board and on such other testimony or evidence as it may receive, that—

(i) There are no reasonable and prudent alternatives to the proposed action;

(ii) The benefits of such action clear=ly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public inEterest; and

1

(iii) The action is of regional or national significance; and

(2) It establishes such reasonable mitigation and enhancement measures as are necessary and appropriate to minimize the adverse effects of the proposed action upon the endangered species, threatened species, or critical habitat concerned.

(c) Decision and order. The Committee's final determinations shall be written and shall be based on the whole public record of testimony, evidence and other written comments submitted to the Committee. If the Committee determines that an exemption should be granted, the Committee shall issue an order granting the exemption and specifying required mitigation and enhancement measures. The Committee shall publish its decisions in the FEDERAL REGISTER as soon as practicable.

(d) Permanent exemptions. Under section 7(h)(2)(B) of the Act, an exemption granted by the Committee shall constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing such agency action, provided that a biological assessment has been conducted, unless the Secretary finds, based on the best scientific and commercial data available, that such exemption would result in the extinction of the species. If the Secretary so finds, the Committee shall determine within 30 days after such finding whether to continue the exemption for the agency action notwithstanding the Secretary's finding. During the 30 day period, the holder of the exemption shall refrain from any action which would result in extinction of the species.

(e) Review by the Secretary of Defense. If the Secretary of Defense certifies in writing that an exemption for

the agency action is necessary for reasons of national security, the Committee shall grant the exemption, notwithstanding any other provision in this part.

§ 453.04 Committee information gathering. (a) Written submissions. When the Chairman or four Committee members decide that written submissions are necessary to enable the Committee to make its final determinations, the Chairman shall publish a notice in the FEDERAL REGISTER inviting written submissions from interested persons. The notice shall include: (1) The address to which such submissions are to be sent; (2) the deadline for such submissions; and (3) a statement of the type of information needed.

(b) Information gathering proceedings. (1) When the Chairman or four Committee members decide that oral presentations are necessary to enable the Committee to make its final determinations, an information gathering proceeding shall be held.

(2) The information gathering proceeding shall be conducted by (i) the Committee or (ii) a member of the Committee or other person, designated by the Chairman or by four members of the Committee.

(3) Notice. The Chairman shall publish in the FEDERAL REGISTER a general notice of an information gathering proceeding, stating: (1) The time, place and nature of the information gathering proceeding; and (2) the type of information needed. The Federal Register notice shall be published at least 15 days prior to the proceeding.

(4) Procedure. The information gathering proceedings shall be open to the public and conducted in an informal manner. All information relevant to the Committee's final determinations shall be admissible, subject to the imposition of reasonable time limitations on oral testimony.

(5) Transcript. Information gathering proceedings will be recorded verbatim and a transcript thereof will be available for public inspection. Any person may obtain a copy of the transcript upon payment of the actual cost of duplication.

§ 453.05 Committee meetings.

(a) The Committee shall meet at the call of the Chairman or five of its members.

(b) Five members of the Committee or their representatives shall constitute a quorum for the transaction of any function of the Committee, except that in no case shall any representative be considered in determining the existence of a quorum for the transaction of a Committee function which involves a vote by the Committee on the Committee's final determinations.

(c) All meetings and records of the Committee shall be open to the public.

(d) The Chairman shall publish a notice of all Committee meetings in the FEDERAL REGISTER. The notice will ordinarily be published at least 15 days prior to the meeting.

§ 453.06 Additional committee powers.

(a) Request and receive assistance. The Committee may request and receive:

(1) Administrative support services on a reimbursable basis, from the Administrator of the General Services Administration; and

(2) Personnel from any Federal agency on a nonreimbursable basis, to

assist the Committee in carrying out its duties.

(b) Use the mails. The Committee may use the mails in the same manner and under the same conditions as a Federal agency.

(c) Secure information. Subject to the Privacy Act, the Committee may secure information directly from any Federal agency when necessary to enable it to carry out its duties.

(d) Subpenas. (1) For the purpose of obtaining information necessary for the consideration of an application for an exemption, the Committee may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents;

(2) The Chairman shall receive review board subpena requests and may issue the subpenas on behalf of the Committee to aid the review board.

(e) Rules and orders. The Committee may issue such rules and orders as are necessary to carry out its duties.

(f) Delegate authority. The Committee may delegate its authority under paragraphs (a) through (d) of this section to any member.

501.3 Procedure for responding to requests regarding the existence of records pertaining to an individual.

501.4 Requests for access-times, places and requirements for identification of individuals.

501.5 Disclosure of requested information. 501.6 Requests for correction or amendment of a record.

501.7 Agency review of requests for amendment or correction of a record. 501.8 Appeal of initial denial of a request for amendment or correction. 501.9 Fees.

AUTHORITY: Sec. 3, Privacy Act of 1974 (5 U.S.C. 552a(f)).

SOURCE: 40 FR 49276, Oct. 21, 1975, unless otherwise noted.

§ 501.1 Purpose and Scope.

