Interim Exemption for Commercial Fisheries

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 229

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

Interim Exemption for Commercial Fisheries

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to reinstate the regulations

implementing the interim exemption from the general prohibition on

taking marine mammals in the Marine Mammal Protection Act (MMPA) for

certain incidental takings of marine mammals by commercial fishermen

until September 1, 1995, or until superseded by regulations prescribed

under section 118 of the MMPA. This reinstatement is required by

section 114 of the MMPA, as amended by section 15 of the MMPA

Amendments of 1994.

EFFECTIVE DATE: This rule is effective on June 17, 1994 through

September 1, 1995.

ADDRESSES: Office of Protected Resources, National Marine Fisheries

Service, 1335 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Thomas C. Eagle, 301-713-2319 or

Patricia A. Montanio, 301-713-2322.

SUPPLEMENTARY INFORMATION: The 1988 amendments to the MMPA directed the

Secretary of Commerce to implement an interim exemption from the

general prohibition on taking marine mammals in the MMPA for certain

incidental takings by commercial fishermen during the period November

23, 1988, through October 1, 1993, while a permanent regime to govern

interactions between marine mammals and commercial fishing operations

was developed. Congress subsequently extended the interim exemption

until May 1, 1994. For background on this issue, refer to earlier

regulatory actions (56 FR 23958, May 24, 1991; 57 FR 59832, December

16, 1992; 58 FR 51788, October 5, 1993; and 59 FR 17048, April 11,

1994).

The MMPA Amendments of 1994, Public Law 103-238, among other

things, amended the MMPA by adding a new section 118 to establish a

permanent regime to govern interactions between marine mammals and

commercial fishing operations. Section 15 of the MMPA Amendments of

1994 amended section 114(a) of the MMPA to extend the interim exemption

through September 1, 1995, or until superseded by regulations

prescribed under new section 118 implementing the new regime, whichever

is earlier.

Due to an administrative delay, 50 CFR part 229, the regulations

implementing the interim exemption, expired on May 1, 1994, and now

must be reissued. This final rule reinstates those regulations until

September 1, 1995, unless they are superseded earlier by regulations

implementing new section 118. The reissued regulations are identical to

those that expired except for changes in the addresses of the Southwest

and Southeast Regions, NMFS. This reinstatement is required by section

114 of the MMPA, as amended by section 15 of the MMPA Amendments of

1994. This rule also amends a note in 50 CFR part 216 to conform to a

cross reference from part 50 CFR part 229.

Classification

This rule is not significant for purposes of E.O. 12866. Under

section 114 of the MMPA, as amended by Public Law 103-238, the interim

extension was extended until September 1, 1995, or until superseded by

regulations prescribed under new section 118, whichever is earlier.

This rule merely reinstates the regulations which, through

administrative delay, were allowed to lapse. The lapsed regulations

were subject to full notice and opportunity-for-public-comment

procedures and no useful purpose would be served by delaying their

reinstatement to provide notice and opportunity for public comment.

Full notice and opportunity for public comments will be provided for

the section 118 regulations presently being developed. Further, to

delay reinstatement of the interim exemption regulations would be

inconsistent with section 114 whose clear intent was to have the

exemption and its implementing regulations continue to avoid any

disruption to our commercial fisheries. Accordingly, the Assistant

Administrator for Fisheries, under section 553(b)(B) of the

Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), finds, for good

cause, that providing notice and opportunity for public comment is

unnecessary and would be contrary to the public interest. Because

reinstatement of the regulations relieves a restriction of commercial

fisheries, under section 553(d)(1) of the APA, 5 U.S.C. 553(d)(1), this

rule is not subject to a 30-day delay in effective date.

List of Subjects

50 CFR Part 216

Administrative practice and procedure, Imports, Indians, Marine

mammals, Penalties, Reporting and recordkeeping requirements,

Transportation.

50 CFR Part 229

Administrative practice and procedure, Confidential business

information, Fisheries, Marine mammals, Reporting and recordkeeping

requirements.

Dated: June 7, 1994.

Charles Karnella,

Acting Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 216 and 229

are amended as follows:

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

MAMMALS

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

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

Sec. 216.24 [Amended]

2. Section 216.24 is amended in the note by revising the phrase

``November 23, 1988, through October 1, 1993.'' to read ``June 17, 1994

through September 1, 1995.''

