APPENDIX 10:

 

Genral Permit Conditions

50 CFR Part 13 (FWS)

50 CFR Part 217, 220, 222 (NMFS)
40

§ 12.42 50 CFR Ch. I (10–1–98 Edition)

(g) If the Solicitor decides that relief

should not be granted, the Solicitor

shall so notify the petitioner in writing, stating in the notification the reasons for denying relief. The petitioner

may then file a supplemental petition,

but no supplemental petition shall be

considered unless it is received within

60 days from the date of the Solicitor’s

notification denying the original petition.

[45 FR 17864, Mar. 19, 1980, as amended at 47

FR 56861, Dec. 21, 1982]

§ 12.42 Recovery of certain storage

costs.

If any wildlife, plant, or evidentiary

item is seized and forfeited under the

Endangered Species Act, 16 U.S.C. 1531

et seq., any person whose act or omission was the basis for the seizure may

be charged a reasonable fee for expenses to the United States connected

with the transfer, board, handling, or

storage of such property. If any fish,

wildlife or plant is seized in connection

with a violation of the Lacey Act

Amendments of 1981, 16 U.S.C. 3371, et

seq., any person convicted thereof, or

assessed a civil penalty therefor, may

be assessed a reasonable fee for expenses of the United States connected

with the storage, care and maintenance

of such property. Within a reasonable

time after forfeiture, the Service shall

send to such person by registered or

certified mail, return receipt requested, a bill for such fee. The bill

shall contain an itemized statement of

the applicable costs, together with instructions on the time and manner of

payment. Payment shall be made in accordance with the bill. The recipient of

any assessment of costs under this section who has an objection to the reasonableness of the costs described in

the bill may, within 30 days of the date

on which he received the bill, file written objections with the Regional Director of the Fish and Wildlife Service for

the Region in which the seizure occurred. Upon receipt of the written objections, the appropriate Regional Director will promptly review them and

within 30 days mail his final decision

to the party who filed objections. In all

cases, the Regional Director’s decision

shall constitute final administrative

action on the matter.

[47 FR 56861, Dec. 21, 1982]

Subpart F—Return of Property

§ 12.51 Return procedure.

If, at the conclusion of the appropriate proceedings, seized property is

to be returned to the owner or consignee, the Solicitor or Service shall

issue a letter or other document authorizing its return. This letter or

other document shall be delivered personally or sent by registered or certified mail, return receipt requested,

and shall identify the owner or consignee, the seized property, and, if appropriate, the bailee of the seized property. It shall also provide that upon

presentation of the letter or other document and proper identification, and

the signing of a receipt provided by the

Service, the seized property is authorized to be released, provided it is properly marked in accordance with applicable State or Federal requirements.

PART 13—GENERAL PERMIT

PROCEDURES

Subpart A—Introduction

Sec.

13.1 General.

13.2 Purpose of regulations.

13.3 Scope of regulations.

13.4 Emergency variation from requirements.

13.5 Information collection requirements.

Subpart B—Application for Permits

13.11 Application procedures.

13.12 General information requirements on

applications for permits.

Subpart C—Permit Administration

13.21 Issuance of permits.

13.22 Renewal of permits.

13.23 Amendment of permits.

13.24 Right of succession by certain persons.

13.25 Permits not transferable; agents.

13.26 Discontinuance of permit activity.

13.27 Permit suspension.

13.28 Permit revocation.

13.29 Review procedures.

Subpart D—Conditions

13.41 Humane conditions.

13.42 Permits are specific.
41

U.S. Fish and Wildlife Serv., Interior § 13.5

13.43 Alteration of permits.

13.44 Display of permit.

13.45 Filing of reports.

13.46 Maintenance of records.

13.47 Inspection requirement.

13.48 Compliance with conditions of permit.

13.49 Surrender of permit.

13.50 Acceptance of liability.

AUTHORITY: 16 U.S.C. 668a, 704, 712, 742j–1,

1382, 1538(d), 1539, 1540(f), 3374, 4901–4916; 18

U.S.C. 42; 19 U.S.C. 1202; E.O. 11911, 41 FR

15683; 31 U.S.C. 9701.

SOURCE: 39 FR 1161, Jan. 4, 1974, unless otherwise noted.

Subpart A—Introduction

§ 13.1 General.

Each person intending to engage in

an activity for which a permit is required by this subchapter B shall, before commencing such activity, obtain

a valid permit authorizing such activity. Each person who desires to obtain

the permit privileges authorized by

this subchapter must make application

for such permit in accordance with the

requirements of this part 13 and the

other regulations in this subchapter

which set forth the additional requirements for the specific permits desired.

If the activity for which permission is

sought is covered by the requirements

of more than one part of this subchapter, the requirements of each part

must be met. If the information required for each specific permitted activity is included, one application will

be accepted for all permits required,

and a single permit will be issued.

§ 13.2 Purpose of regulations.

The regulations contained in this

part provide uniform rules, conditions,

and procedures for the application for

and the issuance, denial, suspension,

revocation, and general administration

of all permits issued pursuant to this

subchapter B.

[54 FR 38147, Sept. 14, 1989]

§ 13.3 Scope of regulations.

The provisions in this part are in addition to, and are not in lieu of, other

permit regulations of this subchapter

and apply to all permits issued thereunder, including ‘‘Import and Marking’’ (part 14), ‘‘Feather Imports’’ (part

15), ‘‘Injurious Wildlife’’ (part 16), ‘‘Endangered Wildlife and Plants’’ (part 17),

‘‘Marine Mammals’’ (part 18), ‘‘Migratory Birds’’ (part 21), ‘‘Eagles’’ (part 22)

and ‘‘Endangered Species Convention’’

(part 23). As used in this part 13, the

term ‘‘permit’’ shall refer to either a license, permit, or certificate as the context may require.

[42 FR 10465, Feb. 22, 1977, as amended at 42

FR 32377, June 24, 1977; 45 FR 56673, Aug. 25,

1980]

§ 13.4 Emergency variation from requirements.

The Director may approve variations

from the requirements of this part

when he finds that an emergency exists

and that the proposed variations will

not hinder effective administration of

this subchapter B, and will not be unlawful.

§ 13.5 Information collection requirements.

(a) The Office of Management and

Budget approved the information collection requirements contained in this

part 13 under 44 U.S.C. and assigned

OMB Control Number 1018–0092. The

Service may not conduct or sponsor,

and you are not required to respond, to

a collection of information unless it

displays a currently valid OMB control

number. We are collecting this information to provide information necessary to evaluate permit applications.

We will use this information to review

permit applications and make decisions, according to criteria established

in various Federal wildlife conservation statutes and regulations, on the

issuance, suspension, revocation, or denial permits. You must respond to obtain or retain a permit.

(b) We estimate the public reporting

burden for these reporting requirements to vary from 15 minutes to 4

hours per response, with an average of

0.803 hours per response, including time

for reviewing instructions, gathering

and maintaining data, and completing

and reviewing the forms. Direct comments regarding the burden estimate

or any other aspect of these reporting

requirements to the Service Information Collection Control Officer, MS–222

ARLSQ, U.S. Fish and Wildlife Service,

Washington, DC 20240, or the Office of

Management and Budget, Paperwork
42

§ 13.11 50 CFR Ch. I (10–1–98 Edition)

Reduction Project (1018–0092), Washington, DC 20603.

[63 FR 52634, Oct. 1, 1998]

Subpart B—Application for Permits

§ 13.11 Application procedures.

The Service may not issue a permit

for any activity authorized by this subchapter B unless the applicant has filed

an application in accordance with the

following procedures. Applicants do not

have to submit a separate application

for each permit unless otherwise required by this subchapter.

(a) Forms. Applications must be submitted in writing on a Federal Fish

and Wildlife License/Permit Application (Form 3–200) or as otherwise specifically directed by the Service.

(b) Forwarding instructions. Applications for permits in the following categories should be forwarded to the

issuing office indicated below.

(1) Migratory bird banding permits

(50 CFR 21.22)—Bird Banding Laboratory, Office of Migratory Bird Management, U.S. Fish and Wildlife Service,

Laurel, Maryland 20708. (Special application forms must be used for bird

banding permits. They may be obtained

by writing to the Bird Banding Laboratory).

(2) Exception to designated port (50

CFR part 14), import/export license (50

CFR 14.93), migratory bird permit,

other than banding (50 CFR part 21)

and Bald or Golden eagle permits (50

CFR part 22)—Assistant Regional Director for Law Enforcement of District

in which the applicant resides (see 50

CFR 10.22 for addresses and boundaries

of the Law Enforcement Districts).

(3) Feather quota (50 CFR part 15), injurious wildlife (50 CFR part 16), endangered and threatened species (50 CFR

part 17), marine mammal (50 CFR part

18) and permits and certificates for the

Convention on International Trade in

Endangered Species (CITES) (50 CFR

part 23)—U.S. Fish and Wildlife Service, Federal Wildlife Permit Office,

P.O. Box 3654, Arlington, Virginia 22203.

(c) Time notice. The Service will process all applications as quickly as possible. However, it cannot guarantee

final action within the time limits the

applicant requests. Applicants for endangered species and marine mammal

permits should submit applications to

the Office of Management Authority

which are postmarked at least 90 calendar days prior to the requested effective date. Applicants for all other permits should submit applications to the

issuing office which are postmarked at

least 60 days prior to the requested effective date.

(d) Fees. (1) Unless otherwise exempted by this paragraph, applicants for

issuance or renewal of permits must

pay the required permit processing fee

at the time of application. Applicants

should pay fees by check or money

order made payable to ‘‘U.S. Fish and

Wildlife Service.’’ The Service will not

refund any application fee under any

circumstances if the Service has processed the application. However, the

Service may return the application fee

if the applicant withdraws the application before the Service has significantly processed it.

(2) Except as provided in paragraph

(d)(4) of this section the fee for processing any application is $25.00. If regulations in this subchapter require more

than one type of permit for an activity,

and the permits are issued by the same

office, the issuing office may issue one

consolidated permit authorizing the

activity. The issuing office may charge

only the highest single fee for the activity permitted.

(3) A fee shall not be charged to any

Federal, State or local government

agency, nor to any individual or institution under contract to such agency

for the proposed activities. The fee

may be waived or reduced for public institutions (see 50 CFR 10.12). Proof of

such status must accompany the application.

(4) Nonstandard fees.

Type of permit Fee

Import/Export License (Section 14.93) ................ $50.

Marine Mammal (Section 18.31) ......................... $100.

Migratory Bird-Banding or Marking (21.22) ......... None.

Bald or Golden Eagles (Part 22) ......................... None.

(e) Abandoned or incomplete applications. Upon receipt of an incomplete or

improperly executed application, or if

the applicant does not submit the proper fees, the issuing office will notify

the applicant of the deficiency. If the
43

U.S. Fish and Wildlife Serv., Interior § 13.12

applicant fails to supply the correct information to complete the application

or to pay the required fees within 45

calendar days of the date of notification, the Service will consider the application abandoned. The Service will

not refund any fees for an abandoned

application.

[47 FR 30785, July 15, 1982, as amended at 50

FR 52889, Dec. 26, 1985; 54 FR 4031, Jan. 27,

1989; 54 FR 38147, Sept. 14, 1989; 61 FR 31868,

June 21, 1996]

§ 13.12 General information requirements on applications for permits.

