Secretary who will render the final decision after considering the record and the appeal.


(2) All initial and final decisions shall include a statement of findings and conclusions, as well as the reasons or bases therefore, upon the material issues presented. A copy of each decision shall be served on the parties to the proceeding, and furnished to interested persons upon request.


(3) It shall be the duty of the Hearing Examiner, and the Secretary where there is an appeal, to determine whether the person has engaged in one or more of the acts or activities described in paragraph (a) of this section, and, if there is a finding that the person has engaged in such acts or activities, the length of time the person shall be debarred, and the plants to which the debarment shall apply.


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


Requirements for Plants Operating Under Continuous Inspection on a Contract Basis
1



1 Compliance with the above requirements does not excuse failure to comply with all applicable sanitary rules and regulations of city, county, State, Federal, or other agencies having jursidiction over such establishments and operations.

§ 260.96 Application for fishery products inspection service on a contract basis at official establishments.

Any person desiring to process and pack products in an establishment under fishery products inspection service on a contract basis, must receive approval of such buildings and facilities as an official establishment prior to the inauguration of such service. An application for inspection service to be rendered in an establishment shall be approved according to the following procedure:


(a) Initial survey: When application has been filed for inspection service as aforesaid, NMFS inspector(s) shall examine the buildings, premises, and facilities according to the requirements of the fishery products inspection service and shall specify any additional facilities required for the service.


(b) Final survey and establishment approval: Prior to the inauguration of the fishery products inspection service, a final survey of the buildings, premises, and facilities shall be made to verify that the buildings are constructed and facilities are in accordance with the approved drawings and the regulations in this part.


(c) Drawings and specifications of new construction or proposed alterations of existing official establishments shall be furnished to the Director in advance of actual construction for prior approval with regard to compliance with requirements for facilities.


[36 FR 21039, Nov. 3, 1971]


§ 260.97 Conditions for providing fishery products inspection service at official establishments.

(a) The determination as to the inspection effort required to adequately provide inspection service at any establishment will be made by NMFS. The man-hours required may vary at different official establishments due to factors such as, but not limited to, size and complexity of operations, volume and variety of products produced, and adequacy of control systems and cooperation. The inspection effort requirement may be reevaluated when the contracting party or NMFS deems there is sufficient change in production, equipment and change of quality control input to warrant reevaluation. Inspectors will not be available to perform any of employee or management duties, however, they will be available for consultation purposes. NMFS reserves the right to reassign inspectors as it deems necessary.


(b) NMFS shall not be held responsible:


(1) For damages occurring through any act of commission or omission on the part of its inspectors when engaged in performing services; or


(2) For production errors, such as processing temperatures, length of process, or misbranding of products; or


(3) For failure to supply enough inspection effort during any period of service.


(c) The contracting party will:


(1) Use only wholesome raw material which has been handled or stored under sanitary conditions and is suitable for processings; maintain the official establishment(s), designated on the contract in such sanitary condition and to employ such methods of handling raw materials for processing as may be necessary to conform to the sanitary requirements precribed or approved by NMFS;


(2) Adequately code each primary container and master case of products sold or otherwise distributed from a manufacturing, processing, packing, or repackaging activity to enable positive lot identification to facilitate, where necessary, the segregation of specific food lots that may have become contaminated or otherwise unfit for their intended use;


(3) Not permit any labels on which reference is made to Federal inspection, to be used on any product which is not packed under fishery products inspection service nor permit any labels on which reference is made to any U.S. Grade to be used on any product which has not been officially certified as meeting the requirements of such grade; nor supply labels bearing reference to Federal inspection to another establishment unless the products to which such labels are to be applied have been packed under Federal inspection at an official establishment;


(4) Not affix any label on which reference is made to Federal inspection to any container of processed foods, produced in any designated official establishment, with respect to which the grade of such product is not certified because of adulteration due to the presence of contaminants in excess of limits established in accordance with the regulations or guidelines issued pursuant to the Food, Drug, and Cosmetic Act, as amended;


(5) Not, with respect to any product for which U.S. Grade Standards are in effect, affix any label on which reference is made to Federal inspection to any container of processed food which is substandard: Provided, That such label may be affixed to any container of such substandard quality product if such label bears a statement to indicate the substandard quality;


(6) Not, with respect to any product for which U.S. Grade Standard are not in effect, affix any label on which reference is made to the Federal inspection to containers of processed foods, except with the approval of NMFS;


(7) Furnish such reports of processing, packaging, grading, laboratory analyses, and output of products inspected, processed, and packaged at the designated official establish-ment(s) as may be requested by NMFS, subject to the approval of the Bureau of the Budget in accordance with the Federal Reports Act of 1942;


(8) Make available for use by inspectors, adequate office space in the designated official establishment(s) and furnish suitable desks, office equipment, and files for the proper care and storage of inspection records;


(9) Make laboratory facilities and necessary equipment available for the use of inspectors to inspect samples of processed foods and/or components thereof;


(10) Furnish and provide laundry service, as required by NMFS, for coats, trousers, smocks, and towels used by inspectors during performance of duty in official establishment(s);


(11) Furnish stenographic and clerical assistance as may be necessary in the typing of certificates and reports and the handling of official correspondence, as well as furnish the labor incident to the drawing and grading of samples and other work required to facilitate adequate inspection procedures whenever necessary;


(12) Submit to NMFS, three (3) copies of new product specifications in a manner prescribed by NMFS, and three (3) end-product samples for evaluation and/or laboratory analysis on all products for approval, for which U.S. Grade Standards are not available, when inspection is to be applied to such products. If requested of NMFS, such new specifications and end-product samples shall be considered confidential;


(13) Submit, as required by NMFS, for approval, proofs prior to printing and thereafter four (4) copies of any finished label which may or may not bear official identification marks, when such products are packed under Federal inspection on a contract basis;


(14) Not make deceptive, fraudulent, or unauthorized use in advertising, or otherwise, of the fishery products inspection service, the inspection certificates or reports issued, or the containers on which official identification marks are embossed or otherwise identified, in connection with the sale of any processed products;


(15) Submit to NMFS, four (4) copies of each label which may or may not bear official identification marks, when such labels are to be withdrawn from inspection or when approved labels are disapproved for further use under inspection;


(16) Notify NMFS in advance of the proposed use of any labels which require obliteration of any official identification marks, and all reference to the inspection service on approved labels which have been withdrawn or disapproved for use;


(17) Accord representatives of NMFS at all reasonable times free and immediate access to establishment(s) and official establishment(s) under applicant’s control for the purpose of checking codes, coded products, coding devices, coding procedures, official identification marks obliteration, and use of withdrawn or disapproved labels.


(d) Termination of inspection services:


(1) The fishery products inspection service, including the issuance of inspection reports, shall be rendered from the date of the commencement specified in the contract and continue until suspended or terminated:


(i) By mutual consent;


(ii) by either party giving the other party sixty (60) days’ written notice specifying the date of suspension or termination;


(iii) by one (1) day’s written notice by NMFS in the event the applicant fails to honor any invoice within ten (10) days after date of receipt of such invoice covering the full costs of the inspection service provided, or in the event the applicant fails to maintain its designated plants in a sanitary condition or to use wholesome raw materials for processing as required by NMFS, or in the event the applicant fails to comply with any provisions of the regulations contained in this part;


(iv) by automatic termination in case of bankruptcy, closing out of business, or change in controlling ownership.


(2) In case the contracting party wishes to terminate the fishery products inspection service under the terms of paragraph (d)(1)(i) or (ii) of this section, either the service must be continued until all unused containers, labels, and advertising material on hand or in possession of his supplier bearing official identification marks, or reference to fishery products inspection service have been used, or said containers, labels, and advertising material must be destroyed, or official identification marks, and all other reference to the fishery products inspection service on said containers, labels, advertising material must be obliterated, or assurance satisfactory to NMFS must be furnished that such containers, labels, and advertising material will not be used in violation of any of the provisions of the regulations in the part.


(3) In case the fishery products inspection service is terminated for cause by NMFS under the terms of paragraph (d)(1)(iii) of this section, or in case of automatic termination under terms of paragraph (d)(1)(iv) of this section, the contracting party must destroy all unused containers, labels, and advertising material on hand bearing official identification marks, or reference to fishery products inspection service, or must obliterate official identification marks, and all reference to the fishery products inspection service on said containers, labels and advertising material.


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

[36 FR 21039, Nov. 3, 1971]


§ 260.98 Premises.

The premises about an official establishment shall be free from conditions which may result in the contamination of food including, but not limited to, the following:


(a) Strong offensive odors;


(b) Improperly stored equipment, litter, waste, refuse, and uncut weeds or grass within the immediate vicinity of the buildings or structures that may constitute an attractant, breeding place, or harborage for rodents, insects, and other pests;


(c) Excessively dusty roads, yards, or parking lots that may constitute a source of contamination in areas where food is exposed;


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


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

[36 FR 21040, Nov. 3, 1971]


§ 260.99 Buildings and structures.

The buildings and structures shall be properly constructed and maintained in a sanitary condition, including, but not limited to the following requirements:


(a) Lighting. There shall be sufficient light (1) consistent with the use to which the particular portion of the building is devoted, and (2) to provide for efficient cleaning. Belts and tables on which picking, sorting, or trimming operations are carried on shall be provided with sufficient nonglaring light to insure adequacy of the respective operation. Light bulbs, fixtures, skylights, or other glass suspended over exposed food in any step of preparation shall be of the safety type or otherwise protected to prevent food contamination in case of breakage.


(b) Ventilation. There shall be sufficient ventilation in each room and compartment thereof to prevent excessive condensation of moisture and to insure sanitary and suitable processing and operating conditions. If such ventilation does not prevent excessive condensation, the Director may require that suitable facilities be provided to prevent the condensate from coming in contact with equipment used in processing operations and with any ingredient used in the manufacture or production of a processed product.


(c) Drains and gutters. All drains and gutters shall be properly installed with approved traps and vents. The drainage and plumbing system must permit the quick runoff of all water from official establishment buildings, and surface water around buildings and on the premises; and all such water shall be disposed of in such a manner as to prevent a nuisance or health hazard. Tanks or other equipment whose drains are connected to the waste system must have such screens and vacuum breaking devices affixed so as to prevent the entrance of waste water, material, and the entrance of vermin to the processing tanks or equipment.


(d) Water supply. There shall be ample supply of both hot and cold water; and the water shall be of safe and sanitary quality with adequate facilities for its (1) distribution throughout buildings, and (2) protection against contamination and pollution.


Sea water of safe suitable and sanitary quality may be used in the processing of various fishery products when approved by NMFS prior to use.

(e) Construction. Roofs shall be weathertight. The walls, ceilings, partitions, posts, doors, and other parts of all buildings and structures shall be of such materials, construction, and finish as to permit their efficient and thorough cleaning. The floors shall be constructed of tile, cement, or other equally impervious material, shall have good surface drainage, and shall be free from openings or rough surfaces which would interfere with maintaining the floors in a clean condition.


(f) Processing rooms. Each room and each compartment in which any processed products are handled, processed, or stored (1) shall be so designed and constructed as to insure processing and operating conditions of a clean and orderly character; (2) shall be free from objectional odors and vapors; and (3) shall be maintained in a clean and sanitary condition.


(g) Prevention of animals and insects in official establishment(s). Dogs, cats, birds, and other animals (including, but not being limited to rodents and insects) shall be excluded from the rooms from which processed products are being prepared, handled, or stored and from any rooms from which ingredients (including, but not being limited to salt, sugar, spices, flour, batter, breading, and fishery products) are handled and stored. Screens, or other devices, adequate to prevent the passage of insects shall, where practical, be provided for all outside doors and openings. The use of chemical compounds such as cleaning agents, insecticides, bactericides, or rodent poisons shall not be permitted except under such precautions and restrictions as will prevent any possibility of their contamination of the processed product. The use of such compounds shall be limited to those circumstances and conditions as approved by NMFS.


(h) Inspector’s office. Furnished suitable and adequate office space, including, but not being limited to, light, heat, and janitor service shall be provided rent free in official establishments for use for official purposes by the inspector and NMFS representatives. The room or rooms designated for this purpose shall meet with the approval of NMFS and shall be conveniently located, properly ventilated, and provided with lockers or cabinets suitable for the protection and storage of inspection equipment and supplies and with facilities suitable for inspectors to change clothing.


(i) Adequate parking space, conveniently located, for private or official vehicles used in connection with providing inspection services shall be provided.


[36 FR 21040, Nov. 3, 1971]


§ 260.100 Facilities.

Each official establishment shall be equipped with adequate sanitary facilities and accommodations, including, but not being limited to, the following:


(a) Containers approved for use as containers for processed products shall not be used for any other purpose.


(b) No product or material not intended for human food or which creates an objectionable condition shall be processed, handled, or stored in any room, compartment, or place where any fishery product is manufactured, processed, handled, or stored.


(c) Suitable facilities for cleaning and sanitizing equipment (e.g., brooms, brushes, mops, clean cloths, hose, nozzles, soaps, detergent, sprayers) shall be provided at convenient locations throughout the plant.


[36 FR 21040, Nov. 3, 1971]


§ 260.101 Lavatory accommodations.

Modern lavatory accommodations, and properly located facilities for cleaning and sanitizing utensils and hands, shall be provided.


(a) Adequate lavatory and toilet accommodations, including, but not being limited to, running hot water (135 °F. or more) and cold water, soap, and single service towels, shall be provided. Such accommodations shall be in or near toilet and locker rooms and also at such other places as may be essential to the cleanliness of all personnel handling products.


(b) Sufficient containers with covers shall be provided for used towels and other wastes.


(c) An adequate number of hand washing facilities serving areas where edible products are prepared shall be operated by other than hand-operated controls, or shall be of a continuous flow type which provides an adequate flow of water for washing hands.


(d) Durable signs shall be posted conspicuously in each toilet room and locker room directing employees to wash hands before returning to work.


(e) Toilet facilities shall be provided according to the following formula:


Number of persons
Toilet bowls required
1 to 15, inclusive1
16 to 35, inclusive2
36 to 55, inclusive
1 3
56 to 80, inclusive
1 4
For each additional 30 persons in excess of 80
1 1


1 Urinals may be substituted for toilet bowls but only to the extent of one-third of the total number of bowls required.


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

[36 FR 21041, Nov. 3, 1971]


§ 260.102 Equipment.

All equipment used for receiving, washing, segregating, picking, processing, packaging, or storing any processed products or any ingredients used in the manufacture or production thereof, shall be of such design, material, and construction as will:


(a) Enable the examination, segregation, preparation, packaging, and other processing operations applicable to processed products, in an efficient, clean, and sanitary manner, and


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


[36 FR 21041, Nov. 3, 1971]


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

(a) All operators in the receiving transporting, holdings, segregating, preparing, processing, packaging, and storing of processed products and ingredients, used as aforesaid, shall be strictly in accord with clean and sanitary methods and shall be conducted as rapidly as possible and at temperatures that will inhibit and retard the growth of bacterial and other micro-organisms and prevent any deterioration or contamination of such processed products or ingredients thereof. Mechanical adjustments or practices which may cause contamination of foods by oil, dust, paint, scale, fumes, grinding materials, decomposed food, filth, chemicals, or other foreign materials shall not be conducted during any manufacturing or processing operation.


(b) All processed products, raw materials, ingredients, and components thereof shall be subject to inspection during each manufacturing or processing operation. To assure a safe, wholesome finished product, changes in processing methods and procedures as may be required by the Director shall be effectuated as soon as practicable. All processed products which are not manufactured or prepared in accordance with the requirements contained in §§ 260.96 to 260.104 or are unwholesome or otherwise not fit for human food shall be removed and segregated prior to any further processing operation.


(c) Official establishments operating under Federal inspection should have an effective quality control program as appropriate for the nature of the products and processing operations.


(d) All ingredients used in the manufacture or processing of any processed product shall be wholesome and fit for human food.


(e) The methods and procedures employed in the receiving, segregating, handling, transporting, and processing of ingredients in official estab lishment(s) shall be adequate to result in a satisfactory processed product. Such methods and procedures include, but are not limited to, the following requirements:


(1) Containers, utensils, pans, and buckets used for the storage or transporting of partially processed food ingredients shall not be nested unless rewashed and sanitized before each use;


(2) Containers which are used for holding partially processed food ingredients shall not be stacked in such manner as to permit contamination of the partially processed food ingredients;


(3) Packages or containers for processed products shall be clean when being filled with such products; and all reasonable precautions shall be taken to avoid soiling or contaminating the surface of any package or container liner which is, or will be, in direct contact with such products.


(f) Retention tags: (1) Any equipment such as, but not limited to, conveyors, tillers, sorters, choppers, and containers which fail to meet appropriate and adequate sanitation requirements will be identified by the inspector in an appropriate and conspicuous manner with the word “RETAINED.” Following such identification, the equipment shall not be used until the discrepancy has been resolved, the equipment reinspected and approved by the inspector and the “RETAINED” identification removed by the inspector.


(2) Lot(s) of processed products that may be considered to be mislabeled and/or unwholesome by reason of contaminants or which may otherwise be in such condition as to require further evaluation or testing to determine that the product properly labeled and/or wholesome will be identified by the inspector in an appropriate and conspicuous manner with the word “RETAINED.” Such lot(s) of product shall be held for reinspection or testing. Final disposition of the lot(s) shall be determined by NMFS and the removal of the “RETAINED” identification shall be performed by the inspector.


[36 FR 21041, Nov. 3, 1971]


§ 260.104 Personnel.

The establishment management shall be responsible for taking all precautions to assure the following:


(a) Disease control. No person affected by disease in a communicable form, or while a carrier of such disease, or while affected with boils, sores, infected wounds, or other abnormal sources of microbiological contamination, shall work in a food plant in any capacity in which there is a reasonable possibility of food ingredients becoming contaminated by such person, or of disease being transmitted by such person to other individuals.


(b) Cleanliness. All persons, while working in direct contact with food preparation, food ingredients, or surfaces coming into contact therewith shall:


(1) Wear clean outer garments, maintain a high degree of personal cleanliness, and conform to hygenic practices while on duty, to the extent necessary to prevent contamination of food products.


(2) Wash and sanitize their hands thoroughly to prevent contamination by undesirable microorganisms before starting work, after each absence from the work station, and at any other time when the hands may have become soiled or contaminated.


(3) Remove all insecure jewelry and, when food is being manipulated by hand, remove from hands any jewelry that cannot be adequately sanitized.


(4) If gloves are used in food handling, maintain them in an intact, clean, and sanitary condition. Such gloves shall be of an impermeable material except where their usage would be inappropriate or incompatible with the work involved.


(5) Wear hair nets, caps, masks, or other effective hair restraints. Other persons that may incidentally enter the processing areas shall comply with this requirement.


(6) Not store clothing or other personal belongings, eat food, drink beverages, chew gum, or use tobacco in any form in areas where food or food ingredients are exposed or in areas used for washing equipment or utensils.


(7) Take any other necessary precautions to prevent contamination of foods with microorganisms or foreign substances including, but not limited to perspiration, hair, cosmetics, tobacco, chemicals, and medicants.


(c) Education and training. Personnel responsible for identifying sanitation failures or food contamination should have a background of education or experience, or a combination thereof, to provide a level of competency necessary for production of clean wholesome food. Food handlers and supervisors should receive appropriate training in proper food-handling techniques and food-protection principles and should be cognizant of the danger of poor personal hygiene and unsanitary practices, and other vectors of contamination.


[36 FR 21041, Nov. 3, 1971]


Labeling Requirements

§§ 260.200-260.201 [Reserved]

PART 261 – UNITED STATES STANDARDS FOR GRADES


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


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

§ 261.101 Standard description.

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


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

(a) The voluntary U.S. Standards for Grades adopted pursuant to this part shall be issued as Program policies and contained within the NMFS Fishery Products Inspection Manual. Compliance with voluntary standards issued as Program policies within the manual shall satisfy the requirements of this part. Compliance with a voluntary standard issued as a Program policy does not relieve any party from the responsibility to comply with the provisions of the Federal Food, Drug, and Cosmetic Act; or other Federal laws and regulations.


(b) Notification of an application for a new grade standard shall be published in the Federal Register. If adopted, the grade standard shall be issued as a Program policy and contained in the NMFS Fishery Products Inspection Manual.


(c) Recision and revision of a U.S. Standard for Grades will be made a Program policy amendment and contained in the NMFS Fishery Products Inspection Manual.


(d) The NMFS Fishery Products Inspection Manual is available to interested parties.


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

(a) To address the inherently distinct and dissimilar attributes found in the fishery product groups, each standard for grades should have a different scope and product description, product forms, sample sizes, definition of defects, etc. The Secretary will make the final determination regarding the content of a U.S. Standard for Grades.


(b) A proposal for a new or revised U.S. grade standard may include the following:


(1) Scope and product description, which describes the products that are eligible for grading using the standard (e.g., fish portion, fish fillet).


(2) Product forms, which describe the types, styles and market forms covered by the standard (e.g., skin-off, tail-on, headless).


(3) Grade and inspection marks, which describe the grades and inspection mark criteria for each grade category (e.g., Grade A ≤ 15 points).


(4) Grade determination, which describes the means by which the grade is determined (i.e., the factors rated by score points and those that are not). Standards may contain defect grouping limiting rules that contain additional provisions that must be met.


(5) Sampling, which describes the method of sampling and sample unit sizes (e.g., 10 portions, 8 ounces, etc.).


(6) Procedures that describe the process used to determine the product grade (e.g., label declarations, sensory evaluation).


(7) Definitions of defects, which outline the defects associated with the products covered by the standard, defines them, and describes the method of counting or measuring the defects. This section may provide associated defect points or reference a defect table (e.g., bruises, blood spots, bones, black spots, coating defects, 1-inch squares, percent by weight, ratios).


(8) Defect point assessment, which describes how to assess points and provides any special guidance that may be necessary to the particular standard (e.g., defect points for certain categories are added together and divided by the weight of the sample unit; the number of instances are counted to determine if it is slight, moderate, or excessive defect).


(9) Tolerances for lot certification, which provide the sections from Title 50 CFR that regulate lot certification.


(10) Hygiene, which specifies the sections of applicable Federal regulations regulating the safe, wholesome production of food for human consumption.


(11) Methods of analysis, which describe the methods of analysis that will be used in the evaluation of the products covered by the standard for grades (e.g., net weight, deglazing, debreading).


(12) Defect table, which is the table of defects and associated points to be assessed for each defect.


SUBCHAPTER H – FISH AND SEAFOOD PROMOTION

PART 270 – SPECIES-SPECIFIC SEAFOOD MARKETING COUNCILS


Authority:16 U.S.C. 4001-4017


Source:72 FR 18111, Apr. 11, 2007, unless otherwise noted.

§ 270.1 Scope.

This part 270 describes matters pertaining to the establishment, representation, organization, practices, procedures, and termination of Seafood Marketing Councils.


§ 270.2 Definitions.

The following terms and definitions are in addition to or amplify those contained in the Fish and Seafood Promotion Act of 1986:


Act means the Fish and Seafood Promotion Act of 1986 (Public Law 99-659) and any subsequent amendments.


Consumer education means actions undertaken to inform consumers of matters related to the consumption of fish and fish products.


Council means a Seafood Marketing Council for one or more species of fish and fish products of that species established under section 210 of the Act (16 U.S.C. 4009).


Expenditure means monetary or material worth of fishery products. Expenditure is determined at the point a receiver obtains product from a harvester or an importer obtains product from a foreign supplier. Value may be expressed in monetary units (the price a receiver pays to a harvester or an importer pays to a foreign supplier).


Fiscal year means any 12-month period as NMFS may determine for each Council.


Fish means finfish, mollusks, crustaceans, and all other forms of aquatic animal life used for human consumption; the term does not include marine mammals and seabirds.


Harvester means any person in the business of catching or growing fish for purposes of sale in domestic or foreign markets.


Importer means any person in the business of importing fish or fish products from another country into the United States and its territories, as defined by the Act, for commercial purposes, or who acts as an agent, broker, or consignee for any person or nation that produces, processes or markets fish or fish products outside of the United States for sale or for other commercial purposes in the United States.


Marketer means any person in the business of selling fish or fish products in the wholesale, export, retail, or restaurant trade, but whose primary business function is not the processing or packaging of fish or fish products in preparation for sale.


Marketing and promotion means any activity aimed at encouraging the consumption of fish or fish products or expanding or maintaining commercial markets for fish or fish products.


Member means any person serving on any Council.


Participant means a member of a sector or business identified in an application for a Council charter as being subject to the referendum or assessment process.


Person means any individual, group of individuals, association, proprietorship, partnership, corporation, cooperative, or any private entity of the U.S. fishing industry organized or existing under the laws of the United States or any state, commonwealth, territory or possession of the United States who meets the eligibility requirements as defined in a proposed charter to vote in a referendum.


Processor means any person in the business of preparing or packaging fish or fish products (including fish of the processor’s own harvesting) for sale in domestic or foreign markets.


Receiver means any person who owns fish processing vessels and any person in the business of acquiring (taking title to) fish directly from harvesters.


Research means any type of research designed to advance the image, desirability, usage, marketability, production, quality and safety of fish and fish products.


Secretary means the Secretary of Commerce, or the Secretary’s designee.


Sector means


(1) The sector consisting of harvesters;


(2) The sector consisting of importers;


(3) The sector consisting of marketers;


(4) The sector consisting of processors;


(5) The sector consisting of receivers; or


(6) The consumer sector consisting of persons professionally engaged in the dissemination of information pertaining to the nutritional benefits and preparation of fish and fish products;


Sector participant means any individual, group of individuals, association, proprietorship, partnership, corporation, cooperative, or any private entity of the U.S. fishing industry organized or existing under the laws of the United States or any state, commonwealth, territory or possession of the United States who meets the eligibility requirements as defined in a proposed charter to vote in a referendum.


Species means a fundamental category of taxonomic classification, ranking after genus, and consisting of animals that possess common characteristic(s) distinguishing them from other similar groups.


Value means monetary or material worth of fishery products. Value is the difference between what a receiver is willing to pay for a product provided by a harvester and its market price or an importer is willing to pay for a product from a foreign supplier and its market price. Value may be expressed in monetary units representing consumer surplus or producer surplus.


§ 270.3 Submission of application.

(a) Persons who meet the minimum requirements for sector participants as described in the proposed charter may file an application with NMFS for a charter for a Seafood Marketing Council for one or more species of fish and fish products of that species. One signed original and two copies of the completed application package must be submitted to the Assistant Administrator for Fisheries, National Marine Fisheries Service, NOAA, 1315 East-West Highway, Silver Spring, MD 20910. Applications should not be bound.


(b) The application consists of four parts:


(1) A document requesting NMFS to establish a Council;


(2) A proposed charter under which the proposed Council will operate;


(3) A list of eligible referendum participants; and


(4) Analytical documentation addressing requirements of applicable law.


(c) Content of application – (1) Application or requesting document. The application or requesting document submitted by the applicants to NMFS requesting that the Council be established, to the extent practicable, must include the signatures or corporate certifications, of no less than three sector participants representing each sector identified in accordance with paragraph (c)(2)(v) of this section and who, according to the available data, collectively accounted for, in the 12-month period immediately preceding the month in which the application was filed, not less than 10 percent of the value of the fish or fish products specified in the charter that were handled during such period in each sector by those who meet the eligibility requirements to vote in the referendum as defined by the application. The application must also include a statement that, if established, the Council will have sufficient resources (e.g., cash, donated office space, services, supplies, etc.) available for initial administrative expenditures pending collection of assessments.


(2) Proposed charter. A proposed charter must contain, at a minimum, the following information:


(i) The name of the Council and a provision proclaiming its establishment;


(ii) A declaration of the purposes and objectives of the Council;


(iii) A description of the species of fish and fish products, including the scientific and common name(s), for which the Council will implement marketing and promotion plans under the Act. (The American Fisheries Society’s “List of Common and Scientific Names of Fishes from the United States and Canada” (latest edition) or where available, an appropriate volume of its “List of Common and Scientific Names of Aquatic Invertebrates of the United States and Canada” (latest edition) should be used as the authority for all scientific and common names.);


(iv) A description of the geographic area (state(s)) within the United States covered by the Council;


(v) The identification of each sector and the number and terms of representatives for each sector that will be voting members on the Council. (The number of Council members should be manageable, while ensuring equitable geographic representation. The term for members will be 3 years. Initially, to ensure continuity, half of the members’ terms will be 2 years and half will be 3 years. Reappointments are permissible.);


(vi) The identification of those sectors (which must include a sector consisting of harvesters, a sector consisting of receivers, and, if subject to assessment, a sector consisting of importers), eligible to vote in the referendum to establish the Council;


(vii) For each sector described under paragraph (c)(2)(v) of this section, a threshold level specifying the minimum requirements, as measured by income, volume of sales, or other relevant factors, that a person engaging in business in the sector must meet in order to participate in a referendum;


(viii) A description of the rationale and procedures for determining assessment rates as provided in § 270.18, based on a fixed amount per unit of weight or measure, or on a percentage of value of the product handled;


(ix) The proposed rate or rates that will be imposed by the Council on receivers and, if subject to assessment, importers during its first year of operation;


(x) The maximum amount by which an assessment rate for any period may be raised above the rate applicable for the immediately preceding period;


(xi) The maximum rate or rates that can be imposed by a Council on receivers or importers during the operation of the Council;


(xii) The maximum limit on the amount any one sector participant may be required to pay under an assessment for any period;


(xiii) The procedures for providing refunds to sector participants subject to assessment who request the same in accordance with the time limits specified § 270.22;


(xiv) A provision setting forth the voting procedures by which votes may be cast by proxy;


(xv) A provision that the Council will have voting members representing the harvesting, receiving and, if subject to assessment, importing sectors;


(xvi) A provision setting forth the definition of a quorum for making decisions on Council business and the procedures for selecting a chairperson of the Council;


(xvii) A provision that members of the Council will serve without compensation, but will be reimbursed for reasonable expenses incurred in performing their duties as members of the Council;


(xviii) A provision containing a requirement for submission to NMFS the criteria and supporting data for evaluating the annual and/or multi-year performance of proposed marketing plans and the Council’s performance;


(xix) A provision containing a requirement for submission of documentation as requested by NMFS for purposes of evaluating performance of proposed marking plans and the Council’s related performance;


(xx) Where adequate funds are not available, a provision containing the minimum number of participants needed for sustained operations that cannot receive assessment refunds;


(xxi) A provision acknowledging that NMFS will have the right to participate in Council meetings;


(xxii) A provision that the Council will conduct its activities in accordance with applicable NMFS requirements and that NMFS has final approval authority over proposed marketing plans and Council actions;


(xxiii) A provision containing a requirement for the Council to arrange for a complete audit report to be conducted by an independent public accountant and submitted to NMFS at the end of each fiscal year;


(xxiv) A provision containing a requirement for the Council to conduct a market assessment based on economic, market, social and demographic, and biological information as deemed necessary by NMFS; and


(xxv) A provision containing a requirement for the Council to update the list of referendum participants on an annual basis.


(3) List of referendum participants. The list of referendum participants, to the extent practicable, must identify the business name and address of all sector participants that the applicants believe meet the requirements for eligibility to vote in the referendum on the adoption of the proposed charter.


(i) The list should include all sectors in which a sector participant meets the eligibility requirements to vote in a referendum. If a sector participant has more than one place of business located within the geographic area of the Council, all such places should be listed and the primary place of business should be designated. The agency will provide appropriate information in its possession of a non-proprietary nature to assist the applicants in developing the list of sector participants.


(ii) [Reserved]


(4) Analytical documentation. The applicant must address the requirements of the Act, implementing regulations, and other applicable law, i.e., E.O. 12866, Regulatory Flexibility Act, National Environmental Policy Act, and other law as NMFS determines appropriate.