(a) Purpose. The purpose of these rules is to fulfill the responsibilities of the Marine Mammal Commission (the "Commission") under section 3 of the Privacy Act of 1974, 5 U.S.C. 552a(f) (the "Act") by establishing procedures whereby an individual will be notified if any system of records maintained by the Commission contains a record pertaining to him or her; by defining the times and places at which records will be made available and the identification requirements which must be met by any individual requesting access to them; by establishing procedures for disclosure to an individual, on request, of any record pertaining to him or her; and by establishing procedures for processing, reviewing, and making a final determination on requests of individuals to correct or amend a record pertaining to him or her, including a provision for administrative appeal of initial adverse determinations on such requests. These rules are promulgated with particular attention to the purposes and goals of the Act, and in accordance therewith provide for relative ease of access to records pertaining to an individual, and for maintenance by the Commission of only those records which are current, accurate, necessary, relevant and complete

with respect to the purposes for which they were collected.

(b) Scope. These rules apply only to "record" contained in "systems of records," defined by the Act as follows:

The term "record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

The term "system of records" means of group of any record under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

Notices with respect to the systems maintained by the Commission have been published in the FEDERAL REGISTER, as required by the Act. These rules pertain only to the systems of records disclosed in such notices, and to any systems that may become the subject of a notice at any time in the future.

(c) Nothing in these rules shall be construed as pertaining to requests made under the Freedom of Information Act, 5 U.S.C. 552.

§ 501.2 Definitions.

(a) As used in this Part:

(1) The term "Act" means the Privacy Act of 1974, 5 U.S.C. 552a.

(2) The term "Commission" means the Marine Mammal Commission.

(3) The term "Director" means the Executive Director of the Marine Mammal Commission.

(4) The term "Privacy Officer" means an individual designated by the Director to receive all requests regarding the existence of records, requests for access and requests for correction or amendment; to review and make initial determinations regarding all such requests; and to provide assistance to any individual wishing to exercise his or her rights under the Act.

(b) Other terms shall be used in this part in accordance with the definitions contained in section 3 of the Privacy Act of 1974, 5 U.S.C. 552a(a).

§ 501.3 Procedure for responding to requests regarding the existence of records pertaining to an individual.

Any individual may submit a request to be notified whether a system of records, with respect to which the Commission has published a notice in the FEDERAL REGISTER, contains a record pertaining to him or her. Requests may be made in writing to the Privacy Officer or by appearing in person at the Commission offices located at 1625 I Street, NW., Room 307, Washington, D.C. 20006 between the hours of 9:00 a.m. and 5:00 p.m. on any working day. Systems of records that are the subject of a request should be identified by reference to the system name designated in the Notice of Systems of Records published in the FEDERAL REGISTER. In the event a system name is not known to the individual, a general request will suffice if it indicates reasons for the belief that a record pertaining to the named individual is maintained by the Commission. Receipt of inquiries submitted by mail will be acknowledged within 10 days of receipt (excluding Saturdays, Sundays, and legal public holidays) unless a response can also be prepared and forwarded to the individual within that time.

§ 501.4 Requests for access-times, places and requirements for identification of individuals.

Requests for access to a system of records pertaining to any individual may be made by that individual by mail addressed to the Privacy Officer, or by submitting a written request in person at the Commission offices located at 1625 I Street, NW., Room 307, Washington, D.C. 20006, between the hours of 9 a.m. and 5 p.m. on any working day. Assistance in gaining access under this section, securing an amendment or correction under § 501.6, or preparing an appeal under §§ 501.5(d) and 501.8 shall be provided by the Privacy Officer on request directed to the Commission office. An individual appearing in person at the Commission offices will be granted immediate access to any records to which that individual is entitled under the Act upon satisfactory proof of identity by means of a document bearing the individual's photograph or signature.

ss (Name of individual) who affixed (his) (her) signature below in my presence, came before me, a (Title), in the aforesaid County and State, this day of ———, 19—, and established (his)(her) identity to my satisfaction.

My Commission expires

The certificate shall not be required, however, for written requests pertaining to non-sensitive information or to information which would be required to be made available under the Freedom of Information Act. The Privacy Officer shall determine the adequacy of any proof of identity offered by an individual.

[41 FR 5, Jan. 2, 1976]

§ 501.5 Disclosure of requested information.

(a) Upon request and satisfactory proof of identity, an individual appearing at the Commission offices shall be given immediate access to and permission to review any record, contained in a system of records, pertaining to him or her, shall be allowed to have a person of his/her choosing accompany him/her, and shall be given a copy of all or any portion of the record. The individual to which access is granted shall be required to sign a written statement authorizing the presence of the person who accompanies him or her, and authorizing discussion of his or her record in the presence of the accompanying person.

(b) Requests made by mail to the Privacy Officer at the Commission offices will be acknowledged within 10 days from date of receipt (excluding Saturdays, Sundays, and legal public holidays). This acknowledgement shall advise the individual whether access to the record will be granted and, if access is granted, copies of such records shall be enclosed.

(c) If the Privacy Officer initially determines to deny access to all or any portion of a record, notice of denial shall be given to the individual in writ