(a) General information required for

all applications. All applications must

contain the following information:

(1) Applicant’s full name, mailing address, telephone number(s), and,

(i) If the applicant is an individual,

the date of birth, height, weight, hair

color, eye color, sex, and any business

or institutional affiliation of the applicant related to the requested permitted

activity; or

(ii) If the applicant is a corporation,

firm, partnership, association, institution, or public or private agency, the

name and address of the president or

principal officer and of the registered

agent for the service of process;

(2) Location where the requested permitted activity is to occur or be conducted;

(3) Reference to the part(s) and section(s) of this subchapter B as listed in

paragraph (b) of this section under

which the application is made for a

permit or permits, together with any

additional justification, including supporting documentation as required by

the referenced part(s) and section(s);

(4) If the requested permitted activity involves the import or re-export of

wildlife or plants from or to any foreign country, and the country of origin, or the country of export or re-export restricts the taking, possession,

transportation, exportation, or sale of

wildlife or plants, documentation as indicated in § 14.52(c) of this subchapter

B;

(5) Certification in the following language:

I hereby certify that I have read and am familiar with the regulations contained in

title 50, part 13, of the Code of Federal Regulations and the other applicable parts in subchapter B of chapter I of title 50, Code of

Federal Regulations, and I further certify

that the information submitted in this application for a permit is complete and accurate

to the best of my knowledge and belief. I understand that any false statement herein

may subject me to suspension or revocation

of this permit and to the criminal penalties

of 18 U.S.C. 1001.

(6) Desired effective date of permit

except where issuance date is fixed by

the part under which the permit is

issued;

(7) Date;

(8) Signature of the applicant; and

(9) Such other information as the Director determines relevant to the processing of the application.

(b) Additional information required on

permit applications. As stated in paragraph (a)(3) of this section certain additional information is required on all

applications. These additional requirements may be found by referring to the

section of this subchapter B cited after

the type of permit for which application is being made:

Type of permit Section

Importation at nondesignated ports:

Scientific ....................................................... 14.31

Deterioration prevention ............................... 14.32

Economic hardship ....................................... 14.33

Marking of package or container:

Symbol marking ............................................ 14.83

Import/export license .................................... 14.93

Feather import quota: Importation or entry ......... 15.21

Injurious wildlife: Importation or shipment ........... 16.22

Endangered wildlife and plant permits:

Similarity of appearance ............................... 17.52

Scientific, enhancement of propagation or

survival, incidental taking for wildlife ........ 17.22

Scientific, propagation, or survival for plants 17.62

Economic hardship for wildlife ...................... 17.23

Economic hardship for plants ....................... 17.63

Threatened wildlife and plant permits:

Similarity of appearance ............................... 17.52

General for wildlife ........................................ 17.32

American alligator–buyer or tanner .............. 17.42(a)

General for plants ......................................... 17.72

Marine mammals permits:

Scientific research ........................................ 18.31

Public display ................................................ 18.31

Migratory bird permits:

Banding or marking ...................................... 21.22

Scientific collecting ....................................... 21.23

Taxidermist ................................................... 21.24

Waterfowl sale and disposal ........................ 21.25

Special aviculturist ........................................ 21.26

Special purpose ............................................ 21.27

Falconry ........................................................ 21.28

Raptor propagation permit ............................ 21.30

Depredation control ...................................... 21.41

Eagle permits:

Scientific or exhibition ................................... 22.21

Indian religious use ...................................... 22.22

Depredation control ...................................... 22.23

Falconry purposes ........................................ 22.24
44

§ 13.21 50 CFR Ch. I (10–1–98 Edition)

Type of permit Section

Take of golden eagle nests .......................... 22.25

Endangered Species Convention permits ........... 23.15

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR

10465, Feb. 22, 1977; 42 FR 32377, June 24, 1977;

44 FR 54006, Sept. 17, 1979; 44 FR 59083, Oct.

12, 1979; 45 FR 56673, Aug. 25, 1980; 45 FR 78154,

Nov. 25, 1980; 46 FR 42680, Aug. 24, 1981; 48 FR

31607, July 8, 1983; 48 FR 57300, Dec. 29, 1983;

50 FR 39687, Sept. 30, 1985; 50 FR 45408, Oct.

31, 1985; 54 FR 38147, Sept. 14, 1989]

Subpart C—Permit Administration

§ 13.21 Issuance of permits.

(a) No permit may be issued prior to

the receipt of a written application

therefor, unless a written variation

from the requirements, as authorized

by § 13.4, is inserted into the official file

of the Bureau. An oral or written representation of an employee or agent of

the United States Government, or an

action of such employee or agent, shall

not be construed as a permit unless it

meets the requirements of a permit as

defined in 50 CFR 10.12.

(b) Upon receipt of a properly executed application for a permit, the Director shall issue the appropriate permit unless:

(1) The applicant has been assessed a

civil penalty or convicted of any criminal provision of any statute or regulation relating to the activity for which

the application is filed, if such assessment or conviction evidences a lack of

responsibility.

(2) The applicant has failed to disclose material information required, or

has made false statements as to any

material fact, in connection with his

application;

(3) The applicant has failed to demonstrate a valid justification for the

permit and a showing of responsibility;

(4) The authorization requested potentially threatens a wildlife or plant

population, or

(5) The Director finds through further inquiry or investigation, or otherwise, that the applicant is not qualified.

(c) Disqualifying factors. Any one of

the following will disqualify a person

from receiving permits issued under

this part.

(1) A conviction, or entry of a plea of

guilty or nolo contendere, for a felony

violation of the Lacey Act, the Migratory Bird Treaty Act, or the Bald and

Golden Eagle Protection Act disqualifies any such person from receiving or

exercising the privileges of a permit,

unless such disqualification has been

expressly waived by the Director in response to a written petition.

(2) The revocation of a permit for

reasons found in § 13.28 (a)(1) or (a)(2)

disqualifies any such person from receiving or exercising the privileges of a

similar permit for a period of five years

from the date of the final agency decision on such revocation.

(3) The failure to pay any required

fees or assessed costs and penalties,

whether or not reduced to judgement

disqualifies such person from receiving

or exercising the privileges of a permit

as long as such moneys are owed to the

United States. This requirement shall

not apply to any civil penalty presently subject to administrative or judicial appeal; provided that the pendency

of a collection action brought by the

United States or its assignees shall not

constitute an appeal within the meaning of this subsection.

(4) The failure to submit timely, accurate, or valid reports as required

may disqualify such person from receiving or exercising the privileges of a

permit as long as the deficiency exists.

(d) Use of supplemental information.

The issuing officer, in making a determination under this subsection, may

use any information available that is

relevant to the issue. This may include

any prior conviction, or entry of a plea

of guilty or nolo contendere, or assessment of civil or criminal penalty for a

violation of any Federal or State law

or regulation governing the permitted

activity. It may also include any prior

permit revocations or suspensions, or

any reports of State or local officials.

The issuing officer shall consider all

relevant facts or information available,

and may make independent inquiry or

investigation to verify information or

substantiate qualifications asserted by

the applicant.

(e) Conditions of issuance and acceptance. (1) Any permit automatically incorporates within its terms the conditions and requirements of subpart D of
45

U.S. Fish and Wildlife Serv., Interior § 13.24

this part and of any part(s) or section(s) specifically authorizing or governing the activity for which the permit is issued.

(2) Any person accepting and holding

a permit under this subchapter B acknowledges the necessity for close regulation and monitoring of the permitted activity by the Government. By

accepting such permit, the permittee

consents to and shall allow entry by

agents or employees of the Service

upon premises where the permitted activity is conducted at any reasonable

hour. Service agents or employees may

enter such premises to inspect the location; any books, records, or permits

required to be kept by this subchapter

B; and any wildlife or plants kept

under authority of the permit.

(f) Term of permit. Unless otherwise

modified, a permit is valid during the

period specified on the face of the permit. Such period shall include the effective date and the date of expiration.

(g) Denial. The issuing officer may

deny a permit to any applicant who

fails to meet the issuance criteria set

forth in this section or in the part(s) or

section(s) specifically governing the

activity for which the permit is requested.

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR

32377, June 24, 1977; 47 FR 30785, July 15, 1982;

54 FR 38148, Sept. 14, 1989]

§ 13.22 Renewal of permits.

(a) Application for renewal. Applicants

for renewal of a permit must submit a

written application at least 30 days

prior to the expiration date of the permit. Applicants must certify in the

form required by § 13.12(a)(5) that all

statements and information in the

original application remain current

and correct, unless previously changed

or corrected. If such information is no

longer current or correct, the applicant

must provide corrected information.

(b) Renewal criteria. The Service shall

issue a renewal of a permit if the applicant meets the criteria for issuance in

§ 13.21(b) and is not disqualified under

§13.21(c).

(c) Continuation of permitted activity.

Any person holding a valid, renewable

permit, who has complied with this

section, may continue the activities

authorized by the expired permit until

the Service has acted on such person’s

application for renewal.

(d) Denial. The issuing officer may

deny renewal of a permit to any applicant who fails to meet the issuance criteria set forth in § 13.21 of this part, or

in the part(s) or section(s) specifically

governing the activity for which the

renewal is requested.

[54 FR 38148, Sept. 14, 1989]

§ 13.23 Amendment of permits.

(a) Permittee’s request. Where circumstances have changed so that a permittee desires to have any condition of

his permit modified, such permittee

must submit a full written justification and supporting information in

conformity with this part and the part

under which the permit was issued.

(b) Service reservation. The Service reserves the right to amend any permit

for just cause at any time during its

term, upon written finding of necessity.

(c) Change of name or address. A permittee is not required to obtain a new

permit if there is a change in the legal

individual or business name, or in the

mailing address of the permittee. A

permittee is required to notify the

issuing office within 10 calendar days

of such change. This provision does not

authorize any change in location of the

conduct of the permitted activity when

approval of the location is a qualifying

condition of the permit.

[54 FR 38148, Sept. 14, 1989]

§ 13.24 Right of succession by certain

persons.

(a) Certain persons, other than the

permittee are granted the right to

carry on a permitted activity for the

remainder of the term of a current permit provided they comply with the provisions of paragraph (b) of this section.

Such persons are the following:

(1) The surviving spouse, child, executor, administrator, or other legal

representative of a deceased permittee;

and

(2) A receiver or trustee in bankruptcy or a court designated assignee

for the benefit of creditors.

(b) In order to secure the right provided in this section the person or persons desiring to continue the activity
46

§ 13.25 50 CFR Ch. I (10–1–98 Edition)

shall furnish the permit to the issuing

officer for endorsement within 90 days

from the date the successor begins to

carry on the activity.

[54 FR 38149, Sept. 14, 1989]

§ 13.25 Permits not transferable;

agents.

(a) Permits issued under this part are

not transferable or assignable. Some

permits authorize certain activities in

connection with a business or commercial enterprise and in the event of any

lease, sale, or transfer of such business

entity, the successor must obtain a

permit prior to continuing the permitted activity. However, certain limited rights of succession are provided

in §13.24.

(b) Except as otherwise stated on the

face of the permit, any person who is

under the direct control of the permittee, or who is employed by or under

contract to the permittee for purposes

authorized by the permit, may carry

out the activity authorized by the permit, as an agent for the permittee.

[54 FR 38149, Sept. 14, 1989]

§ 13.26 Discontinuance of permit activity.

When a permittee, or any successor

to a permittee as provided for by § 13.24,

discontinues activities authorized by a

permit, the permittee shall within 30

calendar days of the discontinuance return the permit to the issuing office together with a written statement surrendering the permit for cancellation.

The permit shall be deemed void and

cancelled upon its receipt by the

issuing office. No refund of any fees

paid for issuance of the permit or for

any other fees or costs associated with

a permitted activity shall be made

when a permit is surrendered for cancellation for any reason prior to the expiration date stated on the face of the

permit.

[54 FR 38149, Sept. 14, 1989]

§ 13.27 Permit suspension.

(a) Criteria for suspension. The privileges of exercising some or all of the

permit authority may be suspended at

any time if the permittee is not in

compliance with the conditions of the

permit, or with any applicable laws or

regulations governing the conduct of

the permitted activity. The issuing officer may also suspend all or part of

the privileges authorized by a permit if

the permittee fails to pay any fees,

penalties or costs owed to the Government. Such suspension shall remain in

effect until the issuing officer determines that the permittee has corrected

the deficiencies.