§ 270.4 Review of application.

Within 180 days of receipt of the application to establish a Council, NMFS will:


(a) Determine if the application is complete and complies with all of the requirements set out in § 270.3 and complies with all provisions of the Act and other applicable laws.


(b) Identify, to the extent practicable, those sector participants who meet the requirements for eligibility to participate in the referendum to establish the Council. NMFS may require additional information from the applicants or proposed participants in order to verify eligibility. NMFS may add names to or delete names from the list of sector participants believed eligible by the applicants until the time of the referendum based on additional information received.


(c) If NMFS finds minor deficiencies in an application that can be corrected within the 180-day review period, NMFS will advise the applicants in writing of what must be submitted by a specific date to correct the minor deficiencies.


(d) If NMFS makes a final negative determination, on an application, NMFS will advise the applicant in writing of the reason for the determination. The applicant may submit another application at any time thereafter. NMFS then has 180 days from receipt of the new application to render a final determination on its acceptability.


§ 270.5 Conduct of referendum.

(a) Upon making affirmative determinations under § 270.4, NMFS, within 90 days after the date of the last affirmative determination, will conduct a referendum on the adoption of the proposed charter.


(b) NMFS will estimate the cost of conducting the referendum, notify the applicants, and request that applicants post a bond or provide other applicable security, such as a cashier§ s check, to cover costs of the referendum.


(c) NMFS will initially pay all costs of a referendum to establish a Council. Within two years after establishment, the Council must reimburse NMFS for the total actual costs of the referendum from assessments collected by the Council. If a referendum fails to result in establishment of a Council, NMFS will immediately recover all expenses incurred for conducting the referendum from the bond or security posted by applicants. In either case, such expenses will not include salaries of government employees or other administrative overhead, but will be limited to those additional direct costs incurred in connection with conducting the referendum.


(d) No less than 30 days prior to holding a referendum, NMFS will:


(1) Publish in the Federal Register the text of the proposed charter and the most complete list available of sector participants eligible to vote in the referendum; and


(2) Provide for public comment, including the opportunity for a public meeting.


§ 270.6 Sector participants eligible to vote.

(a) Any participant who meets the minimum requirements as measured by income, volume of sales or other relevant factors specified in the approved charter may vote in a referendum.


(b) Only one vote may be cast by each participant who is eligible to vote, regardless of the number of individuals that make up such “participant” and how many sectors the participant is engaged in. The vote may be made by any responsible officer, owner, or employee representing a participant.


§ 270.7 Results of referendum.

(a) Favorable vote to establish a Council. NMFS will, by order of publication in the Federal Register, establish the Council and approve an acceptable proposed charter, if the referendum votes which are cast in favor of the proposed charter constitute a majority of the sector participants voting in each and every sector. Further, according to the best available data, the majority must collectively account for, in the 12-month period immediately preceding the month in which the proposed charter was filed, at least 66 percent of the value of the fish and fish products described in the proposed charter handled during such period in each sector by those who meet the eligibility requirements to vote in the referendum as defined by the applicants.


(b) Unfavorable vote to establish a Council. If a referendum fails to pass in any sector of the proposed Council, NMFS will not establish the Council or approve the proposed charter. NMFS will immediately recover the cost of conducting the referendum according to § 270.5(c).


(c) Notification of referendum results. NMFS will notify the applicants of the results of the referendum and publish the results of the referendum in the Federal Register.


§ 270.8 Nomination and appointment of Council members.

(a) Within 30 days after a Council is established, NMFS will solicit nominations for Council members from the sectors represented on the Council in accordance with the approved charter. If the harvesters and receivers represented on the Council are engaged in business in two or more states, but within the geographic area of the Council, the nominations made under this section must, to the extent practicable, result in equitable representation for those states. Nominees must be knowledgeable and experienced with regard to the activities of, or have been actively engaged in the business of, the sector that such person will represent on the Council. Therefore, a resume will be required for each nominee.


(b) In accordance with 16 U.S.C. 4009(f), NMFS will, within 60 days after the end of the 30-day period, appoint the members of the Council from among the nominees.


§ 270.9 Terms, vacancies, and removal of Council members.

(a) A Council term is for 3 years, except for initial appointments to a newly established Council where:


(1) Half of the Council member terms will be 2 years; and


(2) Half of the Council member terms will be 3 years.


(b) A vacancy on a Council will be filled, within 60 days after the vacancy occurs, in the same manner in which the original appointment was made. A member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed will be appointed only for the remainder of such term.


(c) Any person appointed under the Act who consistently fails or refuses to perform his or her duties properly and/or participates in acts of dishonesty or willful misconduct with respect to responsibilities under the Act will be removed from the Council by NMFS if two-thirds of the members of the Council recommend action. All requests from a Council to NMFS for removal of a Council member must be in writing and accompanied by a statement of the reasons upon which the recommendation is based.


§ 270.10 Responsibilities of a Council.

(a) Each Council will:


(1) Implement all terms of its approved charter;


(2) Prepare and submit to NMFS, for review and approval under § 270.11(a)(1), a marketing and promotion plan and amendments to the plan which contain descriptions of the projected consumer education, research, and other marketing and promotion activities of the Council;


(3) Implement and administer an approved marketing and promotion plan and amendments to the plan;


(4) Determine the assessment to be made under § 270.18 and administer the collection of such assessments to finance Council expenses described in paragraph (b) of this section;


(5) Receive, investigate and report to NMFS accounts of violations of rules or orders relating to assessments collected under § 270.20, or quality standard requirements established under § 270.15;


(6) Prepare and submit to NMFS, for review and approval a budget (on a fiscal year basis) of the anticipated expenses and disbursements of the Council, including


(i) All administrative and contractual expenses;


(ii) The probable costs of consumer education, research, and other marketing and promotion plans or projects;


(iii) The costs of the collection of assessments; and


(iv) The expense of repayment of the costs of each referendum conducted in regard to the Council.


(7) Comply with NMFS requirements, and prepare and submit to NMFS for review, evaluation, and verification of results and analysis an annual market assessment and related analytical documentation that is based on economic, market, social, demographic, and biological information as deemed necessary by NMFS;


(8) Maintain books and records, prepare and submit to NMFS reports in accordance with respect to the receipt and disbursement of funds entrusted to it, and submit to NMFS a completed audit report conducted by an independent auditor at the end of each fiscal year;


(9) Reimburse NMFS for the expenses incurred for the conduct of the referendum to establish the Council or any subsequent referendum to terminate the Council that fails;


(10) Prepare and submit to NMFS report or proposals as the Council determines appropriate to further the purposes of the Act.


(b) Funds collected by a Council under § 270.17 will be used by the Council for –


(1) Research, consumer education, and other marketing and promotion activities regarding the quality and marketing of fish and fish projects;


(2) Other expenses, as described in § 270.10(a)(1);


(3) Such other expenses for the administration, maintenance, and functioning of the Council as may be authorized by NMFS; and


(4) Any reserve fund established under paragraph (e)(4) of this section and any administrative expenses incurred by NMFS specified as reimbursable under this part.


(c) Marketing and promotion plans and amendments to such plans prepared by a Council under paragraph (a)(2) of this section will be designed to increase the general demand for fish and fish products described in accordance with § 270.3(c)(2)(iii) by encouraging, expanding, and improving the marketing, promotion and utilization of such fish and fish products, in domestic or foreign markets, or both, through consumer education, research, and other marketing and promotion activities.


(d) Consumer education and other marketing and promotion activities carried out by a Council under a marketing and promotion plan and amendments to a plan may not contain references to any private brand or trade name and will avoid the use of deceptive acts or practices in promoting fish or fish products or with respect to the quality, value, or use of any competing product or group of products.


(e) Authority of a Council. A Council may:


(1) Sue and be sued;


(2) Enter into contracts;


(3) Employ and determine the salary of an executive director who may, with the approval of the Council employ and determine the salary of such additional staff as may be necessary;


(4) Establish a reserve fund from monies collected and received under § 270.17 to permit an effective and sustained program of research, consumer education, and other marketing and promotion activities regarding the quality and marketing of fish and fish products in years when production and assessment income may be reduced, but the total reserve fund may not exceed the amount budgeted for the current fiscal year of operation.


(f) Amendment of a charter. A Council may submit to NMFS amendments to the text of the Council’s charter. Any proposed amendments to a charter will be approved or disapproved in the same manner as the original charter was approved under § 270.4 and § 270.5 with the exception of § 270.4(b).


§ 270.11 Responsibilities of NMFS.

(a) In addition to the duties prescribed under 16 U.S.C. 4009, NMFS will:


(1) Participate in Council meetings and review, for consistency with the provisions of 50 CFR part 270 and other applicable law, and approve or disapprove, marketing and promotion plans and budgets within 60 days after their submission by a Council;


(2) Immediately notify a Council in writing of the disapproval of a marketing and promotion plan or budget, together with reasons for such disapproval;


(3) Issue orders and amendments to such orders that are necessary to implement quality standards under § 270.15;


(4) Promulgate regulations necessary to carry out the purposes of this chapter;


(5) Enforce the provisions of the Act;


(6) Make all appointments to Councils in accordance with § 270.8 and the approved Council charter;


(7) Approve the criteria and time frames under which a Council’s performance will be evaluated; and


(8) Implement the provisions of 16 U.S.C. 4001 et seq. in accordance with the available financial and management resources NMFS determines can be utilized.


(b) NMFS may provide, on a reimbursable or other basis, such administrative or technical assistance as a Council may request for purposes of the initial organization and subsequent operation of the Council. However, a Council is responsible for the cost of preparing and submitting information (e.g., reports, evaluation data, etc.) requested by NMFS.


§ 270.12 Notice of Council meetings.

The Council will give NMFS the same notice of its meetings as it gives to its members. NMFS will have the right to participate in all Council meetings.


§ 270.13 Books, records and reports.

(a) The Council must submit to NMFS the following documents according to the schedule approved in the Council’s charter:


(1) A marketing assessment and promotion plan;


(2) A financial report with respect to the receipt and disbursement of funds;


(3) An audit report conducted by an independent public accountant; and


(4) Other reports or data NMFS determines necessary to evaluate the Council’s performance and verify the results of the market assessment and promotion plan..


(b) All Council records, reports, and data must be maintained by the Council for a minimum of 3 years, even if the Council is terminated.


§ 270.14 Update of sector participant data.

The Council will submit to NMFS at the end of each fiscal year an updated list of sector participants who meet the minimum requirements for eligibility to participate in a referendum as stated in the approved charter.


§ 270.15 Quality standards.

(a) Each Council may develop and submit to NMFS for approval or, upon the request of a Council, NMFS will develop quality standards for the species of fish or fish products described in the approved charter. Any quality standard developed under this paragraph must be consistent with the purposes of the Act.


(b) A quality standard developed under paragraph (a) of this section may be adopted by a Council by a majority of its members following a referendum conducted by the Council among sector participants of the concerned sector(s). In order for a quality standard to be brought before Council members for adoption, the majority of the sector participants of the concerned sector(s) must vote in favor of the standard. Further, according to the best available data, the majority must collectively account for, in the 12-month period immediately preceding the month in which the referendum is held, not less than 66 percent of the value of the fish or fish products described in the charter that were handled during such period in that sector by those who meet the eligibility requirements to vote in the referendum as defined by the petitioners.


(c) The Council must submit a plan to conduct the referendum on the quality standards to NMFS for approval at least 60 days in advance of such referendum date. The plan must consist of the following:


(1) Date(s) for conducting the referendum;


(2) Method (by mail or in person);


(3) Copy of the proposed notification to sector participants informing them of the referendum;


(4) List of sector participants eligible to vote;


(5) Name of individuals responsible for conducting the referendum;


(6) Copy of proposed ballot package to be used in the referendum; and


(7) Date(s) and location of ballot counting.


(d) An official observer appointed by NMFS will be allowed to be present at the ballot counting and any other phase of the referendum process, and may take whatever steps NMFS deems appropriate to verify the validity of the process and results of the referendum.


(e) Quality standards developed under this section of the regulations must, at a minimum, meet Food and Drug Administration (FDA) minimum requirements for fish and fish products for human consumption.


(f) Quality standards must be consistent with applicable standards of the U.S. Department of Commerce (National Oceanic and Atmospheric Administration) or other recognized Federal standards and/or specifications for fish and fish products.


(g) No quality standard adopted by a Council may be used in the advertising or promotion of fish or fish products as being inspected by the United States Government unless the standard requires sector participants to be in the U.S. Department of Commerce voluntary seafood inspection program.


(h) The intent of quality standards must not be to discriminate against importers who are not members of the Council.


(i) Quality standards must not be developed for the purpose of creating non-tariff barriers. Such standards must be compatible with U.S. obligations under the General Agreement on Tariffs and Trade, or under other international standards deemed acceptable by NMFS.


(j) The procedures applicable to the adoption and the operation of quality standards developed under this subchapter also apply to subsequent amendments or the termination of such standards.


(k) With respect to a quality standard adopted under this section, the Council must develop and file with NMFS an official identifier in the form of a symbol, stamp, label or seal that will be used to indicate that a fish or fish product meets the quality standard at the time the official identifier is affixed to the fish or fish product, or is affixed to or printed on the packaging material of the fish or fish product. The use of such identifier is governed by § 270.15.


§ 270.16 Deposit of funds.

All funds collected or received by a Council under this section must be deposited in an appropriate account in the name of the Council specified in its charter. Funds eligible to be collected or received by a Council must be limited to those authorized under the Act.


(a) Pending disbursement, under an approved marketing plan and budget, funds collected through assessments authorized by the Act must be deposited in any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System, or in obligations fully guaranteed as to principal and interest by the United States Government.


(b) The Council may, however, pending disbursement of these funds, invest in risk-free, short-term, interest-bearing instruments.


(1) Risk-free. All investments must be insured or fully collateralized with Federal Government securities. In the absence of collateral, accounts established at financial institutions should, in aggregate, total less than $100,000 to assure both principal and interest are federally insured in full.


(2) Short-term. Generally, all investments should be for a relatively short time period (one year or less) to assure that the principal is maintained and readily convertible to cash.


(3) Collateralization. Investments exceeding the $100,000 insurance coverage level must be fully collateralized by the financial institution.


(i) Collateral must be pledged at face value and must be pledged prior to sending funds to the institution.


(ii) Government securities are acceptable collateral. Declining balance, mortgage backed securities such as Government National Mortgage Association (GNMA) and Federal National Mortgage Association (FNMA) are not acceptable collateral.


(iii) If an account has been established, collateral may be held at the local Federal Reserve Bank. Otherwise, another depository must hold the collateral.


§ 270.17 Authority to impose assessments.

A Council will impose and administer the collection of the assessments that are necessary to pay for all expenses incurred by the Council in carrying out its functions under 50 CFR part 270.


§ 270.18 Method of imposing assessments.

Assessments will be imposed on sector participants in the receiving sector or the importing sector or both as specified in an approved Council charter. Assessment rates will be based on value that may be expressed in monetary units or units of weight or volume.


(a) An assessment on sector participants in the receiving sector will be in the form of a percentage of the value or a fixed amount per unit of weight or volume of the fish described in the charter when purchased by such receivers from fish harvesters.


(b) An assessment on sector participants who own fish processing vessels and harvest the fish described in the charter will be in the form of a percentage of the value or on a fixed amount per unit of weight or volume of the fish described in the charter that is no less than the value if such fish had been purchased by a receiver other than the owner of the harvesting vessel.


(c) An assessment on sector participants in the importing sector will be in the form of a percentage of the value that an importer pays to a foreign supplier, as determined for the purposes of the customs laws, or a fixed amount per unit of weight or volume, of the fish or fish products described in the charter when entered or withdrawn from warehouse for consumption, in the customs territory of the United States by such sector participants.


(d) A Council may not impose an assessment on any person that was not eligible to vote in the referendum establishing the Council by reason of failure to meet the requirements specified under unless that person, after the date on which the referendum is held, meets the requirements of section.


(e) Any person may make voluntary payments or in-kind contributions to a Council for purposes of assisting the Council in carrying out its functions.


§ 270.19 Notice of assessment.

(a) The Council must serve each person subject to assessment with notice that the assessment is due. The notice of assessment must contain:


(1) A specific reference to the provisions of the Act, regulations, charter and referendum that authorize the assessment;


(2) The amount of the assessment;


(3) The period of time covered by the assessment;


(4) The date the assessment is due and payable, which will not be earlier than 30 days from the date of the notice;


(5) The form(s) of payment; and


(6) To whom and where the payment must be made.


(b) The notice must advise such person of his or her right to seek review of the assessment by filing a written petition of objection with NMFS at any time during the time period to which the assessment applies, including the right to request a hearing on the petition. The notice must state that the petition of objection must be filed in accordance with the procedures in § 270.21.


(c) The notice must also advise such persons of his or her right to a refund of the assessment as provided in § 270.22. The notice must state that a refund may be requested for not less than 90 days from such collection, and provide that the Council will make the refund within 60 days after the request for the refund is requested.


§ 270.20 Payment of assessments.

Persons subject to an assessment would be required to pay the assessment on or before the date due, unless they have demanded a refund or filed a petition of objection with NMFS under § 270.21. However, persons who have demanded a refund under § 270.22 or filed a petition of objection under § 270.21 may submit proof of these actions in leu of payment. In the case of a petition of objection, NMFs will inform the Council and the petitioner of its finding at which time petitioner must pay the revised assessment if applicable.


§ 270.21 Petition of objection.

(a) Filing a petition. Any person issued a notice of assessment under § 270.19 may request that NMFS modify or take other appropriate action regarding the assessment or promotion plan by filing a written petition of objection with NMFS. Petitions of objection may be filed:


(1) Only if the petitioner determines one or more of the following criteria is not in accordance with the law:


(i) The assessment;


(ii) The plan upon which the assessment is based; or


(iii) Any obligation imposed on the petitioner under the plan.


(2) Only during the time period to which the assessment applies.


(b) Contents of the petition of objection. A petition must be addressed to Assistant Administrator for Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, and must contain the following:


(1) The petitioner’s correct name, address, and principal place of business. If the petitioner is a corporation, this must be stated, together with the date and state of incorporation, and the names, addresses, and respective positions of its officers; if a partnership, the date and place of formation and the name and address of each partner;


(2) The grounds upon which the petition of objection is based, including the specific terms or provisions of the assessment, the marketing and promotion plan, or obligation imposed by the plan, to which the petitioner objects;


(3) A full statement of the facts upon which the petition is based, set forth clearly and concisely, accompanied by any supporting documentation;


(4) The specific relief requested; and


(5) A statement as to whether or not the petitioner requests a hearing.


(c) Notice to Council. NMFS will promptly furnish the appropriate Council with a copy of the petition of objection.


(d) Opportunity for informal hearing. (1) Any person filing a petition of objection may request an informal hearing on the petition. The hearing request must be submitted with the petition of objection.


(2) If a request for hearing is timely filed, or if NMFS determines that a hearing is advisable, NMFS will so notify the petitioner and the Council. NMFS will establish the applicable procedures, and designate who will be responsible for conducting a hearing. The petitioner, the Council, and any other interested party, may appear at the hearing in person or through a representative, and may submit any relevant materials, data, comments, arguments, or exhibits. NMFS may consolidate two or more hearing requests into a single proceeding.


(3) Final decision. Following the hearing, or if no hearing is held, as soon as practicable, NMFS will decide the matter and serve written notice of the decision on the petitioner and the Council. NMFS’s decision will be based on a consideration of all relevant documentation and other evidence submitted, and will constitute the final administrative decision and order of the agency. NMFS will have the discretion to waive collection of a contested assessment or revise, modify, or alter the assessment amount based on a Council method of assessment.


§ 270.22 Refunds.

(a) Notwithstanding any other provision of the Act, any person who pays an assessment under the Act may demand and must promptly receive from the Council a refund of such assessment. A demand for refund must be made in accordance with procedures in the approved charter and within such time as will be prescribed by the Council and approved by NMFS. Procedures to provide such a refund must be established before any such assessment may be collected. Such procedures must allow any person to request a refund 90 days or more from such collection, and provide that such refund must be made within 60 days after demand for such refund is made.


(b) Once a refund has been requested by a sector participant and paid by the Council, that sector participant may no longer participate in a referendum or other business of the Council during the remainder of the assessment rate period. Future assessments will only be sent to such a sector participant at the request of the sector participant. If assessments are paid during a future assessment rate period and no refund is requested, that sector participant may again participate in a referendum or other business of the Council.


§ 270.23 Dissolution of Councils.

(a) Petition for termination. (1) A petition to terminate a Council may be filed with NMFS by no less than three sector participants in any one sector. Any petition filed under this subsection must be accompanied by a written document explaining the reasons for such petition.


(2) If NMFS determines that a petition filed under paragraph (a)(1) of this section is accompanied by the signatures, or corporate certifications, of no less than three sector participants in the sector referred to in paragraph (a)(1) of this section who collectively accounted for, in the 12-month period immediately preceding the month in which the petition was filed, not less than 20 percent of the value of the fish or fish products described in § 270.3(c)(2)(iii) that were handled by that sector during the period, NMFS within 90 days after the determination, will conduct a referendum for termination of the Council among all sector participants in that sector.


(3) Not less than 30 days prior to holding a referendum, NMFS will publish an announcement in the Federal Register of the referendum, including an explanation of the reasons for the petition for termination filed under paragraph (a)(1) of this section and any other relevant information NMFS considers appropriate.


(4) If the referendum votes which are cast in favor of terminating the Council constitute a majority of the sector participants voting and the majority, in the period in paragraph (a)(2) of this section, collectively accounted for not less than 66 percent of the value of such fish and fish products that were handled during such period by the sector in paragraph (a)(1) of this section, NMFS will by order of publication terminate the Council effective as of a date by which the affairs of the Council may be concluded on an orderly basis.


(5) NMFS initially will pay all costs of a referendum conducted in § 270.23. Prior to conducting such a referendum, NMFS will require petitioners to post a bond or other security acceptable to NMFS in an amount which NMFS determines to be sufficient to pay any expenses incurred for the conduct of the referendum.


(6) If a referendum conducted under § 270.23 fails to result in the termination of the Council, NMFS will immediately recover the amount of the bond posted by the petitioners under § 270.23(a)(5).


(7) If a referendum conducted under this subsection results in the termination of the Council, NMFS will recover the expenses incurred for the conduct of the referendum from the account established by the Council. If the amount remaining in such account is insufficient for NMFS to recover all expenses incurred for the conduct of the referendum, NMFS will recover the balance of the expenses from the petitioners that posted a bond under paragraph (a)(5) of this section.


(b) Payment of remaining funds. If a Council is terminated under section § 270.23(a)(4), NMFS, after recovering all expenses incurred for the conduct of the referendum under paragraph (a) of this section, will take such action as is necessary and practicable to ensure that moneys remaining in the account established by the Council under § 270.17 are paid on a prorated basis to the sector participants from whom those moneys were collected under § 270.20.


SUBCHAPTER I-J [RESERVED]

SUBCHAPTER K – CONTINENTAL SHELF

PART 296 – FISHERMEN’S CONTINGENCY FUND


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


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

§ 296.1 Purpose.

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


§ 296.2 Definitions.

Area affected by Outer Continental Shelf activities means the area within a 3-mile radius of any casualty site which:


(1) Includes any portion of a leased block, pipeline, easement, right of way, or other OCS oil and gas exploration, development, or production activity; or


(2) Is otherwise associated (as determined by the Chief, Financial Services Division) with OCS oil and gas activities, such as, for example, expired lease areas, relinquished rights-of-way or easements, and areas used extensively by surface vessels supporting OCS oil and gas activities (areas landward of the OCS are included when such areas meet this criterion).


Chief, FSD means Chief, Financial Services Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; telephone: (301) 713-2396.


Citizen of the United States means any person who is a United States citizen, any State, or any corporation, partnership, or association organized under the laws of any state which meets the requirements for documenting vessels in the U.S. coastwise trade.


Commercial fisherman means any citizen of the United States who owns, operates, or is employed on a commercial fishing vessel.


Commercial fishing vessel means any marine craft which is documented under the laws of the United States or, if under five net tons, registered under the laws of any State, and used for commercial fishing or activities directly related to commercial fishing.


Easement means a right of use or easement granted under 30 CFR 250.18.


Fish means all forms of marine animal and plant life other than marine mammals, birds, and highly migratory species.


Fishing gear means any commercial fishing vessel, and any equipment of such vessel.


Fund means the Fishermen’s Contingency Fund established by title IV of the Outer Continental Shelf Lands Act Amendments of 1978.


Holder means the owner of record of each lease, prelease exploratory drilling permit, easement, or right-of-way or any agent or assignee of an owner.


Lease means any authority under section 8 or section 6 of the OCS Lands Act to develop and produce or explore for oil or gas.


Negligence or fault includes, but is not limited to, failure to:


(1) Remain outside of any navigation safety zone established around oil and gas rigs and platforms by any responsible Federal agency;


(2) Avoid obstructions recorded on nautical charts or in the Notice to Mariners or marked by a buoy or other surface marker (casualties occurring within a one-quarter mile radius of obstructions so recorded or marked are presumed to involve negligence or fault of the claimant);


(3) Abide by established rules of the road;


(4) Use proper care; or


(5) Use due care and diligence to mitigate the damage or loss.


Outer Continental Shelf means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in 43 U.S.C. section 1301, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control. Generally, but not in all cases, this includes all submerged lands lying seaward of the territorial sea (3 miles from a State’s coastline, or 9 miles from the coast of Texas or Florida).


Person means an individual, partnership, corporation, association, public or private organization, government, or other entity.


Resulting Economic Loss means the gross income, as estimated by the Chief, FSD, that a claimant will lose because of not being able to fish, or having to reduce fishing effort, during the period before the damaged or lost fishing gear concerned is repaired or replaced and available for use. This period must be reasonable. This period begins on the date of the casualty and stops on the date the damage could reasonably have been remedied by repair or replacement.


Right-of-way means any right-of-way granted under section 5(e) of the OCS Lands Act or under 43 CFR 3340.0-5.


Secretary means the Secretary of Commerce or his designee.


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


§ 296.3 Fishermen’s contingency fund.

(a) General. There is established in the Treasury of the United States the Fishermen’s Contingency Fund. The Fund is available without fiscal year limitation as a revolving fund to carry out the purposes of title IV of the Outer Continental Shelf Lands Act Amendments of 1978, as amended.


(b) Payments into the fund. Each Holder of an exploration permit, lease, easement, or rights-of-way for the construction of a pipeline, or a prelease exploration drilling permit issued or maintained under the Outer Continental Shelf Lands Act, in effect on or after June 30, 1982, shall pay assessments to the Fund. All pipeline right-of-way and easements are to be included for assessment except those constructed and operated lines within the confines of a single lease or group of contiguous leases under unitized operation or single operator. Payments will not be required for geological or geophysical permits, other than prelease exploratory drilling permits issued under section 11 of the Outer Continental Shelf Lands Act (43 U.S.C. 1340).


(1) Assessments to maintain the fund. When the total amount in the Fund is less than the Chief, FSD, determines is needed to pay Fund claims and expenses, the Chief, FSD, will notify the Secretary of the Interior that additional assessments are needed.


(2) Billing and collections. The Secretary of the Interior will calculate the amounts to be paid by each Holder and shall notify each Holder of the dollar amount and the time and place for all payments. Each assessment shall be paid to the Secretary of the Interior no later than 45 days after the Secretary of the Interior sends notice of the assessment.


(3) Annual assessment limits. No Holder shall be required to pay in excess of $5,000 for any lease, permit, easement or right-of-way in any calendar year.


(c) Moneys recovered through subrogation. Any moneys recovered by the Secretary through the subrogation of a claimant’s rights shall be deposited into the Fund.


(d) Investments of the fund. Excess sums in the Fund will be invested in obligations of, or guaranteed by, the United States. Revenue from such investments shall be deposited in the Fund.


(e) Litigation. The Fund may sue and be sued in its own name.


§ 296.4 Claims eligible for compensation.

(a) Claimants. Damage or loss eligible for Fund compensation must be suffered by a commercial fisherman.


(b) Damage or loss of fishing gear. Damage or loss is eligible for Fund compensation if it was caused by materials, equipment, tools, containers, or other items associated with OCS oil and gas exploration, development, or production activities. Damage or loss may be eligible for compensation even though it did not occur in OCS waters if the item causing the damage or loss was associated with oil and gas exploration, development, or production activities in OCS waters.


(c) Exceptions. Damage or loss is not eligible for Fund compensation:


(1) If the damage or loss was caused by the negligence or fault of the claimant;


(2) If the damage or loss occurred prior to September 18, 1978;


(3) To the extent that damage or loss exceeds the replacement value of the fishing gear involved;


(4) For any portion of the damage or loss which can be compensated by insurance;


(5) If the claim is not filed within 90 calendar days of the date the claimant or the claimant’s agent first became aware of the damage or loss (or such longer period as the Secretary may allow under unusual and extenuating circumstances); or


(6) If the damage or loss was caused by an obstruction unrelated to OCS oil and gas exploration, development, or production activities.


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


§ 296.5 Instructions for filing claims.

(a) Fifteen-day report required to gain presumption of causation – (1) General. Damages or losses are presumed to be qualified for compensation if certain requirements are satisfied. One requirement is that a report must be made to NMFS within fifteen (15) days after the date on which the vessel first returns to a port after discovering the damage or loss. Filing of a fifteen-day report must be followed up by filing a detailed claim.


(2) When and how to file a fifteen-day report. To qualify for the presumption of causation, a fifteen-day report must be made to NMFS within fifteen days after the date on which the vessel first returns to a port after discovering the damage or loss. Satisfaction of the fifteen-day requirement is determined by the postmark, if the report is mailed; by the date of a call, if the report is telephoned or radiotelephoned; or, by the date of appearance, if the report is made in person. The fifteen-day report must be made to the Chief, Financial Services Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; telephone: (301) 713-2396.


(3) Contents of fifteen-day report. Each fifteen-day report must include the following information:


(i) The claimant’s name and address;


(ii) The name of the commercial fishing vessel involved;


(iii) The location of the obstruction which caused the damage or loss;


(iv) A description of the nature of the damage or loss;


(v) The date such damage or loss was discovered;


(vi) If the fifteen-day report is made after the vessel returns to port, the date on which the vessel first returned to port after discovering the damage.


(b) Form of claim. Claims must be in writing. Claims may be submitted on NOAA form 88-164. This form may be obtained from any NMFS regional office or from the Chief, FSD. Although claimants are not required to use this claim form, it will probably be to their benefit to do so.


(c) Who must file and when and where to file claims. All claimants (including those who filed 15-day reports to gain the presumption of causation) must submit a claim application to the Chief, Financial Services Division, within 90 calendar days of the date the claimant or the claimant’s agent first became aware of the damage or loss. The Chief, FSD, may allow a longer period for filing claims if, in his discretion, unusual and extenuating circumstances justify a longer period. The term “filed” means delivered in person, or mailed (as determined by the date of the postmark) to the Chief, Financial Services Division, National Marine Fisheries Service, 1825 Connecticut Avenue, NW., Washington, DC 20235. The Chief, FSD, suggests that mailed claims be sent by registered or certified mail, return receipt requested, so the claimant will have a record that the claim was received by the Chief, FSD.


(d) Aggregating claims. If more than one commercial fisherman suffers loss or damage from the same incident (for example, when several members of the crew lost income due to loss of fishing time), all claims should be submitted on their behalf by the owner or operator of the commercial fishing vessel involved.