3. Part 229 is added to read as follows:

Subpart A--General Provisions

Sec.

229.1 Purpose and scope.

229.2 Definitions.

229.3 Criteria for categorizing fisheries.

229.4 Prohibitions.

229.5 Registrations for Category I and II fisheries.

229.6 Issuance of Exemption Certificates.

229.7 Requirements for Category III fisheries.

229.8 Emergency and special regulations.

229.9 Penalties.

229.10 Confidential fisheries data.

Subpart B--Emergency and Special Regulations [Reserved]

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

Subpart A--General Provisions

Sec. 229.1 Purpose and scope.

(a) The regulations in this part implement section 114 of the

Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1384,

Public Law 100-711, which provides for a 5-year exemption from the

Act's prohibition on the taking of marine mammals incidental to certain

commercial fishing operations.

(b) The provisions of section 114 of the Marine Mammal Protection

Act of 1972, rather than sections 101, 103 and 104, will govern the

incidental taking of marine mammals in the course of commercial fishing

operations by persons using vessels of the United States, other than

vessels used in the eastern tropical Pacific tuna purse seine fishery,

and vessels which have valid fishing permits issued in accordance with

section 204(b) of the Magnuson Fishery Conservation and Management Act

(16 U.S.C. 1824(b)) for the period from November 23, 1988, through

September 1, 1995, or until superseded by regulations prescribed under

section 118, whichever is earlier. Therefore, the regulations in this

part supersede until September 1, 1995, or until superseded by

regulations prescribed under section 118, whichever is earlier, the

other provisions for granting incidental take authority to these

commercial fishermen, including regulations at Sec. 216.24 of this

chapter and guidelines on the taking of small numbers of marine mammals

incidental to commercial fishing operations. (See Sec. 216.24 of this

chapter).

Sec. 229.2 Definitions.

In addition to the definitions contained in the Act and unless the

context otherwise requires, in this part 229:

(a) Act means the Marine Mammal Protection Act of 1972, as amended

(16 U.S.C. 1361 et seq.).

(b) Assistant Administrator means the Assistant Administrator for

Fisheries, National Marine Fisheries Service, National Oceanic and

Atmospheric Administration, or authorized representative.

(c) Category I fishery means a commercial fishery determined by the

Assistant Administrator to have a frequent incidental taking of marine

mammals and identified as such in the List of Fisheries.

(d) Category II fishery means a commercial fishery determined by

the Assistant Administrator to have an occasional incidental taking of

marine mammals and identified as such in the List of Fisheries.

(e) Category III fishery means a commercial fishery determined by

the Assistant Administrator to have a remote likelihood of, or no known

incidental taking of, marine mammals and identified as such in the List

of Fisheries. Eligible commercial fisheries not specifically identified

as Category I or II fisheries are deemed to be Category III fisheries.

(f) Certificate or Exemption Certificate means a document issued by

the Assistant Administrator under the authority of section 114 of the

Act that authorizes the incidental taking of marine mammals and that

specifies the terms and conditions of the authorized incidental taking,

including any document that modifies the Exemption Certificate.

(g) Commercial fishing operation means the catching, taking or

harvesting of fish from the marine environment (or other areas where

marine mammals occur) as part of an ongoing for-profit business

enterprise. The term includes licensed commercial passenger fishing

vessel (as defined in Sec. 216.3 of this chapter) activities.

(h) Depleted species means any species or population which has been

determined to be depleted under the Act and is listed in Sec. 216.15 of

this chapter or part 18, subpart E of this title or any endangered or

threatened species of marine mammal.

(i) Endangered or threatened species means any species, subspecies

or population that has been listed under section 4 of the Endangered

Species Act of 1973. A list of endangered and threatened species is

found in Secs. 17.11 through 17.12 of this title.

(j)(1) Fishing vessel or ``vessel'' means any vessel, boat, ship,

or other craft which is used for, equipped to be used for, or of a type

which is normally used for:

(i) Fishing; or

(ii) Aiding or assisting one or more vessels at sea in the

performance of any activity relating to fishing, including, but not

limited to, preparation, supply, storage, refrigeration,

transportation, or processing.

(2) Fishing vessel or vessel refers only to vessels of the United

States, other than vessels used in the eastern tropical Pacific

yellowfin tuna purse seine fishery, and vessels which have valid

fishing permits issued in accordance with section 204(b) of the

Magnuson Fishery Conservation and Management Act.

