September 30, 2001 CODE OF FEDERAL REGULATIONS 50Parts 200 to 599 Revised as of October 1, 2001 Wildlife and Fisheries Containing a codification of documents of general applicability and future effect As of October 1, 2001 With Ancillaries

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 Table of Contents Page Explanation v Title 50: Chapter II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce 3 Chapter III—International Fishing and Related Activities 319 Chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations 379 Chapter V—Marine Mammal Commission 421 Finding Aids: Material Approved for Incorporation by Reference 447 Table of CFR Titles and Chapters 449 Alphabetical List of Agencies Appearing in the CFR 467 List of CFR Sections Affected 477

Cite this Code:CFR

To cite the regulations in this volume use title, part and section number. Thus, 50 CFR 216.1 refers to title 50, part 216, section 1. Explanation

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

Title 1 through Title 16

as of January 1

Title 17 through Title 27

as of April 1

Title 28 through Title 41

as of July 1

Title 42 through Title 50

as of October 1

The appropriate revision date is printed on the cover of each volume.

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To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2001), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.

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 OBSOLETE PROVISIONS

Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 1986, consult either the List of CFR Sections Affected, 1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes. For the period beginning January 1, 1986, a “List of CFR Sections Affected” is published at the end of each CFR volume.

 INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 523-4534.

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A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

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The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.

A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

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 Raymond A. Mosley, Director, Office of the Federal Register. October 1, 2001. THIS TITLE

Title 50—Fish and Wildlife is composed of three volumes. The parts in these volumes are arranged in the following order: Parts 1-199, parts 200-599 and part 600 to end. The first volume (parts 1-199) contains the current regulations issued under chapter I—United States Fish and Wildlife Service, Department of the Interior. The second volume (parts 200-599) contains the current regulations issued under chapter II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce; chapter III—International Fishing and Related Activities, chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee regulations; and chapter V—Marine Mammal Commission. The third volume (part 600 to end) contains the current regulations issued under chapter VI—Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2001.

Alphabetical listings of endangered and threatened wildlife and plants appear in part 17.

The OMB control numbers for the National Oceanic and Atmospheric Administration appear in 15 CFR 902.1.