(e) Contents of claim. Each claim must be signed by the claimant and must accurately and completely provide the following information:


(1) The name, mailing address, telephone number, citizenship, and occupational status (for example, vessel owner, operator, or crew member) of each claimant;


(2) The name and Coast Guard documentation number or State registration number of the commercial fishing vessel involved in the damage or loss;


(3) The home port, type, and size of the vessel involved in the casualty;


(4) A full statement of the circumstances of the damage or loss including:


(i) The date when the casualty was first discovered by the claimant,


(ii) The water depth (if known) and visibility at the time and location where the casualty occurred,


(iii) The direction, speed, and activities of the claimant’s vessel immediately before, during, and after the casualty (including a full description of both the deployment of any fishing gear which is the subject of the claim and all attempts at retrieval of the gear),


(iv) The names and addresses of all witnesses to the casualty,


(v) The location where the casualty occurred in Loran C coordinates or the next most accurate method of position fixing available to the claimant,


(vi) A description of the item or obstruction (if sighted or recovered) which caused the casualty, and whether or not any surface markers were attached to or near the obstruction. Submit any available photographs of the item or obstruction. State reasons for believing the obstruction is associated with OCS oil and gas activities.


(5) The amount claimed for property damage or loss and a full statement of the type and extent of damage or loss including:


(i) An inventory of all components of fishing gear damaged or lost,


(ii) The date, place, and cost of acquisition of all fishing gear damaged or lost and proof of its purchase (sales receipts, affidavits, or other evidence),


(iii) One estimate from a commercial fishing gear repair or supply company of the present replacement or repair (whichever applies) cost of the damaged or lost fishing gear. If the gear will be repaired by the claimant himself, a detailed estimate by the claimant identifying the repair cost.


(6) The amount claimed for economic loss and the basis for that amount with supporting documentation, as follows:


(i) Trip tickets for the three vessel trips immediately before the trip during which the casualty was discovered and for the vessel trip immediately following the trip during which the casualty occurred.


(ii) A statement of the amount of time involved on each of the vessel trips above (or if the casualty involves fixed gear, a statement of the number of gear units deployed on each of these trips).


(iii) A statement of the amount of time lost from fishing because of the damage or loss and a full explanation of why this time period is reasonable.


(iv) Documentation of the date replacement gear was ordered and received or the date gear repair began and ended. This documentation may consist of purchase orders, bills of lading, or statements from sellers or repairers.


(7) The amount claimed for other consequential loss or costs (including fees for claim preparation, etc.) with suitable documentation of the amounts claimed (such as invoices, receipts, etc.).


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


§ 296.6 NMFS processing of claims.

(a) Action by NMFS. Upon receipt of a claim, the Chief, FSD, will:


(1) Send an abstract of the claim to the Secretary of the Interior;


(2) Send the reported location of any obstruction which was not recovered and retained to the National Ocean Survey, which will inform the Defense Mapping Agency Hydrographic/Topographic Center.


(b) Actions by the Interior Department. Upon receipt of an abstract of a claim, the Interior Department will immediately:


(1) Plot the casualty site, and advise NMFS whether the site is in an area affected by OCS activities;


(2) make reasonable efforts to notify all persons known to have engaged in activities associated with OCS energy activity in the vicinity where the damage or loss occurred.


(c) Responses to notice of claim. (1) Each person notified by the Interior Department will, within thirty days after receipt of the notice, advise the Chief, FSD, and the Interior Department whether he admits or denies responsibility for the damages claimed.


(2) Each person notified by the Interior Department who fails to give timely and proper advice of admission or denial of responsibility shall be presumed to deny responsibility for the damages claimed.


(3) If any person admits responsibility, the Chief, FSD, will initiate action to recover from that party any sums paid or to be paid for the claimed damages.


(4) Any person referred to in this section, including lessees or permittees or their contractors or subcontractors, may submit evidence about any claim to the Chief, FSD.


(d) Failure to meet filing requirements. The Chief, FSD, may reject any claim that does not meet the filing requirements. The Chief, FSD, will give a claimant whose claim is rejected written notice of the reasons for rejection within 30 days after the date on which the claim was filed. If the claimant does not refile an acceptable claim within 30 days after the date of this written notice, the claimant is not eligible for Fund compensation unless there are extenuating circumstances.


(e) Proceedings – (1) Location. Any required proceeding will be conducted within such United States judicial district as may be mutually agreeable to the claimant and the Assistant Administrator, NMFS, or his designee, or if no agreement can be reached, within the United States judicial district in which the claimant’s home port is located.


(2) Powers. For purposes of any proceeding, the Assistant Administrator, NMFS, or his designee, shall have the power to administer oaths and subpoena witnesses and the production of books, records, and other evidence relative to the issues involved.


(3) Amendments to claims. A claimant may amend the claim at any time before the Chief, FSD, issues an initial determination.


(4) Criminal penalty for fraudulent claims. Any person who files a fraudulent claim is subject to prosecution under 18 U.S.C. sections 287 and 1001, each of which, upon conviction, imposes a penalty of not more than a $10,000 fine and 5 years’ imprisonment, or both.


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


§ 296.7 Burden of proof and presumption of causation.

(a) Burden of proof. The claimant has the burden to establish, by a preponderance of the evidence, all facts necessary to qualify his claim, including:


(1) The identity or nature of the item which caused the damage or loss; and


(2) That the item is associated with oil and gas exploration, development, or production activities on the Outer Continental Shelf.


(b) Presumption of causation. Notwithstanding the above, damages or losses are presumed to be caused by items associated with oil and gas exploration, development, or production activities on the OCS if the claimant establishes that:


(1) The claimant’s commercial fishing vessel was being used for commercial fishing and was located in an area affected by OCS oil and gas exploration, development, or production activities;


(2) A report on the location of the obstruction which caused such damage or loss, and the nature of such damage or loss, was made within fifteen days after the date on which the vessel first returned to a port after discovering such damage;


(3) There was no record on the most recent nautical charts issued by the National Ocean Survey, NOAA, or in any weekly Notice to Mariners issued by the Defense Mapping Agency Hydrographic/Topographic Center, in effect at least 15 days before the date the damage or loss occurred, then an obstruction existed in the immediate vicinity where the damage or loss occurred. In the case of damages caused by a pipeline, the presumption will be available regardless of whether the pipeline was recorded on charts or in the Notice to Mariners; and


(4) There was no proper surface marker or lighted buoy attached, or closely anchored, to such obstruction.


(c) Geographic exclusion from presumption of causation. Damage or loss occurring within a one-quarter mile radius of obstructions recorded on charts or in a Notice to Mariners, or properly marked, is presumed to involve the recorded or marked obstruction.


§ 296.8 Amount of award.

(a) Actual damages. The award for damaged fishing gear will be the lesser of the gear’s repair cost or replacement cost. The award for lost fishing gear will be the gear’s replacement cost.


(b) Consequential damages. An award may also include compensation for any damage or loss (except personal injury) that is incurred as a consequence of the fishing gear damage or loss.


(c) Resulting economic loss. An award may also include 50 percent of the resulting economic loss from damage to or loss of fishing vessels and gear.


(d) Attorney, CPA, consultant fees. An award may also include compensation for reasonable fees paid by the claimant to an attorney, CPA, or other consultant for the preparation or prosecution of a claim.


(e) Negligence of claimant. (1) An award will be reduced to the extent that the loss or damage was caused by the negligence or fault of the claimant. (For example, a claimant who sustained $10,000 in damages and whose negligence or fault was found to be responsible for 40% of the damage would receive $6,000 in compensation. If the same claimant were responsible for 99% of the negligence or fault that caused the damage, the claimant would receive $100 in compensation).


(2) Negligence of the owner or operator of the fishing vessel or gear will reduce crewmember awards to the same extent that it reduces an award to the vessel’s owner or operator.


(f) Insurance proceeds. An award will be reduced by the amount the claimant has, or reasonably would have, received under a commercial policy of full hull and machinery and protection and indemnity insurance, whether or not such insurance was in effect at the time the casualty occurred.


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


§ 296.9 Initial determination.

The Chief, FSD will make an initial determination on a claim within 60 days after the day on which the claim is accepted for filing. The initial determination will state:


(a) If the claim is disapproved, the reason for disapproval, or


(b) If the claim is approved, the amount of compensation and the basis on which the amount was determined.


§ 296.10 Agency review.

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


(b) The petitioner may submit written or oral evidence within 30 days of filing the petition for review.


§ 296.11 Final determination.

(a) If a petition for review of an initial determination is filed within 30 days after the date the Chief, FSD, issues an initial determination, the Assistant Administrator, NMFS, or his designee will conduct a review of the initial determination, and will issue a final determination no later than 60 days after receipt of the request for review of the initial determination.


(b) If a petition for review of an initial determination is not filed within 30 days after the day on which the Chief, FSD, issues an initial determination, the initial determination will become a final determination.


§ 296.12 Payment of costs.

(a) By person denying responsibility for damage. Any person who is notified by the Interior Department and fails to respond or denies responsibility for the damages claimed will pay the costs of the proceedings if such person is subsequently found to be responsible for the damage claimed.


(b) By the claimant. Any claimant who files a claim will pay the cost of the proceedings if such person is subsequently found to be responsible for the damage claimed.


(c) By person denying responsibility for damage and the claimant. If more than one party is found to have responsibility for the damage claimed, then the cost of the proceedings will be apportioned between them.


§ 296.13 Payment of award for claim.

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


(b) [Reserved]


[61 FR 6322, Feb. 20, 1996]


§ 296.14 Subrogation.

(a) The claim application will contain a subrogation statement signed by the claimant as a condition of payment of the claim which:


(1) Assigns to the Fund the claimant’s rights against third parties; and


(2) Provides that the claimant will assist the Fund in any reasonable way to pursue those rights.


(b) Collection of subrogated rights. If a reasonable chance of successful collection exists, NMFS will refer any subrogated rights to the Justice Department for collection.


(c) Any moneys recovered through subrogation shall be deposited into the Fund.


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


§ 296.15 Judicial review.

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


PARTS 297-299 [RESERVED]

CHAPTER III – INTERNATIONAL FISHING AND RELATED ACTIVITIES

PART 300 – INTERNATIONAL FISHERIES REGULATIONS


Authority:16 U.S.C. 951 et seq., 16 U.S.C. 1801 et seq., 16 U.S.C. 5501 et seq., 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.


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


Editorial Note:Nomenclature changes to part 300 appear at 64 FR 44431, Aug. 16, 1999, and at 76 FR 59305, Sept. 26, 2011.

Subpart A – General


Authority:16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.

§ 300.1 Purpose and scope.

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


§ 300.2 Definitions.

In addition to the definitions in each act, agreement, convention, or treaty specified in subparts B through K of this part, the terms used in this part have the following meanings:


Assistant Administrator means the Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Department of Commerce, or a designee. Address: Room 14555, 1315 East-West Highway, Silver Spring, MD 20910.


Authorized officer means:


(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard; or any U.S. Coast Guard personnel accompanying and acting under the direction of a commissioned, warrant, or petty officer of the U.S. Coast Guard;


(2) Any special agent or fisheries enforcement officer of NMFS; or


(3) Any person designated by the head of any Federal or state agency that has entered into an agreement with the Secretary of Commerce or the Commandant of the U.S. Coast Guard to enforce the provisions of any statute administered by the Secretary.


CCAMLR inspector means a person designated by a member of the Commission for the Conservation of Antarctic Marine Living Resources as an inspector under Article XXIV of the Convention on the Conservation of Antarctic Marine Living Resources to verify compliance with measures in effect under the Convention.


Exclusive Economic Zone or EEZ means the zone established by Presidential Proclamation 5030, dated March 10, 1983, as defined in 16 U.S.C. 1802(6).


Fishing or to fish means:


(1) The catching or taking of fish;


(2) The attempted catching or taking of fish;


(3) Any other activity that can reasonably be expected to result in the catching or taking of fish; or


(4) Any operations at sea in support of, or in preparation for, any activity described in paragraphs (1) through (3) of this definition.


Fishing vessel means any vessel, boat, ship, or other craft that is used for, equipped to be used for, or of a type normally used for fishing.


IATTC means the Inter-American Tropical Tuna Commission, established pursuant to the Convention for the Establishment of an Inter-American Tropical Tuna Commission.


Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction, constitutes an importation within the meaning of the customs laws of the United States.


IRCS means International Radio Call Sign.


Magnuson-Stevens Act means the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.


National of the United States or U.S. national means any person subject to the jurisdiction of the United States, including, but not limited to, a citizen or resident of the United States, or a person employed on a vessel of the United States. In the case of a corporation, partnership or other non- natural person, this includes, but is not limited to, any entity that is the owner of a vessel of the United States.


NMFS means the National Marine Fisheries Service, NOAA, Department of Commerce.


NMFS Headquarters means NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Attention: Office of International Affairs.


Official number means the documentation number issued by the USCG or the certificate number issued by a state or the USCG for an undocumented vessel, or any equivalent number if the vessel is registered in a foreign nation.


Operator means, with respect to any vessel, the master or other individual aboard and in charge of that vessel.


Owner means, with respect to any vessel:


(1) Any person who owns that vessel in whole or part (whether or not the vessel is leased or chartered);


(2) Any charterer of the vessel, whether bareboat, time, or voyage;


(3) Any person who acts in the capacity of a charterer, including but not limited to parties to a management agreement, operating agreement, or any similar agreement that bestows control over the destination, function, or operation of the vessel; or


(4) Any agent designated as such by a person described in this definition.


Person means any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized, or existing under the laws of any state), and any Federal, state, local, or foreign government or any entity of any such government.


Regional Administrator means the Administrator of one of the six NMFS Regions, described in Table 1 of § 600.502 of this title, or a designee.


Science and Research Director means the Director of one of the six NMFS Fisheries Science Centers described in Table 1 of § 600.502 of this title, or a designee, also known as the Science Director.


Secretary means the Secretary of Commerce or a designee.


USCG means the United States Coast Guard.


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


[61 FR 35550, July 5, 1996, as amended at 76 FR 59305, Sept. 26, 2011]


§ 300.3 Relation to other laws.

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


§ 300.4 General prohibitions.

It is unlawful for any person subject to the jurisdiction of the United States to:


(a) Violate the conditions or restrictions of a permit issued under this part.


(b) Fail to submit information, fail to submit information in a timely manner, or submit false or inaccurate information, with respect to any information required to be submitted, reported, communicated, or recorded pursuant to this part.


(c) Make any false statement, oral or written, to an authorized officer concerning the catching, taking, harvesting, possession, landing, purchase, sale, or transfer of fish, or concerning any other matter subject to investigation by that officer under this part.


(d) Conceal any material fact (including by omission), concerning any matter subject to investigation by an authorized officer under this part.


(e) Refuse to allow an authorized officer to inspect any report or record required to be made or kept under this part.


(f) Falsify, cover, or otherwise obscure, the name, home port, official number (if any), or any other similar marking or identification of any fishing vessel subject to this part such that the vessel cannot be readily identified from an enforcement vessel or aircraft.


(g) Fail to comply immediately with any of the enforcement and boarding procedures specified in this part.


(h) Refuse to allow an authorized officer to board a fishing vessel, or enter any other area of custody (i.e., any vessel, building, vehicle, live car, pound, pier, or dock facility where fish might be found) subject to such person’s control, for the purpose of conducting any inspection, search, seizure, investigation, or arrest in connection with the enforcement of this part or any other applicable law.


(i) Destroy, stave, or dispose of in any manner, any fish, gear, cargo, or other matter, upon any communication or signal from an authorized officer of the United States, or upon the approach of such an officer, enforcement vessel, or aircraft, before the officer has had the opportunity to inspect same, or in contravention of directions from such an officer.


(j) Intentionally destroy evidence that could be used to determine if a violation of this part has occurred.


(k) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, prevent, or interfere, in any manner, with an authorized officer in the conduct of any boarding, inspection, search, seizure, investigation, or arrest in connection with enforcement of this part.


(l) Resist a lawful arrest or detention for any act prohibited by this part.


(m) Interfere with, delay, or prevent, by any means, the apprehension, arrest, or detection of another person, knowing that such person has committed any act prohibited by this part.


(n) Interfere with, obstruct, delay, or prevent, by any means, an investigation, search, seizure, or disposition of seized property in connection with enforcement of this part.


(o) Ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish imported, exported or re-exported in violation of this part.


(p) Import, export, or re-export any fish regulated under this part without a valid International Fisheries Trade Permit as required under § 300.322 or applicable shipment documentation as required under § 300.323.


(q) Violate any provision of any statute implemented by this part.


(r) Attempt to do any of the foregoing.


[61 FR 35550, July 5, 1996, as amended at 81 FR 51133, Aug. 3, 2016]


§ 300.5 Facilitation of enforcement.

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


(1) For the purposes of this section “freeboard” means the working distance between the top rail of the gunwale of a vessel and the water’s surface. Where cut-outs are provided in the bulwarks for the purpose of boarding personnel, freeboard means the distance between the threshold of the bulwark cut-out and the water’s surface.


(2) For the purposes of this section, “pilot ladder” means a flexible ladder constructed and approved to meet the U.S. Coast Guard standards for pilot ladders at 46 CFR subpart 163.003 entitled Pilot Ladder.


(b) Communications. (1) Upon being approached by a USCG vessel or aircraft, or other vessel or aircraft with an authorized officer or CCAMLR inspector aboard, the operator of a fishing vessel must be alert for communications conveying enforcement instructions.


(2) VHF-FM radiotelephone is the preferred method of communicating between vessels. If the size of the vessel and the wind, sea, and visibility conditions allow, a loudhailer may be used instead of the radio. Hand signals, placards, high frequency radiotelephone, voice, flags, whistle or horn may be employed by an authorized officer or CCAMLR inspector, and message blocks may be dropped from an aircraft.


(3) If other communications are not practicable, visual signals may be transmitted by flashing light directed at the vessel signaled. USCG units will normally use the flashing light signal “L” which, in the International Code of Signals, means “you should stop your vessel instantly.”


(4) Failure of a vessel’s operator promptly to stop the vessel when directed to do so by an authorized officer or CCAMLR inspector, or by an enforcement vessel or aircraft, using loudhailer, radiotelephone, flashing light, flags, whistle, horn or other means constitutes prima facie evidence of the offense of refusal to allow an authorized officer or CCAMLR inspector to board.


(5) A person aboard a vessel who does not understand a signal from an enforcement unit and who is unable to obtain clarification by loudhailer or radiotelephone must consider the signal to be a command to stop the vessel immediately.


(c) Boarding. The operator of a vessel directed to stop must:


(1) Monitor Channel 16, VHF-FM, if so equipped.


(2) Stop immediately and lay to or, if appropriate and/or directed to do so by the authorized officer or CCAMLR inspector, maneuver in such a way as to allow the safe boarding of the vessel by the authorized officer or CCAMLR inspector and the boarding party.


(3) Except for fishing vessels with a freeboard of 4 feet (1.25 m) or less, provide, when requested by an authorized officer or CCAMLR inspector, a pilot ladder capable of being used for the purpose of enabling the authorized officer or CCAMLR inspector to embark and disembark the vessel safely. The pilot ladder must be maintained in good condition and kept clean.


(4) When necessary to facilitate the boarding or when requested by an authorized officer or CCAMLR inspector, provide a manrope or safety line, and illumination for the pilot ladder.


(5) Take such other actions as necessary to facilitate boarding and to ensure the safety of the authorized officer or CCAMLR inspector and the boarding party.


(d) Signals. The following signals, extracted from the International Code of Signals, may be sent by flashing light by an enforcement unit when conditions do not allow communications by loudhailer or radiotelephone. Knowledge of these signals by vessel operators is not required. However, knowledge of these signals and appropriate action by a vessel operator may preclude the necessity of sending the signal “L” and the necessity for the vessel to stop instantly.


(1) “AA” repeated (.- .-) is the call to an unknown station. The operator of the signaled vessel should respond by identifying the vessel by radiotelephone or by illuminating the vessel’s identification.


(2) “RY-CY” (.-. -.– -.-. -.–) means “you should proceed at slow speed, a boat is coming to you.” This signal is normally employed when conditions allow an enforcement boarding without the necessity of the vessel being boarded coming to a complete stop, or, in some cases, without retrieval of fishing gear that may be in the water.


(3) “SQ3” (… –.- …–) means “you should stop or heave to; I am going to board you.”


[61 FR 35550, July 5, 1996, as amended at 73 FR 67809, Nov. 17, 2008]


Subpart B [Reserved]

Subpart C – Eastern Pacific Tuna Fisheries


Authority:16 U.S.C. 951 et seq.

§ 300.20 Purpose and scope.

The regulations in this subpart are issued under the authority of the Tuna Conventions Act of 1950, as amended, (Act) and apply to persons and vessels subject to the jurisdiction of the United States. The regulations implement recommendations and other decisions of the Inter-American Tropical Tuna Commission (IATTC) for the conservation and management of stocks of tunas and tuna-like species and other species of fish taken by vessels fishing for tunas and tuna-like species in the IATTC Convention Area. The Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard, may promulgate such regulations as may be necessary to carry out the U.S. international obligations under the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention), the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention), and the Act, including recommendations and other decisions adopted by the IATTC.


[82 FR 17385, Apr. 11, 2017]


§ 300.21 Definitions.

In addition to the terms defined in § 300.2, in the Act, the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention), and the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention), the terms used in this subpart have the following meanings. If a term is defined differently in § 300.2, in the Act, or in the Antigua Convention, the definition in this section shall apply.


Active FAD means a FAD whose location is being tracked by the vessel owner or operator using tracking equipment, such as radio or satellite buoys. A FAD shall be considered an Active FAD unless/until the vessel is no longer tracking its location and the vessel owner or operator notifies the IATTC that the FAD is no longer active (i.e., deactivated).


Commercial with respect to commercial fishing, means fishing in which the fish harvested, either in whole or in part, are intended to enter commerce through sale, barter or trade.


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.


Convention Area or IATTC Convention Area means all waters of the Pacific Ocean within the area bounded by the west coast of the Americas and by 50° N latitude from the coast of North America to its intersection with 150° W longitude, then 150° W longitude to its intersection with 50° S latitude, and then 50° S latitude to its intersection with the coast of South America.


Data buoy means, for the purpose of § 300.25, a floating device, either drifting or anchored, which is deployed by one or more governmental or recognized scientific organizations or entities for the purpose of electronically collecting and measuring environmental data, and not for the purpose of fishing activities, and which has been reported to the IATTC by a Member or Cooperating non-Member of the Commission.


Dolphin set means a purse seine set where a class size 6 U.S. purse seine vessel (greater than 363 metric tons carrying capacity) deploys a net on, or encircles, dolphins to catch yellowfin tuna.


Fish aggregating device (FAD) means a manmade raft or other floating object used to attract tuna and make them available to fishing vessels.


Fishing trip means a period that a fishing vessel spends at sea between port visits and during which any fishing occurs.


Fishing vessel means any vessel, boat, ship, or other craft that is used for, equipped to be used for, or of a type that is normally used for fishing or for assisting or supporting a vessel engaged in fishing, except purse seine skiffs.


Floating object means any natural object or FAD around which fishing vessels may catch tuna.


Floating object set means a purse seine set in which purse seine gear is deployed to encircle a floating object.


Force majeure means, for the purpose of § 300.25, a situation in which a vessel at sea, except while transiting between ports on a trip during which no fishing operations occur, is disabled by mechanical and/or structural failure, fire or explosion.


Highly Migratory Species (HMS) Branch means the Chief of the HMS Branch of the Sustainable Fisheries Division, National Marine Fisheries Service West Coast Region, Suite 4200, 501 W Ocean Blvd., Long Beach, CA 90802, and [email protected]


Incidental catch or incidental species means species caught while fishing with the primary purpose of catching a different species. An incidental catch is expressed as a percentage of the weight of the total fish on board.


Land or Landing means to begin transfer of fish from a fishing vessel. Once transfer begins, all fish on board the vessel are counted as part of the landing.


Longline gear means a type of fishing gear consisting of a main line that exceeds 1 nautical mile in length, is suspended horizontally in the water column anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached.


Mesh size means the distance between the inside of one knot to the inside of the opposing knot when the mesh is stretched, regardless of twine size.


Mobulid ray means any animal in the family Mobulidae, which includes manta rays (Manta spp.) and devil rays (Mobula spp.).


Observer means an individual placed aboard a fishing vessel under the IATTC observer program or any other international observer program in which the United States may participate.


Overall length means registered length, or the horizontal distance between the outboard side of the foremost part of the stem and the outboard side of the aftermost part of the stern, excluding rudders, outboard motor brackets, and other similar fittings and attachments for a single-hull vessel; for a multi-hull vessel, it is the horizontal distance between the outboard side of the foremost part of the stem of the foremost hull and the outboard side of the aftermost part of the stern of the aftermost hull, excluding fittings or attachments (See 46 CFR 69.203).


Regional Administrator means the Regional Administrator for the West Coast Region, National Marine Fisheries Service, or a designee.


Regional Vessel Register (hereafter referred to as Vessel Register) means the regional register of vessels authorized to fish for tuna and tuna-like species in the Convention Area, as established by the Inter-American Tropical Tuna Commission in June 2000.


Shark line means a type of fishing gear used to target sharks and consisting of an individual hooked line or hooked lines attached to the floatline or directly to the floats of longline gear and deployed in the water column at depths shallower than the mainline.


South Pacific Tuna Treaty means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (50 CFR part 300, subpart D).


Sustainable Fisheries Division (SFD) means the Assistant Regional Administrator for the Sustainable Fisheries Division, West Coast Region, National Marine Fisheries Service, or a designee.


Tender vessel means a vessel that does not engage in purse seine fishing but tends to FADs in support of tuna fishing operations.


Transship means to unload fish from a vessel that caught fish to another vessel.


Transshipment receiving vessel means any vessel, boat, ship, or other craft that is used to receive fish from a fishing vessel.


Trip limit means the total allowable amount of a species by weight of fish that may be retained on board, transshipped, or landed from a single fishing trip by a vessel that harvests tuna or tuna-like species.


Tropical tuna means any of the following species:


Common name
Scientific name
Bigeye tunaThunnus obesus.
Skipjack tunaKatsuwonus pelamis.
Yellowfin tunaThunnus albacares.

Tuna means any fish of the genus Thunnus and the species Katsuwonus pelamis.


VMS unit, sometimes known as a “mobile transmitting unit,” means a transceiver or communications device, including all hardware and software that is carried and operated on a vessel as part of a VMS.


[61 FR 35550, July 5, 1996]



Editorial Note:For Federal Register citations affecting § 300.21, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 300.22 Recordkeeping and reporting requirements.

(a) Logbooks and reporting on whale sharks and FADs – (1) Logbook reporting. The master or other person in charge of a commercial fishing vessel or commercial passenger fishing vessel (CPFV) authorized to fish for tuna and tuna-like species in the Convention Area, or a person authorized in writing to serve as the agent for either person, must keep an accurate log of operations conducted from the fishing vessel. For vessels greater than 400 st (362.8 mt) carrying capacity that are authorized to purse seine for tuna in the Convention Area, the log must include for each day the date, noon position (stated in latitude and longitude or in relation to known physical features), and the tonnage of fish on board, by species. The record and bridge log maintained and submitted at the request of the IATTC shall be sufficient to comply with this paragraph, provided the items of information specified by the IATTC are accurately entered in the log. For purse seine vessels of 400 st (362.8 mt) carrying capacity or less and for non-purse seine vessels, maintaining and submitting any logbook required by existing state or federal regulation shall be sufficient to comply with this paragraph.


(2) Whale shark encirclement reporting. The owner and operator of a purse seine fishing vessel of the United States that encircles a whale shark (Rhincodon typus) while commercially fishing in the Convention Area must ensure that the incident is recorded on the log that is required by this paragraph (a). The log must include the following information: The number of individual whale sharks with which the vessel interacted, details of how and why the encirclement happened, where it occurred, steps taken to ensure safe release, and an assessment of the life status of the whale shark upon release (including whether the animal was released alive, but subsequently died), as may be further specified by NMFS.


(3) FAD data reporting for purse seine vessels – (i) Reporting on FAD interactions. U.S. purse seine vessel operators shall provide the observer with the FAD identification code and, as appropriate, the other information in the FAD interaction standard format provided by the HMS Branch. U.S. vessel owners and operators, without an observer onboard, must ensure that any interaction or activity with a FAD is reported using a FAD interaction standard format provided by the HMS Branch. The owner and operator shall ensure that the form is submitted within 30 days of each landing or transshipment of tuna or tuna-like species to the address specified by the HMS Branch.


(ii) Reporting on Active FADs. U.S. vessel owners and operators must record or maintain daily information on all Active FADs that have been deployed in the water in the IATTC Convention Area in the format and to the address provided by the HMS Branch. This information must be submitted for each calendar month no later than 90 days after the month covered by the report.


(b) Vessel Register. The Vessel Register shall include, consistent with resolutions of the IATTC, all commercial fishing vessels and CPFVs authorized to fish for tuna and tuna-like species in the Convention Area. Except as provided under paragraph (b)(1) of this section, tuna purse seine vessels must be listed on the Vessel Register and categorized as active under paragraph (b)(4)(i) of this section in order to fish for tuna and tuna-like species in the Convention Area.


(1) Exception. Once per year, a vessel that is permitted and authorized under an alternative international tuna purse seine fisheries management regime in the Pacific Ocean may exercise an option to fish with purse seine gear to target tuna in the Convention Area without the vessel’s capacity counted towards the cumulative carrying capacity described under paragraph (b)(4)(i)(A) of this section. This exception is for a single fishing trip that does not exceed 90 days in duration. At any time during the calendar year, a vessel exercising this exception shall follow the procedures, where applicable, described in paragraphs (b)(4) of this section. No more than 32 of such trips are allowed each calendar year. After the commencement of the 32nd such trip, the Regional Administrator shall announce, in the Federal Register and by other appropriate means, that no more such trips are allowed for the remainder of the calendar year. Under § 216.24(b)(6)(iii)(C) of this title, vessel assessment fees must be paid for vessels exercising this option.


(2) Requirements for inclusion of purse seine vessels on the Vessel Register. The tuna purse seine portion of the Vessel Register shall include, consistent with resolutions of the IATTC, only vessels that fished in the Convention Area prior to June 28, 2002. Inclusion on the tuna purse seine portion of the Vessel Register is valid through December 31 of each year. New tuna purse seine vessels may be added to the Vessel Register at any time to replace those previously removed by the Regional Administrator, provided that the total capacity of the replacement vessel or vessels does not exceed that of the tuna purse seine vessel or vessels being replaced.


(3) Vessel information. (i) Information on each commercial fishing vessel or CPFV authorized to use purse seine, longline, drift gillnet, harpoon, troll, rod and reel, or pole and line fishing gear to fish for tuna and tuna-like species in the Convention Area for sale shall be collected by the Regional Administrator to conform to IATTC resolutions governing the Vessel Register. This information initially includes, but is not limited to, the vessel name and registration number; the name and business address of the owner(s) and managing owner(s); a photograph of the vessel with the registration number legible; previous vessel name(s) and previous flag (if known and if any); port of registry; International Radio Call Sign; vessel length, beam, and moulded depth; gross tonnage, fish hold capacity in cubic meters, and carrying capacity in metric tons and cubic meters; engine horsepower; date and place where built; and type of fishing method or methods used. The required information shall be collected as part of existing information collections as described in this and other parts of the CFR.


(ii) IMO numbers. For the purpose of this section, an “IMO number” is the unique six or seven digit number issued for a vessel under the ship identification number scheme adopted by the International Maritime Organization (IMO) and managed by the entity identified by the IMO (currently IHS Maritime) and is also known as a Lloyd’s Register number.