(k) Incidental take means the accidental or intentional taking of a

marine mammal in the course of commercial fishing operations.

(l) List of Fisheries means the most recent final list of

commercial fisheries published in the Federal Register by the Assistant

Administrator, categorized according to the frequency of incidental

taking of marine mammals, in accordance with the criteria in Sec. 229.3

of this chapter.

(m) Marine mammal means any mammal which:

(1) Is morphologically adapted to the marine environment, including

sea otters and members of the orders Cetacea (whales and dolphins),

Sirenia (dugongs and manatees) and suborder Pinnipedia (seals, sea

lions and walrus); or

(2) Primarily inhabits the marine environment (such as the polar

bear).

(n) Non-vessel fishery means a commercial fishing operation that

uses fixed or other gear without a vessel, such as gear used in set

gillnet, trap, beach seine, weir, ranch and pen fisheries.

(o) Observer means a qualified individual designated by the

National Marine Fisheries Service to record the incidence of marine

mammal interaction and other scientific data during commercial fishing

activities.

(p) Vessel owner means the owner of:

(1) A fishing vessel which is engaged in a commercial fishing

operation; or

(2) Fixed or other commercial fishing gear that is used in a non-

vessel fishery.

Sec. 229.3 Criteria for categorizing fisheries.

(a) Publication. (1) The Assistant Administrator will publish in

the Federal Register notice of a proposed revised List of Fisheries on

or about July 1, 1990, 1991 and 1992, for the purpose of receiving

public comment. On or about October 1, 1990, 1991, and 1992, the

Assistant Administrator will publish a final revised List of Fisheries

which will become effective January 1 of the next calendar year.

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

(i) Categorize each commercial fishery according to the criteria

set forth in paragraph (b) of this section; and

(ii) List the marine mammals and the estimated number of vessels or

persons involved in each commercial fishery.

(3) The Assistant Administrator may publish a revised List of

Fisheries at other times, after notice and opportunity for public

comment. The revised final List of Fisheries will become effective no

sooner than 30 days after publication in the Federal Register.

(b) Categories. The List of Fisheries will be revised and

commercial fisheries will be categorized into Category I, Category II

or Category III according to the following criteria. In evaluating

incidental takes for purposes of categorizing fisheries, the Assistant

Administrator will consider the definition of take in section 3 of the

Act, the language of section 114 of the Act and the legislative history

of the 1988 amendments.

(1) Category I. (i)(A) There is documented information indicating a

``frequent'' incidental taking of marine mammals in the fishery; or

(B) Congress intended that the fishery should be placed in Category

I and there is no documented information indicating that it should be

placed in another Category.

(ii) ``Frequent'' means that it is highly likely that more than one

marine mammal will be incidentally taken by a randomly selected vessel

in the fishery during a 20-day period.

(2) Category II. (i)(A) There is documented information indicating

an ``occasional'' incidental taking of marine mammals in the fishery;

or

(B) In the absence of information indicating the frequency of

incidental taking of marine mammals, other factors such as fishing

techniques, gear used, methods used to deter marine mammals, target

species, seasons and areas fished, and species and distribution of

marine mammals in the area suggest there is a likelihood of at least an

``occasional'' incidental taking in the fishery.

(ii) ``Occasional'' means that there is some likelihood that one

marine mammal will be incidentally taken by a randomly selected vessel

in the fishery during a 20-day period, but that there is little

likelihood that more than one marine mammal will be incidentally taken.

(3) Category III. (i)(A) There is information indicating no more

than a ``remote likelihood'' of an incidental taking of a marine mammal

in the fishery;

(B) In the absence of information indicating the frequency of

incidental taking of marine mammals, other factors such as fishing

techniques, gear used, methods used to deter marine mammals, target

species, seasons and areas fished, and species and distribution of

marine mammals in the area suggest there is no more than a remote

likelihood of an incidental take in the fishery; or

(C) Congress intended that the fishery should be placed in Category

III and there is not documented information indicating that it should

be placed in another Category.

(ii) ``Remote likelihood'' means that it is highly unlikely that

any marine mammal will be incidentally taken by a randomly selected

vessel in the fishery during a 20-day period.

Sec. 229.4 Prohibitions.