CFRORDR.FRM <LRH>50 CFR Ch. II (10-1-01 Edition)</LRH> <RRH>National Marine Fisheries Service/NOAA, Commerce</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 50—Wildlife and Fisheries</HD> <P>(This book contains parts 200 to 599)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter ii</E>—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce</SUBJECT> <PG>216</PG> <SUBJECT> <E T="04">chapter iii</E>—International Fishing and Related Activities</SUBJECT> <PG>300</PG> <SUBJECT> <E T="04">chapter iv</E>—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations</SUBJECT> <PG>401</PG> <SUBJECT> <E T="04">chapter v</E>—Marine Mammal Commission</SUBJECT> <PG>501</PG> </CHAPTI> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Commercial fishing on Red Lake Indian Reservation, Bureau of Indian Affairs, Interior: 25 CFR part 242.</P> <P>Disposal of certain wild animals in national parks, National Park Service, Interior: 36 CFR part 10.</P> <P>Exchanges of land for migratory bird or other wildlife refuges, Bureau of Land Management, Interior: 43 CFR 2200.0-1—2272.1.</P> <P>Fishing, hunting, trapping, and protection of wildlife in national forests and wildlife refuges, Forest Service, USDA: 36 CFR part 241, §§ 261.8, 261.9.</P> <P>Fishing, hunting, trapping, and protection of wildlife in national parks, memorials, recreation areas, etc., National Park Service, Interior: 36 CFR parts 2, 7, 20.</P> <P>Fishing and hunting in reservoir areas, Corps of Engineers, Army, DoD: 36 CFR 327.8.</P> <P>Free entry of animals, birds and products of American fisheries under specified conditions, Customs Service, Treasury: 19 CFR 10.70—10.83.</P> <P>Grazing areas for wildlife maintenance, Bureau of Land Management, Interior: 43 CFR part 4110.</P> <P>Making pictures, television production, or sound tracks on areas administered by the United States Fish and Wildlife Service or the National Park Service, Interior: 43 CFR 5.1.</P> </CROSSREF> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER II—NATIONAL MARINE FISHERIES</HD> <HD SOURCE="HED">SERVICE, NATIONAL OCEANIC AND</HD> <HD SOURCE="HED">ATMOSPHERIC ADMINISTRATION,</HD> <HD SOURCE="HED">DEPARTMENT OF COMMERCE</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—GENERAL PROVISIONS[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—MARINE MAMMALS</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>216</PT> <SUBJECT>Regulations governing the taking and importing of marine mammals</SUBJECT> <PG>5</PG> <PT>217-221</PT> <RESERVED>[Reserved]</RESERVED> <PT>222</PT> <SUBJECT>General endangered and threatened marine species</SUBJECT> <PG>77</PG> <PT>223</PT> <SUBJECT>Threatened marine and anadromous species</SUBJECT> <PG>98</PG> <PT>224</PT> <SUBJECT>Endangered marine and anadromous species</SUBJECT> <PG>171</PG> <PT>225</PT> <RESERVED>[Reserved]</RESERVED> <PT>226</PT> <SUBJECT>Designated critical habitat</SUBJECT> <PG>176</PG> <PT>228</PT> <SUBJECT>Notice and hearing on section 103(d) regulations</SUBJECT> <PG>218</PG> <PT>229</PT> <SUBJECT>Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972</SUBJECT> <PG>225</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—WHALING</HD> </SUBCHAP> <CHAPTI> <PT>230</PT> <SUBJECT>Whaling provisions</SUBJECT> <PG>255</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—AID TO FISHERIES</HD> </SUBCHAP> <CHAPTI> <PT>253</PT> <SUBJECT>Fisheries assistance programs</SUBJECT> <PG>258</PG> <PT>259</PT> <SUBJECT>Capital construction fund</SUBJECT> <PG>267</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS</HD> </SUBCHAP> <CHAPTI> <PT>260</PT> <SUBJECT>Inspection and certification</SUBJECT> <PG>279<PRTPAGE P="4"/> </PG> <PT>261</PT> <SUBJECT>United States Standards for Grades</SUBJECT> <PG>309</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTERS H-J[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER K—CONTINENTAL SHELF</HD> </SUBCHAP> <CHAPTI> <PT>296</PT> <SUBJECT>Fishermen's Contingency Fund</SUBJECT> <PG>311</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="5"/> <RESERVED>SUBCHAPTER A—GENERAL PROVISIONS[RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <RESERVED>SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES[RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—MARINE MAMMALS</HD> <PART> <EAR>Pt. 216</EAR> <HD SOURCE="HED">PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction</HD> <SECHD>Sec.</SECHD> <SECTNO>216.1</SECTNO> <SUBJECT>Purpose of regulations.</SUBJECT> <SECTNO>216.2</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <SECTNO>216.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>216.4</SECTNO> <SUBJECT>Other laws and regulations.</SUBJECT> <SECTNO>216.5</SECTNO> <SUBJECT>Payment of penalty.</SUBJECT> <SECTNO>216.6</SECTNO> <SUBJECT>Forfeiture and return of seized property.</SUBJECT> <SECTNO>216.7</SECTNO> <SUBJECT>Holding and bonding.</SUBJECT> <SECTNO>216.8</SECTNO> <SUBJECT>Enforcement officers.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Prohibitions</HD> <SECTNO>216.11</SECTNO> <SUBJECT>Prohibited taking.</SUBJECT> <SECTNO>216.12</SECTNO> <SUBJECT>Prohibited importation.</SUBJECT> <SECTNO>216.13</SECTNO> <SUBJECT>Prohibited uses, possession, transportation, sales, and permits.</SUBJECT> <SECTNO>216.14</SECTNO> <SUBJECT>Marine mammals taken before the MMPA.</SUBJECT> <SECTNO>216.15</SECTNO> <SUBJECT>Depleted species.</SUBJECT> <SECTNO>216.16</SECTNO> <SUBJECT>Prohibitions under the General Authorization for Level B harassment for scientific research.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Exceptions</HD> <SECTNO>216.21</SECTNO> <SUBJECT>Actions permitted by international treaty, convention, or agreement.</SUBJECT> <SECTNO>216.22</SECTNO> <SUBJECT>Taking by State or local government officials.