(iii) Requirements for IMO numbers. The owner of a fishing vessel of the United States used for commercial fishing for tuna and tuna-like species in the IATTC Convention Area shall ensure that an IMO number has been issued for the vessel if the vessel’s Certificate of Documentation issued under 46 CFR part 67 indicates that the vessel’s total internal volume is 100 gross register tons or greater or 100 gross tonnage or greater. In addition, the owner of a fishing vessel of the United States engaging in fishing activities for tuna or tuna-like species in the IATTC Convention Area, and for which a high seas fishing permit under § 300.333 is required, shall ensure that an IMO number has been issued for the vessel if the vessel’s total internal volume is less than 100 gross registered tons or less than 100 gross tons, but equal to or greater than 12 meters in overall length, as indicated in the vessel’s Certificate of Documentation issued under 46 CFR part 67 or State documentation. A vessel owner may request that an IMO number be issued for a vessel by following the instructions given by the administrator of the IMO ship identification number scheme; those instructions are currently available on the website of IHS Markit, https://imonumbers.lrfairplay.com/.


(iv) Request for exemption. In the event that a fishing vessel owner, after following the instructions given by the designated manager of the IMO ship identification number scheme, is unable to ensure that an IMO number is issued for the fishing vessel, the fishing vessel owner may request an exemption from the requirement from the Regional Administrator. The request must be sent by mail to NMFS HMS Branch, West Coast Region, 501 W Ocean Blvd., Suite 4200, Long Beach, CA 90802, or by email to [email protected], and must include the vessel’s name, the vessel’s official number, a description of the steps taken to request an IMO number, and a description of any responses from the administrator of the IMO ship identification number scheme.


(v) Exemption process. Upon receipt of a request for an exemption under paragraph (b)(3)(iv) of this section, the Regional Administrator will, to the extent he or she determines appropriate, assist the fishing vessel owner in requesting an IMO number. If the Regional Administrator determines that the fishing vessel owner has followed all appropriate procedures and yet is unable to obtain an IMO number for the fishing vessel, he or she will issue an exemption from the requirements of paragraph (b)(3)(iii) of this section for the vessel and its owner and notify the owner of the exemption. The Regional Administrator may limit the duration of the exemption. The Regional Administrator may rescind an exemption at any time. If an exemption is rescinded, the fishing vessel owner must comply with the requirements of paragraph (b)(3)(iii) of this section within 30 days of being notified of the rescission. If the ownership of a fishing vessel changes, an exemption issued to the former fishing vessel owner becomes void.


(4) Purse seine Vessel Register listing. For a tuna purse seine vessel to be listed on the Vessel Register and to be categorized as either “active” or “inactive” in the following calendar year, the vessel owner or managing owner must submit to the Regional Administrator the required permit applications, written notifications, and fees as described under § 216.24(b) of this title and under paragraphs (b)(4)(ii) and (iii) of this section as well as payment of the vessel assessment fee, where applicable, to the IATTC.


(i) Restrictions. The following restrictions apply:


(A) The cumulative carrying capacity of all tuna purse seine vessels on the Vessel Register may not exceed 31,866 cubic meters in a given year; and


(B) A purse seine vessel in excess of 400 st (362.8 mt) carrying capacity may not be added to active status on the Vessel Register unless the captain of the vessel has obtained a valid operator permit under § 216.24(b)(2) of this title.


(ii) Active status. As early as August 1 of each year, vessel owners or managing owners may request that a purse seine vessel qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as active for the following calendar year. To request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be listed on the Vessel Register and be categorized as active, the vessel owner or managing owner must submit to the Regional Administrator the vessel permit application and payment of the permit application fee and submit to the IATTC payment of the vessel assessment fee.


(A) To request a purse seine vessel of 400 st (362.8 mt) carrying capacity or less be listed on the Vessel Register and be categorized as active, the vessel owner or managing owner must submit to the HMS Branch written notification including, but not limited to, a vessel photograph, the vessel information as described under paragraph (b)(3) of this section, and the owner or managing owner’s signature, business email address, and business telephone and fax numbers. If a purse seine vessel of 400 st (362.8 mt) carrying capacity or less is required by the Agreement on the IDCP to carry an observer, the vessel owner or managing owner must also submit payment of the vessel assessment fee to the IATTC.


(B) The Regional Administrator must receive the vessel permit application or written notification and payment of the permit application fee and payment confirmation of the vessel assessment fee no later than September 15 for vessels for which a DML was requested for the following year and no later than November 30 for vessels for which a DML was not requested for the following year. Submission of the vessel permit application or written notification and payment of the vessel assessment fee and permit application fee will be interpreted by the Regional Administrator as a request for a vessel to be categorized as active.


(iii) Inactive status. (A) From August 1 through November 30 of each year, vessel owners or managing owners may request that purse seine vessels qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as inactive for the following calendar year. To request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be listed on the Vessel Register and categorized as inactive for the following calendar year, the vessel owner or managing owner must submit to the IATTC payment of the associated vessel assessment fee. Payment of the vessel assessment fee consistent with inactive status will be interpreted by the Regional Administrator as a request for the vessel to be categorized as inactive.


(B) To request a tuna purse seine vessel of 400 st (362.8 mt) carrying capacity or less be listed on the Vessel Register and categorized as inactive for the following calendar year, the vessel owner or managing owner must submit to the HMS Branch a written notification including, but not limited to, the vessel name and registration number and the vessel owner or managing owner’s name, signature, business address, business email address, and business telephone and fax numbers. Payment of the vessel assessment fee is not required for vessels of 400 st (362.8 mt) carrying capacity or less to be categorized as inactive.


(C) At any time during the year, a vessel owner or managing owner may request that a tuna purse seine vessel qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as inactive for the remainder of the calendar year, provided the cumulative carrying capacity described in (b)(4)(i)(A) of this section is not exceeded. To request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be listed on the Vessel Register and categorized as inactive for the remainder of the calendar year, the vessel owner or managing owner must submit to the IATTC payment of the associated vessel assessment fee. To request a tuna purse seine vessel of 400 st (362.8 mt) carrying capacity or less be listed on the Vessel Register and categorized as inactive for the remainder of the calendar year, the vessel owner or managing owner must submit to the HMS Branch written notification as described in (b)(4)(iii)(A) of this section. Payment of the vessel assessment fee is not required for such vessels.


(D) The vessel owner or managing owner of a purse seine vessel listed as active on the Vessel Register that has sunk may request the vessel be listed as sunk and categorized as inactive on the Vessel Register. To request the vessel be listed as sunk and categorized as inactive on the Vessel Register, the vessel owner or managing owner must submit to the HMS Branch written notification within 30 days of the vessel’s sinking. Written notification shall include, but is not limited to, the vessel name, date of sinking, registration number, the vessel owner or managing owner’s name, signature, business address, business email address, and business telephone and fax numbers. For subsequent calendar years, vessel assessment fee payment shall be made as described in paragraph (b)(4)(iii) of this section.


(E) A vessel listed as inactive or sunk on the Vessel Register for more than two consecutive calendar years after January 21, 2020 requesting active status will be prioritized according to the hierarchy under paragraph (b)(4)(v) of this section. A vessel listed as inactive or sunk on the Vessel Register for more than two consecutive calendar years after January 21, 2020 will be removed from the Vessel Register as described in paragraph (b)(5)(ix) of this section.


(iv) Frivolous requests. (A) Except as described under paragraph (b)(4)(iv)(B) of this section, requests for active status under paragraph (b)(4)(ii) of this section will be considered frivolous if, for a vessel categorized as active on the Vessel Register in a given calendar year:


(1) Less than 20 percent of the vessel’s total landings, by weight, in that same year is comprised of tuna harvested by purse seine in the Convention Area; or


(2) The vessel did not fish for tuna at all in the Convention Area in that same year.


(B) Requests described under paragraph (b)(4)(iv)(A) of this section will not be considered frivolous requests if:


(1) The vessel’s catch pattern fell within the criteria described in paragraph (b)(4)(iv)(A) of this section as a result of force majeure or other extraordinary circumstances as determined by the Regional Administrator; or


(2) The vessel’s carrying capacity is 400 st (362.8 mt) or less and there was at least one documented landing of tuna caught by the vessel in the Convention Area in the calendar year prior to the year in which the request is made and through November 15 of the year of the request, unless the vessel was not able to make a landing as a result of force majeure or other extraordinary circumstances as determined by the Regional Administrator.


(3) The vessel was listed as inactive before January 21, 2020 and has not been listed as inactive for more than two consecutive calendar years since January 21, 2020.


(v) Listing hierarchy. Requests for active status and inactive status will be prioritized according to the following hierarchy:


(A) Requests received for replacement vessels with a carrying capacity equal to or less than a vessel removed from the Vessel Register under a request described in paragraph (b)(9) of this section;


(B) Requests received for vessels that were categorized as active in the previous year, unless the request was determined to be frivolous by the Regional Administrator under paragraph (b)(4)(ii) of this section;


(C) Requests received for vessels that were categorized as inactive under paragraph (b)(4)(iii) of this section in the previous year, unless that vessel has been listed as inactive or sunk under paragraph (b)(4)(iii) of this section for more than 2 consecutive calendar years after January 21, 2020;


(D) Requests for vessels not described in paragraphs (b)(4)(v)(A) through (C) of this section, and requests, if applicable, by replacement vessels for the portion of the carrying capacity greater than the amount authorized to the vessel that was replaced under paragraph (b)(9) of this section, will be prioritized on a first-come, first-served basis according to the date and time of receipt, provided that the associated vessel assessment fee is paid by the applicable deadline described in § 216.24(b)(6)(iii) of this title; and


(E) Requests received from owners or managing owners of vessels that were determined by the Regional Administrator to have made a frivolous request for active status under paragraph (b)(4)(iv) of this section or that have been listed as inactive or sunk as described in paragraph (b)(4)(iii) of this section for more than two consecutive calendar years after January 21, 2020.


(5) Removal from the vessel register. A vessel may be removed from the Vessel Register by the Regional Administrator:


(i) If the vessel has sunk, and the vessel owner or managing owner has not submitted written notification as described in paragraph (b)(4)(iii)(D) of this section;


(ii) Upon written request by the vessel’s owner or managing owner;


(iii) Following a final agency action on a permit sanction for a violation; and


(iv) For failure to pay a penalty or for default on a penalty payment agreement resulting from a final agency action for a violation.


(v) If the U.S. Maritime Administration or the U.S. Coast Guard notifies NMFS that:


(A) The owner has submitted an application for transfer of the vessel to foreign registry and flag; or


(B) The documentation for the vessel will be or has been deleted for any reason.


(vi) If the vessel does not have a valid state registration or U.S. Coast Guard certificate of documentation;


(vii) For tuna purse seine vessels, upon receipt of written notification from the owner or managing owner of the intent to transfer the vessel to foreign registry and flag, as described in paragraph (b)(8) of this section; or


(viii) For tuna purse seine vessels, if the request for active status on the Vessel Register has been determined to be a frivolous request; or


(ix) If the vessel has been listed as inactive or sunk on the Vessel Register for more than two consecutive calendar years after January 21, 2020.


(6) Process for Removal from the Vessel Register. When a vessel is removed from the Vessel Register under paragraph (b)(5) of this section, the Regional Administrator shall promptly notify the vessel owner in writing of the removal and the reasons therefor. For a removal from the Vessel Register under § 300.22(b)(5)(iii), the Regional Administrator will not accept a request to reinstate the vessel to the Vessel Register for the term of the permit sanction. For a removal from the Vessel Register under § 300.22(b)(5)(iv), the Regional Administrator will not accept a request to reinstate the vessel to the Vessel Register until such time as payment is made on the penalty or penalty agreement, or such other duration as NOAA and the vessel owner may agree upon.


(7) Procedures for replacing purse seine vessels removed from the Vessel Register. (i) A purse seine vessel that was previously listed on the Vessel Register, but not included for a given year or years, may be added back to the Vessel Register and categorized as inactive at any time during the year, provided the cumulative carrying capacity described in (b)(4)(i)(A) of this section is not exceeded. The owner or managing owner of a purse seine vessel of more than 400 st (362.8 mt) carrying capacity must pay the vessel assessment fee associated with inactive status. The owner or managing owner of a purse seine vessel of 400 st (362.8 mt) carrying capacity or less must submit written notification as described in paragraph (b)(4)(iii) of this section.


(ii) A purse seine vessel may be added to the Vessel Register and categorized as active in order to replace a vessel or vessels removed from active or inactive status under paragraph (b)(5) of this section, provided the total carrying capacity described in (b)(4)(i)(A) of this section is not exceeded and the owner submits a complete request under paragraph (b)(7)(iv) or (v) of this section.


(iii) Notification of available capacity after a purse seine vessel has been removed from the Vessel Register will be conducted as follows:


(A) After a purse seine vessel categorized as active or inactive is removed from the Vessel Register, the Regional Administrator will notify owners or managing owners of vessels eligible for, but not included on, the Vessel Register that replacement capacity is available on the active or inactive list of the Vessel Register.


(B) When a purse seine vessel categorized as active or inactive on the Vessel Register has been removed from the Vessel Register under the procedures described in (b)(9) of this section, the Regional Administrator will not make available the capacity of the vessel removed from the Vessel Register, and will reserve that capacity for a replacement vessel for a period of 2 years from the date of notification described in (b)(9)(iv) of this section. The replacement vessel will be eligible to be listed as active on the Vessel Register at the same carrying capacity or less as that of the vessel it is replacing. If the replacement vessel has a carrying capacity greater than the vessel being replaced, the vessel owner or managing owner may request additional carrying capacity allocated to the vessel in accordance with paragraph (b)(4)(v)(D) of this section. If additional carrying capacity is not available, the replacement vessel must reduce its carrying capacity to no more than the previously authorized carrying capacity amount for the vessel being replaced by complying with the protocol for sealing wells adopted by the IATTC, prior to it being listed as active on the Vessel Register. Such a vessel may apply for additional carrying capacity as it becomes available under the procedures described in (b)(4)(v)(D) of this section.


(iv) Vessel owners or managing owners may request a purse seine vessel of 400 st (362.8 mt) carrying capacity or less be categorized as active to replace a vessel or vessels removed from the Vessel Register by submitting to the HMS Branch written notification as described in paragraph (b)(4)(ii) of this section and, only if the vessel is required by the Agreement on the IDCP to carry an observer, payment of the vessel assessment fee to the IATTC within 10 business days after submission of the written notification. The replacement vessel will be eligible to be categorized as active on the Vessel Register at the same carrying capacity or less as that of the vessel or vessels it is replacing. If the replacement vessel has a carrying capacity greater than the vessel being replaced, the vessel owner or managing owner may request additional carrying capacity allocated to the vessel in accordance with paragraph (b)(4)(v)(D) of this section. If additional carrying capacity is not available, the replacement vessel must reduce its capacity to no more than the previously authorized carrying capacity for the vessel or vessels being replaced by complying with the protocol for sealing wells adopted by the IATTC, prior to it being listed as active on the Vessel Register. Such a vessel may apply for additional carrying capacity as it becomes available. Payments received will be subject to a 10 percent surcharge for vessels that were listed as active on the Vessel Register in the previous calendar year, but not listed as inactive at the beginning of the calendar year for which active status was requested.


(v) Vessel owners or managing owners may request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be categorized as active to replace a vessel or vessels removed from the Vessel Register by submitting to the Regional Administrator the vessel permit application as described under § 216.24(b) of this title and payment of the vessel assessment fee to the IATTC and payment of the permit application fee to the Regional Administrator within 10 business days after submission of the vessel permit application for the replacement vessel. The replacement vessel will be eligible to be categorized as active on the Vessel Register at the same carrying capacity as that of the vessel or vessels it is replacing. If the replacement vessel has a carrying capacity greater than the vessel being replaced, the vessel owner or managing owner may request additional carrying capacity allocated to the vessel in accordance with paragraph (b)(4)(v)(D) of this section. If additional carrying capacity is not available, the replacement vessel must reduce its carrying capacity to no more than the previously authorized carrying capacity for the vessel or vessels being replaced by complying with the protocol for sealing wells adopted by the IATTC, prior to it being listed as active on the Vessel Register. Such a vessel may apply for additional carrying capacity as it becomes available. The replacement vessel will also only be eligible to be categorized as active on the Vessel Register if the captain of the replacement vessel possesses an operator permit under § 216.24(b) of this title. Payments received will be subject to a 10 percent surcharge for vessels that were listed as active on the Vessel Register in the previous calendar year, but not listed as inactive at the beginning of the calendar year for which active status was requested.


(vi) The Regional Administrator will forward requests to replace vessels removed from the Vessel Register within 15 days of receiving each request.


(8) Transfers to a foreign registry and flag. The owner or managing owner of a purse seine vessel listed on the Vessel Register must provide written notification to the Regional Administrator prior to submitting an application for transfer of the vessel to foreign registry and flag. Written notification must be submitted to the Regional Administrator at least 10 business days prior to submission of the application for transfer. The written notification must include the vessel name and registration number; the expected date that the application for transfer will be submitted; and the vessel owner or managing owner’s name and signature. Vessels that require approval by the U.S. Maritime Administration prior to transfer of the vessel to foreign registry and flag will not be subject to the notification requirement described in this paragraph.


(9) Aging fleet provision. (i) The vessel owner or managing owner of a purse seine vessel listed as active or inactive on the Vessel Register may request to replace the current vessel with a new or used vessel without losing the vessel’s placement in the hierarchy of requests for active status as described in paragraph (b)(4)(v) of this section. The replacement vessel will be eligible to be listed as active on the Vessel Register at the same carrying capacity or less as that of the vessel it is replacing. If the replacement vessel has a carrying capacity greater than the vessel being replaced, the vessel owner or managing owner may request additional carrying capacity be allocated to the vessel in accordance with paragraph (b)(4)(v)(D) of this section. If additional carrying capacity is not available at the time the request to be listed as active on the Vessel Register is received by the Regional Administrator, the replacement vessel must reduce its carrying capacity to no more than the previously authorized carrying capacity of the vessel being replaced by complying with the protocol for sealing wells adopted by the IATTC, prior to it being listed as active on the Vessel Register. Such a vessel may apply for additional carrying capacity as it becomes available under the procedures described in paragraph (b)(4)(v)(D) of this section. This aging fleet provision may be used only once per vessel by the vessel owner or managing owner.


(ii) A request made under this provision may include a request to remove the vessel from the Vessel Register. The Regional Administrator will ensure the amount of carrying capacity equal to or less of the vessel being replaced will be available for the replacement vessel for up to 2 years from the date of notification described in paragraph (b)(9)(iv) of this section.


(iii) To request a vessel be replaced under this provision, the vessel owner or managing owner must submit to the HMS Branch written notification including, but not limited to, the vessel name and registration number, the vessel owner or managing owner’s name, signature, business address, business email address, and business telephone and fax numbers, and the expected month and year the replacement vessel will be ready to fish in the Convention Area.


(iv) Within 30 days of receiving each request described in (b)(9)(iii) of this section, the Regional Administrator shall notify the vessel owner or managing owner in writing whether the request has been accepted or denied, and the reasons therefore.


[61 FR 35550, July 5, 1996, as amended at 66 FR 49320, Sept. 27, 2001; 70 FR 19010, Apr. 12, 2005; 74 FR 1618, Jan. 13, 2009; 76 FR 287, Jan. 4, 2011; 76 FR 68337, Nov. 4, 2011; 79 FR 56018, Sept. 18, 2014; 81 FR 1879, Jan. 14, 2016; 81 FR 36184, June 6, 2016; 83 FR 15509, Apr. 11, 2018; 84 FR 70044, Dec. 20, 2019; 85 FR 8199, Feb. 13, 2020; 85 FR 35380, June 10, 2020; 85 FR 29669, May 18, 2020; 84 FR 70047, Dec. 20, 2019]


§ 300.23 Persons and vessels exempted.

This subpart does not apply to:


(a) Any person or vessel authorized by the IATTC, the Assistant Administrator, or any state of the United States to engage in fishing for research purposes.


(b) Any person or vessel engaged in sport fishing for personal use.


[61 FR 35550, July 5, 1996, as amended at 74 FR 1620, Jan. 13, 2009]


§ 300.24 Prohibitions.

In addition to the prohibitions in § 300.4, it is unlawful for any person or vessel subject to the jurisdiction of the United States to:


(a) Land any species of tuna during the closed season for that species in excess of the amount allowed by the Regional Administrator.


(b) [Reserved]


(c) Use tender vessels in the Convention Area.


(d) Transship purse seine-caught tuna at sea within the Convention Area.


(e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught by a fishing vessel of the United States of class size 4-6 using purse seine gear in the Convention Area as required under § 300.27(a).


(f) When using purse seine gear to fish for tuna in the Convention Area, fail to release any fish species (excluding mobulid rays, tuna, tuna-like species, and those being retained for consumption aboard the vessel) as soon as practicable after being identified on board the vessel during the brailing operation as required in § 300.27(b).


(g) [Reserved]


(h) Fail to use the sea turtle handling, release, and resuscitation procedures in § 300.27(c).


(i) Fail to report information when requested by the Regional Administrator under § 300.22.


(j) Fail to provide written notification as described under § 300.22(b)(8) to the Regional Administrator at least 10 business days prior to submission of an application to transfer a purse seine vessel listed on the Vessel Register to foreign registry and flag, unless transfer of the vessel requires approval by the U.S. Maritime Administration.


(k) Use a U.S. fishing vessel over 24 meters in length to retain on board, transship, or land bigeye tuna caught by longline gear in the Convention Area or to fish in contravention of § 300.25(a)(4)(i) or (ii).


(l) Use a U.S. fishing vessel over 24 meters in overall length to fish with longline gear in the Pacific Ocean both inside and outside the Convention Area on the same fishing trip in contravention of § 300.25(a)(4)(iii).


(m) Fail to stow gear as required in § 300.25(a)(4)(iv) or (e)(6).


(n) Use a fishing vessel of class size 4-6 to fish with purse seine gear in the Convention Area in contravention of § 300.25(e)(1), (2), or (5).


(o) Use a U.S. longline or purse seine fishing vessel used to fish for HMS within one nautical mile of an anchored data buoy while the fishing vessel is in the Convention Area in contravention of § 300.25(f)(1).


(p) Use a U.S. fishing vessel used for fishing for HMS, or any gear, equipment, or watercraft deployed by such a fishing vessel, to interact with a data buoy in the Convention Area in contravention of § 300.25(f)(2).


(q) Remove from the water a data buoy and place it on board or tow a data buoy with a U.S. fishing vessel used for fishing for HMS while the vessel is in the Convention Area without authorization by the owner of the data buoy or the owner’s authorized representative in contravention of § 300.25(f)(3).


(r) In the event of an entanglement of a data buoy with a U.S. fishing vessel, or its fishing gear, equipment, or associated watercraft, used for fishing for HMS in the Convention Area, fail to promptly remove the data buoy with as little damage to the data buoy and its mooring and anchor lines as possible, in contravention of § 300.25(f)(4).


(s) Fail to take all reasonable measures to avoid fishing gear entanglement or interaction with drifting data buoys in contravention of § 300.25(f)(5).


(t) Use a U.S. fishing vessel to fish for HMS in the Convention Area and retain on board, transship, land, store, sell, or offer for sale any part or whole carcass of an oceanic whitetip shark (Carcharhinus longimanus) or fail to release unharmed, to the extent practicable, all oceanic whitetip sharks when brought alongside the vessel in contravention of § 300.27(d).


(u) Use a United States commercial fishing vessel in the Convention Area to target, retain on board, transship, or land Pacific bluefin tuna in contravention of § 300.25(g)(2) through (4) and (7).


(v) Fail to maintain, submit, or ensure submission of a log that includes all the information required in § 300.22(a).


(w) Set or attempt to set a purse seine on or around a whale shark (Rhincodon typus) in contravention of § 300.27(g).


(x) Fail to release a whale shark encircled in a purse seine net of a fishing vessel as required in § 300.27(h).


(y) Fail to install, activate, or operate a VMS unit as required in § 300.26(c).


(z) In the event of VMS unit failure or interruption; fail to repair or replace a VMS unit; fail to notify the Special-Agent-In-Charge, NOAA Office of Law Enforcement, Pacific Islands Division (or designee); and follow the instructions provided; or otherwise fail to act as provided in § 300.26(c)(4).


(aa) Disable, destroy, damage or operate improperly a VMS unit installed under § 300.26, or attempt to do any of the same, or fail to ensure that its operation is not impeded or interfered with, as provided in § 300.26(e).


(bb) Fail to make a VMS unit installed under § 300.26 or the position data obtained from it available for inspection, as provided in § 300.26 (f) and (g).


(cc) To retain on board, transship, store, land, sell, or offer for sale any part or whole carcass of a mobulid ray, as described in § 300.27(i).


(dd) Fail to handle or release a mobulid ray as required in § 300.27(j).


(ee) Fail to ensure characters of a unique code are marked indelibly on a FAD deployed or modified on or after January 1, 2017, in accordance with § 300.28(a)(2).


(ff) Fail to provide information to an observer or record or report data on FADs as required in § 300.22(a)(3).


(gg) Use a commercial purse seine or longline fishing vessel of the United States to retain on board, transship, store, or land any part or whole carcass of a silky shark (Carcharhinus falciformis) in contravention of § 300.27(e).


(hh) Fail to follow observer safety requirements as specified under § 300.29.


(ii) Fail to handle or release a shark as required in § 300.27(k).


(jj) Use a shark line in contravention of § 300.27(l).


(kk) When deploying a FAD, activate the transmission equipment attached to a FAD in a location other than on a purse seine vessel at sea as required in § 300.28(b).


(ll) Fail to turn on the tracking equipment for an Active FAD before deploying at sea as required in § 300.28(b).


(mm) Deploy a FAD in the IATTC Convention Area that is not an Active FAD.


(nn) Have more Active FADs than specified in § 300.28(c) in the IATTC Convention Area at any one time.


(oo) Deploy a FAD in the IATTC Convention Area during a period of 15 days prior to the start of the selected closure period in contravention of § 300.28(d)(1).


(pp) Fail to timely remove from the water a number of FADs in the IATTC Convention Area equal to the number of FADs set upon by the vessel during the 15 days prior to the start of the selected closure period as required in § 300.28(d)(2).


(qq) Deploy, or have onboard a vessel, a FAD in the IATTC Convention Area that fails to comply with the FAD design requirements in § 300.28(e).


[61 FR 35550, July 5, 1996]



Editorial Note:For Federal Register citations affecting § 300.24, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 300.25 Fisheries management.

(a) Longline tuna catch limits. (1) Fishing seasons for all tuna species begin on 0000 hours Coordinated Universal Time (UTC) January 1 and end either on 2400 hours UTC December 31 or when NMFS closes the fishery for a specific species.


(2) For calendar year 2021, there is a limit of 750 metric tons of bigeye tuna that may be caught by longline gear in the Convention Area by U.S. commercial fishing vessels that are over 24 meters in overall length. The catch limit within a calendar year is subject to increase if the United States receives a transfer of catch limit from another IATTC member or cooperating non-member, per paragraph (a)(5) of this section.


(3) NMFS will project a date the limit of bigeye tuna established under paragraph (a)(2) of this section will be reached (i.e., a closure date) by monitoring longline landings, data submitted in logbooks, and other available information. NMFS will publish a notice in the Federal Register at least 7 calendar days in advance of that projected closure date announcing that the limit has been reached. The Federal Register notice will specify that the restrictions described in paragraph (a)(4) of this section will be in effect through the end of the calendar year.


(4) Once the closure date is announced, pursuant to paragraph (a)(3) of this section the following restrictions will apply during the period specified in the announcement:


(i) A fishing vessel of the United States over 24 meters in overall length may not be used to retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except as follows:


(A) Any bigeye tuna already on board a U.S. fishing vessel upon the effective closure date may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided that the bigeye tuna is landed within 14 days after the effective closure date.


(B) The 14-day limit is waived in the case of a U.S. fishing vessel that has already declared to NMFS, pursuant to § 665.803(a) of this title, that the current trip type is shallow-setting. However, the number of bigeye tuna retained on board, transshipped, or landed must not exceed the number on board the vessel upon the effective closure date, as recorded by the NMFS observer on board the vessel.


(ii) Bigeye tuna caught by a vessel of the United States over 24 meters in overall length and using longline gear in the Convention Area may not be transshipped to a fishing vessel unless that fishing vessel is operated in compliance with a valid permit issued under § 660.707 or § 665.801 of this title.


(iii) A fishing vessel of the United States over 24 meters in overall length may not be used to fish in the Pacific Ocean using longline gear both inside and outside the Convention Area during the same fishing trip. The only exceptions are: a fishing trip during which the closure date was announced under paragraph (a)(3) of this section, and a trip for which a declaration has been made to NMFS, pursuant to § 665.803(a) of this title, that the current trip is shallow-setting.


(iv) If a fishing vessel of the United States over 24 meters in overall length is used to fish in the Pacific Ocean using longline gear outside the Convention Area and the vessel enters the Convention Area at any time during an effective closure period on the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing. Specifically, the hooks, branch or dropper lines, and floats used to buoy the mainline must be stowed and not available for immediate use, and any power-operated mainline hauler on deck must be covered in such a manner that it is not readily available for use. This provision does not apply to trips in which vessels have made a declaration to NMFS, pursuant to § 665.803(a) of this title, that the trip type is shallow-setting.


(5) If the United States engages in a transfer of a bigeye tuna catch limit with another IATTC member or cooperating non-member, NMFS will publish a notice in the Federal Register announcing the new catch limit that is available to U.S. commercial fishing vessels that are over 24 meters in overall length. All restrictions described in paragraphs (a)(1) and (3) through (4) of this section will continue to apply.


(b) Use of tender vessels. No person subject to these regulations may use a tender vessel in the Convention Area.


(c) Transshipments at sea. No person subject to these regulations may transship purse seine-caught tuna from one vessel to another vessel at sea within the Convention Area.


(d) [Reserved]


(e) Purse seine closures – (1) 72-day closure. A commercial purse seine fishing vessel of the United States that is of class size 4-6 (more than 182 metric tons carrying capacity) may not be used to fish with purse seine gear in the Convention Area for 72 days in calendar year 2021 during one of the following two periods:


(i) From 0000 hours Coordinated Universal Time (UTC) July 29 to 2400 hours UTC October 8, or


(ii) From 0000 hours UTC November 9 to 2400 hours UTC January 19 of the following year.


(2) Choice of closure period. A vessel owner, manager, or association representative of a vessel that is subject to the requirements of paragraph (e)(1) of this section must provide written notification to the Regional Administrator declaring to which one of the two closure periods identified in paragraph (e)(1) of this section his or her vessel will adhere in that year. This written notification must be submitted by fax at (562) 980-4047 or email at [email protected] and must be received no later than July 1 prior to the first closure period within a calendar year. The written notification must include the vessel name and registration number, the closure dates that will be adhered to by that vessel, and the vessel owner or managing owner’s name, signature, business address, and business telephone number.


(3) Default closure period. If written notification is not submitted per paragraph (e)(2) of this section for a vessel subject to the requirements under paragraph (e)(1) of this section, that vessel must adhere to the second closure period under paragraph (e)(1)(ii) of this section.


(4) Request for exemption due to force majeure. A request for exemption due to force majeure must be made to the Sustainable Fisheries Division within 20 calendar days after the vessel has been unable to proceed to sea for 72 days by fax at (562) 980-4047 or emailed to [email protected] The request must include the name and official number of the vessel, vessel owner or manager’s name and signature, and evidence to support the request, which may include but is not limited to photographs, repair bills, certificates of departure from port, and in the case of a marine casualty, a completed copy of the U.S. Coast Guard Form CG-2692A (See 46 CFR 4.05-10).


(i) If accepted by the Sustainable Fisheries Division, the request for exemption due to force majeure will be forwarded to the IATTC Director. If declined by the Sustainable Fisheries Division, within 10 days of the date of that rejection, the applicant may give additional information or documentation to the Regional Administrator with a request that the initial decision be reconsidered by fax at (562) 980-4047 or email to [email protected]; the Regional Administrator shall respond within 14 business days.