(a) Prohibited activities. (1) It is unlawful for a commercial

fishing vessel, a vessel owner, or a master or operator of a vessel to

engage in a Category I or II fishery unless the vessel owner or

authorized representative has complied with the requirements pertaining

to registration, Exemption Certificates, decals and reports as

contained in this part 229.

(2) It is unlawful to assault, harm, oppose, impede, intimidate,

impair or in any way interfere with an observer or the observations

being carried out.

(b) Prohibited taking. (1) Except as otherwise provided in part 17

of this title, part 216 of this chapter or this part 229, it is

unlawful to take any marine mammal incidental to commercial fishing

operations.

(2) Under this part 229, it is unlawful to:

(i)(A) Take any southern (California) sea otter; or

(B) Intentionally lethally take any Steller sea lion, any Alaskan

sea otter, any cetacean, any depleted species (including the Pribilof

Island population of North Pacific fur seal), or any endangered or

threatened marine mammal.

(ii) If the use of firearms or other means to deter marine mammals

results in an injury or mortality of a marine mammal, the taking is

presumed to be an intentional lethal taking.

(3) Exemptions under this part 229 apply only to prohibitions under

the Marine Mammal Protection Act and do not apply to prohibitions under

the Endangered Species Act of 1973. To be exempt from the taking

prohibitions under the Endangered Species Act, specific authority under

that Act is required.

(c) Other prohibitions. It is unlawful to violate any other

provision of these regulations or the terms and conditions of Exemption

Certificates.

Sec. 229.5 Registrations for Category I and II fisheries.

(a) Registrations. To engage lawfully in a Category I or II fishery

after July 21, 1989, the vessel owner or authorized representative of

the vessel owner must register for and receive an Exemption Certificate

or annual renewal. Registrations should be submitted at least 30 days

prior to the vessel engaging in a Category I or II fishery. The

following information is required to register:

(1) Name, address, and phone number of vessel owner;

(2) Name and address of operator, if different from owner;

(3) Vessel name, length and home port; state commercial vessel

license number, Coast Guard documentation number, state registration

number, and/or Tribal plaque number, where appropriate;

(4) A list of all Category I and II fisheries that the vessel is

expected to participate in during the calendar year (or during 1989 and

1990, if the registration is made during 1989), and the estimated

number of trips from port for each fishery; and

(5) A certification, signed and dated by the vessel owner or

authorized representative, as follows: ``I hereby certify under penalty

of perjury that I am the owner of the vessel or that I am authorized to

register for this exemption on behalf of the owner, that I have

reviewed all information contained on this document, and that it is

true and complete to the best of my knowledge.''

(b) Fee. A check or money order made payable to NOAA, National

Marine Fisheries Service, in the amount of $30.00 must accompany each

registration or renewal. For good cause, the Assistant Administrator

may waive the fee requirement.

(c) Address. Registrations and requests for registration forms

should be sent to the Director, Office of Protected Resources, National

Marine Fisheries Service, National Oceanic and Atmospheric

Administration, 1335 East West Highway, Silver Spring, MD 20910;

telephone: 301-713-2319; or one of the following Regional Offices:

(1) Director, Alaska Region, National Marine Fisheries Service,

P.O. Box 21668, 709 West 9th Street, Juneau, AK 99802; telephone: 907-

586-7233;

(2) Director, Northwest Region, National Marine Fisheries Service,

7600 Sand Point Way NE., Seattle, WA 98115-0070; telephone: 206-526-

6110;

(3) Director, Southwest Region, National Marine Fisheries Service,

501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; telephone:

310-980-4001;

(4) Director, Northeast Region, National Marine Fisheries Service,

1 Blackburn Drive, Gloucester, MA 01930; telephone: 508-281-9328; or

(5) Director, Southeast Region, National Marine Fisheries Service,

9721 Executive Center Drive, St. Petersburg, FL 33702; telephone: 813-

893-3141.

Sec. 229.6 Issuance of Exemption Certificates.

(a) Criteria. After receipt of a completed initial registration and

required fee, an Exemption Certificate and decal will be issued to the

vessel owner. If the Certificate and decal are issued in 1989, a 1990

annual sticker for the decal will be automatically issued upon receipt

of required report(s) for 1989. The Exemption Certificate will be

renewed and an annual sticker issued after receipt of an updated

registration, required fee and required report(s) covering all

registered Category I and II fisheries. An interim report should be

submitted with the renewal request if fishing under the current

Exemption Certificate will not be completed by December 31.