</SUBJECT> <SECTNO>216.23</SECTNO> <SUBJECT>Native exceptions.</SUBJECT> <SECTNO>216.24</SECTNO> <SUBJECT>Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean.</SUBJECT> <SECTNO>216.25</SECTNO> <SUBJECT>Exempted marine mammals and marine mammal products.</SUBJECT> <SECTNO>216.26</SECTNO> <SUBJECT>Collection of certain marine mammal parts without prior authorization.</SUBJECT> <SECTNO>216.27</SECTNO> <SUBJECT>Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Special Exceptions</HD> <SECTNO>216.30</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>216.31</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>216.32</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>216.33</SECTNO> <SUBJECT>Permit application submission, review, and decision procedures.</SUBJECT> <SECTNO>216.34</SECTNO> <SUBJECT>Issuance criteria.</SUBJECT> <SECTNO>216.35</SECTNO> <SUBJECT>Permit restrictions.</SUBJECT> <SECTNO>216.36</SECTNO> <SUBJECT>Permit conditions.</SUBJECT> <SECTNO>216.37</SECTNO> <SUBJECT>Marine mammal parts.</SUBJECT> <SECTNO>216.38</SECTNO> <SUBJECT>Reporting.</SUBJECT> <SECTNO>216.39</SECTNO> <SUBJECT>Permit amendments.</SUBJECT> <SECTNO>216.40</SECTNO> <SUBJECT>Penalties and permit sanctions.</SUBJECT> <SECTNO>216.41</SECTNO> <SUBJECT>Permits for scientific research and enhancement.</SUBJECT> <SECTNO>216.42</SECTNO> <SUBJECT>Photography. [Reserved]</SUBJECT> <SECTNO>216.43</SECTNO> <SUBJECT>Public display. [Reserved]</SUBJECT> <SECTNO>216.44</SECTNO> <SUBJECT>Applicability/transition.</SUBJECT> <SECTNO>216.45</SECTNO> <SUBJECT>General Authorization for Level B harassment for scientific research.</SUBJECT> <SECTNO>216.46</SECTNO> <SUBJECT>U.S. citizens on foreign flag vessels operating under the International Dolphin Conservation Program.</SUBJECT> <SECTNO>216.47-216.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Designated Ports</HD> <SECTNO>216.50</SECTNO> <SUBJECT>Importation at designated ports.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Pribilof Islands, Taking for Subsistence Purposes</HD> <SECTNO>216.71</SECTNO> <SUBJECT>Allowable take of fur seals.</SUBJECT> <SECTNO>216.72</SECTNO> <SUBJECT>Restrictions on taking.</SUBJECT> <SECTNO>216.73</SECTNO> <SUBJECT>Disposition of fur seal parts.</SUBJECT> <SECTNO>216.74</SECTNO> <SUBJECT>Cooperation with Federal officials.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Pribilof Islands Administration</HD> <SECTNO>216.81</SECTNO> <SUBJECT>Visits to fur seal rookeries.</SUBJECT> <SECTNO>216.82</SECTNO> <SUBJECT>Dogs prohibited.</SUBJECT> <SECTNO>216.83</SECTNO> <SUBJECT>Importation of birds or mammals.</SUBJECT> <SECTNO>216.84</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>216.85</SECTNO> <SUBJECT>Walrus and Otter Islands.</SUBJECT> <SECTNO>216.86</SECTNO> <SUBJECT>Local regulations.</SUBJECT> <SECTNO>216.87</SECTNO> <SUBJECT>Wildlife research.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Dolphin Safe Tuna Labeling</HD> <SECTNO>216.90</SECTNO> <SUBJECT>Purposes.</SUBJECT> <SECTNO>216.91</SECTNO> <SUBJECT>Dolphin-safe labeling standards.</SUBJECT> <SECTNO>216.92</SECTNO> <SUBJECT>Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels.</SUBJECT> <SECTNO>216.93</SECTNO> <SUBJECT>Submission of documentation.</SUBJECT> <SECTNO>216.94</SECTNO> <SUBJECT>Tracking and verification program.</SUBJECT> <SECTNO>216.95</SECTNO> <SUBJECT>False statements or endorsements.</SUBJECT> <SECTNO>216.96</SECTNO> <SUBJECT>Official mark for “Dolphin-safe” tuna products.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities</HD> <SECTNO>216.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>216.102</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>216.103</SECTNO> <SUBJECT>Definitions.<PRTPAGE P="6"/> </SUBJECT> <SECTNO>216.104</SECTNO> <SUBJECT>Submission of requests.</SUBJECT> <SECTNO>216.105</SECTNO> <SUBJECT>Specific regulations.</SUBJECT> <SECTNO>216.106</SECTNO> <SUBJECT>Letter of Authorization.</SUBJECT> <SECTNO>216.107</SECTNO> <SUBJECT>Incidental harassment authorization for Arctic waters.</SUBJECT> <SECTNO>216.108</SECTNO> <SUBJECT>Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Taking of Ringed Seals Incidental to On-Ice Seismic Activities</HD> <SECTNO>216.111</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.112</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.113</SECTNO> <SUBJECT>Permissible methods.</SUBJECT> <SECTNO>216.114</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.115</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.116</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <SECTNO>216.117</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.118</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <SECTNO>216.119</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities</HD> <SECTNO>216.120</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.121</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.122</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.123</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.124</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.125</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.126</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <SECTNO>216.127</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.128</SECTNO> <SUBJECT>Modifications of Letters of Authorization.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Taking of Marine Mammals Incidental to Power Plant Operations</HD> <SECTNO>216.130</SECTNO> <SUBJECT>Specified activity, specified geographical region, and incidental take levels.