(b) Procedure for suspension. (1) When

the issuing officer believes there are

valid grounds for suspending a permit

the permittee shall be notified in writing of the proposed suspension by certified or registered mail. This notice

shall identify the permit to be suspended, the reason(s) for such suspension, the actions necessary to correct

the deficiencies, and inform the permittee of the right to object to the proposed suspension. The issuing officer

may amend any notice of suspension at

any time.

(2) Upon receipt of a notice of proposed suspension the permittee may

file a written objection to the proposed

action. Such objection must be in writing, must be filed within 45 calendar

days of the date of the notice of proposal, must state the reasons why the

permittee objects to the proposed suspension, and may include supporting

documentation.

(3) A decision on the suspension shall

be made within 45 days after the end of

the objection period. The issuing officer shall notify the permittee in writing of the Service’s decision and the

reasons therefore. The issuing officer

shall also provide the applicant with

the information concerning the right

to request reconsideration of the decision under § 13.29 of this part and the

procedures for requesting reconsideration.

[54 FR 38149, Sept. 14, 1989]

§ 13.28 Permit revocation.

(a) Criteria for revocation. A permit

may be revoked for any of the following reasons:

(1) The permittee willfully violates

any Federal or State statute or regulation, or any Indian tribal law or regulation, or any law or regulation of any

foreign country, which involves a violation of the conditions of the permit
47

U.S. Fish and Wildlife Serv., Interior § 13.29

or of the laws or regulations governing

the permitted activity; or

(2) The permittee fails within 60 days

to correct deficiencies that were the

cause of a permit suspension; or

(3) The permittee becomes disqualified under §13.21(c) of this part; or

(4) A change occurs in the statute or

regulation authorizing the permit that

prohibits the continuation of a permit

issued by the Service; or

(5) The population(s) of the wildlife

or plant that is subject of the permit

declines to the extent that continuation of the permitted activity would

be detrimental to maintenance or recovery of the affected population.

(b) Procedure for revocation. (1) When

the issuing officer believes there are

valid grounds for revoking a permit,

the permittee shall be notified in writing of the proposed revocation by certified or registered mail. This notice

shall identify the permit to be revoked,

the reason(s) for such revocation, the

proposed disposition of the wildlife, if

any, and inform the permittee of the

right to object to the proposed revocation. The issuing officer may amend

any notice of revocation at any time.

(2) Upon receipt of a notice of proposed revocation the permittee may

file a written objection to the proposed

action. Such objection must be in writing, must be filed within 45 calendar

days of the date of the notice of proposal, must state the reasons why the

permittee objects to the proposed revocation, and may include supporting

documentation.

(3) A decision on the revocation shall

be made within 45 days after the end of

the objection period. The issuing officer shall notify the permittee in writing of the Service’s decision and the

reasons therefore, together with the information concerning the right to request and the procedures for requesting

reconsideration.

(4) Unless a permittee files a timely

request for reconsideration, any wildlife held under authority of a permit

that is revoked must be disposed of in

accordance with instructions of the

issuing officer. If a permittee files a

timely request for reconsideration of a

proposed revocation, such permittee

may retain possession of any wildlife

held under authority of the permit

until final disposition of the appeal

process.

[54 FR 38149, Sept. 14, 1989]

§ 13.29 Review procedures.

(a) Request for reconsideration. Any

person may request reconsideration of

an action under this part if that person

is one of the following:

(1) An applicant for a permit who has

received written notice of denial;

(2) An applicant for renewal who has

received written notice that a renewal

is denied;

(3) A permittee who has a permit

amended, suspended, or revoked, except for those actions which are required by changes in statutes or regulations, or are emergency changes of

limited applicability for which an expiration date is set within 90 days of the

permit change; or

(4) A permittee who has a permit

issued or renewed but has not been

granted authority by the permit to perform all activities requested in the application, except when the activity requested is one for which there is no

lawful authority to issue a permit.

(b) Method of requesting reconsideration. Any person requesting reconsideration of an action under this part

must comply with the following criteria:

(1) Any request for reconsideration

must be in writing, signed by the person requesting reconsideration or by

the legal representative of that person,

and must be submitted to the issuing

officer.

(2) The request for reconsideration

must be received by the issuing officer

within 45 calendar days of the date of

notification of the decision for which

reconsideration is being requested.

(3) The request for reconsideration

shall state the decision for which reconsideration is being requested and

shall state the reason(s) for the reconsideration, including presenting any

new information or facts pertinent to

the issue(s) raised by the request for

reconsideration.

(4) The request for reconsideration

shall contain a certification in substantially the same form as that provided by § 13.12(a)(5). If a request for reconsideration does not contain such

certification, but is otherwise timely
48

§ 13.41 50 CFR Ch. I (10–1–98 Edition)

and appropriate, it shall be held and

the person submitting the request shall

be given written notice of the need to

submit the certification within 15 calendar days. Failure to submit certification shall result in the request being

rejected as insufficient in form and

content.

(c) Inquiry by the Service. The Service

may institute a separate inquiry into

the matter under consideration.

(d) Determination of grant or denial of

a request for reconsideration. The issuing

officer shall notify the permittee of the

Service’s decision within 45 days of the

receipt of the request for reconsideration. This notification shall be in

writing, shall state the reasons for the

decision, and shall contain a description of the evidence which was relied

upon by the issuing officer. The notification shall also provide information

concerning the right to appeal, the official to whom an appeal may be addressed, and the procedures for making

an appeal.

(e) Appeal. A person who has received

an adverse decision following submission of a request for reconsideration

may submit a written appeal to the Regional Director for the region in which

the issuing office is located, or to the

Director for offices which report directly to the Director. An appeal must

be submitted within 45 days of the date

of the notification of the decision on

the request for reconsideration. The

appeal shall state the reason(s) and

issue(s) upon which the appeal is based

and may contain any additional evidence or arguments to support the appeal.

(f) Decision on appeal. (1) Before a decision is made concerning the appeal

the appellant may present oral arguments before the Regional Director or

the Director, as appropriate, if such official judges oral arguments are necessary to clarify issues raised in the

written record.

(2) The Service shall notify the appellant in writing of its decision within 45

calendar days of receipt of the appeal,

unless extended for good cause and the

appellant notified of the extension.

(3) The decision of the Regional Director or the Director shall constitute

the final administrative decision of the

Department of the Interior.

[54 FR 38149, Sept. 14, 1989]

Subpart D—Conditions

§ 13.41 Humane conditions.

Any live wildlife possessed under a

permit must be maintained under humane and healthful conditions.

[54 FR 38150, Sept. 14, 1989]

§ 13.42 Permits are specific.

The authorizations on the face of a

permit which set forth specific times,

dates, places, methods of taking, numbers and kinds of wildlife or plants, location of activity, authorize certain

circumscribed transactions, or otherwise permit a specifically limited matter, are to be strictly construed and

shall not be interpreted to permit similar or related matters outside the scope

of strict construction.

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR

32377, June 24, 1977]

§ 13.43 Alteration of permits.

Permits shall not be altered, erased,

or mutilated, and any permit which

has been altered, erased, or mutilated

shall immediately become invalid. Unless specifically permitted on the face

thereof, no permit shall be copied, nor

shall any copy of a permit issued pursuant to this subchapter B be displayed, offered for inspection, or otherwise used for any official purpose for

which the permit was issued.

§ 13.44 Display of permit.

Any permit issued under this part

shall be displayed for inspection upon

request to the Director or his agent, or

to any other person relying upon its

existence.

§ 13.45 Filing of reports.

Permittees may be required to file

reports of the activities conducted

under the permit. Any such reports

shall be filed not later than March 31

for the preceding calendar year ending

December 31, or any portion thereof,

during which a permit was in force, unless the regulations of this subchapter
49

U.S. Fish and Wildlife Serv., Interior Pt. 14

B or the provisions of the permit set

forth other reporting requirements.

§ 13.46 Maintenance of records.

From the date of issuance of the permit, the permittee shall maintain complete and accurate records of any taking, possession, transportation, sale,

purchase, barter, exportation, or importation of plants obtained from the

wild (excluding seeds) or wildlife pursuant to such permit. Such records shall

be kept current and shall include

names and addresses of persons with

whom any plant obtained from the wild

(excluding seeds) or wildlife has been

purchased, sold, bartered, or otherwise

transferred, and the date of such transaction, and such other information as

may be required or appropriate. Such

records shall be legibly written or reproducible in English and shall be

maintained for five years from the date

of expiration of the permit.

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR

32377, June 24, 1977; 54 FR 38150, Sept. 14, 1989]

§ 13.47 Inspection requirement.

Any person holding a permit under

this subchapter B shall allow the Director’s agent to enter his premises at

any reasonable hour to inspect any

wildlife or plant held or to inspect,

audit, or copy any permits, books, or

records required to be kept by regulations of this subchapter B.

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR

32377, June 24, 1977]

§ 13.48 Compliance with conditions of

permit.

Any person holding a permit under

subchapter B and any person acting

under authority of such permit must

comply with all conditions of the permit and with all appllicable laws and

regulations governing the permitted

activity.

[54 FR 38150, Sept. 14, 1989]

§ 13.49 Surrender of permit.

Any person holding a permit under

subchapter B shall surrender such permit to the issuing officer upon notification that the permit has been suspended or revoked by the Service, and

all appeal procedures have been exhausted.

[54 FR 38150, Sept. 14, 1989]

§ 13.50 Acceptance of liability.

Any person holding a permit under

subchapter B assumes all liability and

responsibility for the conduct of any

activity conducted under the authority

of such permit.

[54 FR 38150, Sept. 14, 1989]

PART 14—IMPORTATION, EXPORTATION, AND TRANSPORTATION

OF WILDLIFE

Subpart A—Introduction

Sec.

14.1 Purpose of regulations.

14.2 Scope of regulations.

14.3 Information collection requirements.

14.4 Definitions.

Subpart B—Importation and Exportation at

Designated Ports

14.11 General restrictions.

14.12 Designated ports.

14.13 Emergency diversion.

14.14 In-transit shipments.

14.15 Personal baggage and household effects.

14.16 Border ports.

14.17 Personally owned pet birds.

14.18 Marine mammals.

14.19 Special ports.

14.20 Exceptions by permit.

14.21 Shellfish and fishery products.

14.22 Certain antique articles.

14.23 Live farm-raised fish and farm-raised

fish eggs.

14.24 Scientific specimens.

Subpart C—Designated Port Exception

Permits

14.31 Permits to import or export wildlife at

nondesignated port for scientific purposes.

14.32 Permits to import or export wildlife at

nondesignated port to minimize deterioration or loss.

14.33 Permits to import or export wildlife at

nondesignated port to alleviate undue

economic hardship.

Subpart D [Reserved]

Subpart E—Inspection and Clearance of

Wildlife

14.51 Inspection of wildlife.

14.52 Clearance of imported wildlife.
71

National Marine Fisheries Service/NOAA, Commerce § 217.1

taking and a description of any measures that will be taken in the following

year to prevent exceeding the authorized incidental take level.

(5) Results of any population assessment studies made on marine mammals in the Outer Sea Test Range during the previous year.

§ 216.156 Renewal of Letter of Authorization.

(a) A Letter of Authorization issued

under § 216.106 for the activity identified in § 216.151(a) will be renewed annually upon:

(1) Timely receipt of the reports required under § 216.155(f) and (g), which

have been reviewed by the Assistant

Administrator for Fisheries, NOAA,

and determined to be acceptable;

(2) A determination that the maximum incidental take authorizations in

§ 216.151(b) will not be exceeded; and

(3) A determination that the mitigation measures required under

§ 216.153(b) and the Letter of Authorization have been undertaken.

(b) If a species’ annual authorization

is exceeded, the National Marine Fisheries Service will review the documentation submitted with the annual

report required under § 216.155(g), to determine that the taking is not having

more than a negligible impact on the

species or stock involved.