(ii) If the request for an exemption due to force majeure is accepted by the IATTC, the vessel must observe a closure period of 40 consecutive days in the same year during which the force majeure event occurred, in one of the two closure periods described in paragraph (e)(1) of this section.


(iii) If the request for an exemption due to force majeure is accepted by the IATTC and the vessel has already observed a closure period described in paragraph (e)(1) of this section in the same year during which the force majeure event occurred, the vessel must observe a closure period of 40 consecutive days the following year the force majeure event occurred, in one of the two closure periods described in paragraph (e)(1) of this section.


(iv) Any purse seine vessel, for which a force majeure request is accepted by the IATTC, must carry an observer aboard authorized pursuant to the International Agreement on the International Dolphin Conservation Program.


(5) 31-day area closure. A fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) may not be used from 0000 hours on October 9, 2021, to 2400 hours on November 8, 2021, to fish with purse seine gear within the area bounded at the east and west by 96° and 110° W longitude and bounded at the north and south by 4° N and 3° S latitude.


(6) Requirement to stow gear. At all times while a vessel is in a time/area closed period established under paragraphs (e)(1) or (5) of this section, unless fishing under the exception under paragraph (e)(4) of this section, the fishing gear of the vessel must be stowed in a manner as not to be readily available for fishing. In particular, the boom must be lowered as far as possible so that the vessel cannot be used for fishing, but so that the skiff is accessible for use in emergency situations; the helicopter, if any, must be tied down; and launches must be secured.


(f) Restrictions on fishing in proximity to data buoys. (1) A longline or purse seine fishing vessel of the United States may not be used to fish for HMS within one nautical mile of an anchored data buoy in the Convention Area. The one-nautical-mile distance shall be measured from the data buoy to the nearest portion of the fishing vessel or items associated with the fishing vessel, such as gear or watercraft deployed by the fishing vessel, to the data buoy. This prohibition shall not apply if and when the fishing vessel is operated as part of a scientific research program that has received specific authorization by the IATTC or is conducting work on behalf of the IATTC.


(2) A fishing vessel of the United States used to fish for HMS, or any fishing gear, equipment, or watercraft deployed by such a fishing vessel, may not be used to interact with a data buoy while the fishing vessel is in the Convention Area. Interact with a data buoy means to engage in conduct that could impair the functioning of a data buoy through actions that include but that are not limited to the following: encircling the buoy with fishing gear; tying up to or attaching the vessel, or any fishing gear, part or portion of the fishing vessel, including equipment such as watercraft, to a data buoy or its mooring; or cutting a data buoy anchor line.


(3) A vessel operator, crew member, or other persons on board a fishing vessel of the United States that is used to fish for HMS may not remove a data buoy or any parts thereof from the water and place it on board the fishing vessel or tow a data buoy when in the Convention Area unless authorized to do so by the owner of the data buoy or an authorized representative or agent of the owner. When practicable, advance written authorization must be available onboard a U.S. fishing vessel that has taken on board or tows a data buoy. In all other cases, a written document (e.g., fax, email) verifying the authorization must be obtained by the vessel owner or operator within 15 days of landing.


(4) In the event that a fishing vessel of the United States that is used to fish for HMS or any of its fishing gear, equipment, or associated watercraft, becomes entangled with a data buoy while the fishing vessel is in the Convention Area, the owner and operator of the fishing vessel must promptly remove the entangled fishing vessel, fishing gear, equipment, or associated watercraft with as little damage to the data buoy and its mooring and anchor lines as possible.


(5) A vessel operator, crew member, or other persons on board a fishing vessel of the United States that is used to fish for HMS must take all reasonable measures to avoid fishing gear entanglement or interaction with drifting data buoys.


(g) Pacific bluefin tuna (Thunnus orientalis) commercial catch limits in the eastern Pacific Ocean for 2021. The following is applicable to the U.S. commercial fishery for Pacific bluefin tuna in the Convention Area in the year 2021.


(1) All commercial fishing vessels of the United States combined may capture, retain, transship, or land no more than 425 metric tons.


(2) A 20-metric ton trip limit will be in effect until any of the following criteria are met:


(i) If NMFS anticipates cumulative catch will reach 250 metric tons during January through March, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 325 metric tons during January through March, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.


(ii) If NMFS anticipates cumulative catch will reach 275 metric tons during April through June, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 350 metric tons during April through June, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.


(iii) If NMFS anticipates cumulative catch will reach 300 metric tons during July through September, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 375 metric tons during July through September, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.


(iv) If NMFS anticipates cumulative catch will reach 325 metric tons during October through December, a 15-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section. If NMFS anticipates cumulative catch will reach 375 metric tons during October through December, a 2-metric ton trip limit will be in effect upon the effective date provided in the actual notice, in accordance with paragraph (g)(6) of this section.


(3) After NMFS determines that the catch limit under paragraph (g)(1) of this section is expected to be reached, NMFS will close the fishery effective upon the date provided in the actual notice, in accordance with paragraph (g)(6) of this section. Upon the effective date in the actual notice, targeting, retaining on board, transshipping, or landing Pacific bluefin tuna captured in the Convention Area shall be prohibited as described in paragraph (g)(4) of this section.


(4) Beginning on the date provided in the actual notice of the fishing closure announced under paragraph (g)(3) of this section, a commercial fishing vessel of the United States may not be used to target, retain on board, transship, or land Pacific bluefin tuna captured in the Convention Area through the end of the calendar year. Any Pacific bluefin tuna already on board a fishing vessel on the effective date of the notice may be retained on board, transshipped, and/or landed within 14 days after the effective date published in the fishing closure notice, to the extent authorized by applicable laws and regulations.


(5) If an inseason action taken under paragraph (g)(2), (3), or (4) of this section is based on overestimate of actual catch, NMFS will reverse that action in the timeliest possible manner, provided NMFS finds that reversing that action is consistent with the management objectives for the affected species. The fishery will reopen effective on the date provided in the actual notice in accordance with paragraph (g)(6) of this section.


(6) Inseason actions taken under paragraphs (g)(2), (3), (4), and (5) of this section will be by actual notice from posting on the NMFS website (https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/pacific-bluefin-tuna-commercial-harvest-status) and a United States Coast Guard Notice to Mariners. The Notice to Mariners will be broadcast three times daily for 4 days. This action will also be published in the Federal Register as soon as practicable. Inseason actions will be effective from the time specified in the actual notice of the action (i.e., website posting and United States Coast Guard Notice to Mariners), or at the time the inseason action published in the Federal Register is effective, whichever comes first.


(7) If landing Pacific bluefin tuna into the State of California, fish landing receipts must be submitted to the California Department of Fish and Wildlife in accordance with the requirements of applicable State law and regulations, with the exception that the submission must occur within 24 hours of landing.


[64 FR 44431, Aug. 16, 1999]



Editorial Note:For Federal Register citations affecting § 300.25, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 300.26 Vessel monitoring system (VMS).

(a) Assistant Director (AD), NOAA Office of Law Enforcement, Pacific Islands Division (or designee) and VMS Helpdesk contact information and business hours. (1) The contact information for the AD for the purpose of this section: 1845 Wasp Blvd., Building 176, Honolulu, HI 96818; telephone: (808) 725-6100; facsimile: 808-725-6199; email: [email protected]; business hours: Monday through Friday, except Federal holidays, 8 a.m. to 4:30 p.m., Hawaii Standard Time.


(2) The contact information for the NOAA Office of Law Enforcement’s VMS Helpdesk is telephone: (888) 219-9228, ext. 2; email: [email protected] The business hours of the VMS Helpdesk are Monday through Friday, except Federal holidays, 7 a.m. to 11 p.m., Eastern Time.


(b) Applicability. This section applies to any U.S. commercial fishing vessel that is 24 meters or more in overall length and engaging in fishing activities for tuna or tuna-like species in the Convention Area, and for which either of the following permits is required: Pacific highly migratory species permit under § 660.707, or high seas fishing permit under § 300.13 of this part.


(c) Provisions for Installation, Activation and Operation – (1) VMS Unit Installation. The vessel owner or operator must obtain and have installed on the fishing vessel, in accordance with instructions provided by the AD and the VMS unit manufacturer, a VMS unit that is type-approved by NOAA for fisheries in the IATTC Convention Area. The vessel owner or operator shall arrange for a NOAA-approved mobile communications service provider to receive and relay transmissions from the VMS unit to NOAA at a default reporting interval of at least once per hour. NOAA, the USCG, and other authorized entities are authorized to receive and relay transmissions from the VMS unit. The NOAA OLE VMS Helpdesk is available to provide instructions for VMS installation and a list of the current type-approved VMS units and mobile communication service providers.


(2) VMS Unit Activation. If the VMS unit has not yet been activated as described in this paragraph, or if the VMS unit has been newly installed or reinstalled, or if the mobile communications service provider has changed since the previous activation, or if directed by the AD, the vessel owner or operator must, prior to leaving port:


(i) Turn on the VMS unit to make it operational;


(ii) Submit a written activation report to the AD, via mail, facsimile or email, that includes the vessel’s name; the vessel’s official number; the VMS unit manufacturer and identification number; and telephone, facsimile or email contact information for the vessel owner or operator; and


(iii) Receive verbal or written confirmation from the AD that the proper VMS unit transmissions are being received from the VMS unit.


(3) VMS Unit Operation. The vessel owner and operator shall continuously operate the VMS unit at all times, except that the VMS unit may be shut down while the vessel is in port or otherwise not at sea, or if, after the end of the fishing season, the vessel will no longer be engaging in fishing activities in the Convention Area for which either a Pacific highly migratory species permit or a high seas fishing permit is required, provided that the owner or operator:


(i) Prior to shutting down the VMS unit, reports to the AD or the NOAA Office of Law Enforcement’s VMS Helpdesk via facsimile, email, or web-form the following information: The intent to shut down the VMS unit; the vessel’s name; the vessel’s official number; an estimate for when the vessel’s VMS may be turned back on; and telephone, facsimile or email contact information for the vessel owner or operator. In addition, the vessel owner or operator shall receive verbal or written confirmation from the AD before shutting down the VMS unit after the end of the fishing season; and


(ii) When turning the VMS unit back on, report to the AD or the NOAA Office of Law Enforcement’s VMS Helpdesk, via mail, facsimile or email, the following information: That the VMS unit has been turned on; the vessel’s name; the vessel’s official number; and telephone, facsimile or email contact information for the vessel owner or operator; and


(iii) Prior to leaving port, receive verbal or written confirmation from the AD that proper transmissions are being received from the VMS unit.


(4) Failure of VMS unit. If the VMS unit has become inoperable or transmission of automatic position reports from the VMS unit has been interrupted, or if notified by NOAA or the USCG that automatic position reports are not being received from the VMS unit or that an inspection of the VMS unit has revealed a problem with the performance of the VMS unit, the vessel owner or operator shall comply with the following requirements:


(i) If the vessel is at port: The vessel owner or operator shall repair or replace the VMS unit and ensure it is operable before the vessel leaves port.


(ii) If the vessel is at sea: The vessel owner, operator, or designee shall contact the AD by telephone, facsimile, or email at the earliest opportunity during the AD’s business hours and identify the caller and vessel. The vessel operator shall follow the instructions provided by the AD which could include, but are not limited to, ceasing fishing, stowing fishing gear, returning to port, and/or submitting periodic position reports at specified intervals by other means; and repair or replace the VMS unit and ensure it is operable before starting the next trip.


(5) Related VMS Requirements. Installing, carrying and operating a VMS unit in compliance with the requirements in part 300 of this title, part 660 of this title, or part 665 of this title relating to the installation, carrying, and operation of VMS units shall be deemed to satisfy the requirements of this paragraph (c), provided that the VMS unit is operated continuously and at all times while the vessel is at sea, unless the AD authorizes a VMS unit to be shut down as described in paragraph (c)(3) of this section, the VMS unit and mobile communications service providers are type-approved by NOAA for fisheries in IATTC Convention Area, and the specific requirements of paragraph (c)(4) of this section are followed. If the VMS unit is owned by NOAA, the requirement under paragraph (c)(4) of this section to repair or replace the VMS unit will be the responsibility of NOAA, but the vessel owner and operator shall be responsible for ensuring that the VMS unit is operable before leaving port or starting the next trip.


(d) Costs. The vessel owner and operator shall be responsible for all costs associated with the purchase, installation and maintenance of the VMS unit and for all charges levied by the mobile communications service provider as necessary to ensure the transmission of automatic position reports to NOAA as required in paragraph (c) of this section. However, if NOAA is paying for the VMS-associated costs because the VMS unit is carried and operated under a requirement of part 300 of this title, part 660 of this title, or part 665 of this title, the vessel owner and operator shall not be responsible for costs that those regulations specify are the responsibility of NOAA. In addition, NOAA is responsible for the cost of any temporary increase in the default reporting interval to support active enforcement investigations of specific vessels.


(e) Tampering. The vessel owner and operator must ensure that the VMS unit is not tampered with, disabled, destroyed, damaged or maintained improperly, and that its operation is not impeded or interfered with.


(f) Inspection. The vessel owner and operator must make the VMS unit, including its antenna, connectors and antenna cable, available for inspection by authorized officers.


(g) Access to data. The vessel owner and operator must make the vessel’s position data obtained from the VMS unit or other means immediately and always available for inspection by NOAA personnel, USCG personnel, and authorized officers.


[80 FR 60538, Oct. 7, 2015]


§ 300.27 Incidental catch and tuna retention requirements.

(a) Tuna retention requirements for purse seine vessels. Bigeye, skipjack, and yellowfin tuna caught in the Convention Area by a fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) using purse seine gear must be retained on board and landed, except for fish deemed unfit for human consumption for reasons other than size. This requirement shall not apply to the last set of a trip if the available well capacity is insufficient to accommodate the entire catch.


(b) Release requirements for fish species on purse seine vessels. All purse seine vessels must release, as soon as practicable after being identified on board the vessel during the brailing operation, all billfish, rays (not including mobulid rays, which are subject to paragraph (i) of this section), dorado (Coryphaena hippurus), and other fish species. This requirement does not apply to tuna or tuna-like species, or to other fish retained for consumption aboard the vessel. Sharks caught in the IATTC Convention Area and that are not retained for consumption aboard the vessel must be released according to the requirements in paragraph (k) of this section. Tuna caught in the IATTC Convention Area are subject to the retention requirements in paragraph (a) of this section.


(c) Sea turtle handling and release. All purse seine vessels must apply special sea turtle handling and release requirements, as follows:


(1) Whenever a sea turtle is sighted in the net, a speedboat shall be stationed close to the point where the net is lifted out of the water to assist in release of the sea turtle;


(2) If a sea turtle is entangled in the net, net roll shall stop as soon as the sea turtle comes out of the water and shall not resume until the sea turtle has been disentangled and released;


(3) If, in spite of the measures taken under paragraphs (c)(1) and (c)(2) of this section, a sea turtle is accidentally brought on board the vessel alive and active, the vessel’s engine shall be disengaged and the sea turtle shall be released as quickly as practicable;


(4) If a sea turtle brought on board under paragraph (c)(3) of this section is alive but comatose or inactive, the resuscitation procedures described in § 223.206(d)(1)(i)(B) of this title shall be used before release of the turtle.


(d) Oceanic whitetip shark restrictions. The crew, operator, or owner of a fishing vessel of the United States used to fish for HMS in the Convention Area shall be prohibited from retaining on board, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of an oceanic whitetip shark (Carcharhinus longimanus) and must release unharmed, to the extent practicable, all oceanic whitetip sharks when brought alongside the vessel.


(e) Silky shark restrictions for purse seine vessels. The crew, operator, and owner of a commercial purse seine or longline fishing vessel of the United States used to fish for tuna or tuna-like species is prohibited from retaining on board, transshipping, storing, or landing any part or whole carcass of a silky shark (Carcharhinus falciformis) that is caught in the IATTC Convention Area, except as provided in paragraph (f) of this section.


(f) Exception for silky shark caught and frozen on purse seine vessels. In the case of a purse seine vessel operating in the IATTC Convention Area that catches a silky shark that is not seen during fishing operations and is delivered into the vessel hold, the silky shark may be stored on board and landed, but the vessel owner or operator must surrender the whole silky shark to the responsible government authority present at the point of landing. In U.S. ports the responsible governmental authority is the NOAA Office of Law Enforcement divisional office nearest to the port, or other authorized personnel. If no governmental authorities are available, the whole silky shark surrendered must not be sold or bartered but must be donated for purposes of domestic human consumption consistent with relevant laws and policies. The vessel owner or operator shall report these incidences to the IATTC Secretariat by recording them in the IATTC Regional Purse Seine Logbook, or another form identified by NMFS.


(g) Whale shark restrictions for purse seine vessels. Owners, operators, and crew of fishing vessels of the United States commercially fishing for tuna in the Convention Area may not set or attempt to set a purse seine on or around a whale shark (Rhincodon typus) if the animal is sighted prior to the commencement of the set or the attempted set.


(h) Whale shark release. The crew, operator, and owner of a fishing vessel of the United States commercially fishing for tuna in the Convention Area must release as soon as possible, any whale shark that is encircled in a purse seine net, and must ensure that all reasonable steps are taken to ensure its safe release. No whale shark may be towed out of a purse seine net (e.g., using towing ropes).


(i) Mobulid ray restrictions. The crew, operator, and owner of a U.S. commercial fishing vessel is prohibited from retaining on board, transshipping, storing, landing, selling, or offering for sale any part or whole carcass of a mobulid ray that is caught in the IATTC Convention Area, except as provided in the following sentence. In the case of any mobulid ray caught in the IATTC Convention Area on an observed purse seine vessel that is not seen during fishing operations and is delivered into the vessel hold, the mobulid ray may be stored on board and landed, but the vessel owner or operator must show the whole mobulid ray to the on-board observer at the point of landing for recording purposes, and then dispose of the mobulid ray at the direction of the responsible government authority. In U.S. ports the responsible governmental authority is the NOAA Office of Law Enforcement divisional office nearest to the port, or other authorized personnel. Mobulid rays that are caught and landed in this manner may not be sold or bartered, but may be donated for purposes of domestic human consumption consistent with relevant laws and policies.


(j) Mobulid ray handling and release. The crew, operator, and owner of a U.S. commercial fishing vessel must promptly release unharmed, to the extent practicable, any mobulid ray (whether live or dead) caught in the IATTC Convention Area as soon as it is seen in the net, on the hook, or on the deck, without compromising the safety of any persons. If a mobulid ray is live when caught, the crew, operator, and owner of a U.S. commercial fishing vessel must use the release procedures described in the following two paragraphs.


(1) No mobulid ray may be gaffed, no mobulid ray may be lifted by the gill slits or spiracles or by using bind wire against or inserted through the body, and no holes may be punched through the bodies of mobulid ray (e.g., to pass a cable through for lifting the mobulid ray).


(2) Applicable to purse seine operations, large mobulid rays must be brailed out of the net by directly releasing the mobulid ray from the brailer into the ocean. Large mobulid rays that cannot be released without compromising the safety of persons or the mobulid ray before being landed on deck, must be returned to the water as soon as possible, either utilizing a ramp from the deck connecting to an opening on the side of the boat, or lowered with a sling or net, using a crane if available. The minimum size for the sling or net must be at least 25 feet in diameter.


(k) Shark handling and release requirements for purse seine vessels. The crew, operator, and owner of a U.S. commercial purse seine fishing vessel must promptly release unharmed, to the extent practicable, any shark (whether live or dead) caught in the IATTC Convention Area, as soon as it is seen in the net or on the deck, without compromising the safety of any persons. If a shark is live when caught, the crew, operator, or owner must follow release procedures in the following two paragraphs.


(1) Sharks must be released out of the purse seine net by directly releasing the shark from the brailer into the ocean. Sharks that cannot be released without compromising the safety of persons or the sharks before being landed on deck must be returned to the water as soon as possible, either utilizing a ramp from the deck connecting to an opening on the side of the boat, or through escape hatches. If ramps or escape hatches are not available, the sharks must be lowered with a sling or cargo net, using a crane or similar equipment, if available.


(2) No shark may be gaffed or hooked, lifted by the head, tail, gill slits or spiracles, or lifted by using bind wire against or inserted through the body, and no holes may be punched through the bodies of sharks (e.g., to pass a cable through for lifting the shark).


(l) Shark line prohibition for longline vessels. Any U.S. longline vessel used to fish for tuna or swordfish is prohibited from using any shark line in the IATTC Convention Area.


[81 FR 50403, Aug. 1, 2016, as amended at 81 FR 86970, Dec. 2, 2016; 82 FR 56178, Nov. 28, 2017; 84 FR 70048, Dec. 20, 2019; 85 FR 29669, May 18, 2020]


§ 300.28 FAD restrictions.

(a) FAD identification requirements for purse seine vessels. (1) For each FAD deployed or modified on or after January 1, 2017, in the IATTC Convention Area, the vessel owner or operator must either: obtain a unique code from HMS Branch; or use an existing unique identifier associated with the FAD (e.g., the manufacturer identification code for the attached buoy).


(2) U.S. purse seine vessel owners and operators shall ensure the characters of the unique code or unique identifier be marked indelibly at least five centimeters in height on the upper portion of the attached radio or satellite buoy in a location that does not cover the solar cells used to power the equipment. For FADs without attached radio or satellite buoys, the characters shall be on the uppermost or emergent top portion of the FAD. The vessel owner or operator shall ensure the marking is visible at all times during daylight. In circumstances where the on-board observer is unable to view the code, the captain or crew shall assist the observer (e.g., by providing the FAD identification code to the observer).


(b) Activating FADs for purse seine vessels. When deploying a FAD, a vessel owner, operator, or crew shall turn on the tracking equipment while the FAD is onboard the purse seine vessel and before it is deployed in the water.


(c) Restrictions on Active FADs for purse seine vessels. U.S. vessel owners and operators of purse-seine vessels with the following well volume (m
3) must not have more than the following number of Active FADs per vessel in the IATTC Convention Area at any one time:


Well volume

(m
3)
Active FAD limit
1,200 or more450
426-1,199300
213-425120
0-21270

(d) Restrictions on FAD deployments and removals. (1) U.S. vessel owners, operators, and crew of purse seine vessels of class size 4-6 (more than 182 metric tons carrying capacity) must not deploy a FAD during a period of 15 days prior to the start of the selected closure period described in § 300.25(e)(1).


(2) During the 15 days prior to the start of the closure period selected by the vessel per § 300.25(e)(1), U.S. vessel owners, operators, and crew of purse seine vessels of class size 6 (greater than 363 metric tons carrying capacity) must remove from the water a number of FADs equal to the number of FADs set upon by the vessel during that same 15 day period.


(e) FAD design requirements to reduce entanglements. All FADs onboard or deployed by U.S. vessel owners, operators, or crew, must comply with the following design requirements:


(1) Raft: If the FAD design includes a raft (e.g., flat raft or rolls of material) and if mesh netting is used as part of the structure, the mesh netting shall have a mesh size less than 7 centimeters and the mesh net must be tightly wrapped such that no netting hangs below the FAD when deployed; and,


(2) Subsurface: Any netting used in the subsurface structure of the FAD must be tightly tied into bundles (“sausages”), or have stretched mesh size less than 7 centimeters in a panel that is weighted on the lower end with at least enough weight to keep the netting taut in the water column.


[83 FR 15510, Apr. 11, 2018, as amended at 83 FR 62734, Dec. 6, 2018]


§ 300.29 Observers.

The following requirements apply to all on-board fisheries observers required under this subpart, which includes observers on purse seine, longline vessels, and transshipment carrier vessels, and while on a fishing trip in the IATTC Convention Area.


(a) Contact information. A full list of U.S. longline and IATTC purse seine observer providers and U.S. Government contacts for situations described in paragraphs (b) through (d) of this section is available at the following website: https://www.fisheries.noaa.gov/west-coast/partners/emergency-contacts-vessel-owners-operators-and-observers-longline-and-purse.


(b) Loss of life. In the event that an observer dies, is missing, or presumed fallen overboard, the owner or operator of the fishing vessel must immediately notify a U.S. Government contact and the observer provider.


(c) Serious illness or injury. The owner or operator of a fishing vessel of the United States shall immediately report serious illness or injury that threatens the life and/or long-term health or safety of an observer to the observer provider and a U.S. Government contact. In addition, the owner or operator of the fishing vessel must:


(1) Immediately cease fishing operations;


(2) Take all reasonable actions to care for the observer and provide any medical treatment available and possible on board the vessel, and where appropriate seek external medical advice;


(3) Where directed by the observer provider, if not already directed by the appropriate U.S. Government contact, facilitate the disembarkation and transport of the observer to a medical facility equipped to provide the required care, as soon as practicable; and


(4) Cooperate fully in any official investigations into the cause of the illness or injury.


(d) Assault, intimidation, threat, or harassment. For reporting violations in the event that an observer on a fishing vessel of the United States has been assaulted, intimidated, threatened, or harassed, the owner or operator of the fishing vessel shall immediately notify the observer provider and the NOAA Office of Law Enforcement West Coast Division Duty Officer line at (206) 526-4851 of the situation and the status and location of the observer. In addition, the owner or operator of the fishing vessel must:


(1) Immediately take action to preserve the safety of the observer and mitigate and resolve the situation on board;


(2) If the observer or the observer provider indicate that they wish for the observer to be removed from the vessel, facilitate the safe disembarkation of the observer in a manner and place, as agreed by the observer provider and a U.S. Government contact, that facilitates access to any needed medical treatment; and


(3) Cooperate fully in any official investigations into the incident.


[85 FR 29669, May 18, 2020]


Subpart D – South Pacific Tuna Fisheries


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

§ 300.30 Purpose and scope.

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


§ 300.31 Definitions.

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


Administrator means the individual or organization designated by the Pacific Island Parties to act on their behalf under the Treaty and notified to the United States.


Applicable national law means any of the laws of Pacific Island Parties in the following table and any regulations or other instruments having the force of law implemented pursuant to these laws:


Pacific Island Party
Laws
AUSTRALIAAntarctic Marine Living Resources Conservation Act, 1981.

Fisheries Management Act, 1991.
Fisheries Administration Act, 1991.

Statutory Fishing Rights Charge Act, 1991.

Fisheries Legislation (Consequential Provisions) Act, 1991.

Foreign Fishing Licences Levy Act, 1991.

Fishing Levy Act, 1991.

Fisheries Agreements (Payments) Act, 1991.

Torres Strait Fisheries Act, 1984.

Whale Protection Act, 1980.
COOK ISLANDSExclusive Economic Zone (Foreign Fishing Craft) Regulations, 1979.

Territorial Sea and Exclusive Economic Zone Act, 1977.

Marine Resources Act, 1989.
FEDERATED STATES OF MICRONESIATitles 18 and 24 of the Code of the Federated States of Micronesia, as amended by Public Law Nos. 2-28, 2-31, 3-9, 3-10, 3-34, and 3-80.
FIJIFisheries Act (Cap. 158).

Fisheries Regulations (Cap. 158).

Marine Spaces Act (Cap. 158A).

Marine Spaces (Foreign Fishing Vessels) Regulations, 1979.
KIRIBATIFisheries Ordinance, 1979.

Fisheries (Amendment) Act, 1984.

Marine Zones (Declaration) Act, 1983.

Fisheries (Pacific Island States’ Treaty with the United States) Act 1988.
MARSHALL ISLANDSTitle 33, Marine Resources Act, as amended by P.L. 1989-56, P.L. 1991-43, and P.L. 1992-25 of the Marshall Islands Revised Code.
NAURUInterpretation Act, 1971.

Interpretation Act (Amendment) Act No. 1 1975.

Interpretation Act (Amendment) Act No. 2 1975.

Marine Resources Act, 1978.
NEW ZEALANDAntarctic Marine Living Resources Act, 1981.

Continental Shelf Act, 1964.

Conservation Act, 1987.
Driftnet Prohibition Act, 1991.

Exclusive Economic Zone (Foreign Fishing Craft) Regulations, 1978.

Fishing Industry Board Act, 1963.

Fisheries Act, 1983.

Marine Mammals Protection Act, 1978.

Marine Reserves Act, 1971.

Marine Pollution Act, 1974.

Meat Act, 1964.

Territorial Sea and Exclusive Economic Zone Act, 1977.

Tokelau (Territorial Sea and Exclusive Economic Zone) Act, 1977.

Submarine Cables and Pipelines Protection Act, 1966.

Sugar Loaf Islands Marine Protected Area Act, 1991.

Wildlife Act, 1953.
NIUENiue Fish Protection Ordinance 1965.

Sunday Fishing Prohibition Act 1980.

Territorial Sea and Exclusive Economic Zone Act 1978.
PALAUPalau National Code, Title 27.
PAPUA NEW GUINEAFisheries Act (Cap 214).

Fisheries Regulations (Cap 214).

Fisheries (Torres Strait Protected Zone) Act, 1984.

National Seas Act (Cap 361).

Tuna Resources Management Act (Cap 224).

Whaling Act (Cap 225).
SOLOMON ISLANDSDelimitation of Marine Waters Act, 1978.

Fisheries Act, 1972.

Fisheries Limits Act, 1977.

Fisheries Regulations, 1972.

Fisheries (Foreign Fishing Vessels) Regulations, 1981.

Fisheries (United States of America) (Treaty) Act 1988.
TONGAFisheries Act, 1989.
TUVALUFisheries Act (Cap 45).

Fisheries (Foreign Fishing Vessel) Regulations, 1982.

Marine Zones (Declaration) Act, 1983.

Foreign Fishing Vessels Licensing (US Treaty) Order 1987.
VANUATUFisheries Act 1982 (Cap 158).

Fisheries Regulations, 1983.

Maritime Zones Act 1981 (Cap 138).
SAMOAExclusive Economic Zone Act, 1977.

Territorial Sea Act, 1971.

Fisheries Act, 1988.

Authorized inspector means any individual authorized by a Pacific Island Party or the Secretary to conduct inspections, to remove samples of fish and to gather any other information relating to fisheries in the Licensing Area.


Authorized officer means any officer who is authorized by the Secretary, or the Secretary of Transportation, or the head of any Federal or state agency that has entered into an enforcement agreement with the Secretary under section 10(a) of the Act.


Authorized party officer means any officer authorized by a Pacific Island Party to enforce the provisions of the Treaty.