</SUBJECT> <SECTNO>216.131</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.132</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.133</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.134</SECTNO> <SUBJECT>Mitigation requirements.</SUBJECT> <SECTNO>216.135</SECTNO> <SUBJECT>Monitoring and reporting.</SUBJECT> <SECTNO>216.136</SECTNO> <SUBJECT>Renewal of the Letter of Authorization.</SUBJECT> <SECTNO>216.137</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <SECTNO>216.138-216.140</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subparts M—N[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart O—Taking of Marine Mammals Incidental to Shock Testing the USS SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters of the U.S. Atlantic Coast</HD> <SECTNO>216.161</SECTNO> <SUBJECT>Specified activity, geographical region, and incidental take levels.</SUBJECT> <SECTNO>216.162</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.163</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <SECTNO>216.164</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.165</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.166</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <SECTNO>216.167-216.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart P—Taking of Marine Mammals Incidental to Operating A Low Frequency Acoustic Source by the North Pacific Acoustic Laboratory</HD> <SECTNO>216.170</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.171</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.172</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.173</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.174</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.175</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.176</SECTNO> <SUBJECT>Letter of authorization.</SUBJECT> <SECTNO>216.177</SECTNO> <SUBJECT>Renewal of a letter of authorization.</SUBJECT> <SECTNO>216.178</SECTNO> <SUBJECT>Modifications to a letter of authorization.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart Q[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart R—Taking of Marine Mammals Incidental to Construction and Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea</HD> <SECTNO>216.200</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.201</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.202</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.203</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.204</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.205</SECTNO> <SUBJECT>Measures to ensure availability of species for subsistence uses.</SUBJECT> <SECTNO>216.206</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.207</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <SECTNO>216.208</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <SECTNO>216.209</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.210</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> </SUBPART> </CONTENTS> <NOTE> <HD SOURCE="HED">Note to part 216:</HD> <P>See also 50 CFR parts 228 and 229 for regulations governing certain incidental takings of marine mammals.</P> </NOTE> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1361 <E T="03">et seq.</E>, unless otherwise noted.</P> </AUTH> <SOURCE> <PRTPAGE P="7"/> <HD SOURCE="HED">Source:</HD> <P>39 FR 1852, Jan. 15, 1974, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction</HD> <SECTION> <SECTNO>§ 216.1</SECTNO> <SUBJECT>Purpose of regulations.</SUBJECT> <P>The regulations in this part implement the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407, Pub. L. 92-522, which, among other things, restricts the taking, possession, transportation, selling, offering for sale, and importing of marine mammals.</P> </SECTION> <SECTION> <SECTNO>§ 216.2</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <P>This part 216 applies solely to marine mammals and marine mammal products as defined in § 216.3. For regulations under the MMPA, with respect to other marine mammals and marine mammal products, see 50 CFR part 18.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In addition to definitions contained in the MMPA, and unless the context otherwise requires, in this part 216:</P> <P> <E T="03">Acts</E> means, collectively, the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 <E T="03">et seq.,</E> the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 <E T="03">et seq.,</E> and the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 <E T="03">et seq.</E> </P> <P> <E T="03">Active sportfishing</E> means paying passengers have their terminal fishing gear (lures, hooks, etc.) in the water in an attempt to catch fish or, in the case of fishing involving chumming, fishing is considered to be in progress from the instant fish have been sighted taking bait (boiling) during that chumming process.</P> <P> <E T="03">Administrator, Northeast Region</E> means Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298.</P> <P> <E T="03">Administrator, Southeast Region</E> means Administrator, Southeast Region, National Marine Fisheries Service, 9721 Executive Center Drive, St. Petersburg, FL 33702-2432.</P> <P> <E T="03">Administrator, Southwest Region</E> means the Regional Administrator, Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, or his or her designee.</P> <P> <E T="03">Agreement on the International Dolphin Conservation Program (Agreement on the IDCP)</E> means the Agreement establishing the formal binding IDCP that was signed in Washington, DC on May 21, 1998.