(c) Notice of issuance of a renewal of

the Letter of Authorization will be

published in the FEDERAL REGISTER.

[59 FR 5126, Feb. 3, 1994. Redesignated and

amended at 61 FR 15887, 15890–15891, Apr. 10,

1996]

§ 216.157 Modifications to Letter of Authorization.

(a) In addition to complying with the

provisions of § 216.106, except as provided in paragraph (b) of this section,

no substantive modification, including

withdrawal or suspension, to the Letter of Authorization issued pursuant to

§ 216.106 and subject to the provisions of

this subpart shall be made until after

notice and an opportunity for public

comment. For purposes of this paragraph, renewal of a Letter of Authorization under § 216.146, without modification, is not considered a substantive modification.

(b) If the National Marine Fisheries

Service determines that an emergency

exists that poses a significant risk to

the well-being of the species or stocks

of marine mammals specified in

§ 216.151, or that significantly and detrimentally alters the scheduling of explosives detonation within the area

specified in § 216.151, the Letter of Authorization issued pursuant to § 216.106,

or renewed pursuant to this section

may be substantively modified without

prior notice and an opportunity for

public comment. A notice will be published in the FEDERAL REGISTER subsequent to the action.

[59 FR 5126, Feb. 3, 1994. Redesignated and

amended at 61 FR 15887, 15891, Apr. 10, 1996]

Subparts O–Q [Reserved]

PART 217—GENERAL PROVISIONS

Subpart A—Introduction

Sec.

217.1 Purpose of regulations.

217.2 Scope of regulations.

217.3 Other applicable laws.

217.4 When regulations apply.

Subpart B—Definitions

217.12 Definitions.

Subpart C—Addresses

217.21 Assistant Administrator.

217.22 Office of Marine Mammals and Endangered Species.

217.23 Enforcement Division.

AUTHORITY: 16 U.S.C. 742a et seq., 1361 et

seq., and 1531–1544, unless otherwise noted.

Subpart A—Introduction

§ 217.1 Purpose of regulations.

The regulations of parts 216 through

227 are promulgated to implement the

following statutes enforced by the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, which regulate the taking, possession, transportation, sale, purchase,
72

§ 217.2 50 CFR Ch. II (10–1–98 Edition)

barter, exportation, and importation of

wildlife.

(Endangered Species Act of 1973, section

11(f), 87 Stat. 884, Pub. L. 93–205; Fish and

Wildlife Act of 1956, 16 U.S.C. 742a–1)

[39 FR 41370, Nov. 27, 1974, as amended at 52

FR 24250, June 29, 1987]

§ 217.2 Scope of regulations.

The various provisions of parts 216

through 227 of this chapter are interrelated, and particular note should be

taken that the parts must be construed

with reference to each other. The regulations in parts 216 through 227 apply

only for fish or wildlife under the jurisdictional responsibilities of the Secretary of Commerce for the purpose of

carrying out the Endangered Species

Act of 1973 (see part 222, § 222.23(a)). Endangered species of fish or wildlife

other than those covered by these regulations are under the jurisdiction of

the Secretary of the Interior. For rules

and procedures relating to such species, see 50 CFR parts 10 through 17.

[39 FR 41370, Nov. 27, 1974, as amended at 52

FR 24250, June 29, 1987]

§ 217.3 Other applicable laws.

No statute or regulation of any State

shall be construed to relieve a person

from the restrictions, conditions, and

requirements contained in parts 216

through 227 of this chapter. In addition, nothing in parts 216 through 227 of

this chapter, nor any permit issued

under parts 217 through 228 of this

chapter, shall be construed to relieve a

person from any other requirements

imposed by a statute or regulation of

any State or of the United States, including any applicable health, quarantine, agricultural, or customs laws

or regulations, or other National Marine Fisheries Service enforced statutes or regulations.

[39 FR 41370, Nov. 27, 1974, as amended at 52

FR 24250, June 29, 1987]

§ 217.4 When regulations apply.

The regulations of parts 216 through

227 of this chapter shall apply to all

matters, including the processing of

permits, arising after the effective date

of such regulations, with the following

exception:

(a) Civil penalty proceedings. Except as

otherwise provided in § 218.25, the civil

penalty assessment procedures contained in parts 216 through 227 of this

chapter shall apply only to any proceeding instituted by notice of violation dated subsequent to the effective

date of these regulations, regardless of

when the act or omission which is the

basis of a civil penalty proceeding occurred.

(b) [Reserved]

[39 FR 41370, Nov. 27, 1974, as amended at 52

FR 24250, June 29, 1987]

Subpart B—Definitions

§ 217.12 Definitions.

Accelerator funnel means a device

used to accelerate the flow of water

through a shrimp trawl net.

Act means the Endangered Species

Act of 1973, as amended (Pub. L.

93–205).

Approved TED means:

(1) A hard TED that complies with

the generic design criteria set forth in

50 CFR 227.72(e)(4)(i). (A hard TED may

be modified as specifically authorized

by 50 CFR 227.72(e)(4)(iv)); or

(2) A soft TED that complies with the

provisions of 50 CFR 227.72(e)(4)(iii); or

(3) A special hard TED which complies with the provisions of 50 CFR

227.72(e)(4)(ii).

Assistant Administrator means the Assistant Administrator for Fisheries of

the National Marine Fisheries Service,

National Oceanic and Atmospheric Administration, Department of Commerce, or his authorized representative.

Atlantic Area means all waters of the

Atlantic Ocean south of 36°33′00.8′′ N.

latitude (the line of the North Carolina/Virginia border) and adjacent seas,

other than waters of the Gulf Area, and

all waters shoreward thereof (including

ports).

Atlantic Shrimp Fishery-Sea Turtle

Conservation Area (Atlantic SFSTCA)

means the inshore and offshore waters

extending to 10 nautical miles (18.5 km)

offshore along the coast of the States

of Georgia and South Carolina from the

Georgia-Florida border (defined as the

line along 30°42′45.6′′ N. lat.) to the

North Carolina-South Carolina border
73

National Marine Fisheries Service/NOAA, Commerce § 217.12

(defined as the line extending in a direction of 135°34′55′′ from true north

from the North Carolina-South Carolina land boundary, as marked by the

border station on Bird Island at 33°

51′07.9′′ N. lat., 078°32′32.6′′ W. long.).

Authorized officer means:

(1) Any commissioned, warrant, or

petty officer of the U.S. Coast Guard;

(2) Any special agent or enforcement

officer of the National Marine Fisheries Service;

(3) Any officer designated by the head

of a Federal or state agency that has

entered into an agreement with the

Secretary or the Commandant of the

Coast Guard to enforce the provisions

of the Act; or

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

Bait shrimper means a shrimp trawler

that fishes for and retains its shrimp

catch alive for the purpose of selling it

for use as bait.

Commercial activity means all activities of industry and trade, including,

but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating

such buying and selling: Provided, however, That it does not include the exhibition of commodities by museums or

similar cultural or historical organizations.

Country of exportation means the last

country from which the animal was exported before importation into the

United States.

Country of origin means the country

where the animal was taken from the

wild, or the country of natal origin of

the animal.

Fish or wildlife means any member of

the animal kingdom, including without

limitation any mammal, fish, bird (including any migratory, nonmigratory,

or endangered bird for which protection is also afforded by treaty or other

international agreement), amphibian,

reptile, mollusk, crustacean, arthropod

or other invertebrate, and includes any

part, product, egg, or offspring thereof,

or the dead body or parts thereof.

Fishing, or to fish, means:

(1) The catching taking or harvesting

of fish or wildlife;

(2) The attempted catching, taking,

or harvesting of fish or wildlife;

(3) Any other activity that can reasonably be expected to result in the

catching, taking, or harvesting of fish

or wildlife; or

(4) Any operations on any waters in

support of, or in preparation for, any

activity described in paragraphs (1)

through (3) of this definition.

Footrope means a weighted rope or

cable attached to the lower lip (bottom

edge) of the mouth of a trawl net along

the forwardmost webbing.

Footrope length means the distance

between the points at which the ends of

the footrope are attached to the trawl

net, measured along the forwardmost

webbing.

Foreign commerce includes, among

other things, any transaction (1) between persons within one foreign country, or (2) between persons in two or

more foreign countries, or (3) between

a person within the United States and

a person in one or more foreign countries, or (4) between persons within the

United States, where the fish or wildlife in question are moving in any

country or countries outside the

United States.

Four-seam, straight-wing trawl means

a design of shrimp trawl in which the

main body of the trawl is formed from

a top panel, a bottom panel, and two

side panels of webbing. The upper and

lower edges of the side panels of webbing are parallel over the entire length.

Four-seam, tapered-wing trawl means a

design of shrimp trawl in which the

main body of the trawl is formed from

a top panel, a bottom panel, and two

side panels of webbing. The upper and

lower edges of the side panels of webbing converge toward the rear of the

trawl.

Gulf Area means all waters of the

Gulf of Mexico west of 81° W. longitude

(the line at which the Gulf Area meets

the Atlantic Area) and all waters

shoreward thereof (including ports).

Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means the

offshore waters extending to 10 nautical miles (18.5 km) offshore along the

coast of the States of Texas and Louisiana from the South Pass of the Mississippi River (west of 89°08.5′ W. long.)

to the U.S.-Mexican border.
74

§ 217.12 50 CFR Ch. II (10–1–98 Edition)

Hard TED means a rigid deflector

grid and associated hardware designed

to be installed in a trawl net forward of

the codend for the purpose of excluding

sea turtles from the net.

Headrope means a rope that is attached to the upper lip (top edge) of the

mouth of a trawl net along the

forewardmost webbing.

Headrope length means the distance

between the points at which the ends of

the headrope are attached to the trawl

net, measured along the forewardmost

webbing.

Import means to land on, bring into,

or introduce into, or attempt to land

on, bring into, or introduce into any

place subject to the jurisdiction of the

United States, whether or not such

landing, bringing, or introduction constitutes an importation within the

meaning of the tariff laws of the

United States.

Inshore means marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea,

1972), as depicted or noted on nautical

charts published by the National Oceanic and Atmospheric Administration

(Coast Charts, 1:80,000 scale) and as described in 33 CFR part 80.

Leatherback conservation zone means

all inshore and offshore waters bounded

on the south by a line along 28°24.6′ N.

lat. (Cape Canaveral, FL), and bounded

on the north by a line along 36°30.5′ N.

lat. (North Carolina-Virginia border).

Length in reference to a shrimp

trawler, means the distance from the

tip of the vessel’s bow to the tip of its

stern.

North Carolina restricted area means

that portion of the offshore waters

bounded on the north by a line along

34°17.6′ N. latitude (Rich Inlet, North

Carolina) and 34°35.7′ N. latitude

(Browns Inlet, North Carolina) to a distance of 1 nautical mile seaward of the

72 COLREGS demarcation line (International Regulations for Preventing

Collisions at Sea, 1972).

Offshore means marine and tidal waters seaward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea,

1972), as depicted or noted on nautical

charts published by the National Oceanic and Atmospheric Administration

(Coast Charts, 1:80,000 scale) and as described in 33 CFR part 80.

Permit or ‘‘Certificate of exemption’’

means any document so designated by

the National Marine Fisheries Service

and signed by an authorized official of

the National Marine Fisheries Service,

including any document which modifies, amends, extends or renews any

permit or certificate of exemption.

Person means an individual, corporation, partnership, trust, association, or

any other private entity, or any officer, employee, agent, department, or

instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government.

Possession means the detention and

control, or the manual or ideal custody

of anything which may be the subject

of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who

exercises it in one’s place and name.

Possession includes the act or state of

possessing and that condition of facts

under which one can exercise his power

over a corporeal thing at his pleasure

to the exclusion of all other persons.

Possession includes constructive possession which means not actual but assumed to exist, where one claims to

hold by virtue of some title, without

having actual custody.