Closed area means any of the areas in the following table, as depicted on charts provided by the Regional Administrator and as further described in additional information that may be provided by the Regional Administrator:


Pacific Island Party
Area
AUSTRALIAAll waters within the seaward boundary of the Australian Fishing Zone (AFZ) west of a line connecting the point of intersection of the outer limit of the AFZ by the parallel of latitude 25° 30′ South with the point of intersection of the meridian of longitude 151° East by the outer limit of the AFZ and all waters south of the parallel of latitude 25° 30′ South.
COOK ISLANDSTerritorial Sea.
FEDERATED STATES OF MICRONESIAThree nautical mile territorial sea and nine nautical mile exclusive fishery zone and on all named banks and reefs as depicted on the following charts:
DMAHTC NO 81019 (2nd. ed., Mar. 1945; revised 7/17/72; corrected through NM 3/78 of 21 June 1978).
DMAHTC NO 81023 (3rd. ed., 7 Aug. 1976).
DMAHTC NO 81002 (4th. ed., 26 Jan. 1980; corrected through NM 4/80).
FIJIInternal waters, archipelagic waters and territorial seas of Fiji and Rotuma and its Dependencies.
KIRIBATIWithin archipelagic waters as established in accordance with Marine Zones (Declaration) Act 1983; within 12 nautical miles drawn from the baselines from which the territorial seas is measured; and within 2 nautical miles of any anchored fish aggregating device within the Kiribati exclusive economic zone for which notification of its location shall be given by geographical coordinates.
MARSHALL ISLANDS12 nautical mile territorial sea and area within two nautical miles of any anchored fish aggregating device within the Marshall Islands exclusive economic zone for which notification of its location shall be given by geographical coordinates.
NAURUThe territorial waters as defined by Nauru Interpretation Act, 1971, Section 2.
NEW ZEALANDTerritorial waters; waters within 6 nautical miles of outer boundary of territorial waters; all waters to west of New Zealand main islands and south of 39° South latitude; all waters to east of New Zealand main islands south of 40° South latitude; and in respect of Tokelau: areas within 12 nautical miles of all island and reef baselines; twelve and one half nautical miles either side of a line joining Atafu and Nukunonu and Faka’ofo; and coordinates as follows:
Atafu: 8°35′10″ S, 172°29′30″ W
Nukunonu: 9°06′25″ S, 171°52′10″ W 9°11′30″ S, 171°47′00″ W
Faka’ofo: 9°22′30″ S, 171°16′30″ W
NIUETerritorial sea and within 3 nautical miles of Beveridge Reef, Antiope Reef and Haran Reef as depicted by appropriate symbols on NZ 225F (chart showing the territorial sea and exclusive economic zone of Niue pursuant to the Niue Territorial Sea and Exclusive Economic Zone Act of 1978).
PALAUWithin 12 nautical miles of all island baselines in the Palau Islands; and the area:
commencing at the north-easternmost intersection of the outer limit of the 12 nautical mile territorial sea of Palau by the arc of a circle having a radius of 50 nautical miles and its center at Latitude 07°16′34″ North, longitude 134°28′25″ East, being at about the center of the reef entrance to Malakal Pass; running thence generally south-easterly, southerly, south-westerly, westerly, north-westerly, northerly and north-easterly along that arc to its intersection by the outer limit of the 12 nautical mile territorial sea; and thence generally northerly, north-easterly, easterly, south-easterly and southerly along that outer limit to the point of commencement.
Where for the purpose of these specifications it is necessary to determine the position on the surface of the Earth of a point, line or area, it shall be determined by reference to the World Geodetic System 1984; that is to say, by reference to a spheroid having its center at the center of the Earth and a major (equatorial) radius of 6,378,137 meters and a flattening of 1/298.2572.
PAPUA NEW GUINEAAll territorial seas, archipelagic and internal waters.
SOLOMON ISLANDSAll internal waters, territorial seas and archipelagic waters; and such additional waters around the main group archipelago, as defined under the Delimitation of Marine Waters Act 1978, not exceeding sixty nautical miles.
TONGAAll waters with depths of not more than 1,000 meters, within the area bounded by the fifteenth and twenty third and one half degrees of south latitudes and the one hundred and seventy third and the one hundred and seventy seventh degrees of west longitudes; also within a radius of twelve nautical miles from the islands of Teleki Tonga and Teleki Tokelau.
TUVALUTerritorial sea and waters within two nautical miles of all named banks, that is Macaw, Kosciusko, Rose, Bayonnaise and Hera, in Tuvalu exclusive economic zone, as depicted on the chart entitled “Tuvalu Fishery Limits” prepared by the United Kingdom Hydrographic Department, Taunton, January 11, 1981.
VANUATUArchipelagic waters and the territorial sea, and internal waters.
SAMOATerritorial sea; reefs, banks and sea-mounts and within 2 nautical miles of any anchored fish aggregating device within the Samoa exclusive economic zone for which notification of its location shall be given by geographical coordinates.

FFA Vessel Register means the registry of fishing vessels maintained by the FFA, comprising those vessels which are in good standing and licensed to fish in the waters of FFA member countries, including those vessels licensed under § 300.32.


Fishing means searching for, catching, taking, or harvesting fish; attempting to search for, catch, take, or harvest fish; engaging in any other activity that can reasonably be expected to result in the locating, catching, taking, or harvesting of fish; placing, searching for, or recovering fish aggregating devices or associated electronic equipment such as radio beacons; any operations at sea directly in support of, or in preparation for, any activity described in this paragraph; or aircraft use, relating to the activities described in this definition, except for flights in emergencies involving the health or safety of crew members or the safety of a vessel.


Fishing arrangement means an arrangement between a Pacific Island Party and the owner of a U.S. fishing vessel that complies with section 6(b) of the Act.


Fishing vessel or vessel means any boat, ship, or other craft that is used for, equipped to be used for, or of a type normally used for commercial fishing, and that is documented under the laws of the United States.


Licensing Area means all waters in the Treaty Area except for:


(1) Those waters subject to the jurisdiction of the United States in accordance with international law.


(2) Those waters within closed areas.


(3) Those waters within limited areas closed to fishing.


Licensing period means the period of validity of licenses issued in accordance with the Treaty.


Operator means any person who is in charge of, directs or controls a vessel, including the owner, charterer and master.


Pacific Island Party means a Pacific island nation that is a party to the Treaty.


Pacific Islands Forum Fisheries Agency or FFA means the organization established by the 1979 South Pacific Forum Fisheries Agency Convention.


Regional Administrator means the Regional Administrator, Pacific Islands Region, NMFS, 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818, facsimile: 808-725-5215, or a designee.


Transship means to unload any or all of the fish on board a licensed vessel either ashore or onto another vessel.


Treaty Area means all waters north of 60° S. lat. and east of 90° E. long., subject to the fisheries jurisdiction of Pacific Island Parties, and all other waters within rhumb lines connecting the following points, except for waters subject to the jurisdiction in accordance with international law of a State which is not a party to the Treaty:


Point
Latitude
Longitude
A2°35′39″ S141°00′00″ E
B1°01′35″ N140°48′35″ E
C1°01′35″ N129°30′00″ E
D10°00′00″ N129°30′00″ E
E14°00′00″ N140°00′00″ E
F14°00′00″ N142°00′00″ E
G12°30′00″ N142°00′00″ E
H12°30′00″ N158°00′00″ E
I15°00′00″ N158°00′00″ E
J15°00′00″ N165°00′00″ E
K18°00′00″ N165°00′00″ E
L18°00′00″ N174°00′00″ E
M12°00′00″ N174°00′00″ E
N12°00′00″ N176°00′00″ E
O5°00′00″ N176°00′00″ E
P1°00′00″ N180°00′00″
Q1°00′00″ N164°00′00″ W
R8°00′00″ N164°00′00″ W
S8°00′00″ N158°00′00″ W
T0°00′00″150°00′00″ W
U6°00′00″ S150°00′00″ W
V6°00′00″ S146°00′00″ W
W12°00′00″ S146°00′00″ W
X26°00′00″ S157°00′00″ W
Y26°00′00″ S174°00′00″ W
Z40°00′00″ S174°00′00″ W
AA40°00′00″ S171°00′00″ W
AB46°00′00″ S171°00′00″ W
AC55°00′00″ S180°00′00″
AD59°00′00″ S160°00′00″ E
AE59°00′00″ S152°00′00″ E and north along the 152 degrees of East longitude until intersecting the Australian 200-nautical-mile limit.

UTC means Universal Coordinated Time.


Vessel Monitoring System Unit or VMS unit, sometimes known as a “mobile transmitting unit,” means Administrator-approved and NMFS-approved VMS unit hardware and software that is installed on a vessel pursuant to § 300.45. The VMS units are a component of the regional vessel monitoring system administered by the FFA, as well as of the vessel monitoring system administered by NMFS, and as such are used to transmit information between the vessel and the Administrator and NMFS and/or other reporting points designated by NMFS.


[61 FR 35550, July 5, 1996, as amended at 72 FR 6149, Feb. 9, 2007; 75 FR 74643, Dec. 1, 2010; 79 FR 64110, Oct. 28, 2014]


§ 300.32 Vessel licenses.

(a) Each vessel fishing in the Licensing Area must have a license issued by the Administrator for the licensing period being fished, unless exempted by § 300.39. Each licensing period begins on June 15 and ends on June 14 of the following year.


(b) Upon receipt, the license or a copy or facsimile thereof must be carried on board the vessel when in the Licensing Area or Closed Areas, and must be produced at the request of authorized officers, authorized party officers, or authorized inspectors. A vessel may be used to fish in the Licensing Area if the license has been issued but not yet received, provided that the license number is available on board.


(c) The total number of licenses that may be issued and valid at any point in time is 45, five of which shall be reserved for fishing vessels of the United States engaged in joint venture arrangements.


(1) For the purpose of this section, the licenses reserved for vessels engaged in joint venture arrangements are referred to as “joint venture licenses,” and the remaining licenses are referred to as “general licenses.”


(2) A joint venture arrangement is one in which the subject vessel and its operators are engaged in fishing-related activities designed to maximize the benefits generated for the Pacific Island Parties from the operations of fishing vessels licensed pursuant to the Treaty, as determined by the Administrator. Such activities can include the use of canning, transshipment, vessel slipping and repair facilities located in the Pacific Island Parties; the purchase of equipment and supplies, including fuel supplies, from suppliers located in the Pacific Island Parties; and the employment of nationals of the Pacific Island Parties on board such vessels.


(d) Licenses are issued by the Administrator. The Administrator will issue licenses only for applications that have been approved by the Regional Administrator. The Regional Administrator’s approval is indicated by the signature of the Regional Administrator on the part of the application form labeled “Schedule 1.” Upon approval by the Regional Administrator of a license application, the complete application will be forwarded to the Administrator for consideration. Except as provided in paragraph (n) of this section, prior to approving license applications for a given licensing period, the Regional Administrator will issue pre-approvals of license applications that serve the purpose of temporarily reserving approvals up until the time complete applications are due to be received by the Regional Administrator.


(e) The Regional Administrator, in his or her sole discretion, may approve fewer license applications than there are licenses available for any given licensing period or at any given time.


(f) A pre-approval or approval issued by the Regional Administrator pursuant to this section:


(1) Shall not confer any right of compensation to the recipient of such pre-approval or approval;


(2) Shall not create, or be construed to create, any right, title, or interest in or to a license or any fish; and


(3) Shall be considered a grant of permission to the recipient of the pre-approval or approval to proceed with the process of seeking a license from the Administrator.


(g) A pre-approval or approval issued by the Regional Administrator pursuant to this section is subject to being rescinded at any time if the Regional Administrator determines that an administrative error has been made in its granting, false information has been provided by the applicant, circumstances have changed such that the information provided by the applicant is no longer accurate, true or valid, or if the applicant or vessel no longer meets the requirements for licensing under this subpart or under the Act or other applicable law. NMFS will notify the applicant of its rescission of a pre-approval or approval within 14 days of the rescission. In the event that the Regional Administrator rescinds an approval after the license has been issued, NMFS will notify the Administrator of such, and request that the Administrator immediately revoke the license.


(h) Application process for general licenses. (1) A vessel operator who satisfies the requirements for licensing under the Act and under this subpart may apply for a general license.


(2) In order for a general license to be issued for a vessel, an applicant must submit a complete application to, and obtain an application approval from, the Regional Administrator.


(3) Except for the 2011-2012 licensing period, prior to submitting a complete application, an applicant may request pre-approval of an application by the Regional Administrator by submitting an expression of interest. A pre-approval of an application establishes that the applicant is eligible to be considered for one of the available licenses following timely submission of a complete application. Although submission of an expression of interest is entirely voluntary, applications that have not been pre-approved might not be eligible for approval if the number of applications exceeds the number of available licenses for a given licensing period. A pre-approval will be deemed to be void if the applicant fails to submit a complete application by the date established in paragraph (h)(6) of this section.


(4) Except as provided in paragraph (n) of this section, in order to obtain a pre-approval for a given licensing period, either an expression of interest or a complete application must be submitted to and received by the Regional Administrator no later than June 1st of the year preceding the year in which the licensing period begins.


(5) An expression of interest must include the information listed below, which may be submitted by electronic or hard-copy correspondence following instructions provided by the Regional Administrator.


(i) If the expression of interest is for a vessel for which, as of the June 1st due date for submitting such expression of interest, NMFS has issued an application approval for the licensing period that starts that year (i.e., a renewal of the license is being sought), the expression of interest shall include:


(A) The licensing period for which the license is being sought.


(B) The current name, IRCS, and annual USCG Certificate of Documentation number of the vessel.


(ii) For all other expressions of interest that do not meet the criteria in paragraph (h)(5)(i) of this section, the expression of interest shall include:


(A) The licensing period for which the license is being sought.


(B) The full name and address of each person who is, or who is anticipated to be, an operator of the vessel for which a license is sought, and for each such person, a statement of whether the person is, or is anticipated to be, owner, charterer, and/or master of the vessel.


(C) A statement of whether or not the vessel to be licensed is known, and if it is known, the current name, IRCS, and annual USCG Certificate of Documentation number, if any, of the vessel.


(D) A copy of the vessel’s current USCG Certificate of Documentation. If the vessel has not been issued such a document, then a statement of whether application has been or will be made for a USCG Certificate of Documentation, including identification of all endorsements sought in such application.


(E) If the vessel is known, a list of the licensing periods, if any, during which a license for the vessel was issued under this section.


(F) If the vessel is known, a statement of the total amount, in metric tons, of any tuna species landed or transshipped from the vessel at United States ports, including ports located in any of the States, for each of the calendar years 1988 through the current year.


(6) A complete application for a given licensing period may be submitted to the Regional Administrator at any time up to May 15th within the licensing period, but in order to be considered for approval in the event that more applications are received by the Regional Administrator than there are licenses available, a complete application must be received by the Regional Administrator as follows:


(i) No later than February 5th of the year in which the licensing period begins; or


(ii) If a pre-approval of the application was issued in accordance with paragraphs (k)(8) or (k)(9) of this section, not later than the date specified by NMFS in the notification of such pre-approval (which will be calculated by NMFS to be no later than 194 days from the date of mailing of the notification of the pre-approval).


(7) License application forms, which include the “Schedule 1” form and the FFA Vessel Register application form, are available from the Regional Administrator. The complete application must be received by the Regional Administrator as specified in paragraph (h)(6) of this section. An application shall not be complete, and shall not be subject to processing, unless it contains all of the information specified on the “Schedule 1” form and all the items listed in paragraphs (h)(7)(i) through (h)(7)(x) of this section, as follows:


(i) The licensing period for which the license is requested.


(ii) The name of an agent, located in Port Moresby, Papua New Guinea, who, on behalf of the license holder, will receive and respond to any legal process issued in accordance with the Treaty.


(iii) Documentation from an insurance company showing that the vessel will be fully insured for the licensing period against all risks and liabilities normally covered by maritime liability insurance.


(iv) If the owner or charterer is the subject of proceedings under the bankruptcy laws of the United States, a statement that the owner or charterer will be financially able to fulfill any and all responsibilities under the Treaty, Act, and regulations, including the payment of any penalties or fines.


(v) A copy of the vessel’s current annual USCG Certificate of Documentation.


(vi) Electronic versions of full color photographs of the vessel in its current form and appearance, including a bow-to-stern side-view photograph of the vessel that clearly and legibly shows the vessel markings, and a photograph of every area of the vessel that is marked with the IRCS assigned to the vessel.


(vii) A schematic stowage/well plan for the vessel.


(viii) A copy of the VMS unit installation certificate, issued by the Administrator-authorized person who installed the VMS unit, for the VMS unit installed on the vessel in accordance with § 300.45.


(ix) An FFA Vessel Register application form that includes all the applicable information specified in the form.


(x) In the case of an application for a vessel that does not meet the criteria in paragraph (h)(5)(i) of this section, any information under paragraph (h)(5)(ii) of this section that has not already been provided or that has changed since it was previously submitted.


(i) Application process for joint venture licenses. (1) A vessel operator who satisfies the requirements for licensing under the Act and under this subpart may apply for a joint venture license.


(2) The applicant, in coordination with one or more Pacific Island Parties, shall contact the Administrator to determine the specific information and documents that are required by the Administrator in order to obtain an initial approval from the Administrator for a joint venture license. The applicant shall submit such required information and documents directly to the Administrator. Once an initial approval is obtained from the Administrator, the applicant shall submit a complete application package, as described in paragraph (h)(7) of this section, to the Regional Administrator, along with dated documentation of the Administrator’s initial approval, and a letter or other documentation from the relevant national authority or authorities of the Pacific Island Party or Parties identifying the joint venture partner or partners and indicating the Party’s or Parties’ approval of the joint venture arrangement and its or their concurrence that a joint venture license may be issued for the vessel.


(j) Appeals – (1) Eligibility. Any applicant who is denied a pre-approval or an approval under this section may appeal the denial. The appeal must be made in writing and must clearly state the basis for the appeal and the nature of the relief that is requested. The appeal must be received by the Regional Administrator not later than 14 days after the date that the notice of denial is postmarked.


(2) Appeal review. Upon receipt of an appeal, the Regional Administrator will appoint a designee who will review the basis of the appeal and issue an initial written decision. The written decision will be mailed to the applicant within 30 days of receipt of the appeal. If the appellant does not request a review within 10 days of mailing of the initial decision, the initial decision is the final administrative action of the Department of Commerce. If, within 10 days of mailing of the initial decision, the Regional Administrator receives from the appellant a written request for review of the initial decision, the Assistant Administrator or a designee will review the basis of the appeal and issue a final written decision. The final decision will be made within 30 days of receipt of the request for review of the initial decision. The decision of the Assistant Administrator or designee constitutes the final administrative action of the Department of Commerce.


(k) Procedures used by the Secretary to review and process applications for general licenses. The procedures in this paragraph apply to the process used by NMFS, on behalf of the Secretary and in consultation with the Secretary of State, to review expressions of interest and complete applications, and to approve applications. For the purpose of this section, NMFS’ approval of an application means the signing by the Regional Administrator of the “Schedule 1” part of the application form, indicating that the application is complete and that it meets the requirements of the Act and of this subpart for forwarding to the Administrator. For the purpose of this section, NMFS’ pre-approval of an application means that the Regional Administrator has initially determined that the applicant is eligible for a general license, but that the application has not yet been approved for forwarding to the Administrator.


(1) NMFS will pre-approve no more applications for a given licensing period than there are licenses available for that licensing period. A pre-approval will be deemed to be void if the applicant fails to submit a complete application by the date established in paragraph (h)(6) of this section.


(2) NMFS will approve no more applications for a given licensing period than there are licenses available for that licensing period.


(3) NMFS will not approve a license application if it determines that:


(i) The application is not in accord with the Treaty, Act, or regulations;


(ii) The owner or charterer is the subject of proceedings under the bankruptcy laws of the United States, and reasonable financial assurances have not been provided to the Secretary that the owner or charterer will be financially able to fulfill any and all responsibilities under the Treaty, Act, and regulations, including the payment of any penalties or fines;


(iii) The owner or charterer has not established to the satisfaction of the Secretary that the vessel will be fully insured for the licensing period against all risks and liabilities normally covered by maritime liability insurance; or


(iv) The owner or charterer has not paid any final penalty assessed by the Secretary in accordance with the Act.


(4) Except as provided in paragraph (n) of this section, no later than July 16th of each year, NMFS will pre-approve applications from among the expressions of interest and complete applications that were received by June 1st of the current year for the licensing period that starts the following year as provided in this paragraph. If the number of expressions of interest and complete applications does not exceed the number of licenses available, all applications that meet the requirements of paragraphs (h)(4) and (h)(5) of this section and that satisfy the relevant requirements for licensing under the Act and this subpart will be pre-approved. If the number of expressions of interest and complete applications exceeds the number of licenses available, those that meet the requirements of paragraphs (h)(4) and (h)(5) of this section and that satisfy the relevant requirements for licensing under the Act and this subpart will be prioritized for pre-approval as follows:


(i) First priority will be given to expressions of interest and complete applications for vessels for which, as of June 1st of that year, application approvals have been issued by NMFS for the licensing period that starts that year (i.e., anticipated license renewal applications), provided that such vessels continue to satisfy the requirements for licensing under the Act and this subpart, and provided such vessels have no unsatisfied civil penalties or fines assessed by the Secretary under the Act that have become final.


(ii) Second priority will be given to expressions of interest and complete applications scored using the following system, in descending order of the sum of the points assigned:


(A) 15 points will be assigned for a vessel that has been issued, or will be issued by the date complete applications are due to be received by the Regional Administrator under paragraph (h)(6) of this section, a valid USCG Certificate of Documentation with a fishery endorsement.


(B) 1 point will be assigned for each licensing period, starting with the 1988-1989 licensing period, in which a license had been issued for the vessel pursuant to the Act, for a total of no more than 10 points.


(C) 1 point will be assigned for each calendar year in which at least 3,000 metric tons of fish were landed or transshipped from the vessel in United States ports, including ports located in any of the States, as determined by the Regional Administrator. The applicable period shall run from 1988 through the last calendar year prior to the year in which the applied-for licensing period starts, and the total number of points assigned shall be no more than 5.


(D) In the event that two or more vessels receive the same sum number of points under paragraphs (k)(4)(ii)(A) through (k)(4)(ii)(C) of this section, priority will be given to the vessel from which the greatest amount of fish, by weight, was landed or transshipped in United States ports, including ports located in any of the States, starting in calendar year 1988 and ending in the year prior to the year in which the applied-for licensing period starts, as determined by the Regional Administrator. In the event that that does not resolve the tie, priority will be given by lottery, which will be conducted by the Regional Administrator.


(5) Except as provided in paragraph (n) of this section, no later than July 26th of each year, NMFS will send notifications by mail to all applicants that submitted expressions of interest or complete applications by June 1st of that year, indicating whether their applications (for the licensing period that starts the following year) have been pre-approved.


(6) No later than March 7th of each year, NMFS will approve applications (for the licensing period that starts that year) that satisfy all of the following conditions:


(i) The application was pre-approved;


(ii) The information associated with the application has not changed since the point of pre-approval in a way such that pre-approval would not have been made using the updated information;


(iii) The complete application was received by February 5th of the same year; and


(iv) The applicant satisfies the requirements for licensing under the Act and this subpart.


(7) No later than March 17th of each year, NMFS will notify all applicants (for the licensing period that starts that year) who submitted complete applications by February 5th of that year, whether their applications have been approved under paragraph (k)(6) of this section, and in cases where they have not, whether their applications are being considered for approval under paragraph (k)(8) of this section.


(8) In the event that additional licenses for a given licensing period are available after issuing the approvals under paragraph (k)(6) of this section, NMFS will, after final administrative action by the Department of Commerce on any appeals made under paragraph (j) of this section, do the following:


(i) If the number of outstanding expressions of interest (i.e., expressions of interest that have not been pre-approved) received by June 1st of the year preceding the year in which the licensing period begins, plus the number of outstanding complete applications (i.e., complete applications that have not been approved) received by February 5th of the year in which the licensing period begins, exceeds the number of licenses available, NMFS will review all such outstanding expressions of interest and complete applications and apply the process described in paragraphs (k)(9)(i)(A) through (k)(9)(i)(C) of this section to pre-approve and approve applications from among that pool of applicants;


(ii) If the number of outstanding expressions of interest received by June 1st of the year preceding the year in which the licensing period begins, plus the number of outstanding complete applications received by February 5th of the year in which the licensing period begins, does not exceed the number of licenses available:


(A) No later than June 15th of the year in which the licensing period begins, NMFS will pre-approve all such outstanding expressions of interest and complete applications that satisfy the relevant requirements for licensing under the Act and this subpart;


(B) No later than June 25th of the year in which the licensing period begins, NMFS will notify all such outstanding applicants of the pre-approvals, and for those applicants that submitted expressions of interest but not complete applications, also notify them of the date by which a complete application must be received in order to be issued an application approval (which will be calculated by NMFS to be no later than 194 days from the date of mailing of the notification of the pre-approval);


(C) NMFS will review all complete applications received by the required date from applicants pre-approved under paragraph (8)(ii)(A) of this section, and within 30 days of such receipt, approve the application, if and as appropriate and if the applicant satisfies the requirements for licensing under the Act and this subpart; and


(D) If and as long as the number of approvals plus outstanding (not voided) pre-approvals does not exceed the total number of licenses available under paragraph (c) of this section, NMFS will review all complete applications received after February 5th of the year in which the licensing period begins and before May 16th within the licensing period and, as they are received and in the order they are received (based on the day of receipt), will approve those applications that satisfy the requirements for licensing under the Act and this subpart until no more approvals are available. In the event that two or more complete applications are received on the same day, priority for approval will be given by lottery, which will be conducted by the Regional Administrator.


(iii) Within 10 days of approving an application, NMFS will notify the applicant.


(9) If a license or application approval that has been issued for a given licensing period becomes available before or during that licensing period, NMFS will do the following:


(i) If there are any outstanding expressions of interest received by June 1st of the year preceding the year in which the licensing period begins or outstanding complete applications received by February 5th of the year in which the licensing period begins, NMFS will review all such outstanding expressions of interest and complete applications and pre-approve and approve applications for that license from among that pool as follows:


(A) Within 45 days of NMFS becoming aware of the availability of the license, NMFS will pre-approve an application using the prioritization criteria and point-assigning system described in paragraphs (k)(4)(i) and (k)(4)(ii) of this section;


(B) Within 55 days of NMFS becoming aware of the availability of the license NMFS will notify all active applicants as to whether their applications have been pre-approved, and for those applications that have been pre-approved, notify each applicant of the date by which a complete application, if not already received, must be received (which will be calculated by NMFS to be no later than 194 days from the date of mailing of the notification of the pre-approval); and


(C) Within 30 days of receiving a complete application that had been pre-approved, NMFS will approve the application, if and as appropriate and if the applicant satisfies the requirements of this subpart.


(ii) If there are no outstanding expressions of interest received by June 1st of the year preceding the year in which the licensing period begins and no outstanding complete applications received by February 5th of the year in which the licensing period begins, if and as long as the number of approvals plus outstanding (not voided) pre-approvals does not exceed the number of licenses available, NMFS will review all complete applications received after February 5th of the year in which the licensing period begins and before May 16th within the licensing period and, in the order they are received (based on the day of receipt), will approve those applications that satisfy the requirements for licensing under the Act and this subpart until no more approvals are available. In the event that two or more complete applications are received on the same day, priority for approval will be given by lottery, which will be conducted by the Regional Administrator.


(iii) Within 10 days of approving an application, NMFS will notify the applicant.


(l) Procedures used by the Secretary to review and process applications for joint venture licenses. NMFS, on behalf of the Secretary and in consultation with the Secretary of State, will review and approve applications for joint venture licenses as described in paragraph (k) of this section for general licenses, except that NMFS will not consider expressions of interest for joint venture licenses or pre-approve applications for joint venture licenses. In the event that NMFS receives for a given licensing period more applications for joint venture licenses than there are licenses available, it will approve the applications in the chronological order that the Administrator has provided its initial approval.


(m) Transferability of application approvals. Application approvals from NMFS are not transferable among vessel owners or operators or license applicants. Application approvals are transferable among vessels, subject to the following requirements:


(1) A vessel operator may seek to transfer a general or joint venture license to another vessel that meets the requirements for licensing under this subpart and the Act, only if the license has been valid for the vessel for at least 365 consecutive days and all the fees required by the Administrator for the current licensing period have been paid to the Administrator. The vessel operator may seek to transfer the license by submitting a written request to the Regional Administrator along with a complete application for the other vessel as described in paragraph (h)(7) of this section. Any such transfer may be subject to additional fees for the registration of the vessel on the FFA Vessel Register, as specified in paragraph (b) of § 300.45.


(2) Upon receipt of a request and complete application under paragraph (m)(1) of this section, the Regional Administrator, after determining that all the fees required for the vessel by the Administrator for the current licensing period have been paid, that the ownership of the licensed vessel and the ownership of the vessel to which the application approval would be transferred are identical, and that the transferee vessel meets the requirements for licensing under this subpart and the Act, will approve the application and notify the applicant of such within 10 days of the determination.


(3) If a licensed vessel is lost or destroyed, and the operators of the vessel apply for a license for another vessel for the licensing period during which the vessel was lost, or for either of the two subsequent licensing periods, NMFS will consider the replacement vessel to have the license application approval status and history of the lost or destroyed vessel for the purpose of applying the prioritization criteria of paragraph (k)(4) of this section, provided that the ownership of the lost or destroyed vessel and the ownership of the replacement vessel, as determined by the Regional Administrator, are identical, and the replacement vessel meets the requirements for licensing under this subpart and the Act.


(n) Procedures for 2011-2012 licensing period. For the licensing period that starts June 15, 2011, and for that licensing period only, pre-approvals may not be sought and will not be issued by NMFS. NMFS will rank order those applications received by February 5, 2011, for the 2011-2012 licensing period by applying the criteria in paragraphs (k)(4)(i) and (k)(4)(ii) of this section, except that in lieu of using the criteria in (k)(4)(i), first priority will be given to applications for vessels that as of February 5, 2011, have valid licenses for the 2010-2011 licensing period.


[75 FR 74644, Dec. 1, 2010]


§ 300.33 Compliance with applicable national laws.

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


§ 300.34 Reporting requirements.

(a) Holders of licenses issued under § 300.32 shall comply with the reporting requirements of this section with respect to the licensed vessels.


(b) Any information required to be recorded, or to be notified, communicated or reported pursuant to a requirement of these regulations, the Act, or the Treaty shall be true, complete and correct. Any change in circumstances that has the effect of rendering any of the information provided false, incomplete or misleading shall be communicated immediately to the Regional Administrator.


(c) The operator of any vessel licensed under § 300.32 must prepare and submit accurate, complete, and timely notifications, requests, and reports with respect to the licensed vessel, as described in paragraphs (c)(1) through (10) of this section.


(1) Catch report forms. A record of catch, effort and other information must be maintained on board the vessel, on catch report forms (also known as “Regional Purse Seine Logsheets”, or RPLs) provided by the Regional Administrator. At the end of each day that the vessel is in the Licensing Area, all information specified on the form must, for that day, be recorded on the form. The completed catch report form must be mailed by registered airmail to the Administrator within 14 days of the vessel’s next entry into port for the purpose of unloading its fish catch. A copy of the completed catch report form must also be submitted to, and received by, the Regional Administrator within 2 days of the vessel reaching port.


(2) Unloading and transshipment logsheet forms. At the completion of any unloading or transshipment of fish from the vessel, all the information specified on unloading and transshipment logsheet forms provided by the Regional Administrator must, for that unloading or transshipment, be recorded on such forms. A separate form must be completed for each fish processing destination to which the unloaded or transshipped fish are bound. The completed unloading and transshipment logsheet form or forms must be mailed by registered airmail to the Administrator within 14 days of the completion of the unloading or transshipment. The submitted form must be accompanied by a report or reports of the size breakdown of the catch as determined by the receiver or receivers of the fish, and such report must be signed by the receiver or receivers. A copy of the completed unloading and transshipment logsheet, including a copy of the accompanying report or reports of the size breakdown of the catch as determined by the receiver or receivers of the fish, must also be submitted to, and received by, the Regional Administrator within 2 days of the completion of the unloading or transshipment.


(3) Port departure reports. Before the vessel’s departure from port for the purpose of beginning a fishing trip in the Licensing Area, a report must be submitted to the Administrator by telex, transmission via VMS unit, facsimile, or e-mail that includes the following information: Report type (“LBEG”); Regional Register number; trip begin date; date and time (in UTC) of report; IRCS; port name; weight of catch on board (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; intended action; and estimated date of departure. This information must be reported in the format provided by the Regional Administrator.


(4) Entry into port for unloading reports. At least 24 hours before the vessel’s entry into port for the purpose of unloading fish from any trip involving fishing within the Licensing Area, a report must be submitted to the Administrator by telex, transmission via VMS unit, facsimile, or e-mail that includes the following information: Report type (“LFIN”); FFA Regional Register number; trip begin date; date and time (in UTC) of report; IRCS; port name; weight of catch on board (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; intended action; and estimated date and time (in UTC) of entry into port. This information must be reported in the format provided by the Regional Administrator.