</P> <P> <E T="03">Alaskan Native</E> means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including Tsimishian Indians enrolled or not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood or combination thereof. The term includes any Native, as so defined, either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or group, of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any Native village or Native group. Any such citizen enrolled by the Secretary of the Interior pursuant to section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be an Alaskan Native for purposes of this part.</P> <P> <E T="03">Article of handicraft</E> means items made by an Indian, Aleut or Eskimo from the nonedible byproducts of fur seals taken for personal or family consumption which—</P> <P>(1) Were commonly produced by Alaskan Natives on or before October 14, 1983;</P> <P>(2) Are composed wholly or in some significant respect of natural materials, and;</P> <P>(3) Are significantly altered from their natural form and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass copying devices. Improved methods of production utilizing modern implements such as sewing machines or modern tanning techniques at a tannery registered pursuant to § 216.23(c) may be used so long as no large scale mass production industry results. Traditional native handicrafts include, but are not <PRTPAGE P="8"/>limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted so long as no large scale mass production results.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Silver Spring, MD 20910, or his/her designee.</P> <P> <E T="03">Authentic native articles of handicrafts and clothing</E> means items made by an Indian, Aleut or Eskimo which (a) were commonly produced on or before December 21, 1972, and (b) are composed wholly or in some significant respect of natural materials, and (c) are significantly altered from their natural form and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass copying devices. Improved methods of production utilizing modern implements such as sewing machines or modern tanning techniques at a tannery registered pursuant to § 216.23(c) may be used so long as no large scale mass production industry results. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted so long as no large scale mass production results.</P> <P> <E T="03">Bona fide scientific research:</E> (1) Means scientific research on marine mammals conducted by qualified personnel, the results of which:</P> <P>(i) Likely would be accepted for publication in a refereed scientific journal;</P> <P>(ii) Are likely to contribute to the basic knowledge of marine mammal biology or ecology. (Note: This includes, for example, marine mammal parts in a properly curated, professionally accredited scientific collection); or</P> <P>(iii) Are likely to identify, evaluate, or resolve conservation problems.</P> <P>(2) Research that is not on marine mammals, but that may incidentally take marine mammals, is not included in this definition (see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA, and sections 7(b)(4) and 10(a)(1)(B) of the ESA).</P> <P> <E T="03">Carrying capacity</E> means the Regional Director's determination of the maximum amount of fish that a vessel can carry in short tons based on the greater of the amount indicated by the builder of the vessel, a marine surveyor's report, or the highest amount reported landed from any one trip.</P> <P> <E T="03">Certified charter vessel</E> means a fishing vessel of a non-U.S. flag nation, which is operating under the jurisdiction of the marine mammal laws and regulations of another, harvesting, nation by a formal declaration entered into by mutual agreement of the nations.</P> <P> <E T="03">Co-investigator</E> means the on-site representative of a principal investigator.</P> <P> <E T="03">Commercial fishing operation</E> means the lawful harvesting of fish from the marine environment for profit as part of an ongoing business enterprise. -Such terms may include licensed com-mercial passenger fishing vessel (as -defined) activities, but no other sport-fish-ing activities, whether or not -the fish so caught are subsequently sold.</P> <P> <E T="03">Commercial passenger fishing vessel</E> means any vessel licensed for commercial passenger fishing purposes within the State out of which it is operating and from which, while under charter or hire, persons are legally permitted to conduct sportfishing activities.</P> <P> <E T="03">Custody</E> means holding a live marine mammal pursuant to the conditional authority granted under the MMPA, and the responsibility therein for captive maintenance of the marine mammal.</P> <P> <E T="03">Declaration of Panama</E> means the declaration signed in Panama City, Republic of Panama, on October 4, 1995.</P> <P> <E T="03">Director, Office of Protected Resources</E> means Director, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.</P> <P> <E T="03">Dolphin Mortality Limit (DML)</E> means the maximum allowable number of incidental dolphin mortalities per calendar year assigned to a vessel, unless a shorter time period is specified.</P> <P> <E T="03">Endangered Species</E> means a species or subspecies of marine mammal listed as “endangered” pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).<PRTPAGE P="9"/> </P> <P> <E T="03">ESA</E> means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 <E T="03">et seq.</E> </P> <P> <E T="03">ETP</E> means the eastern tropical Pacific Ocean which includes the Pacific Ocean area bounded by 40° N. latitude, 40° S. latitude, 160° W. longitude and the coastlines of North, Central and South America.