(b) Possession of Certificates and decals. (1) The decal and, after

1989, a current annual sticker must be attached to the vessel port side

on the cabin or, in the absence of a cabin, port side forward on the

hull, and must be free of obstruction and in good condition. A decal is

not required for non-vessel fisheries.

(2) The Exemption Certificate or valid copy must be on board the

vessel while it is operating in a Category I or II fishery, or, in the

case of non-vessel fisheries, the Certificate or valid copy must be in

the possession of the person in charge of the fishing operation. The

Certificate or valid copy must be made available upon request to any

state or Federal enforcement agent authorized to enforce the Act or to

any designated agent of the National Marine Fisheries Service.

(c) Terms and conditions. (1) Certificates will expire at the end

of the calendar year, except that Certificates issued in 1989 will

expire at the end of 1990. After 1989, a current annual sticker is

required for a decal to be valid.

(2) Reports. (i) All Exemption Certificate holders must ensure that

a daily log of fishing effort and incidental takes of marine mammals is

accurately maintained on board the fishing vessel in such form as

prescribed by the Assistant Administrator for Fisheries. Fishermen must

complete an entry on the report/log form each day they fish. Marine

mammal report/log forms require information on: The fishery, fishing

effort, gear type and fish species involved; the marine mammal species

(or description of the animal(s), if species is not known), number,

date, and location of marine mammal incidental takes; type of

interaction and any injury to the marine mammal; a description of any

intentional takes (i.e., efforts to deter animals to protect gear,

catch, or human life by non-lethal or lethal means); and any loss of

fish or gear caused by marine mammals. With prior approval by the

Assistant Administrator for Fisheries, National Marine Fisheries

Service, alternate report/log forms, such as forms issued by individual

states, Fishery Management Councils, or Indian Governments, which

collect the same information required by the National Marine Fisheries

Service, are acceptable.

(ii) A current report/log must be kept on board and must be made

available for inspection upon request by any state or Federal

enforcement agent authorized to enforce the Act or any designated agent

of the National Marine Fisheries Service.

(iii) An annual report, consisting of a copy of the required log,

must be submitted to the National Marine Fisheries Service no later

than December 31 of each year covering all Categories I and II

fisheries for which the Exemption Certificate holder is registered.

This log shall include information for all Categories I and II

fisheries for which each Exemption Certificate holder is registered,

whether or not any marine mammals were taken. If a fishing vessel was

not used in a Category I or Category II fishery during an exemption

period for which it was registered, a report to that effect must be

submitted.

(3) Observer requirements. (i) If requested by the National Marine

Fisheries Service, a Certificate holder engaged in a Category I fishery

must take on board an observer to accompany the vessel on any or all

fishing trips in a fishing season.

(ii) After being notified by the National Marine Fisheries Service

that the vessel is required to carry an observer, the Certificate

holder must comply with the notification by providing the specified

information within the specified time on scheduled or anticipated

fishing trips to facilitate observer placement.

(iii) The National Marine Fisheries Service may waive the observer

requirement based on a finding that the facilities for housing the

observer or for carrying out observer functions are so inadequate or

unsafe that the health or safety of the observer or the safe operation

of the vessel would be jeopardized.

(iv) The Certificate holder, master and crew must cooperate with

the observer in the performance of the observer's duties including:

(A) Providing adequate accommodations;

(B) Allowing for the embarking and debarking of the observer as

specified by the National Marine Fisheries Service. The operator of a

vessel must ensure that transfers of observers at sea are accomplished

in a safe manner, via small boat or raft, during daylight hours as

weather and sea conditions allow, and with the agreement of the

observer involved;

(C) Allowing the observer access to all areas of the vessel

necessary to conduct observer duties;

(D) Allowing the observer access to communications equipment and

navigation equipment as necessary to perform observer duties;

(E) Providing true vessel locations by latitude and longitude or

loran coordinates, upon request by the observer;

(F) Providing marine mammal specimens, as requested;

(G) Notifying the observer in a timely fashion of when commercial

fishing operations are to begin and end; and

(H) Complying with other guidelines, regulations or conditions in

Certificates that the National Marine Fisheries Service may develop to

ensure the effective deployment and use of observers.

(v) Marine mammals killed during fishing operations which are

readily accessible to crew members must be brought aboard the vessel

for biological processing, if feasible and if requested by the

observer. Marine mammals designated as biological specimens by the

observer must be retained in cold storage aboard the vessel, if

feasible, until retrieved by authorized personnel of the National

Marine Fisheries Service.