Pre-Act endangered species part means

any sperm whale oil, including derivatives and products thereof, which was

lawfully held within the United States

on December 28, 1973 in the course of a

commercial activity; or any finished

scrimshaw product, if such product or

the raw material for such product was

lawfully held within the United States

on December 28, 1973, in the course of a

commercial activity.

Pusher-head trawl (chopsticks) means

a trawl that is spread by poles suspended in a ‘‘V’’ configuration from the

bow of the trawler.

Right whale, as used in subpart D of

this part, means any whale that is a

member of the western North Atlantic

population of the northern right whale

species (Eubalaena glacialis).

Scrimshaw product means any art

form which involves the substantial

etching or engraving of designs upon,
75

National Marine Fisheries Service/NOAA, Commerce § 217.12

or the substantial carving of figures,

patterns, or designs from any bone or

tooth of any marine mammal of the

order Cetacea. For purposes of this

part, polishing or the adding of minor

superficial markings does not constitute substantial etching, engraving

or carving.

Secretary means the Secretary of

Commerce or his authorized representative.

Shrimp means any species of marine

shrimp (Order Crustacea) found in the

Atlantic Area or the Gulf Area, including, but not limited to:

(1) Brown shrimp (Penaeus aztecus);

(2) White shrimp (P. setiferus);

(3) Pink shrimp (P. duorarum);

(4) Rock shrimp (Sicyonia brevirostris);

(5) Royal red shrimp (Hymenopenaeus

robustus); and

(6) Seabob shrimp (Xiphopenaeus

kroyeri).

Shrimp trawler means any vessel that

is equipped with one or more trawl nets

and that is capable of, or used for, fishing for shrimp, or whose on-board or

landed catch of shrimp is more than 1

percent, by weight, of all fish comprising its on-board or landed catch.

Skimmer trawl means a trawl that extends from the outrigger of a vessel

with a cable and a lead weight holding

the trawl mouth open.

Soft TED means a panel of polypropylene or polyethylene netting designed to be installed in a trawl net

forward of the codend for the purpose

of excluding sea turtles from the net.

State means any State of the United

States, the District of Columbia, the

Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam,

and the Trust Territory of the Pacific

Islands.

Stretched mesh size means the distance between the centers of the two

opposite knots in the same mesh when

pulled taut.

Summer flounder means the species

Paralichthys dentatus.

Summer flounder fishery-sea turtle protection area means:

(1) All offshore waters, bounded on

the north by a line along 37°05′ N. latitude (Cape Charles, VA) and bounded

on the south by a line along 33°35′ N.

latitude (North Carolina-South Carolina border), except as provided in

paragraph (2) of this definition.

(2) [Reserved]

Summer flounder trawler means any

vessel that is equipped with one or

more bottom trawl nets, and that is capable of, or used for, fishing for flounder, or whose on-board or landed catch

of flounder is more than 100 pounds

(45.4 kg).

Take means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture,

or collect, or attempt to harass, harm,

pursue, hunt, shoot, wound, kill, trap,

capture, or collect.

Taper, in reference to the webbing

used in trawls, means the angle of a

cut used to shape the webbing, expressed as the ratio between the cuts

that reduce the width of the webbing

by cutting into the panel of webbing

through one row of twine (bar cuts) and

the cuts that extend the length of the

panel of webbing by cutting straight

aft through two adjoining rows of

twine (point cuts). For example, sequentially cutting through the lengths

of twine on opposite sides of a mesh,

leaving an uncut edge of twines all

lying in the same line, produces a relatively strong taper called ‘‘all-bars’’;

making a sequence of 4-bar cuts followed by 1-point cut produces a more

gradual taper called ‘‘4 bars to 1 point’’

or ‘‘4b1p’’; similarly, making a sequence of 2-bar cuts followed by 1-point

cut produces a still more gradual taper

called ‘‘2b1p’’; and making a sequence

of cuts straight aft does not reduce the

width of the panel and is called a

‘‘straight’’ or ‘‘all-points’’ cut.

Taut means a condition in which

there is no slack in the net webbing.

TED (turtle excluder device) means a

device designed to be installed in a

trawl net forward of the codend for the

purpose of excluding sea turtles from

the net.

Test net, or try net, means a net pulled

for brief periods of time just before, or

during, deployment of the primary

net(s) in order to test for shrimp concentrations or determine fishing conditions (e.g., presence or absence of bottom debris, jellyfish, bycatch, seagrasses, etc.).

Tongue means any piece of webbing

along the top, center, leading edge of a

trawl, whether lying behind or ahead of
76

§ 217.21 50 CFR Ch. II (10–1–98 Edition)

the headrope, to which a towing bridle

can be attached for purposes of pulling

the trawl net and/or adjusting the

shape of the trawl.

Transportation means to ship, convey,

carry or transport by any means whatever, and deliver or receive for such

shipment, conveyance, carriage, or

transportation.

Triple-wing trawl means a trawl with

a tongue on the top, center, leading

edge of the trawl and an additional

tongue along the bottom, center, leading edge of the trawl.

Two-seam trawl means a design of

shrimp trawl in which the main body of

the trawl is formed from a top panel

and a bottom panel of webbing that are

directly attached to each other down

the sides of the trawl.

Underway, with respect to a vessel,

means that the vessel is not at anchor,

or made fast to the shore, or aground.

United States means the several

States of the United States of America,

the District of Columbia, the Commonwealth of Puerto Rico, American

Samoa, the Virgin Islands, Guam, and

the Trust Territory of the Pacific Islands.

Vessel includes every description of

watercraft, including nondisplacement

craft and seaplanes, used or capable of

being used as a means of transportation on water.

Vessel restricted in her ability to maneuver has the meaning specified for

this term at 33 U.S.C. 2003(g).

Whoever means the same as person.

Wildlife means the same as fish or

wildlife.

Wing net (butterfly trawl) means a

trawl with a rigid frame, rather than

trawl door, holding the trawl mouth

open.

(Sec. 3(d), Fish and Wildlife Act of 1956, as

amended, 88 Stat. 92 (16 U.S.C. 742b); sec.

11(f), Endangered Species Act of 1973, Pub. L.

93–205, 87 Stat. 884 (16 U.S.C. 1540))

[45 FR 57132, Aug. 27, 1980]

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 217.12, see the List of CFR

Sections Affected in the Finding Aids section of this volume.

Subpart C—Addresses

AUTHORITY: Sec. 3(d), Fish and Wildlife Act

of 1956, as amended, 88 Stat. 92 (16 U.S.C.

742b); sec. 11(f), Endangered Species Act of

1973, Pub. L. 93–205, 87 Stat. 884 (16 U.S.C.

1540).

SOURCE: 45 FR 57133, Aug. 27, 1980, unless

otherwise noted.

§ 217.21 Assistant Administrator.

Mail forwarded to the Assistant Administrator for Fisheries should be addressed:

Assistant Administrator for Fisheries, F

National Marine Fisheries Service

Washington, DC 20235.

§ 217.22 Office of Marine Mammals and

Endangered Species.

Mail in regard to permits should be

addressed to:

Office of Marine Mammals and Endangered

Species, F/MM

National Marine Fisheries Service

Washington, DC 20235.

§ 217.23 Enforcement Division.

Mail in regard to enforcement and

certificates of exemption should be addressed to:

Enforcement Division, F/CM5

National Marine Fisheries Service

Washington, DC 20235.

PART 220—GENERAL PERMIT

PROCEDURES

Subpart A—Introduction

Sec.

220.1 General.

220.2 Purpose of regulations.

220.3 Scope of regulations.

220.4 Emergency variation from requirements.

Subpart B—Application for Permits

220.11 Procedure for obtaining a permit.

220.12 [Reserved]

220.13 Abandoned application.

Subpart C—Permit Administration

220.21 Issuance of permits.

220.22 Duration of permit.

220.23 [Reserved]

220.24 Renewal of permit.

220.25 Permits not transferable; agents.

220.26 Right of succession by certain persons.

220.27 Change of mailing address.

220.28 Change in name.

220.29–220.30 [Reserved]

220.31 Discontinuance of activity.
77

National Marine Fisheries Service/NOAA, Commerce § 220.13

Subpart D—Conditions

220.42 Permits are specific.

220.43 Alteration of permits.

220.44 Display of permit.

220.45 Filing of reports.

220.46 Maintenance of records.

220.47 Inspection requirement.

Subpart E—Permits Involving Endangered

or Threatened Sea Turtles

220.50 Purpose.

220.51 Permit applications.

220.52 Issuance of permits.

220.53 Other requirements.

AUTHORITY: Endangered Species Act of

1973, sec. 11(f), 87 Stat. 884, Pub. L. 93–205; act

of August 31, 1951, Ch. 376. Title 5, sec. 501, 65

Stat. 290 (31 U.S.C. 483a).

SOURCE: 39 FR 41373, Nov. 27, 1974, unless

otherwise noted.

Subpart A—Introduction

§ 220.1 General.

Each person intending to engage in

an activity for which a permit is required by parts 217 through 222 of this

chapter or the Endangered Species Act

of 1973 shall, before commencing such

activity, obtain a valid permit authorizing such activity. Each person who

desires to obtain the permit privileges

authorized by parts 217 through 222 of

this chapter must make application for

such permit in accordance with the requirements of this part 220 of this

chapter and the other regulations in

parts 217 through 222 of this chapter

which set forth the additional requirements for the specific permits desired.

If the activity for which permission is

sought is covered by the requirements

of more than one part of parts 217

through 222 of this chapter, the requirements of each part must be met.

If the information required for each

specific permitted activity is included,

one application may be accepted for all

permits required, and a single permit

may be issued.

§ 220.2 Purpose of regulations.

The regulations contained in this

part will provide uniform rules and

procedures for application, issuance,

renewal, conditions, and general administration of permits issuable pursuant to parts 217 through 222 of this

chapter.

§ 220.3 Scope of regulations.

The provisions in this part are in addition to, and are not in lieu of, other

permit regulations of parts 217 through

222 of this chapter and apply to all permits issued thereunder, including ‘‘Endangered Fish or Wildlife’’ (part 222).

§ 220.4 Emergency variation from requirements.

The Director may approve variations

from the requirements of this part

when he finds that an emergency exists

and that the proposed variations will

not hinder effective administration of

parts 217 through 222 of this chapter,

and will not be unlawful.

Subpart B—Application for Permits

§ 220.11 Procedure for obtaining a permit.

The following general procedures

apply to applications for permits:

(a) Forms. Applications must be submitted by letter containing all necessary information, attachments, certification, and signature. In no case

will oral or telephone applications be

accepted.

(b) Forwarding instructions. Applications must be submitted to the Director, National Marine Fisheries Service.

The address is listed in § 217.21.

(c) Time requirement. Applications

must be received by the appropriate official of the National Marine Fisheries

Service at least 90 calendar days prior

to the date on which the applicant desires to have the permit made effective. The National Marine Fisheries

Service will, in all cases, attempt to

process applications deemed sufficient

in the shortest possible time. The National Marine Fisheries Service does

not, however, guarantee 90 days

issuance after publication in the FEDERAL REGISTER of receipt of a permit

application and some permits cannot

be issued within that time period.

§ 220.12 [Reserved]

§ 220.13 Abandoned application.

Upon receipt of an insufficiently or

improperly executed application, the
78

§ 220.21 50 CFR Ch. II (10–1–98 Edition)

applicant shall be notified of the deficiency in the application. If the applicant fails to supply the deficient information or otherwise fails to correct the

deficiency within 60 days following the

date of notification, the application

shall be considered abandoned.

Subpart C—Permit Administration

§ 220.21 Issuance of permits.