(5) Intent to transship notification and request. At least 48 hours before transshipping any or all of the fish on board the vessel, a notification must be submitted to the Administrator and a request must be submitted to the Pacific Island Party in whose jurisdiction the transshipment is requested to occur. The notification to the Administrator and the request to the Pacific Island Party may be identical. The notification and request must include the following information: Name of vessel; IRCS; vessel position (latitude and longitude to nearest minute of arc); weight of catch on board the vessel (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; and the date, time (in UTC), and location where such transshipment is requested to occur. The notification to the Administrator must be reported in the format provided by the Regional Administrator and submitted by telex, transmission by VMS unit, facsimile, or e-mail. The request to the Pacific Island Party must be reported in the format provided by the Regional Administrator and sent via the means and to the address provided by the Regional Administrator.


(6) Zone entry and exit reports. Each time the vessel enters or exits the waters under the jurisdiction of a Pacific Island Party, a report must be submitted to that Pacific Island Party that includes the following information: Report type (“ZENT” for entry or “ZEXT” for exit); FFA Regional Register number; trip begin date; date and time (in UTC) of the entry or exit; IRCS; vessel position (latitude and longitude to nearest minute of arc); weight of catch on board (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; and intended action. This information must be reported in the format provided by the Regional Administrator and sent via the means and to the address provided by the Regional Administrator.


(7) Weekly reports. Each Wednesday while the vessel is within the waters under the jurisdiction of a Pacific Island Party, a report must be submitted to that Pacific Island Party that includes the following information: Report type (“WEEK”); FFA Regional Register number; trip begin date; date and time (in UTC) of report; IRCS; vessel position (latitude and longitude to nearest minute of arc); weight of catch on board (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; intended action; and whether or not there is a vessel observer on board (“Y” or “N”). This information must be reported in the format provided by the Regional Administrator and sent via the means and to the address provided by the Regional Administrator.


(8) Port entry reports. At least 24 hours before the vessel’s entry into port of any Pacific Island Party, a report must be submitted to that Pacific Island Party that includes the following information: Report type (“PENT”); FFA Regional Register number; trip begin date; date and time (in UTC) of report; IRCS; vessel position (latitude and longitude to nearest minute of arc); weight of catch on board (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; estimated time (in UTC) of entry into port; port name; and intended action. This information must be reported in the format provided by the Regional Administrator and sent via the means and to the address provided by the Regional Administrator.


(9) Transshipment reports. Upon completion of transshipment of any or all of the fish on board the vessel, a report must be submitted to the Administrator and to the Pacific Island Party in whose jurisdiction the transshipment occurred. The report must include the following information: Report type (“TRANS”); FFA Regional Register number; trip begin date; date and time (in UTC) of the transshipment; IRCS; vessel position at time of transshipment (latitude and longitude to nearest minute of arc); amount of fish transshipped (in metric tons) for each of skipjack tuna, yellowfin tuna, and all other species combined; name of vessel to which the fish were transshipped; and the destination of the transshipped fish. The report to the Administrator must be reported in the format provided by the Regional Administrator and submitted by telex, transmission by VMS unit, facsimile, or e-mail. The report to the Pacific Island Party must be reported in the format provided by the Regional Administrator and sent via the means and to the address provided by the Regional Administrator.


(10) Other reports and notifications to Pacific Island Parties. Reports and notifications must be submitted to the relevant Pacific Island Parties in each of the circumstances and in the manner described in the subparagraphs of this paragraph. Unless otherwise indicated in this paragraph, the reports must be prepared in the format provided by the Regional Administrator and sent via the means and to the address provided by the Regional Administrator.


(i) Australia. (A) Each day while the vessel is within the Australian Fishing Zone, a report must be submitted that includes the following information: Vessel position (latitude and longitude to nearest minute of arc); and the amount of catch made during the previous day, by species.


(B) At least 24 hours before entering the Australian Fishing Zone, a notification must be submitted that indicates an intent to enter the Australian Fishing Zone.


(ii) Fiji. (A) Each day while the vessel is in Fiji fisheries waters, a report must be submitted that includes the following information: vessel name; IRCS; country of registration of the vessel; and vessel position at the time of the report (latitude and longitude to nearest minute of arc).


(B) Each week while the vessel is in Fiji fisheries waters, a report must be submitted that includes the amount of the catch made during the preceding week, by species.


(iii) Kiribati. (A) At least 24 hours before entering a Closed Area under the jurisdiction of Kiribati, a notification must be submitted that includes the following information: vessel name; IRCS; vessel position at the time of the report (latitude and longitude to nearest minute of arc); the reason for entering the Closed Area; and the estimated time (in UTC) of entry into the Closed Area (latitude and longitude to nearest minute of arc).


(B) Immediately upon entry into or exit from a Closed Area under the jurisdiction of Kiribati, a report must be submitted that includes the following information: report type (“CAENT” for entry or “CAEXT” for exit); the number of the vessel’s license issued under § 300.32; IRCS; date and time (in UTC) of the report; vessel position (latitude and longitude to nearest minute of arc); amount of the catch on board the vessel, by species; and status of the boom (“up” or “down”), net (“deployed” or “stowed”), and skiff (“deployed” or “stowed”).


(C) At least 24 hours prior to fueling the vessel from a tanker in the area of jurisdiction of Kiribati, a report must be submitted that includes the following information: report type (“SBUNK”); the number of the vessel’s license issued under § 300.32; IRCS; trip start date; name of port from which trip started; amount of the catch on board the vessel, by species; estimated time of bunkering; estimated position of bunkering (latitude and longitude to nearest minute of arc); and name of tanker.


(D) After fueling the vessel from a tanker in the area of jurisdiction of Kiribati, but no later than 12 noon local time on the following day, a report must be submitted that includes the following information: report type (“FBUNK”); the number of the vessel’s license issued under § 300.32; IRCS; start time of bunkering; end time of bunkering; amount of fuel received, in kiloliters; and name of tanker.


(iv) New Zealand. (A) At least 24 hours before entering the exclusive economic zone of New Zealand, a notification must be submitted that includes the following information: name of vessel; IRCS; position of point of entry into the exclusive economic zone of New Zealand (latitude and longitude to nearest minute of arc); amount of catch on board the vessel, by species; and condition of the catch on board the vessel (“fresh” or “frozen”).


(B) For each day that the vessel is in the exclusive economic zone of New Zealand, a notification must be submitted no later than noon of the following day of the vessel’s position (latitude and longitude to nearest minute of arc) at noon.


(C) For each week or portion thereof that the vessel is in the exclusive economic zone of New Zealand, a report that covers the period from 12:01 a.m. on Monday to 12 midnight on the following Sunday must be submitted and received by noon of the following Wednesday (local time). The report must include the amount of the catch taken in the exclusive economic zone of New Zealand during the reporting period.


(D) At least 10 days prior to an intended transshipment in an area under the jurisdiction of New Zealand, a notification must be submitted that includes the intended port, date, and time of transshipment.


(E) At least 24 hours prior to exiting the exclusive economic zone of New Zealand, a notification must be submitted that includes the following information: position of the intended point of exit (latitude and longitude to nearest minute of arc); the amount of catch on board the vessel, by species; and condition of the catch on board the vessel (“fresh” or “frozen”).


(v) Solomon Islands. (A) At least 24 hours prior to entry into Solomon Islands Fisheries Limits, a report must be submitted that includes the following information: expected vessel position (latitude and longitude to nearest minute of arc) and expected date and time of entry.


(B) For each week or portion thereof that the vessel is in the exclusive economic zone of Solomon Islands, a report that covers the period from 12:01 a.m. on Monday to 12 midnight on the following Sunday must be submitted and received by noon of the following Tuesday (local time). The report must include the amount of the catch taken and the number of fishing days spent in the exclusive economic zone of Solomon Islands during the reporting period.


(vi) Tonga. (A) Each day while the vessel is in the exclusive economic zone of Tonga, a report must be submitted that includes the vessel’s position (latitude and longitude to nearest minute of arc).


(B) [Reserved]


(vii) Tuvalu. (A) At least 24 hours prior to entering Tuvalu fishery limits, a report must be submitted that includes the following information: vessel name; IRCS; country of registration of the vessel; the number of the vessel’s license issued under § 300.32; intended vessel position (latitude and longitude to nearest minute of arc) at entry; and amount of catch on board the vessel, by species.


(B) Every seventh day that the vessel is in Tuvalu fishery limits, a report must be submitted that includes vessel position (latitude and longitude to nearest minute of arc) and the total amount of catch on board the vessel.


(C) Immediately upon exit from Tuvalu fishery limits, a notification must be submitted that includes vessel position (latitude and longitude to nearest minute of arc) and the total amount of catch on board the vessel.


[72 FR 6151, Feb. 9, 2007]


§ 300.35 Vessel and gear identification.

While a vessel is in the Licensing Area, a Limited Area closed to fishing, or a Closed Area, a recent and up-to-date copy of the International Code of Signals (INTERCO) shall be on board and accessible at all times. The operator shall comply with the 1989 Food and Agricultural Organization standard specifications for the marking and identification of fishing vessels. The international radio call sign of the vessel shall be painted in white on a black background, or in black on a white background, and be clear, distinct, and uncovered, in the following manner:


(a) On both sides of the vessel’s hull or superstructure, with each letter and number being at least 1 m high and having a stroke width of 16.7 cm, with the background extending to provide a border around the mark of not less than 16.7 cm.


(b) On the vessel’s deck, on the body of any helicopter and on the hull of any skiff, with each letter and number being at least 30 cm high, and having a stroke width of 5 cm with the background extending to provide a border around the mark of not less than 5 cm.


(c) On any other equipment being carried by and intended to be separated from the vessel during normal fishing operations, with each letter and number being at least 10 cm high and having a stroke width of 1.7 cm, with the background extending to provide a border around the mark of not less than 1.7 cm.


§ 300.36 Closed area stowage requirements.

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


§ 300.37 Radio monitoring.

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


§ 300.38 Prohibitions.

(a) Except as provided for in § 300.39, in addition to the prohibitions in § 300.4, it is unlawful for any person subject to the jurisdiction of the United States to do any of the following:


(1) To violate the Act or any provision of any regulation or order issued pursuant to Act.


(2) To use a vessel for fishing in violation of an applicable national law.


(3) To violate the terms and conditions of any fishing arrangement to which that person is a party.


(4) To use a vessel for fishing in any Closed Area.


(5) To refuse to permit any authorized officer or authorized party officer to board a fishing vessel for purpose of conducting a search or inspection in connection with the enforcement of the Act or the Treaty.


(6) To refuse to comply with the instructions of an authorized officer or authorized party officer relating to fishing activities under the Treaty.


(7) To refuse to permit an authorized inspector full access to any place where fish taken in the Licensing Area is unloaded.


(8) To refuse to allow an authorized inspector to remove samples of fish from a vessel that fished in the Licensing Area.


(9) To forcibly assault, resist, oppose, impede, intimidate, or interfere with:


(i) Any authorized officer, authorized party officer or authorized inspector in the conduct of a search or inspection in connection with the enforcement of these regulations, the Act or the Treaty; or


(ii) An observer in the conduct of observer duties under the Treaty.


(10) To transship fish on board a vessel that fished in the Licensing Area, except in accordance with the requirements of § 300.46.


(11) To fail to have installed, allow to be programmed, carry, or have operational a VMS unit while in the Treaty Area as specified in § 300.45(a).


(12) To fail to activate a VMS unit, to interrupt, interfere with, or impede the operation of a VMS unit, to tamper with, alter, damage, or disable a VMS unit, or to move or remove a VMS unit without prior notification as specified in § 300.45(e).


(13) In the event of a VMS unit failure or breakdown or interruption of automatic position reporting in the Treaty Area, to fail to submit manual position reports as specified in § 300.45(f).


(14) In the event of a VMS unit failure or breakdown or interruption of automatic position reporting in the Treaty Area and if directed by the Administrator or an authorized officer, to fail to stow fishing gear or take the vessel to a designated port as specified in § 300.45(f).


(15) To fail to repair or replace a VMS unit as specified in § 300.45(h).


(b) Except as provided for in § 300.39, it is unlawful for any person subject to the jurisdiction of the United States when in the Licensing Area:


(1) To use a vessel to fish unless validly licensed as required by the Administrator.


(2) To use a vessel for directed fishing for southern bluefin tuna or for fishing for any kinds of fish other than tunas, except that fish may be caught as an incidental bycatch.


(3) To use a vessel for fishing by any method, except the purse-seine method.


(4) To use any vessel to engage in fishing after the revocation of its license, or during the period of suspension of an applicable license.


(5) To operate a vessel in such a way as to disrupt or in any other way adversely affect the activities of traditional and locally based fishermen and fishing vessels.


(6) To use a vessel to fish in a manner inconsistent with an order issued by the Secretary under § 300.42 (section 11 of the Act).


(7) Except for circumstances involving force majeure and other emergencies involving the health or safety of crew members or the safety of the vessel, to use aircraft in association with fishing activities of a vessel, unless it is identified on the license application for the vessel, or any amendment thereto.


[61 FR 35550, July 5, 1996, as amended at 72 FR 6153, Feb. 9, 2007]


§ 300.39 Exceptions.

(a) The prohibitions of § 300.38 and the licensing requirements of § 300.32 do not apply to fishing for albacore tuna by vessels using the trolling method or to fishing by vessels using the longline method in the high seas areas of the Treaty Area.


(b) The prohibitions of § 300.38(a)(4), (a)(5), and (b)(3) do not apply to fishing under the terms and conditions of a fishing arrangement.


[61 FR 35550, July 5, 1996, as amended at 72 FR 6153, Feb. 9, 2007]


§ 300.40 Civil penalties.

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


§ 300.41 Investigation notification.

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


§ 300.42 Findings leading to removal from fishing area.

(a) Following an investigation conducted under section 10(b) of the Act, the Secretary, with the concurrence of the Secretary of State, and upon the request of the Pacific Island Party concerned, may order a fishing vessel that has not submitted to the jurisdiction of that Pacific Island Party to leave immediately the Licensing Area, all Limited Areas, and all Closed Areas upon making a finding that:


(1) The fishing vessel –


(i) While fishing in the Licensing Area did not have a license issued under § 300.32 to fish in the Licensing Area, and that under the terms of the Treaty the fishing is not authorized to be conducted in the Licensing Area without such a license.


(ii) Was involved in any incident in which an authorized officer, authorized party officer, or observer was allegedly assaulted with resultant bodily harm, physically threatened, forcibly resisted, refused boarding or subjected to physical intimidation or physical interference in the performance of duties as authorized by the Act or the Treaty;


(iii) Has not made full payment within 60 days of any amount due as a result of a final judgement or other final determination deriving from a violation in waters within the Treaty Area of a Pacific Island Party; or


(iv) Was not represented by an agent for service of process in accordance with the Treaty; or


(2) There is probable cause to believe that the fishing vessel –


(i) Was used in violation of section 5(a)(4), (a)(5), (b)(2), or (b)(3) of the Act;


(ii) Used an aircraft in violation of section 5(b)(7) of the Act; or


(iii) Was involved in an incident in which section 5(a)(7) of the Act was violated.


(b) Upon being advised by the Secretary of State that proper notification to Parties has been made by a Pacific Island Party that such Pacific Island Party is investigating an alleged infringement of the Treaty by a vessel in waters under the jurisdiction of that Pacific Island Party, the Secretary shall order the vessel to leave those waters until the Secretary of State notifies the Secretary that the order is no longer necessary.


(c) The Secretary shall rescind any order issued on the basis of a finding under paragraphs (a)(1) (iii) or (iv) of this section (subsections 11(a)(1) (C) or (D) of the Act) as soon as the Secretary determines that the facts underlying the finding do not apply.


(d) An order issued in accordance with this section is not subject to judicial review.


[61 FR 35550, July 5, 1996, as amended at 72 FR 6154, Feb. 9, 2007]


§ 300.43 Observers.

(a) The operator and each member of the crew of a vessel shall allow and assist any person identified as an observer under the Treaty by the Pacific Island Parties:


(1) To board the vessel for scientific, compliance, monitoring and other functions at the point and time notified by the Pacific Island Parties to the Secretary.


(2) Without interfering unduly with the lawful operation of the vessel, to have full access to and use of facilities and equipment on board the vessel that the observer may determine are necessary to carry out observer duties; have full access to the bridge, fish on board, and areas that may be used to hold, process, weigh and store fish; remove samples; have full access to vessel’s records, including its log and documentation for the purpose of inspection and copying; have reasonable access to navigation equipment, charts, and radios, and gather any other information relating to fisheries in the Licensing Area.


(3) To disembark at the point and time notified by the Pacific Island Parties to the Secretary.


(4) To carry out observer duties safely.


(b) The operator shall provide the observer, while on board the vessel, at no expense to the Pacific Island Parties, with food, accommodation and medical facilities of reasonable standard as may be acceptable to the Pacific Island Party whose representative is serving as the observer.


§ 300.44 Other inspections.

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


§ 300.45 Vessel Monitoring System.

(a) Applicability. Holders of vessel licenses issued under § 300.32 are required, in order to have the licensed vessel in the Treaty Area, to:


(1) Have installed a VMS unit on board the licensed vessel;


(2) Allow the Administrator, its agent, or a person authorized by the Administrator to program the VMS unit to transmit position and related information to the Administrator;


(3) If directed by the Regional Administrator, allow NMFS, its agent, or a person authorized by NMFS to program the VMS unit to transmit position and related information to NMFS; and


(4) Carry and have operational the VMS unit at all times while in the Treaty Area, except as provided in paragraphs (f) and (g) of this section.


(b) FFA Vessel Register. Purse seine vessels must be in good standing on the FFA Vessel Register maintained by the Administrator in order to be licensed under the Treaty. FFA Vessel Register application forms may be obtained from the Regional Administrator or the Administrator or from the FFA Web site: http://www.ffa.int. Purse seine vessel owners or operators must submit completed FFA Vessel Register applications to the Regional Administrator for transmittal to the Administrator and pay fees for registration of their vessel(s) on the FFA Vessel Register annually. The vessel owner or operator may submit a completed FFA Vessel Register application form at any time, but the application must be received by the Regional Administrator at least seven days before the first day of the next licensing period to avoid the potential lapse of the registration and license between licensing periods.


(c) VMS unit installation. A VMS unit required under this section must be installed by a person authorized by the Administrator. A list of Administrator-authorized VMS unit installers may be obtained from the Regional Administrator or the Administrator.


(d) Hardware and software specifications. The VMS unit installed and carried on board a vessel to comply with the requirements of this section must consist of hardware and software that is approved by the Administrator and approved by NMFS. A current list of hardware and software approved by the Administrator may be obtained from the Administrator. A current list of hardware and software approved by NMFS may be obtained from NMFS.


(e) Service activation. Other than when in port or in a shipyard and having given proper notification to the Administrator as specified in paragraph (g) of this section, the owner or operator of a vessel licensed under § 300.32 must, when the vessel is in the Treaty Area:


(1) Activate the VMS unit on board the licensed vessel to transmit automatic position reports;


(2) Ensure that no person interrupts, interferes with, or impedes the operation of the VMS unit or tampers with, alters, damages, or disables the VMS unit, or attempts any of the same; and


(3) Ensure that no person moves or removes the VMS unit from the installed position without first notifying the Administrator by telephone, facsimile, or e-mail of such movement or removal.


(f) Interruption of VMS unit signal. When a vessel owner or operator is notified by the Administrator or an authorized officer that automatic position reports are not being received, or the vessel owner or operator is otherwise alerted or aware that transmission of automatic position reports has been interrupted, the vessel owner and operator must comply with the following:


(1) The vessel owner or operator must submit manual position reports that include vessel name, call sign, current position (latitude and longitude to the nearest minute), date, and time to the Administrator by telephone, facsimile, or e-mail at intervals of no greater than eight hours or a shorter interval if and as specified by the Administrator or an authorized officer. The reports must continue to be submitted until the Administrator has confirmed to the vessel owner or operator that the VMS unit is properly transmitting position reports. If the manual position reports cannot be made, the vessel operator or owner must notify the Administrator of such as soon as possible, by any means possible.


(2) If directed by the Administrator or an authorized officer, the vessel operator must immediately stow the fishing gear in the manner described in § 300.36, take the vessel directly to a port designated by the Administrator or authorized officer, and notify the Administrator by telephone, facsimile, or e-mail as soon as possible that the vessel is being taken to port with fishing gear stowed.


(g) Shutdown of VMS unit while in port or in shipyard. When a vessel is in port and not moving, the VMS unit may be shut down, provided that the Administrator has been notified by telephone, facsimile, or e-mail that the vessel is in port and of the intended shutdown, and only as long as manual position reports as described in paragraph (f)(1) of this section are submitted to the Administrator at intervals of no greater than 24 hours or a shorter interval if and as specified by the Administrator or an authorized officer. If the VMS unit is shut down while the vessel is in port, the vessel owner or operator must notify the Administrator by telephone, facsimile, or e-mail as soon as possible after the vessel’s departure from port. When the vessel is in a shipyard, the VMS unit may be shut down and the submission of manual position reports is not required, provided that the Administrator has been notified by telephone, facsimile, or e-mail that the vessel is in the shipyard and of the intended VMS unit shutdown. If the VMS unit is shut down while the vessel is in a shipyard, the vessel owner or operator must notify the Administrator by telephone, facsimile, or e-mail as soon as possible after the vessel’s departure from the shipyard.


(h) VMS unit repair and replacement. After a fishing trip during which interruption of automatic position reports has occurred, the vessel’s owner or operator must have the VMS unit repaired or replaced prior to the vessel’s next trip. If the VMS unit is replaced, the new VMS unit must be installed by an Administrator-authorized VMS unit installer, as specified in paragraph (c) of this section. In making such repairs or replacements, conformity with the current requirements must be met before the vessel may lawfully operate under the Treaty.


(i) Access to data. As a condition to obtaining a license, holders of vessel licenses issued under § 300.32 must allow the Regional Administrator, an authorized officer, the Administrator or an authorized party officer or designees access to the vessel’s position data obtained from the VMS unit at the time of, or after, its transmission to the vendor or receiver.


[72 FR 6154, Feb. 9, 2007, as amended at 75 FR 74648, Dec. 1, 2010]


§ 300.46 Transshipping requirements.

(a) Applicability. This section applies to vessels licensed under § 300.32.


(b) Transshipping may only be done at the time and place authorized for transshipment by the Pacific Island Parties, following the notification and request requirements of § 300.34(c)(5).


(c) The operator and each member of the crew of a vessel from which any fish taken in the Licensing Area is transshipped must:


(1) Allow and assist any person identified as an officer of the Pacific Island Party to:


(i) Have full access to the vessel and any place where such fish is being transshipped and the use of facilities and equipment that the officer may determine is necessary to carry out his or her duties;


(ii) Have full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish;


(iii) Remove samples;


(iv) Have full access to the vessel’s records, including its log and documentation, for the purpose of inspection and copying; and


(v) Gather any other information required to fully monitor the activity without interfering unduly with the lawful operation of the vessel; and


(2) Not assault, obstruct, resist, delay, refuse boarding to, intimidate, or interfere with any person identified as an officer of the Pacific Island Party in the performance of his or her duties.


(d) Transshipping at sea may only be done:


(1) In a designated area in accordance with such terms and conditions as may be agreed between the operator of the vessel and the Pacific Island Party in whose jurisdiction the transshipment is to take place;


(2) In accordance with the requirements of § 300.34; and


(3) If the catch is transshipped to a carrier vessel duly authorized in accordance with national laws.


[72 FR 6155, Feb. 9, 2007]


Subpart E – Pacific Halibut Fisheries


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

§ 300.60 Purpose and scope.

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


§ 300.61 Definitions.

In addition to the terms defined in § 300.2 and those in the Act and the Convention, the terms used in this subpart have the following meanings. If a term is defined differently in § 300.2, the Act, or the Convention, the definition in this section shall apply.


Alaska Native tribe means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, a Federally recognized Alaska Native tribe that has customary and traditional use of halibut and that is listed in § 300.65(g)(2) of this part.


Annual combined catch limit, for purposes of commercial and sport fishing in Commission regulatory areas 2C and 3A, means the annual total allowable halibut removals (halibut harvest plus wastage) by persons fishing IFQ and by charter vessel anglers.


Annual commercial catch limit, for purposes of commercial fishing in:


(1) Commission regulatory areas 2C and 3A, means the annual commercial allocation minus an area-specific estimate of commercial halibut wastage.


(2) Commission regulatory areas 3B and 4A, means the annual total allowable halibut removals by persons fishing IFQ.


(3) Commission regulatory areas 4B, 4C, 4D, and 4E, means the annual total allowable halibut removals by persons fishing IFQ and CDQ.


Annual guided sport catch limit, for purposes of sport fishing in Commission regulatory areas 2C and 3A, means the annual guided sport allocation minus an area-specific estimate of guided sport halibut wastage.


Area 2A includes all waters off the States of California, Oregon, and Washington.


Area 2C includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58° 11′ 54″ N. lat., 136° 38′ 24″ W. long.) and south and east of a line running 205° true from said light.


Area 3A means all waters between Area 2C and a line extending from the most northerly point on Cape Aklek (57°41′15″ N. latitude, 155°35′00″ W. longitude) to Cape Ikolik (57°17′17″ N. latitude, 154°47′18″ W. longitude), then along the Kodiak Island coastline to Cape Trinity (56°44′50″ N. latitude, 154°08′44″ W. longitude), then 140° true.


Charter halibut permit means a permit issued by the National Marine Fisheries Service pursuant to § 300.67.


Charter vessel, for purposes of §§ 300.65, 300.66, and 300.67, means a vessel used while providing or receiving sport fishing guide services for halibut.


Charter vessel angler, for purposes of §§ 300.65, 300.66, and 300.67, means a person, paying or non-paying, receiving sport fishing guide services for halibut.


Charter vessel fishing trip, for purposes of §§ 300.65, 300.66, and 300.67, means the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel.


Charter vessel guide, for purposes of §§ 300.65, 300.66 and 300.67, means a person who holds an annual sport fishing guide license or registration issued by the Alaska Department of Fish and Game, or a person who provides sport fishing guide services.


Charter vessel operator, for purposes of § 300.65, means the person in control of the charter vessel during a charter vessel fishing trip.


Chiniak Bay means all waters bounded by the shoreline and straight lines connecting the coordinates in the order listed:


(1) North from Cape Chiniak (57°37.22′ N. lat., 152°9.36′ W. long.);


(2) To Buoy #1 at Williams Reef (57°50.36′ N. lat., 152°8.82′ W. long.);


(3) To East Cape on Spruce Island (57°54.89′ N. lat., 152°19.45′ W. long.);


(4) To Termination Point on Kodiak Island (57°51.31′ N. lat., 152°24.01′ W. long.); and


(5) Connecting to a line running counterclockwise along the shoreline of Kodiak Island to Cape Chiniak (57°37.22′ N. lat., 152°9.36′ W. long.).


Commercial fishing means fishing, the resulting catch of which either is, or is intended to be, sold or bartered but does not include subsistence fishing.


Commission means the International Pacific Halibut Commission.


Commission regulatory area means an area defined by the Commission for purposes of the Convention identified in 50 CFR 300.60 and prescribed in the annual management measures published pursuant to 50 CFR 300.62.


Community charter halibut permit means a permit issued by NMFS to a Community Quota Entity pursuant to § 300.67.


Compensation, for purposes of sport fishing for Pacific halibut in Commission regulatory areas 2C and 3A, means direct or indirect payment, remuneration, or other benefits received in return for services, regardless of the source; for this definition, “benefits” includes wages or other employment benefits given directly or indirectly to an individual or organization, and any dues, payments, fees, or other remuneration given directly or indirectly to a fishing club, business, organization, or individual who provides sport fishing guide services; and does not include reimbursement for the actual daily expenses for fuel, food, or bait.


Crew member, for purposes of §§ 300.65 and 300.67, means an assistant, deckhand, or similar person who works directly under the supervision of, and on the same vessel as, a charter vessel guide or operator of a vessel with one or more charter vessel anglers on board.


Customary trade means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, the non-commercial exchange of subsistence halibut for anything other than items of significant value.


Fishing means the taking, harvesting, or catching of fish, or any activity that can reasonably be expected to result in the taking, harvesting, or catching of fish, including:


(1) The deployment of any amount or component part of setline gear anywhere in the maritime area;


(2) The deployment of longline pot gear as defined in § 679.2 of this title, or component part of that gear in Commission regulatory areas 2C, 3A, 3B, and that portion of Area 4A in the Gulf of Alaska west of Area 3B and east of 170°00′ W. long; or


(3) The deployment of pot gear as defined in § 679.2 of this title in Commission regulatory areas 4B, 4C, 4D, and 4E and the portion of Area 4A in the Bering Sea Aleutian Islands west of 170°00′ W long.


Fishing week, for purposes of § 300.65(d), means a time period that begins at 0001 hours, A.l.t., Monday morning and ends at 2400 hours, A.l.t., the following Sunday night.


Guided Angler Fish (GAF) means halibut transferred within a year from a Commission regulatory area 2C or 3A IFQ permit holder to a GAF permit that is issued to a person holding a charter halibut permit, community charter halibut permit, or military charter halibut permit for the corresponding area.


Guided Angler Fish (GAF) permit means an annual permit issued by the National Marine Fisheries Service pursuant to § 300.65(c)(5)(iii).


Guided Angler Fish (GAF) permit holder means the person identified on a GAF permit.


Halibut harvest means the catching and retaining of any halibut.


Head-on length means a straight line measurement passing over the pectoral fin from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail.


Individual Fishing Quota (IFQ), for purposes of this subpart, means the annual catch limit of halibut that may be harvested by a person who is lawfully allocated a harvest privilege for a specific portion of the annual commercial catch limit of halibut.


IFQ fishing trip, for purposes of the subpart, means the period beginning when a vessel operator commences harvesting IFQ halibut and ending when the vessel operator lands any species.


IFQ halibut means any halibut that is harvested with setline gear as defined in this section or fixed gear as defined in § 679.2 of this title while commercial fishing in any IFQ regulatory area defined in § 679.2 of this title.


Military charter halibut permit means a permit issued by NMFS to a United States Military Morale, Welfare and Recreation Program pursuant to § 300.67.


Overall length of a vessel means the horizontal distance, rounded to the nearest ft/meter, between the foremost part of the stem and the aftermost part of the stern (excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments).


Person includes an individual, corporation, firm, or association.


Power hauling means using electrically, hydraulically, or mechanically powered devices or attachments or other assisting devises or attachments to deploy and retrieve fishing gear. Power hauling does not include the use of hand power, a hand powered crank, a fishing rod, a downrigger, or a hand troll gurdy.


Rural means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, a community of Alaska listed at § 300.65(g)(1) or an area of Alaska described at § 300.65(g)(3) in which the non-commercial, customary, and traditional use of fish and game for personal or family consumption is a principal characteristic of the economy or area and in which there is a long-term, customary, and traditional use of halibut.


Rural resident means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska:


(1) An individual domiciled in a rural community listed in the table at § 300.65(g)(1) and who has maintained a domicile in rural communities listed in the table at § 300.65(g)(1), or in rural areas described at § 300.65(g)(3), for the 12 consecutive months immediately preceding the time when the assertion of residence is made, and who is not claiming residency in another state, territory, or country; or


(2) An individual domiciled in a rural area described at § 300.65(g)(3) and who has maintained a domicile in rural areas described at § 300.65(g)(3), or in rural communities listed in the table at § 300.65(g)(1), for the 12 consecutive months immediately preceding the time when the assertion of residence is made, and who is not claiming residency in another state, territory, or country.


Setline gear means one or more stationary, buoyed, and anchored lines with hooks attached.


Sport fishing means:


(1) In regulatory area 2A, all fishing other than commercial fishing and treaty Indian ceremonial and subsistence fishing; and


(2) In waters in and off Alaska, all fishing other than commercial fishing and subsistence fishing.