(vi) Observers may not bring a civil action against the vessel or

vessel owner under any law of the United States for any illness,

disability, injury or death from service as an observer, except in

cases of the vessel owner's willful misconduct or if the observer is

engaged by the owner, master or individual in charge of a vessel to

perform any duties in service to the vessel.

(vii) The National Marine Fisheries Service will provide for the

payment of all reasonable costs directly related to housing and

maintaining observers on board vessels and related to maintaining

biological specimens as requested by the observer or required in

Exemption Certificates.

(4) Any marine mammal incidentally taken must be immediately

returned to the sea with a minimum of further injury and may be

retained only if authorized by an observer, by a condition of the

Exemption Certificate, or by a scientific research permit that is in

the possession of the operator.

(5) A Certificate holder or a crew member may intentionally take

marine mammals to protect catch, gear or person during the course of

the commercial fishing operation by a means and in a manner not

expected to cause death or injury to a marine mammal.

(6) If the infliction of the damage to catch, gear or person is

substantial and immediate and only after all non-injurious means

authorized by paragraph (c)(5) of this section have been taken, a

Certificate holder or crew member may intentionally injure or kill a

marine mammal to protect gear, catch or person; except that it is

prohibited for a Certificate holder or crew member to intentionally

lethally take any Steller sea lion, any Alaskan sea otter, any

cetacean, any depleted species (including the Pribilof Island

population of North Pacific fur seal), or any endangered or threatened

marine mammal.

(7) No fishing gear, in whole or in part, may be willfully

discarded.

(8) A Certificate holder must notify the Assistant Administrator in

writing:

(i) If the vessel will engage in any Category I or II fishery not

listed on the registration at least 30 days prior to engaging in that

fishery; and

(ii) Of any changes in mailing address or vessel ownership within

30 days of such change.

(9) Certificates and decals are not transferable. In the event of

the sale or change in ownership of the vessel, the Certificate is void

and the new owner must register for an Exemption Certificate and decal.

(10) The Assistant Administrator may establish other terms and

conditions on Exemption Certificates, including terms and conditions

for specific fisheries necessary to minimize adverse impacts to a

marine mammal population in accordance with the procedures in

Sec. 229.8(b) of this chapter or to comply with the Endangered Species

Act of 1973.

(d) Suspension, revocation or denial of Certificates. (1)(i) The

Assistant Administrator may suspend or revoke an Exemption Certificate

or deny a Certificate renewal in accordance with the provisions in 15

CFR part 904 if the Certificate holder:

(A) Fails to submit reports as required;

(B) Fails to take on board an observer in a Category I fishery, if

requested by the National Marine Fisheries Service; or

(C) Fails to comply with other terms and conditions, including

special conditions, of the Exemption Certificate or with these

regulations.

(ii) Except that the suspension, revocation or denial specified in

paragraph (d)(1)(i) of this section may be without prior notice or

opportunity for hearing.

(2) A suspended Certificate may be reinstated at any time at the

discretion of the Assistant Administrator.

Sec. 229.7 Requirements for Category III fisheries.

(a) Vessel owners engaged only in Category III fisheries are not

required to register for or receive an Exemption Certificate. Vessel

owners and crew members of such vessels may incidentally take marine

mammals subject to these provisions.

(b) Vessel owners must report all lethal incidental takes of marine

mammals by contacting the nearest National Marine Fisheries Service

office, in person, by phone, or by letter, within 10 days of return

from the fishing trip during which the incidental take occurred. The

report must include information on: The fishery, fishing effort, gear

type and fish species involved; the marine mammal species (or

description of the animal(s), if species is not known), number, date,

and location of all lethal incidental takes of marine mammals; a

description of any incidental lethal takes (i.e., efforts to deter

animals to protect gear, catch, or human life); and any loss of fish or

gear caused by marine mammals.

(c) Any marine mammal incidentally taken must be immediately

returned to the sea with a minimum of further injury and may be

retained only if authorized by an observer, by the Assistant

Administrator, or by a scientific research permit that is in the

possession of the operator.

(d) Vessel owners and crew members may intentionally take marine

mammals to protect catch, gear or person during the course of

commercial fishing operations, by a means and in a manner not expected

to cause death or injury to a marine mammal.