(a) No permit may be issued prior to

the receipt of a written application

therefor, unless a written variation

from the requirements, as authorized

by § 220.4 is inserted into the official

file of the National Marine Fisheries

Service. Any representation of an employee or agent of the United States

Government shall not be construed as a

permit unless it meets the

requirements of a permit as defined in

50 CFR 217.12.

(b) The Director shall issue the appropriate permit unless—

(1) Denial of a permit has been made

pursuant to subpart D of 15 CFR part

904;

(2) The applicant has failed to disclose material information required, or

has made false statements as to any

material fact, in connection with his

application;

(3) The applicant has failed to demonstrate a valid justification for the

permit or a showing of responsibility;

(4) The authorization requested potentially threatens a wildlife population, or

(5) The Director finds through further inquiry or investigation, or otherwise, that the applicant is not qualified.

(c) Each permit shall bear a serial

number. Such number may be reassigned to the permittee to whom issued

so long as he maintains continuity of

renewal.

(d) The applicant shall be notified in

writing of the denial of any permit request, and the reasons therefor. If authorized in the notice of denial, the applicant may submit further information, or reasons why the permit should

not be denied. Such further submissions shall not be considered a new application. The final action by the Director shall be considered the final administrative decision of the Department.

[39 FR 41373, Nov. 27, 1974, as amended at 49

FR 1042, Jan. 6, 1984]

§ 220.22 Duration of permit.

Permits shall entitle the person to

whom issued to engage in the activity

specified in the permit, within the limitations of the applicable statute and

regulations contained in parts 217

through 222 of this chapter for the period stated on the permit, unless sooner modified, suspended, or revoked pursuant to subpart D of 15 CFR part 904.

[49 FR 1042, Jan. 6, 1984]

§ 220.23 [Reserved]

§ 220.24 Renewal of permit.

Where the permit is renewable and a

permittee intends to continue the activity described in the permit during

any portion of the year ensuing its expiration, he shall, unless otherwise notified in writing by the Director, file a

request for permit renewal, together

with a certified statement that the information in his original application is

still currently correct, or a statement

of all changes in the original application, accompanied by any required fee

at least 30 days prior to the expiration

of his permit. Any person holding a

valid renewable permit, who has complied with the foregoing provision of

this section, may continue such activities as were authorized by his expired

permit until his renewal application is

acted upon.

§ 220.25 Permits not transferable;

agents.

(a) Permits issued under parts 220

through 222 are not transferable or assignable. Some permits authorize certain activities in connection with a

business or commercial enterprise and

in the event of any lease, sale, or transfer of such business entity, the successor must obtain a permit prior to continuing the permitted activity. However, certain limited rights of succession are provided in §220.26.

(b) Except as otherwise stated on the

face of a permit, any person who is

under the direct control of the permittee, or who is employed by or under
79

National Marine Fisheries Service/NOAA, Commerce § 220.45

contract to the permittee for the purposes authorized by the permit, may

carry out the activity authorized by

the permit.

§ 220.26 Right of succession by certain

persons.

(a) Certain persons, other than the

permittee, are granted the right to

carry on a permitted activity for the

remainder of the term of a current permit provided they comply with the provisions of paragraph (b) of this section.

Such persons are the following:

(1) The surviving spouse, child, executor, administrator, or other legal

representative of a deceased permittee;

and

(2) A receiver or trustee in bankruptcy or a court designated assignee

for the benefit of creditors.

(b) In order to secure the right provided in this section, the person or persons desiring to continue the activity

shall furnish the permit to the issuing

officer for endorsement within 90 days

from the date the successor begins to

carry on the activity.

§ 220.27 Change of mailing address.

During the term of his permit, a permittee may change his mailing address

without procuring a new permit. However, in every case notification of the

new mailing address must be forwarded

to the issuing official within 30 days

after such change. This section does

not authorize the change of location of

the permitted activity for which an

amendment must be obtained.

§ 220.28 Change in name.

A permittee continuing to conduct a

permitted activity is not required to

obtain a new permit by reason of a

mere change in trade name under

which a business is conducted or a

change of name by reason of marriage

or legal decree: Provided, That such

permittee must furnish his permit to

the issuing official for endorsement

within 30 days from the date the permittee begins conducting the permitted activity under the new name.

§§ 220.29–220.30 [Reserved]

§ 220.31 Discontinuance of activity.

When any permittee discontinues his

activity, he shall, within 30 days thereof, mail his permit and a request for

cancellation to the issuing officer, and

said permit shall be deemed void upon

receipt. No refund of any part of an

amount paid as a permit fee shall be

made where the operations of the permittee are, for any reason, discontinued during the tenure of an issued

permit.

Subpart D—Conditions

§ 220.42 Permits are specific.

The authorizations on the face of a

permit which set forth specific times,

dates, places, methods of taking, numbers and kinds of fish or wildlife, location of activity, authorize certain circumscribed transactions, or otherwise

permit a specifically limited matter,

are to be strictly construed and shall

not be interpreted to permit similar or

related matters outside the scope of

strict construction.

§ 220.43 Alteration of permits.

Permits shall not be altered, erased,

or mutilated, and any permit which

has been altered, erased, or mutilated

shall immediately become invalid.

§ 220.44 Display of permit.

Any permit issued under parts 220

through 222 shall be displayed for inspection upon request to the Director

or his agent, or to any other person relying upon its existence.

§ 220.45 Filing of reports.

Permittees may be required to file

reports of the activities conducted

under the permit. Any such reports

shall be filed not later than March 31

for the preceding calendar year ending

December 31, or any portion thereof,

during which a permit was in force, unless the regulations of parts 217

through 222 of this chapter or the provisions of the permit set forth other reporting requirements.
80

§ 220.46 50 CFR Ch. II (10–1–98 Edition)

§ 220.46 Maintenance of records.

From the date of issuance of the permit, the permittee shall maintain complete and accurate records of any taking, possession, transportation, sale,

purchase, barter, exportation, or importation of fish or wildlife pursuant to

such permit. Such records shall be kept

current and shall include names and

addresses of persons with whom any

fish or wildlife has been purchased,

sold, bartered, or otherwise transferred, and the date of such transaction, and such other information as

may be required or appropriate. Such

records, unless otherwise specified,

shall be entered in books, legibly written in the English language. Such

records shall be retained for 5 years

from the date of issuance of the permit.

§ 220.47 Inspection requirement.

Any person holding a permit under

parts 217 through 222 of this chapter

shall allow the Director’s agent to

enter his premises at any reasonable

hour to inspect any fish or wildlife held

or to inspect, audit, or copy any permits, books, or records required to be

kept by regulations of parts 217

through 222 of this chapter or by the

Endangered Species Act of 1973.

Subpart E—Permits Involving Endangered or Threatened Sea

Turtles

SOURCE: 43 FR 32809, July 28, 1978, unless

otherwise noted.

§ 220.50 Purpose.

This subpart establishes procedures

for issuance of permits for scientific

purposes or to enhance the propagation

or survival of ‘‘endangered’’ or ‘‘threatened’’ sea turtles and zoological exhibition or educational purposes for

‘‘threatened’’ sea turtles.

§ 220.51 Permit applications.

Applications for permits to take, import, export or engage in any other

prohibited activity involving any species of sea turtle listed in 50 CFR 17.11

shall be submitted to the Wildlife Permit Office (WPO) of the U.S. Fish and

Wildlife Service in accordance with either, 50 CFR 17.22(a) (Endangered Species) or 50 CFR 17.32(a) (Threatened

Species) as appropriate. Applications

involving activities under the jurisdiction of the National Marine Fisheries

Service (NMFS) as defined in 50 CFR

222.23(a) and 50 CFR 227.4 shall be forwarded by the WPO to NMFS.

§ 220.52 Issuance of permits.

(a) Applications under the jurisdiction of the WPO shall be reviewed and

acted upon in accordance with 50 CFR

17.22 or 50 CFR 17.32 as appropriate.

(b) NMFS shall make a complete review of applications forwarded to it by

the WPO in accordance with § 220.51 and

determine the appropriate action to be

taken in accordance with 50 CFR

220.21(b) and 222.23(c). In instances

where the application involves activities solely within NMFS jurisdiction,

NMFS shall issue permits or letters of

denial and provide WPO with copies of

its actions.

(c) Where a permit application involves activities under both NMFS and

FWS jurisdiction, each agency will

process the application for activities

under its jurisdiction. WPO will issue

either a permit or a letter of denial.

(d) Where a permit application for activities under NMFS jurisdiction also

requires a permit under the Convention

on International Trade in Endangered

Species of Wild Fauna and Flora (TIAS

8249, July 1, 1975) (CITES) (50 CFR part

23), NMFS will process the application

for activities under its jurisdiction.

WPO will issue the final document by

means of a combination ESA/CITES

permit or a letter of denial.

§ 220.53 Other requirements.

Permits issued by NMFS under this

subpart shall be administered and comply with the provisions of 50 CFR parts

217 through 227 as appropriate.

PART 221—DESIGNATED PORTS

AUTHORITY: Endangered Species Act of

1973, sec. 11(f), 87 Stat. 884, Pub. L. 93–205.

§ 221.1 Importation and exportation at

designated ports.

Any fish or wildlife (other than shellfish and fishery products which (a) are
81

National Marine Fisheries Service/NOAA, Commerce § 222.1

not endangered or not threatened species, and (b) are imported for purposes

of human or animal consumption or

taken in waters under the jurisdiction

of the United States or on the high

seas for recreational purposes) which is

subject to the jurisdiction of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce and is intended for importation

into or exportation from the United

States, shall not be imported or exported except at a port or ports designated by the Secretary of the Interior. The Secretary of the Interior may

permit the importation or exportation

at nondesignated ports in the interest

of the health or safety of the fish or

wildlife or for other reasons if he deems

it appropriate and consistent with the

purpose of facilitating enforcement of

the Endangered Species Act and reducing the costs thereof. Importers and exporters are advised to see 50 CFR part

14 for importation and exportation requirements and information.

[39 FR 41375, Nov. 27, 1974]

PART 222—ENDANGERED FISH OR

WILDLIFE

Subpart A—Introduction

Sec.

222.1 Purpose of regulations.

222.2 Scope of regulations.

222.3 Definitions.

Subpart B—Certificates of Exemption for

Pre-Act Endangered Species Parts

222.11–1 General certificate of exemption requirements.

222.11–2 Application renewal procedure.

222.11–3 Application renewal requirements.

222.11–4 Procedures for issuance of renewals

of certificates of exemption.

222.11–5 Application for modification of certificate of exemption by holder.

222.11–6 Amendment of certificates of exemption.

222.11–7 Procedures for suspension, revocation, or modification of certificates of

exemption.

222.11–8 Purchaser provisions.

222.11–9 Duration of certificate of exemption.

222.12 Locations covered by certificate of

exemption.

222.12–1 Certificate of exemption not transferable; exception.

222.12–2 Change of address.

222.12–3 Certain continuance of business.

222.12–4 Change in trade name.

222.12–5 State or other law.

222.12–6 Right of entry and examination.

222.12–7 Records.

222.12–8 Record of receipt and disposition.

222.12–9 Importation.

222.13 Exportation.

222.13–1 Procedure by exporter.

222.13–2 Action by Customs.

222.13–3 Transportation to effect exportation.

222.13–4 Burden of proof; presumption.

Subpart C—Endangered Fish or Wildlife

Permits

222.21 General permit requirement.

222.22 Permits for the incidental taking of

endangered species.

222.23 Permits for scientific purposes or to

enhance the propagation or survival of

the affected endangered species.

222.24 Procedures for issuance of permits.

222.25 Applications for modification of permit by permittee.

222.26 Amendment of permits by NMFS.

222.27 Procedures for suspension, revocation, or modification of permits.

222.28 Possession of permits.

Subpart D—Special Prohibitions

222.31 Approaching humpback whales in Hawaii.

222.32 Approaching North Atlantic right

whales.

222.33 Special prohibitions relating to endangered Steller sea lion protection.

Subpart E—Incidental Capture of

Endangered Sea Turtles

222.41 Policy regarding incidental capture

of sea turtles.

222.42 Special prohibitions relating to

leatherback sea turtles.

AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C.

1361 et seq.

Subpart A—Introduction

§ 222.1 Purpose of regulations.

The regulations contained in this

part identify the species or subspecies

of fish or wildlife determined to be endangered under either the Endangered

Species Conservation Act of 1969 or the

Endangered Species Act of 1973, and

presently deemed endangered species

under the Endangered Species Act of

1973, which are under the jurisdiction

of the Secretary of Commerce, and establish procedures and criteria for
82

§ 222.2 50 CFR Ch. II (10–1–98 Edition)

issuance of permits for the taking, importation, exportation, or otherwise

prohibited acts, involving endangered

fish or wildlife. The regulations of this

part implement, in part, the Endangered Species Act of 1973, 87 Stat. 884,

Pub. L. 93–205, as amended.

[45 FR 57133, Aug. 27, 1980]

§ 222.2 Scope of regulations.

(a) The regulations of this part apply

only to endangered fish or wildlife.

(b) The provisions in this part are in

addition to, and are not in lieu of,

other regulations of parts 217 through

222 of this chapter which may require a

permit or prescribe additional restrictions or conditions for the taking, importation, exportation, and interstate

transportation of fish or wildlife. (See

also parts 220 and 221 of this chapter.)

[45 FR 57133, Aug. 27, 1980]

§ 222.3 Definitions.

These definitions apply only to

§222.22:

Adequately covered means, with respect to species listed pursuant to section 4 of the ESA, that a proposed conservation plan has satisfied the permit

issuance criteria under section

10(a)(2)(B) of the ESA for the species

covered by the plan and, with respect

to unlisted species, that a proposed

conservation plan has satisfied the permit issuance criteria under section

10(a)(2)(B) of the ESA that would otherwise apply if the unlisted species covered by the plan were actually listed.

For the Services to cover a species

under a conservation plan, it must be

listed on the section 10(a)(1)(B) permit.

Changed circumstances means changes

in circumstances affecting a species or

geographic area covered by a conservation plan that can reasonably be anticipated by plan developers and NMFS

and that can be planned for (e.g., the

listing of new species, or a fire or other

natural catastrophic event in areas

prone to such events).

Conserved habitat areas means areas

explicitly designated for habitat restoration, acquisition, protection, or

other conservation purposes under a

conservation plan.

Conservation plan means the plan required by section 10(a)(2)(A) of the ESA

that an applicant must submit when

applying for an incidental take permit.

Conservation plans also are known as

‘‘habitat conservation plans’’ or

‘‘HCPs.’’

Operating conservation program means

those conservation management activities which are expressly agreed upon

and described in a conservation plan or

its Implementing Agreement, if any,

and which are to be undertaken for the

affected species when implementing an

approved conservation plan, including

measures to respond to changed circumstances.

Properly implemented conservation plan

means any conservation plan, Implementing Agreement and permit whose

commitments and provisions have been

or are being fully implemented by the

permittee.

Unforeseen circumstances means

changes in circumstances affecting a

species or geographic area covered by a

conservation plan that could not reasonably have been anticipated by plan

developers and NMFS at the time of

the conservation plan’s negotiation

and development, and that result in a

substantial and adverse change in the

status of the covered species.

[63 FR 8872, Feb. 23, 1998]

Subpart B—Certificates of Exemption for Pre-Act Endangered

Species Parts

SOURCE: 45 FR 57134, Aug. 27, 1980, unless

otherwise noted.

§ 222.11–1 General certificate of exemption requirements.

(a) The Assistant Administrator, pursuant to the provisions of the Endangered Species Act, and pursuant to the

provisions of this paragraph, may exempt any pre-Act endangered species

part from one or more of the following:

(1) The prohibition, as set forth in

section 9(a)(1)(A) of the Act, to export

any such species part from the United

States;

(2) The prohibitions, as set forth in

section 9(a)(1)(E) of the Act, to deliver,

receive, carry, transport, or ship in

interstate or foreign commerce, by any

means whatsoever and in the course of
83

National Marine Fisheries Service/NOAA, Commerce § 222.11–3

a commercial activity any such species

part;

(3) The prohibitions, as set forth in

section 9(a)(1)(F) of the Act, to sell or

offer for sale in interstate or foreign

commerce any such species part.

(b) No person shall engage in any of

the above activities involving any preAct endangered species part without a

valid certificate of exemption, or evidence of a right thereunder, issued pursuant to this subpart B.

(c) After January 31, 1984, no person

may export; deliver, receive, carry,

transport or ship in interstate or foreign commerce in the course of a commercial activity; or sell or offer for

sale in interstate or foreign commerce

any pre-Act finished scrimshaw product unless that person has been issued

a valid certificate of exemption and the

product or the raw material for such

product was held by such certificate

holder on October 13, 1982.

[45 FR 57134, Aug. 27, 1980, as amended at 50

FR 12808, Apr. 1, 1985]

§ 222.11–2 Application renewal procedure.

(a) Any person to whom a certificate

of exemption has been issued by the

National Marine Fisheries Service and

who desires to obtain a renewal of such

certificate of exemption may make application therefor to the Assistant Administrator. The sufficiency of the application shall be determined by the

Assistant Administrator in accordance

with the requirements of this part and,

in that connection, he may waive any

requirement for information, or require

any elaboration for further information deemed necessary.

(b) One copy of a completed application for renewal shall be submitted to

the Assistant Administrator for Fisheries, National Marine Fisheries Service, Washington, DC 20235.

(c) The outside of the envelope should

be marked, ATTENTION: Enforcement

Division, ‘‘Certificate of Exemption

Request.’’ Assistance may be obtained

by writing or calling the Enforcement

Division, NMFS, in Washington, DC

(AC 202, 634–7265). At least 15 days

should be allowed for processing. An

application for a certificate of exemption shall provide the information contained in § 222.11–3 (when the information requested is not applicable, put

‘‘N.A.’’) and such other information

that the Assistant Administrator may

require.

[45 FR 57134, Aug. 27, 1980]

§ 222.11–3 Application renewal requirements.

(a) The following information will be

used as the basis for determining

whether an application for renewal of a

certificate of exemption is complete:

(1) Title: Application for Renewal of

Certificate of Exemption Under Pub. L.

97–304.

(2) The date of application.

(3) The identity of the applicant including complete name, original certificate of exemption number, current

address, and telephone number, including zip and area codes. If the applicant

is a corporation, partnership, or association set forth the details.

(4) The period of time for which a renewal of the certificate of exemption is

requested; however, no renewal of certificate of exemption, or right claimed

thereunder, shall be effective after the

close of the three-year period beginning on the date of the expiration of

the previous renewal of the certificate

of exemption.

(5)(i) A complete and detailed updated inventory of all pre-Act endangered species parts for which the applicant seeks exemption. Each item on

the inventory must be identified by the

following information: a unique serial

number; the weight of the item in

grams, to the nearest whole gram; and

a description in detail sufficient to permit ready identification of the item.

Small lots, not exceeding five pounds

(2,270 grams), of scraps or raw material,

which may include or consist of one or

more whole raw whale teeth, may be

identified by a single serial number and

total weight. All finished scrimshaw

items subsequently made from a given

lot of scrap may be identified by the

lot serial number plus additional digits

to signify the piece number of the individual finished item. Identification

numbers will be in the following format: 00–000000–0000. The first two digits

will be the last two digits of the appropriate certificate of exemption number;

the next six digits, the serial number of

the individual piece or lot of scrap or
84

§ 222.11–4 50 CFR Ch. II (10–1–98 Edition)

raw material; and the last four digits,

where applicable, the piece number of

an item made from a lot of scrap or

raw material. The serial numbers for

each certificate holder’s inventory

must begin with 000001, and piece numbers, where applicable, must begin with

0001 for each separate lot.

(ii) Identification numbers may be affixed to inventory items by any means,

including, but not limited to, etching

the number into the item, attaching a

label or tag bearing the number to the

item, or sealing the item in a plastic

bag, wrapper or other container bearing the number. Provided that, the

number must remain affixed to the

item until it is sold to an ultimate

user, as defined in § 222.11–8(b) of this

part.

(iii) No renewals will be issued for

scrimshaw products in excess of any

quantities declared in the original application for a certificate of exemption.

(6) A certification in the following

language:

I hereby certify that the foregoing information is complete, true, and correct to the

best of my knowledge and belief. I understand that this information is submitted for

the purpose of obtaining a renewal of my certificate of exemption under the Endangered

Species Act of 1973, as amended by Pub. L.

94–359, 90 Stat. 911, Pub. L. 96–159, 93 Stat.

1225, Pub. L. 97–304, 95 Stat. 715, and the Department of Commerce regulations issued

thereunder, and that any false statement

may subject me to the criminal penalties of

18 U.S.C. 1001, or to the penalties under the

Endangered Species Act of 1973.

(7) Signature of the applicant.

(b) Upon receipt of an incomplete or

improperly executed application for renewal, the applicant shall be notified

by Certified Mail of the deficiency in

the application for renewal. If the application for renewal is not corrected

and received by the Assistant Administrator within 30 days following the

date of receipt of notification, the application for renewal shall be considered as having been abandoned.

[45 FR 57134, Aug. 27, 1980, as amended at 50

FR 12808, Apr. 1, 1985]

§ 222.11–4 Procedures for issuance of

renewals of certificates of exemption.

Whenever application for a renewal

of a certificate of exemption is received

by the Assistant Administrator which

the Assistant Administrator deems sufficient, he shall, as soon as practicable,

issue a certificate of renewal to the applicant.

§ 222.11–5 Application for modification

of certificate of exemption by holder.

Where circumstances have changed

so that an applicant or certificate of

exemption holder desires to have any

material term or condition of his application or certificate modified, he must

submit in writing full justification and

supporting information in conformance

with the provisions of this part.

§ 222.11–6 Amendment of certificates

of exemption.

All certificates are issued subject to

the condition that the Assistant Administrator reserves the right to

amend the provisions of a certificate of

exemption for just cause at any time.

Such amendments take effect on the

date of notification, unless otherwise

specified.

§ 222.11–7 Procedures for suspension,

revocation, or modification of certificates of exemption.

Any violation of the applicable provisions of parts 217 through 222 of this

chapter, or of the Act, or of a condition

of the certificate of exemption may

subject the certificate holder to the

following:

(a) The penalties provided in the Act;

and

(b) Suspension, revocation, or modification of the certificate of exemption,

as provided in subpart D of 15 CFR part

904.

[49 FR 1042, Jan. 6, 1984]

§ 222.11–8 Purchaser provisions.

(a) Any person granted a certificate

of exemption, including a renewal,

under this subpart, upon a sale of any

exempted pre-Act endangered species

part, must provide the purchaser in

writing with a description (including

full identification number) of the part

sold, and must inform the purchaser in

writing of the purchaser’s obligation
85

National Marine Fisheries Service/NOAA, Commerce § 222.12–2

under paragraph (b) of this section, including the address given in the certificate to which the purchaser’s report is

to be sent.

(b) Any purchaser of pre-Act endangered species parts included in a valid

certificate of exemption, unless an ultimate user, must within 30 days after

the receipt of such parts submit a written report to the address given in the

certificate specifying the quantity of

such parts or products received, the

name and address of the seller, a copy

of the invoice or other document showing the serial numbers, weight, and descriptions of the parts or products received, the date on which such parts or

products were received, and the intended use of such parts by the purchaser. An ultimate user, for purposes

of this paragraph, means any person

who acquired such endangered species

part or product for his own consumption or personal use (including as

gifts), and not for resale.

(c) After January 31, 1984, no purchaser may export; deliver, receive,

carry or transport in interstate or foreign commerce in the course of a commercial activity; or sell or offer for

sale in interstate or foreign commerce

any endangered species part or product

even though such part or product was

acquired under a certificate of exemption either prior to or subsequent to

that date.

[50 FR 12808, Apr. 1, 1985]

§ 222.11–9 Duration of certificate of exemption.