Sport fishing guide services, for purposes of §§ 300.65(d) and 300.67, means assistance, for compensation or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip. Sport fishing guide services do not include services provided by a crew member, as defined at § 300.61.


Subarea 2A-1 includes the usual and accustomed fishing areas for Pacific Coast treaty tribes off the coast of Washington and all inland marine waters of Washington north of Point Chehalis (46°53.30′ N lat.), including Puget Sound. Boundaries of a tribe’s fishing area may be revised as ordered by a Federal court.


Subsistence means, with respect to waters in and off Alaska, the non-commercial, long-term, customary and traditional use of halibut.


Subsistence halibut means halibut caught by a rural resident or a member of an Alaska Native tribe for direct personal or family consumption as food, sharing for personal or family consumption as food, or customary trade.


Subsistence halibut registration certificate (SHARC) means documentation, issued by NMFS, of the registration required at § 300.65(i).


Treaty Indian tribes means the Hoh, Jamestown S’Klallam, Lower Elwha S’Klallam, Lummi, Makah, Port Gamble S’Klallam, Quileute, Quinault, Skokomish, Suquamish, Swinomish, Tulalip, and Nooksack tribes.


Valid, with respect to a charter halibut permit for purposes of §§ 300.66 and 300.67, means the charter halibut permit that is currently in effect.


[61 FR 35550, July 5, 1996]



Editorial Note:For Federal Register citations affecting § 300.61, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 300.62 Annual management measures.

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


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

(a) A catch sharing plan (CSP) may be developed by the Pacific Fishery Management Council and approved by NMFS for portions of the fishery. Any approved CSP may be obtained from the Administrator, West Coast Region, NMFS.


(b)(1) Each year, before January 1, NMFS will publish a proposal to govern the recreational fishery under the CSP for the following year and will seek public comment. The comment period will extend until after the Commission’s annual meeting, so the public will have the opportunity to consider the final area 2A total allowable catch (TAC) before submitting comments. After the Commission’s annual meeting and review of public comments, NMFS will publish in the Federal Register the final rule governing sport fishing in area 2A. Annual management measures may be adjusted inseason by NMFS.


(2) A portion of the commercial TAC is allocated as incidental catch in the salmon troll fishery in Area 2A. Each year the landing restrictions necessary to keep the fishery within its allocation will be recommended by the Pacific Fishery Management Council at its spring meetings, and will be published in the Federal Register along with the annual salmon management measures.


(3) A portion of the Area 2A Washington recreational TAC is allocated as incidental catch in the sablefish primary fishery north of 46°53.30′ N lat. (Pt. Chehalis, Washington), which is regulated under 50 CFR 660.231. This fishing opportunity is only available in years in which the Washington recreational TAC is 214, 110 lb (97.1 mt) or greater, provided that a minimum of 10,000 lb (4.5 mt) is available to the sablefish fishery. Each year that this harvest is available, the landing restrictions necessary to keep this fishery within its allocation will be recommended by the Pacific Fishery Management Council at its spring meetings, and will be published in the Federal Register. These restrictions will be designed to ensure the halibut harvest is incidental to the sablefish harvest and will be based on the amounts of halibut and sablefish available to this fishery, and other pertinent factors. The restrictions may include catch or landing ratios, landing limits, or other means to control the rate of halibut landings.


(i) In years when this incidental harvest of halibut in the sablefish primary fishery north of 46°53.30′ N. lat. is allowed, it is allowed only for vessels using longline gear that are registered to groundfish limited entry permits with sablefish endorsements and that possess the appropriate incidental halibut harvest license issued by the Commission.


(ii) It is unlawful for any person to possess, land or purchase halibut south of 46°53.30′ N. lat. that were taken and retained as incidental catch authorized by this section in the sablefish primary fishery.


(4) The commercial longline fishery in area 2A is governed by the annual management measures published pursuant to §§ 300.62 and 300.63.


(5) The treaty Indian fishery is governed by § 300.64 and tribal regulations. The annual quota for the fishery will be announced with the Commission regulations under § 300.62


(c) Flexible Inseason Management Provisions for Sport Halibut Fisheries in Area 2A. (1) The Regional Administrator, NMFS West Coast Region, after consultation with the Chairman of the Pacific Fishery Management Council, the Commission Executive Director, and the Fisheries Director(s) of the affected state(s), or their designees, is authorized to modify regulations during the season after making the following determinations:


(i) The action is necessary to allow allocation objectives to be met.


(ii) The action will not result in exceeding the catch limit for the area.


(iii) If any of the sport fishery subareas north of Cape Falcon, Oregon are not projected to utilize their respective quotas by September 30, NMFS may take inseason action to transfer any projected unused quota to another Washington sport subarea.


(iv) If any of the sport fishery subareas south of Leadbetter Point, Washington, are not projected to utilize their respective quotas by their season ending dates, NMFS may take inseason action to transfer any projected unused quota to another Oregon sport subarea.


(v) Notwithstanding regulations at (c)(1)(i) of this section, if the total estimated yelloweye rockfish bycatch mortality from recreational halibut trips in all Oregon subareas is projected to exceed 22 percent of the annual Oregon recreational yelloweye rockfish harvest guideline, NMFS may take inseason action to reduce yelloweye rockfish bycatch mortality in the halibut fishery while allowing allocation objectives to be met to the extent possible.


(2) Flexible inseason management provisions include, but are not limited to, the following:


(i) Modification of sport fishing periods;


(ii) Modification of sport fishing bag limits;


(iii) Modification of sport fishing size limits;


(iv) Modification of sport fishing days per calendar week;


(v) Modification of subarea quotas; and


(vi) Modification of the Stonewall Bank Yelloweye Rockfish Conservation Area (YRCA) restrictions off Oregon using YRCA expansions as defined in groundfish regulations at 50 CFR 660.70(g) or (h).


(3) Notice procedures. (i) Actions taken under this section will be published in the Federal Register.


(ii) Actual notice of inseason management actions will be provided by a telephone hotline administered by the West Coast Region, NMFS, at 206-526-6667 or 800-662-9825. Since provisions of these regulations may be altered by inseason actions, sport fishers should monitor the telephone hotline for current information for the area in which they are fishing.


(4) Effective dates. (i) Any action issued under this section is effective on the date specified in the publication or at the time that the action is filed for public inspection with the Office of the Federal Register, whichever is later.


(ii) If time allows, NMFS will invite public comment prior to the effective date of any inseason action filed with the Federal Register. If the Regional Administrator determines, for good cause, that an inseason action must be filed without affording a prior opportunity for public comment, public comments will be received for a period of 15 days after publication of the action in the Federal Register.


(iii) Any inseason action issued under this section will remain in effect until the stated expiration date or until rescinded, modified, or superseded. However, no inseason action has any effect beyond the end of the calendar year in which it is issued.


(5) Availability of data. The Regional Administrator will compile, in aggregate form, all data and other information relevant to the action being taken and will make them available for public review during normal office hours at the West Coast Regional Office, NMFS, Sustainable Fisheries Division, 7600 Sand Point Way NE., Seattle, Washington.


(d) Fishery Election in Area 2A. (1) A vessel that fishes in Area 2A may participate in only one of the following three fisheries in Area 2A:


(i) The sport fishery established in the annual domestic management measures and International Pacific Halibut Commission (IPHC) regulations and defined at § 300.61;


(ii) The commercial directed fishery for halibut during the fishing period(s) established in the annual domestic management measures and IPHC regulations and/or the incidental retention of halibut during the sablefish primary fishery described at 50 CFR 660.231; or


(iii) The incidental catch fishery during the salmon troll fishery as authorized in the annual domestic management measures and IPHC regulations.


(2) No person shall fish for halibut in the sport fishery in Area 2A under the annual domestic management measures and IPHC regulations, from a vessel that has been used during the same calendar year for commercial halibut fishing in Area 2A, or that has been issued a permit for the same calendar year for the commercial halibut fishery in Area 2A.


(3) No person shall fish for halibut in the directed commercial halibut fishery during the fishing periods established in the annual domestic management measures and IPHC regulations, and/or retain halibut incidentally taken in the sablefish primary fishery in Area 2A from a vessel that has been used during the same calendar year for the incidental catch fishery during the salmon troll fishery, as authorized in the annual domestic management measures and IPHC regulations.


(4) No person shall fish for halibut in the directed commercial halibut fishery and/or retain halibut incidentally taken in the sablefish primary fishery in Area 2A from a vessel that, during the same calendar year, has been used in the sport halibut fishery in Area 2A or that is licensed for the sport charter halibut fishery in Area 2A.


(5) No person shall retain halibut in the salmon troll fishery in Area 2A as authorized under the annual domestic management measures and IPHC regulations, taken on a vessel that, during the same calendar year, has been used in the sport halibut fishery in Area 2A, or that is licensed for the sport charter halibut fishery in Area 2A.


(6) No person shall retain halibut in the salmon troll fishery in Area 2A as authorized under the annual domestic management measures and IPHC regulations, taken on a vessel that, during the same calendar year, has been used in the directed commercial halibut fishery during the fishing periods established in the annual domestic management measures and IPHC regulations, and/or retained halibut incidentally taken in the sablefish primary fishery for Area 2A or that is licensed to participate in these commercial fisheries during the fishing periods established in the annual domestic management measures and IPHC regulations in Area 2A.


(e) Area 2A Non-Treaty Commercial Fishery Closed Areas. (1) Non-treaty commercial vessels operating in the directed commercial fishery for halibut in Area 2A are required to fish outside of a closed area, known as the Rockfish Conservation Area (RCA), that extends along the coast from the U.S./Canada border south to 40°10′ N. lat. Between the U.S./Canada border and 46°16′ N. lat., the eastern boundary of the RCA, is the shoreline. Between 46°16′ N. lat. and 40°10′ N. lat., the RCA is defined along an eastern boundary by a line approximating the 30-fm (55-m) depth contour. Coordinates for the 30-fm (55-m) boundary are listed at 50 CFR 660.71(e). Between the U.S./Canada border and 40°10′ N. lat., the RCA is defined along a western boundary approximating the 100-fm (183-m) depth contour. Coordinates for the 100-fm (183-m) boundary are listed at 50 CFR 660.73(a).


(2) Non-treaty commercial vessels operating in the incidental catch fishery during the sablefish primary fishery north of Pt. Chehalis, Washington, in Area 2A are required to fish outside of a closed area. Under Pacific Coast groundfish regulations at 50 CFR 660.230, fishing with limited entry fixed gear is prohibited within the North Coast Commercial YRCA. It is unlawful to take and retain, possess, or land halibut taken with limited entry fixed gear within the North Coast Commercial YRCA. The North Coast Commercial YRCA is an area off the northern Washington coast, overlapping the northern part of the North Coast Recreational YRCA, and is defined by straight lines connecting latitude and longitude coordinates. Coordinates for the North Coast Commercial YRCA are specified in groundfish regulations at 50 CFR 660.70(b).


(3) Non-treaty commercial vessels operating in the incidental catch fishery during the salmon troll fishery in Area 2A are required to fish outside of a closed area. Under the Pacific Coast groundfish regulations at 50 CFR 660.330(10), fishing with salmon troll gear is prohibited within the Salmon Troll YRCA. It is unlawful for commercial salmon troll vessels to take and retain, possess or land fish within the Salmon Troll YRCA. The Salmon Troll YRCA is an area off the northern Washington coast and is defined by straight lines connecting latitude and longitude coordinates. Coordinates for the Salmon Troll YRCA are specified in groundfish regulations at 50 CFR 660.70(c), and in salmon regulations at 50 CFR 660.405.


[61 FR 35550, July 5, 1996]


Editorial Note:For Federal Register citations affecting § 300.63, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

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

(a) Halibut fishing in subarea 2A-1 by members of U.S. treaty Indian tribes located in the State of Washington is governed by this section.


(b) Commercial fishing for halibut by treaty Indians is permitted only in subarea 2A-1 with hook-and-line gear in conformance with the season and quota established annually by the Commission.


(c) Commercial fishing periods and management measures to implement paragraph (b) of this section will be established by treaty Indian tribal regulations.


(d) Commercial fishing for halibut by treaty Indians shall comply with the Commission’s management measures governing size limits, careful release of halibut, logs, receipt and possession, and fishing gear (published pursuant to § 300.62), except that the 72-hour fishing restriction preceding the opening of a halibut fishing period shall not apply to treaty Indian fishing.


(e) Ceremonial and subsistence fishing for halibut by treaty Indians in subarea 2A-1 is permitted with hook-and-line gear from January 1 to December 31.


(f) No size or bag limits shall apply to the ceremonial and subsistence fishery, except that when commercial halibut fishing is prohibited pursuant to paragraph (b) of this section, treaty Indians may take and retain not more than two halibut per person per day.


(g) Halibut taken for ceremonial and subsistence purposes shall not be offered for sale or sold.


(h) Any member of a U.S. treaty Indian tribe who is engaged in commercial or ceremonial and subsistence fishing under this section must have on his or her person a valid treaty Indian identification card issued pursuant to 25 CFR part 249, subpart A, and must comply with the treaty Indian vessel and gear identification requirements of Final Decision No. 1 and subsequent orders in United States v. Washington 384 F. Supp. 312 (W.D. Wash., 1974).


(i) Table 1 to this paragraph (i) sets forth the fishing areas of each of the 13 treaty Indian tribes fishing pursuant to this section. Within subarea 2A-1, boundaries of a tribe’s fishing area may be revised as ordered by a Federal court.


Table 1 to Paragraph (i)

Tribe
Boundaries
HOHThe area between 47°54.30′ N lat. (Quillayute River) and 47°21.00′ N lat. (Quinault River) and east of 125°44.00′ W long.
JAMESTOWN S’KLALLAMThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1486, to be places at which the Jamestown S’Klallam Tribe may fish under rights secured by treaties with the United States.
LOWER ELWHA S’KLALLAMThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049 and 1066 and 626 F. Supp. 1443, to be places at which the Lower Elwha S’Klallam Tribe may fish under rights secured by treaties with the United States.
LUMMIThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 360, as modified in Subproceeding No. 89-08 (W.D. Wash., February 13, 1990) (decision and order re: cross-motions for summary judgement), to be places at which the Lummi Tribe may fish under rights secured by treaties with the United States.
MAKAHThe area north of 48°02.25′ N lat. (Norwegian Memorial) and east of 125°44.00′ W long.
NOOKSACKThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 459 F. Supp. 1049, to be places at which the Nooksack Tribe may fish under rights secured by treaties with the United States.
PORT GAMBLE S’KLALLAMThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1442, to be places at which the Port Gamble S’Klallam Tribe may fish under rights secured by treaties with the United States.
QUILEUTEThe area commencing at Cape Alava, located at 48°10′00″ N lat, 124°43′56.9″ W long.; then proceeding west approximately 40 nautical miles at that latitude to a northwestern point located at 48°10′00″ N lat, 125°44′00″ W long.; then proceeding in a southeasterly direction mirroring the coastline at a distance no farther than 40 nautical miles from the mainland Pacific coast shoreline at any line of latitude, to a southwestern point at 47°31′42″ N lat., 125°20′26″ W long.; then proceeding east along that line of latitude to the Pacific coast shoreline at 47°31′42″ N lat., 124°21′9.0″ W long.
QUINAULTThe area commencing at the Pacific coast shoreline near Destruction Island, located at 47°40′06″ N lat., 124°23′51.362″ W long.; then proceeding west approximately 30 nautical miles at that latitude to a northwestern point located at 47°40′06″ N lat., 125°08′30″ W long.; then proceeding in a southeasterly direction mirroring the coastline no farther than 30 nautical miles from the mainland Pacific coast shoreline at any line of latitude, to a southwestern point at 46°53′18″ N lat., 124°53′53″ W long.; then proceeding east along that line of latitude to the Pacific coast shoreline at 46°53′18″ N lat., 124°7′36.6″ W long.
SKOKOMISHThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 377, to be places at which the Skokomish Tribe may fish under rights secured by treaties with the United States.
SUQUAMISHThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Suquamish Tribe may fish under rights secured by treaties with the United States.
SWINOMISHThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Swinomish Tribe may fish under rights secured by treaties with the United States.
TULALIPThose locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1531-1532, to be places at which the Tulalip Tribe may fish under rights secured by treaties with the United States.

[61 FR 35550, July 5, 1996, as amended at 74 FR 11697, Mar. 19, 2009; 76 FR 14319, Mar. 16, 2011; 81 FR 18795, Apr. 1, 2016; 85 FR 25324, May 1, 2020]


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

(a) A catch sharing plan (CSP) may be developed by the North Pacific Fishery Management Council and approved by NMFS for portions of the fishery. Any approved CSP may be obtained from the Administrator, Alaska Region, NMFS.


(b) The catch sharing plan for Commission regulatory area 4 allocates the annual commercial catch limit among Areas 4C, 4D, and 4E and will be adopted by the Commission as annual management measures and published in the Federal Register as required in § 300.62.


(c) Catch sharing plan (CSP) for Commission Regulatory Areas 2C and 3A – (1) General. The catch sharing plan for Commission regulatory areas 2C and 3A:


(i) Allocates the annual combined catch limit for Commission regulatory areas 2C and 3A in order to establish the annual commercial catch limit and the annual guided sport catch limit for the halibut commercial fishing and sport fishing seasons, pursuant to paragraphs (c)(3) and (4) of this section; and


(ii) Authorizes the use of Commission regulatory areas 2C and 3A halibut IFQ as guided angler fish (GAF) for harvest by charter vessel anglers in the corresponding area, pursuant to paragraph (c)(5) of this section.


(iii) Authorizes the use of Commission regulatory areas 2C and 3A RFQ resulting from halibut QS held by the RQE as authorized in part 679 to this title to supplement the annual guided sport catch limit in the corresponding area, pursuant to paragraph (c)(4) of this section.


(2) Implementation. The Commission regulatory areas 2C and 3A CSP annual combined catch limits, annual commercial catch limits, and annual guided sport catch limits are adopted by the Commission as annual management measures and published by NMFS in the Federal Register as required in § 300.62.


(3) Annual commercial catch limits. (i) The Commission regulatory areas 2C and 3A annual commercial catch limits are determined by subtracting wastage from the allocations in Tables 1 and 2 of this subpart E, adopted by the Commission as annual management measures, and published in the Federal Register as required in § 300.62.


(ii) Commercial fishing in Commission regulatory areas 2C and 3A is governed by the Commission’s annual management measures and by regulations at 50 CFR part 679, subparts A, B, D, and E.


(4) Annual guided sport catch limits. (i) The Commission regulatory areas 2C and 3A annual guided sport catch limits are determined by subtracting wastage from, and adding any pounds of RFQ held by an RQE for that area to, the allocations in Tables 3 and 4 of this subpart, adopted by the Commission as annual management measures, and published in the Federal Register as required in § 300.62.


(ii) Sport fishing by charter vessel anglers in Commission regulatory areas 2C and 3A is governed by the Commission’s annual management measures and by regulations at 50 CFR part 300, subparts A and E.


(iii) The amount of QS held by the RQE for Commission regulatory area 2C and 3A as of October 1 each year will be the basis for determining the amount of RFQ pounds that will be added to the annual guided sport catch limit for the corresponding area in the upcoming year.


(5) Guided Angler Fish (GAF). This paragraph (§ 300.65(c)(5)) governs the transfer of Commission regulatory areas 2C and 3A halibut between individual fishing quota (IFQ) and guided angler fish (GAF), the issuance of GAF permits, and GAF use.


(i) General. (A) GAF is derived from halibut IFQ that is transferred from a Commission regulatory area 2C or 3A IFQ permit holder’s account held by a person who also holds quota share (QS), as defined in § 679.2 of this title, to a GAF permit holder’s account for the same regulatory area.


(B) A GAF permit authorizes a charter vessel angler to retain GAF that are caught in the Commission regulatory area specified on a GAF permit:


(1) During the sport halibut fishing season adopted by the Commission as annual management measures and published in the Federal Register as required in § 300.62, and


(2) Subject to the GAF use restrictions at paragraphs (c)(5)(iv)(A) through (K) of this section.


(C) NMFS will return unharvested GAF to the IFQ permit holder’s account from which the GAF were derived on or after fifteen calendar days prior to the closing of the commercial halibut fishing season each year, subject to paragraph (c)(5)(ii) of this section and underage provisions at § 679.40(e) of this title.


(ii) Transfer Between IFQ and GAF – (A) General. A transfer between IFQ and GAF means any transaction in which halibut IFQ passes between an IFQ permit holder and a GAF permit holder as:


(1) A transfer of IFQ to GAF, in which halibut IFQ equivalent pounds, as defined in § 679.2 of this title, are transferred from a Commission regulatory area 2C or 3A IFQ permit account, converted to number(s) of GAF as specified in paragraph (c)(5)(ii)(E) of this section, and assigned to a GAF permit holder’s account in the same management area;


(2) A transfer of GAF to IFQ, in which GAF in number(s) of fish are transferred from a GAF permit holder’s account in Commission regulatory area 2C or 3A, converted to IFQ equivalent pounds as specified in paragraph (c)(5)(ii)(E) of this section, and assigned to the same IFQ permit holder’s account from which the GAF were derived; or


(3) The return of unharvested GAF by NMFS to the IFQ permit holder’s account from which it was derived, on or after 15 calendar days prior to the closing of the commercial halibut fishing season.


(B) Transfer procedure – (1) Application for Transfer Between IFQ and GAF. A transfer between IFQ and GAF requires Regional Administrator review and approval of a complete Application for Transfer Between IFQ and GAF. Both the transferor and the transferee are required to complete and sign the application. Transfers will be conducted via methods approved by NMFS. The Regional Administrator shall provide an Application for Transfer Between IFQ and GAF on the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/ram/default.htm. An Application for Transfer Between IFQ and GAF is not required for the return of unharvested GAF by NMFS to the IFQ permit holder’s account from which it was derived, 15 calendar days prior to the closing of the commercial halibut fishing season for that year.


(2) Application timing. The Regional Administrator will not approve any Application for Transfer Between IFQ and GAF before annual IFQ is issued for each year or after one month prior to the closing of the commercial fishing season for that year. Applications to transfer GAF to IFQ will be accepted from August 1 through August 31 only.


(3) Transfer due to court order, operation of law, or as part of a security agreement. NMFS may approve an Application for Transfer Between IFQ and GAF to return GAF to the IFQ permit holder’s account from which it derived pursuant to a court order, operation of law, or a security agreement.


(4) Notification of decision on application. (i) Persons who submit an Application for Transfer Between IFQ and GAF to the Regional Administrator will receive notification of the Regional Administrator’s decision to approve or disapprove the application for transfer.


(ii) If an Application for Transfer Between IFQ and GAF is disapproved, NMFS will provide the reason(s) in writing by mail, posted on the date of that decision.


(iii) Disapproval of an Application for Transfer Between IFQ and GAF may be appealed pursuant to § 679.43 of this title.


(iv) The Regional Administrator will not approve a transfer between IFQ and GAF on an interim basis if an applicant appeals a disapproval of an Application for Transfer Between IFQ and GAF pursuant to § 679.43 of this title.


(5) IFQ and GAF accounts. (i) Accounts affected by either a Regional Administrator-approved Application for Transfer Between IFQ and GAF or the return of unharvested GAF to IFQ on or after 15 calendar days prior to the closing of the commercial halibut fishing season for that year will be adjusted on the date of approval or return. Applications for Transfer Between IFQ and GAF that are transfers of GAF to IFQ that have been approved by the Regional Administrator will be completed not earlier than September 1. Any necessary permits will be sent with the notification of the Regional Administrator’s decision on the Application for Transfer Between IFQ and GAF.


(ii) Upon approval of an Application for Transfer Between IFQ and GAF for an initial transfer from IFQ to GAF, NMFS will establish a new GAF account for the GAF applicant’s account and issue the resulting new GAF and IFQ permits. If a GAF account already exists from a previous transfer from the same IFQ account in the corresponding management area in that year, NMFS will modify the GAF recipient’s GAF account and the IFQ transferor’s permit account and issue modified GAF and IFQ permits upon approval of an Application for Transfer Between IFQ and GAF.


(iii) On or after 15 calendar days prior to the closing of the commercial halibut fishing season, NMFS will convert unharvested GAF from a GAF permit holder’s account back into IFQ equivalent pounds as specified in paragraph (c)(5)(ii)(E)(2) of this section, and return the resulting IFQ equivalent pounds to the IFQ permit holder’s account from which the GAF were derived, unless prevented by regulations at 15 CFR part 904.


(C) Complete application. Applicants must submit a completed Application for Transfer Between IFQ and GAF to the Regional Administrator as instructed on the application. NMFS will notify applicants with incomplete applications of the specific information necessary to complete the application.


(D) Application for Transfer Between IFQ and GAF approval criteria. An Application for Transfer Between IFQ and GAF will not be approved until the Regional Administrator has determined that:


(1) The person applying to transfer IFQ to GAF or receive IFQ from a transfer of GAF to IFQ:


(i) Possesses at least one unit of halibut quota share (QS), as defined in § 679.2 of this title, in the applicable Commission regulatory area, either Area 2C or Area 3A, for which the transfer of IFQ to GAF is requested;


(ii) Has been issued an annual IFQ Permit, as defined in § 679.4(d)(1) of this title, for the Commission regulatory area corresponding to the person’s QS holding, either Area 2C or Area 3A, resulting from that halibut QS; and


(iii) Has an IFQ permit holder’s account with an IFQ amount equal to or greater than amount of IFQ to be transferred in the Commission regulatory area, either Area 2C or Area 3A, for which the transfer of IFQ to GAF is requested.


(iv) In the applicable Commission regulatory area, either Area 2C or Area 3A, the sum of IFQ halibut equivalent pounds, as defined in § 679.2 of this title, from the transfer of IFQ to GAF and the pounds of RFQ issued to the RQE during a calendar year does not exceed an amount that is greater than the amount derived from: 5,947,740 units of Area 2C QS, or 22,187,161 units of Area 3A QS.


(2) The person applying to receive or transfer GAF possesses a valid charter halibut permit, community charter halibut permit, or military charter halibut permit in the Commission regulatory area (Area 2C or Area 3A) that corresponds to the IFQ permit area from or to which the IFQ will be transferred.


(3) For a transfer of IFQ to GAF:


(i) The transfer between IFQ and GAF must not cause the GAF permit issued to exceed the GAF use limits in paragraphs (c)(5)(iv)(H)(1) and (2) of this section;


(ii) The transfer must not cause the person applying to transfer IFQ to exceed the GAF use limit in paragraph (c)(5)(iv)(H)(3) of this section; and


(iii) There must be no fines, civil penalties, sanctions, or other payments due and owing, or outstanding permit sanctions, resulting from Federal fishery violations involving either person or permit.


(4) If a Community Quota Entity (CQE), as defined in § 679.2 of this title, submits a “Community Quota Entity Application for Transfer Between Individual Fishing Quota (IFQ) and Guided Angler Fish (GAF),” the application will not be approved until the Regional Administrator has determined that:


(i) The CQE applying to transfer IFQ to GAF is eligible to hold IFQ on behalf of the eligible community in Commission regulatory area 2C or 3A designated in Table 21 to 50 CFR part 679;


(ii) The CQE applying to transfer IFQ to GAF has received notification of approval of eligibility to receive IFQ for that community as described in § 679.41(d)(1) of this title;


(iii) The CQE applying to receive GAF from a Commission regulatory area 2C or 3A IFQ permit holder holds one or more charter halibut permits or community charter halibut permits for the corresponding area; and


(iv) The CQE applying to transfer between IFQ and GAF has submitted a complete annual report(s) as required by § 679.5(t) of this title.


(E) Conversion between IFQ and GAF – (1) General. An annual conversion factor will be calculated to convert between net pounds (whole number, no decimal points) of halibut IFQ and number(s) of GAF (whole number, no decimal points) for Area 2C and Area 3A. This conversion factor will be posted on the NMFS Alaska Region Web site before the beginning of each commercial halibut fishing season.


(2) Conversion calculation. The net pounds of IFQ transferred to or from an IFQ permit holder in Commission regulatory area 2C or 3A will be equal to the number(s) of GAF transferred to or from the GAF account of a GAF permit holder in the corresponding area, multiplied by the estimated average net weight determined as follows. For the first calendar year after the effective date of this rule, the average net weight will be estimated for all halibut harvested by charter vessel anglers during the most recent year without a size limit in effect. After the first calendar year after the effective date of this rule, the average net weight will be estimated from the average length of GAF retained in that area during the previous year as reported to RAM via the GAF electronic reporting system. If no GAF were harvested in a year, the conversion factor will be calculated using the same method as for the first calendar year after the effective date of this rule. NMFS will round up to the nearest whole number (no decimals) when transferring IFQ to GAF and when transferring GAF to IFQ. Expressed algebraically, the conversion formula is:


IFQ net pounds = (number of GAF × average net weight).


(3) The total number of net pounds converted from unharvested GAF and transferred to the IFQ permit holder’s account from which it derived cannot exceed the total number of net pounds NMFS transferred from the IFQ permit holder’s account to the GAF permit holder’s account for that area in the current year.


(iii) Guided Angler Fish (GAF) permit – (A) General. (1) A GAF permit authorizes a charter vessel angler to catch and retain GAF in the specified Commission regulatory area, subject to the limits in paragraphs (c)(5)(iv)(A) through (K) of this section, during a charter vessel fishing trip authorized by the charter halibut permit, community charter halibut permit, or military charter halibut permit that is designated on the GAF permit.


(2) A GAF permit authorizes a charter vessel angler to catch and retain GAF in the specified Commission regulatory area from the time of permit issuance until any of the following occurs:


(i) The amount of GAF in the GAF permit holder’s account is zero;


(ii) The permit expires at 11:59 p.m. (Alaska local time) on the day prior to 15 days prior to the end of the commercial halibut fishing season for that year;


(iii) NMFS replaces the GAF permit with a modified GAF permit following NMFS approval of an Application for Transfer Between IFQ and GAF; or


(iv) The GAF permit is revoked or suspended under 15 CFR part 904.


(3) A GAF permit is issued for use in a Commission regulatory area (2C or 3A) to the person who holds a valid charter halibut permit, community charter halibut permit, or military charter halibut permit in the corresponding Commission regulatory area. Regulations governing issuance, transfer, and use of charter halibut permits are located in § 300.67.


(4) A GAF permit is assigned to only one charter halibut permit, community charter halibut permit, or military charter halibut permit held by the GAF permit holder in the corresponding Commission regulatory area (2C or 3A).


(5) If a charter vessel angler harvests GAF from a charter vessel with a charter vessel guide on board, a legible copy of a valid GAF permit and the assigned charter halibut permit, community charter halibut permit, or military charter halibut permit appropriate for the Commission regulatory area (2C or 3A) must be carried by the charter vessel operator on board the charter vessel used to harvest GAF at all times that such fish are retained on board and must be presented for inspection on request of any authorized officer. If a charter vessel angler harvests GAF from a charter vessel without a charter vessel guide on board, the charter vessel guide must retain the legible copy of the GAF permit and the assigned charter halibut permit, community charter halibut permit, or military charter halibut permit must be on the charter vessel with the charter vessel angler.


(6) No person may alter, erase, mutilate, or forge a GAF permit or document issued under this section (§ 300.65(c)(5)(iii)). Any such permit or document that has been intentionally altered, erased, mutilated, or forged is invalid.


(7) GAF permit holders must retain GAF permit(s) and associated GAF permit logs for two years after the end of the fishing year for which the GAF permit(s) was issued and make the GAF permit available for inspection upon the request of an authorized officer (as defined in Commission regulations).


(B) Issuance. The Regional Administrator will issue a GAF permit upon approval of an Applicatio