</P> <P> <E T="03">Facility</E> means, in the context specific to captive marine mammals,: (1) One or more permanent primary enclosures used to hold marine mammals captive (i.e., pools, lagoons) and associated infrastructure (i.e., equipment and supplies necessary for the care and maintenance of marine mammals) where these enclosures are either located within the boundaries of a single contiguous parcel of land and water, or are grouped together within the same general area within which enclosure-to-enclosure transport is expected to be completed in less than one hour; or</P> <P>(2) A traveling display/exhibit, where the enclosure(s) and associated infrastructure is transported together with the marine mammals.</P> <P> <E T="03">Feeding</E> is offering, giving, or attempt-ing to give food or non-food items -to marine mammals in the wild. It in-cludes operating a vessel or providing other platforms from which feeding is conducted or supported. It does not include the routine discard of bycatch during fishing operations or the routine discharge of waste or fish byproducts from fish processing plants or other platforms if the discharge is otherwise legal and is incidental to operation of the activity.</P> <P> <E T="03">First exporter</E> means the person or com-pany that first exports the fish -or fish product, or, in the case of shipments that are subject to the labeling requirements of 50 CFR part 247 and that only contain fish harvested by vessels of the United States, the first seller of the fish or fish product.</P> <P> <E T="03">Fisheries Certificate of Origin</E> means NOAA Form 370, as described in § 216.24(f)(5).</P> <P> <E T="03">Force majeure</E> means forces outside the vessel operator's or vessel owner's control that could not be avoided by the exercise of due care.</P> <P> <E T="03">FSA</E> means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 <E T="03">et seq.</E> </P> <P> <E T="03">Fur seal</E> means North Pacific fur seal, scientifically known as <E T="03">Cal-lorhi-nus ursinus.</E> </P> <P> <E T="03">Hard part</E> means any bone, tooth, -baleen, treated pelt, or other part of a marine mammal that is relatively -solid or durable.</P> <P> <E T="03">Harvesting nation</E> means the country under whose flag one or more fishing vessels are documented, or which has by formal declaration agreed to assert jurisdiction over one or more certified charter vessels, from which vessel(s) fish are caught that are a part of any cargo or shipment of fish to be imported into the United States, regardless of any intervening transshipments.</P> <P> <E T="03">Humane</E> means the method of taking, import, export, or other activity which involves the least possible degree of pain and suffering practicable to the animal involved.</P> <P> <E T="03">Import</E> means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the Customs laws of the United States; except that, for the purpose of any ban issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish products, the definition of “import” in § 216.24(f)(1)(ii) shall apply.</P> <P> <E T="03">Incidental catch</E> means the taking of a marine mammal (1) because it is directly interfering with commercial fishing operations, or (2) as a consequence of the steps used to secure the fish in connection with commercial fishing operations: <E T="03">Provided,</E> That a marine mammal so taken must immediately be returned to the sea with a minimum of injury and further, that the taking of a marine mammal, which otherwise meets the requirements of this definition shall not be considered an incidental catch of that mammal if it is used subsequently to assist in commercial fishing operations.</P> <P> <E T="03">Intentional purse seine set</E> means that a tuna purse seine vessel or associated vessels chase marine mammals and subsequently make a purse seine set.</P> <P> <E T="03">International Dolphin Conservation Program (IDCP)</E> means the international program established by the <PRTPAGE P="10"/>agreement signed in La Jolla, California, in June 1992, as formalized, modified, and enhanced in accordance with the Declaration of Panama and the Agreement on the IDCP.</P> <P> <E T="03">International Dolphin Conservation Program Act (IDCPA)</E> means Public Law 105-42, enacted into law on August 15, 1997.</P> <P> <E T="03">International Review Panel (IRP)</E> means the International Review Panel established by the Agreement on the IDCP.</P> <P> <E T="03">Intrusive research</E> means a procedure conducted for bona fide scientific research involving: A break in or cutting of the skin or equivalent, insertion of an instrument or material into an orifice, introduction of a substance or object into the animal's immediate environment that is likely either to be ingested or to contact and directly affect animal tissues (i.e., chemical substances), or a stimulus directed at animals that may involve a risk to health or welfare or that may have an impact on normal function or behavior (i.e., audio broadcasts directed at animals that may affect behavior). For captive animals, this definition does not include:</P> <P>(1) A procedure conducted by the professional staff of the holding facility or an attending veterinarian for purposes of animal husbandry, care, maintenance, or treatment, or a routine medical procedure that, in the reasonable judgment of the attending veterinarian, would not constitute a risk to the health or welfare of the captive animal; or</P> <P>(2) A procedure involving either the introduction of a substance or object (i.e., as described in this definition) or a stimulus directed at animals that, in the reasonable judgment of the attending veterinarian, would not involve a risk to the health or welfare of the captive animal.</P> <P> <E T="03">Label</E> means a display of written, printed, or graphic matter on or affixed to the immediate container of any article.</P> <P> <E T="03">Land</E> or <E T="03">landing</E> means to begin offloading any fish, to arrive in port with the intention of offloading fish, or to cause any fish to be offloaded.