(e) If the infliction of the damage to gear, catch or person is

substantial and immediate and only after all non-injurious methods

authorized by paragraph (d) of this section have been taken, a vessel

owner or crew member may intentionally injure or kill a marine mammal

to protect gear, catch or person; except that it is prohibited for a

vessel owner or crew member to intentionally lethally take any Steller

sea lion, any Alaskan sea otter, any cetacean, any depleted species

(including the Pribilof Island population of North Pacific fur seal),

or any endangered or threatened marine mammal.

(f) The willful discard of any fishing gear, in whole or in part,

is prohibited.

Sec. 229.8 Emergency and special regulations.

(a) Emergency regulations. If the Assistant Administrator finds

that the incidental taking of marine mammals in a fishery is having an

immediate and significant adverse impact on a marine mammal population,

or in the case of Steller sea lions and North Pacific fur seals, that

more than 1,350 and 50, respectively, will be incidentally killed

during a calendar year in all fisheries combined, the Assistant

Administrator will issue emergency regulations to prevent, to the

maximum extent practicable, any further taking. Any such regulations:

(1) Will be issued only after consultation with Regional Fishery

Management Councils, state fishery agencies and treaty Indian tribal

governments, where appropriate, and will, to the maximum extent

practicable, avoid interfering with existing Regional, state or tribal

fishery management plans;

(2) Will take into account the economics of the fishery and the

availability of existing technology to minimize incidental taking to

the extent that elimination of the adverse effects on the marine mammal

population will allow;

(3) May take effect immediately upon publication in the Federal

Register and will remain in effect for no more than 180 days or until

the end of the fishing season, whichever is earlier; and

(4) Will be terminated by notice in the Federal Register at an

earlier date if the Assistant Administrator determines that the reasons

for the emergency regulations no longer exist.

(b) Special regulations or conditions. (1) If the Assistant

Administrator finds that the incidental taking of marine mammals in a

fishery is not having an immediate and significant adverse impact on a

marine mammal population, but that it will likely have a significant

adverse impact over a period of time longer than one year, the

Assistant Administrator will request Regional Fishery Management

Councils, state fisheries agencies or treaty Indian tribal governments,

where appropriate, to initiate or take action to minimize such impact.

(2) If the Councils, states or tribes do not take appropriate

action in a reasonable period of time, the Assistant Administrator will

issue special regulations or impose special conditions on Exemption

Certificates to mitigate the adverse impacts.

(3) Any such regulations or conditions will be issued only if,

after notice and opportunity for public comment, the Assistant

Administrator determines such action is necessary to further the

purposes of section 114 of the MMPA.

Sec. 229.9 Penalties.

(a) Except as otherwise provided, all violations of these

regulations are subject to NOAA's civil procedures contained in 15 CFR

part 904.

(b) Notwithstanding any other provision in these or other NOAA

regulations, a person or vessel will not be subject to penalties for

unknowing violations based on failure to register occurring before

January 1, 1990. An unknowing violation is one where the violator can

establish that he or she has not received actual prior notice of the

registration requirements and has not had the opportunity to receive

actual notice. Actual notice is presumed where a person has received a

MMPA Exemption Registration form or any other publication published by

National Marine Fisheries Service for the purpose of informing the

public of the registration requirements contained in these regulations.

Sec. 229.10 Confidential fisheries data.

(a) Proprietary or confidential information includes information,

the unauthorized disclosure of which could be prejudicial or harmful,

such as information or data that are identifiable with an individual

fisherman. Proprietary or confidential information obtained under this

part 229 must not be disclosed except:

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

information;

(2) To state employees under an agreement with the Assistant

Administrator that prevents public disclosure of the identity or

business of any person;

(3) When required by court order; or

(4) In the case of scientific information involving fisheries, to

employees of Regional Fishery Management Councils who are responsible

for fishery management plan development and monitoring.

(b) Information will be made public in aggregate, summary, or other

such form that does not disclose the identity or business of any person

in accordance with NOAA Directive 88-30. Aggregate or summary form

means data or information submitted by three or more persons that have

been summed or assembled in such a way that the summation or assembly

does not reveal the identity or business of any person.

Subpart B--Emergency and Special Regulations [Reserved]

[FR Doc. 94-14248 Filed 6-16-94; 8:45 am]

BILLING CODE 3510-22-P