A certificate of exemption is valid

only if renewed in accordance with the

procedures set forth in § 222.11–3 of this

part. All certificates so renewed will be

valid for a period beginning April 1,

1985, and ending no later than March

31, 1988. A renewed certificate of exemption entitles the holder to engage

in the business or activity specified in

the certificate of exemption, within

the limitations of the Act and the regulations contained in this subpart, for

the period stated in the certificate of

exemption, unless sooner terminated.

[50 FR 12808, Apr. 1, 1985, as amended at 50

FR 25713, June 21, 1985]

§ 222.12 Locations covered by certificate of exemption.

The certificate of exemption covers

the business or activity specified in the

certificate of exemption at the address

described therein. No certificate of exemption is required to cover a separate

warehouse facility used by the certificate of exemption holder solely for

storage of pre-Act endangered species

parts, if the records required by this

subpart are maintained at the address

specified in the certificate of exemption which is served by the warehouse

or storage facility.

[50 FR 12809, Apr. 1, 1985]

§ 222.12–1 Certificate of exemption not

transferable; exception.

Certificates of exemption issued

under this subpart are not transferable:

Provided, That in the event of the lease,

sale or other transfer of the operations

or activity authorized by the certificate of exemption the successor is not

required by this subpart to obtain a

new certificate of exemption prior to

commencing such operations or activity. In such case, the successor will be

treated as a purchaser and must comply with the record and reporting requirements set forth in §222.11–8.

[45 FR 57134, Aug. 27, 1980, as amended at 50

FR 12809, Apr. 1, 1985]

§ 222.12–2 Change of address.

A certificate of exemption holder

may during the term of the certificate

of exemption move his business or activity to a new location at which he intends regularly to carry on such business or activity, without obtaining a

new certificate of exemption. However,

in every case, notification of the new

location of the business or activity

must be given in writing within 10 days

of such move to the Assistant Administrator. In each instance, the certificate

of exemption must be endorsed by the

Assistant Administrator. After endorsement of the certificate of exemption the Assistant Administrator will

provide an amended certificate of exemption to the person to whom issued.
86

§ 222.12–3 50 CFR Ch. II (10–1–98 Edition)

§ 222.12–3 Certain continuance of business.

A certificate of exemption holder

who requests that his certificate of exemption be amended by the Assistant

Administrator for corrections or endorsement in compliance with the provisions contained in this subpart, may

continue his operations while awaiting

action by the Assistant Administrator.

§ 222.12–4 Change in trade name.

A certificate holder continuing to

conduct business at the location shown

on his certificate of exemption is not

required to obtain a new certificate of

exemption by reason of a change in

trade name under which he conducts

his business: Provided, That such certificate of exemption holder requests in

writing that his certificate of exemption be endorsed to reflect such change

of name to the Assistant Administrator within 30 days from the date the

certificate of exemption holder begins

his business under the new name.

§ 222.12–5 State or other law.

A certificate of exemption issued

under this subpart confers no right or

privilege to conduct a business or an

activity contrary to State or other

law. Similarly, compliance with the

provisions of any State or other law affords no immunity under any Federal

laws or regulations of any other Federal Agency.

§ 222.12–6 Right of entry and examination.

Any person authorized to enforce the

Act may enter during business hours

the premises, including places of storage, of any holder of a certificate of exemption or of any purchaser for the

purpose of inspecting or examining any

records or documents required to be

kept by such certificate of exemption

holder or successor under this subpart,

and any endangered species parts at

such premises of location.

[45 FR 57134, Aug. 27, 1980, as amended at 50

FR 12809, Apr. 1, 1985]

§ 222.12–7 Records.

The records pertaining to pre-Act endangered species parts prescribed by

this subpart shall be in permanent

form, and shall be retained at the address shown on the certificate of exemption, or at the principal address of

a purchaser in the manner prescribed

by this subpart.

[45 FR 57134, Aug. 27, 1980, as amended at 50

FR 12809, Apr. 1, 1985]

§ 222.12–8 Record of receipt and disposition.

(a) Holders of certificates of exemption must maintain records of all preAct endangered species parts they receive, sell, transfer, distribute or dispose of otherwise. Purchasers of preAct endangered species parts, unless

ultimate users, must similarly maintain records of all such parts or products they receive.

(b) Such records as referred to in

paragraph (a) of this section may consist of invoices or other commercial

records which must be filed in an orderly manner separate from other commercial records maintained, and be

readily available for inspection. Such

records must (1) show the name and address of the purchaser, seller, or other

transferor; (2) show the type, quantity,

and identity of the part or product; (3)

show the date of such sale or transfer;

and (4) be retained, in accordance with

the requirements of this subpart, for a

period of not less than three years following the date of sale or transfer.

Each pre-Act endangered species part

will be identified by its number on the

updated inventory required to renew a

certificate of exemption.

(c)(1) Each certificate of exemption

holder must submit a quarterly report

(to the address given in the certificate)

containing all record information required by paragraph (b) on all transfers

of pre-Act endangered species parts

made in the previous calendar quarter,

or such other record information the

Assistant Administrator may specify

from time to time.

(2) Quarterly reports are due on January 15, April 15, July 15, and October

15. The first report is due on October

15, 1985.

(d) The Assistant Administrator may

authorize the record information to be

submitted in a manner other than that

prescribed in paragraph (b) of this section when it is shown by the record
87

National Marine Fisheries Service/NOAA, Commerce § 222.21

holder that an alternate method of reporting is reasonably necessary and

will not hinder the effective administration or enforcement of this subpart.

[45 FR 57134, Aug. 27, 1980, as amended at 50

FR 12809, Apr. 1, 1985]

§ 222.12–9 Importation.

No pre-Act endangered species part

shall be imported into the United

States, and a certificate of exemption

issued in accordance with the provisions of this subpart confers no right or

privilege to import into the United

States any such part.

§ 222.13 Exportation.

(a) Any person desiring to export

from the United States any pre-Act endangered species part or scrimshaw

product, must possess a valid certificate of exemption issued in accordance

with the provisions of this subpart.

(b) In addition to other information,

which may be required by this subpart,

the exporter will notify the Assistant

Administrator by letter which shall

show the name and address of the foreign consignee, the intended port of exportation, and a complete description

of the parts to be exported. Such information should reach the Assistant Administrator not less than 10 days prior

to shipment.

(c) No pre-Act endangered species

part or scrimshaw product which is to

be exported from the United States

under a certificate of exemption issued

therefor, shall be exported except at a

port or ports designated by the Secretary of the Interior. The Secretary of

the Interior may permit the exportation at non-designated ports for any

reason if he deems it appropriate and

consistent with the purposes of the Endangered Species Act, as amended, or it

will facilitate the administration or

enforcement of the Act and reducing

the costs thereof. Exporters are advised

to see 50 CFR part 14 for a listing of the

designated ports.

§ 222.13–1 Procedure by exporter.

Shipment may not be made until the

requirements of § 222.13 are met by the

exporter. A copy of the certificate of

exemption, and any endorsements

thereto, must be sent by the exporter

to the District Director of Customs at

the port of exportation, and must precede or accompany the shipment in

order to permit appropriate inspection

prior to lading.

§ 222.13–2 Action by Customs.

Upon receipt of a certificate of exemption authorizing the exportation of

pre-Act endangered species parts or

scrimshaw products, the District Director of Customs may order such inspection as deemed necessary prior to lading of the merchandise. If satisfied that

the shipment is proper and agrees with

the information contained in the certificate, and any endorsement thereto,

the District Director of Customs will

clear the merchandise for export. The

certificate, and any endorsements, will

be forwarded to the Chief, Enforcement

Division, F/CM5 National Marine Fisheries Service, Washington, DC 20235.

§ 222.13–3 Transportation to effect exportation.

Notwithstanding any provision of

this subpart, it shall not be required

that authorization be obtained from

the Assistant Administrator for the

transportation in interstate or foreign

commerce of pre-Act endangered species parts to effect an exportation of

such parts authorized under the provisions of this subpart.

§ 222.13–4 Burden of proof; presumption.

Any person claiming the benefit of

any exemption or certificate of exemption under the Act or regulations, shall

have the burden of proving that the exemption or certificate is applicable,

has been granted, and was valid and in

force at the time of the alleged violation.

Subpart C—Endangered Fish or

Wildlife Permits

SOURCE: 39 FR 41375, Nov. 27, 1974, unless

otherwise noted.

§ 222.21 General permit requirement.

No person shall take, import, export,

or engage in any other prohibited activity involving, any species or subspecies of fish or wildlife which the

Secretary has determined to be endangered under the Endangered Species
88

§ 222.22 50 CFR Ch. II (10–1–98 Edition)

Act of 1973, as evidenced by its inclusion on the list of endangered fish or

wildlife (see 50 CFR chapter I, part 17)

or which the Secretary of the Interior

determined to be endangered under the

Endangered Species Conservation Act

of 1969 and which are now under the jurisdictional responsibilities of the Secretary of Commerce, without a valid

permit issued pursuant to this part.

(Pub. L. 94–359)

[41 FR 36028, Aug. 26, 1976]

§ 222.22 Permits for the incidental taking of endangered species.

(a) Scope. (1) The Assistant Administrator may issue permits to take endangered marine species incidentally

to an otherwise lawful activity under

section 10(a)(1)(B) of the Endangered

Species Act of 1973. The regulations in

this section apply only to those endangered species under the jurisdiction of

the Secretary of Commerce identified

in §222.23(a).

(2) If the applicant represents an individual or a single entity, such as a

corporation, the Assistant Administrator will issue an individual incidental take permit. If the applicant represents a group or organization whose

members conduct the same or a similar

activity in the same geographical area

with similar impacts on endangered

marine species, the Assistant Administrator will issue a general incidental

take permit. To be covered by a general incidental take permit, each individual conducting the activity must

have a certificate of inclusion issued

under paragraph (f) of this section.

(b) Permit application procedures. Applications should be sent to the Assistant Administrator for Fisheries, National Marine Fisheries Service, 1335

East West Highway, Silver Spring, MD

20910. The sufficiency of the application

will be determined by the Assistant

Administrator in accordance with the

requirements of this section. At least

120 days should be allowed for processing. Each application must be signed

and dated and include the following:

(1) The type of application, either:

(i) Application for an Individual Incidental Take Permit under the Endangered Species Act of 1973, or

(ii) Application for a General Incidental Take Permit under the Endangered Species Act of 1973.

(2) The name, address and telephone

number of the applicant. If the applicant is a partnership, corporate entity

or is representing a group or organization, the applicable details.

(3) The species or stocks, by common

and scientific name, and a description

of the status, distribution, seasonal

distribution, habitat needs, feeding

habits and other biological requirements of the affected species or stocks.

(4) A detailed description of the proposed activity, including the anticipated dates, duration and specific location. If the request is for a general incidental take permit, an estimate of the

total level of activity expected to be

conducted.

(5) A conservation plan, based on the

best scientific and commercial data

available, which specifies

(i) The anticipated impact (i.e.,

amount, extent and type of anticipated

taking) of the proposed activity on the

species or stocks;

(ii) The anticipated impact of the

proposed activity on the habitat of the

species or stocks and the likelihood of

restoration of the affected habitat;

(iii) The steps (specialized equipment, methods of conducting activities, or other means) that will be taken

to monitor, minimize and mitigate

such impacts, and the funding available to implement such measures; and

(iv) The alternative actions to such

taking that were considered and the

reasons why those alternatives are not

being used.

(v) A list of all sources of data used

in preparation of the plan, including

reference reports, environmental assessments and impact statements, and

personal communications with recognized experts on the species or activity

who may have access to data not published in current literature.

(c) Issuance criteria. (1) In determining whether to issue a permit, the Assistant Administrator will consider the

following:

(i) The status of the affected species

or stocks;

(ii) The potential severity of direct,

indirect and cumulative impacts on the