</P> <P> <E T="03">Large-scale driftnet</E> means a gillnet that is composed of a panel or panels of webbing, or a series of such gillnets, with a total length of 2.5 kilometers or more that is used on the high seas and allowed to drift with the currents and winds for the purpose of harvesting fish by entangling the fish in the webbing of the net.</P> <P> <E T="03">Level A Harassment</E> means any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild.</P> <P> <E T="03">Level B Harassment</E> means any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering but which does not have the potential to injure a marine mammal or marine mammal stock in the wild.</P> <P> <E T="03">Marine environment</E> means the oceans and the seas, including estuarine and brackish waters.</P> <P> <E T="03">Marine mammal</E> means those specimens of the following orders, which are morphologically adapted to the marine environment, whether alive or dead, and any part thereof, including but not limited to, any raw, dressed or dyed fur or skin: Cetacea (whales and porpoises), Pinnipedia, other than walrus (seals and sea lions).</P> <P> <E T="03">MMPA</E> means the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 <E T="03">et seq.</E> </P> <P> <E T="03">Native village or town</E> means any community, association, tribe, band, clan or group.</P> <P> <E T="03">Optimum sustainable population</E> is a population size which falls within a range from the population level of a given species or stock which is the largest supportable within the ecosystem to the population level that results in maximum net productivity. Maximum net productivity is the greatest net annual increment in population numbers or biomass resulting from additions to the population due to reproduction and/or growth less losses due to natural mortality.</P> <P> <E T="03">Per-stock per-year dolphin mortality limit</E> means the maximum allowable <PRTPAGE P="11"/>number of incidental dolphin mortalities and serious injuries from a specified stock per calendar year, as established under the IDCP.</P> <P> <E T="03">Pregnant</E> means pregnant near term.</P> <P> <E T="03">Pribilovians</E> means Indians, Aleuts, and Eskimos who live on the Pribilof Islands.</P> <P> <E T="03">Principal investigator</E> means the individual primarily responsible for the taking, importation, export, and any related activities conducted under a permit issued for scientific research or enhancement purposes.</P> <P> <E T="03">Public display</E> means an activity that provides opportunities for the public to view living marine mammals at a facility holding marine mammals captive.</P> <P> <E T="03">Regional Director</E> means the Director, Southwest Region, NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802, or his/her designee.</P> <P> <E T="03">Rehabilitation</E> means treatment of beached and stranded marine mammals taken under section 109(h)(1) of the MMPA or imported under section 109(h)(2) of the MMPA, with the intent of restoring the marine mammal's health and, if necessary, behavioral patterns.</P> <P> <E T="03">Secretary</E> shall mean the Secretary of Commerce or his authorized representative.</P> <P> <E T="03">Serious injury</E> means any injury that will likely result in mortality.</P> <P> <E T="03">Sexual harassment</E> means any unwelcome sexual advance, request for sexual favors, or other verbal and physical conduct of a sexual nature which has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.</P> <P> <E T="03">Soft part</E> means any marine mammal part that is not a hard part. Soft parts do not include urine or fecal material.</P> <P> <E T="03">South Pacific Ocean</E> means any waters of the Pacific Ocean that lie south of the equator.</P> <P> <E T="03">Stranded</E> or <E T="03">stranded marine mammal</E> means a marine mammal specimen under the jurisdiction of the Secretary:</P> <P>(1) If the specimen is dead, and is on a beach or shore, or is in the water within the Exclusive Economic Zone of the United States; or</P> <P>(2) If the specimen is alive, and is on a beach or shore and is unable to return to the water, or is in the water within the Exclusive Economic Zone -of the United States where the water -is so shallow that the specimen is un-able to return to its natural habitat under -its own power.</P> <P> <E T="03">Subsistence</E> means the use of marine mammals taken by Alaskan Natives for food, clothing, shelter, heating, transportation, and other uses necessary to maintain the life of the taker or those who depend upon the taker to provide them with such subsistence.</P> <P> <E T="03">Subsistence uses</E> means the customary and traditional uses of fur seals taken by Pribilovians for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fur seals taken for personal or family consumption; and for barter, or sharing for personal or family consumption. As used in this definition—</P> <P>(1) <E T="03">Family</E> means all persons related by blood, marriage, or adoption, or any person living within a household on a permanent basis.</P> <P>(2) <E T="03">Barter</E> means the exchange of fur seals or their parts, taken for subsistence uses—</P> <P>(i) For other wildlife or fish or their parts, or</P> <P>(ii) For other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature.</P> <P> <E T="03">Take</E> means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild.</P> <P> <E T="03">Threatened species</E> means a species of marine mammal listed as “threatened” pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205.</P> <P> <E T="03">Trip</E> means a voyage starting when a vessel leaves port with all fish wells <PRTPAGE P="12"/>empty of fish and ending when a vessel unloads all of its fish.</P> <P> <E T="03">Tuna product</E> means any food product processed for retail sale and intended for human or animal consumption that contains an item listed in § 216.24(f)(2)(i) or (ii), but does not include perishable items with a shelf life of less than 3 days.</P> <P> <E T="03">Wasteful manner</E> means any taking or method of taking which is likely to result in the killing of marine mammals beyond those needed for subsistence, subsistence uses, or for the making of authentic native articles of handicrafts and clothing, or which results in the waste of a substantial portion of the marine mammal and includes, without limitation, the employment of a method of taking which is not likely to assure the capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to retrieve the marine mammal.</P> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 216.3, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> <EFFDNOT> <HD SOURCE="HED">Effective Date Notes:</HD> <P>1. At 63 FR 66076, Dec. 1, 1998, in § 216.3, the definition <E T="03">Administrator, Southeast Region</E> was added, effective Jan. 1, 1999 through Sept. 30, 2004.</P> <P>2. At 64 FR 28120, May 25, 1999, in § 216.3, the definition <E T="03">Administrator, Northeast Region</E> was added, effective July 1, 1999 through June 30, 2004.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 216.4</SECTNO> <SUBJECT>Other laws and regulations.</SUBJECT> <P>(a) <E T="03">Federal.</E> Nothing in this part, nor any permit issued under authority of this part, shall be construed to relieve a person from any other requirements imposed by a statute or regulation of the United States, including any applicable statutes or regulations relating to wildlife and fisheries, health, quarantine, agriculture, or customs.</P> <P>(b) <E T="03">State laws or regulations.</E> See part 403 of this chapter.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.5</SECTNO> <SUBJECT>Payment of penalty.</SUBJECT> <P>The respondent shall have 30 days from receipt of the final assessment decision within which to pay the penalty assessed. Upon a failure to pay the penalty, the Secretary may request the Attorney General to institute a civil action in the appropriate United States District Court to collect the penalty.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.6</SECTNO> <SUBJECT>Forfeiture and return of seized property.</SUBJECT> <P>(a) Whenever any cargo or marine mammal or marine mammal product has been seized pursuant to section 107 of the MMPA, the Secretary shall expedite any proceedings commenced under these regulations.</P> <P>(b) Whenever a civil penalty has been assessed by the Secretary under these regulations, any cargo, marine mammal, or marine mammal product seized pursuant to section 107 of the MMPA shall be subject to forfeiture. If respondent voluntarily forfeits any such seized property or the monetary value thereof without court proceedings, the Secretary may apply the value thereof, if any, as determined by the Secretary, toward payment of the civil penalty.</P> <P>(c) Whenever a civil penalty has been assessed under these regulations, and whether or not such penalty has been paid, the Secretary may request the Attorney General to institute a civil action in an appropriate United States District Court to compel forfeiture of such seized property or the monetary value thereof to the Secretary for disposition by him in such manner as he deems appropriate. If no judicial action to compel forfeiture is commenced within 30 days after final decision-making assessment of a civil penalty, pursuant to § 216.60, such seized property shall immediately be returned to the respondent.</P> <P>(d) If the final decision of the Secretary under these regulations is that respondent has committed no violation of the MMPA or of any permit or regulations issued thereunder, any marine mammal, marine mammal product, or other cargo seized from respondent in connection with the proceedings under these regulations, or the bond or other monetary value substituted therefor, shall immediately be returned to the respondent.</P> <P>(e) If the Attorney General commences criminal proceedings pursuant to section 105(b) of the MMPA, and <PRTPAGE P="13"/>such proceedings result in a finding that the person accused is not guilty of a criminal violation of the MMPA, the Secretary may institute proceedings for the assessment of a civil penalty under this part: <E T="03">Provided,</E> That if no such civil penalty proceedings have been commenced by the Secretary within 30 days following the final disposition of the criminal case, any property seized pursuant to section 107 of the MMPA shall be returned to the respondent.</P> <P>(f) If any seized property is to be returned to the respondent, the Regional Director shall issue a letter authorizing such return. This letter shall be dispatched to the respondent by registered mail, return receipt requested, and shall identify the respondent, the seized property, and, if appropriate, the bailee of the seized property. It shall also provide that upon presentation of the letter and proper identification, the seized property is authorized to be released. All charges for storage, care, or handling of the seized property accruing 5 days or more after the date of the return receipt shall be for the account of the respondent: <E T="03">Provided,</E> That if it is the final decision of the Secretary under these regulations that the respondent has committed the alleged violation, all charges which have accrued for the storage, care, or handling of the seized property shall be for the account of the respondent.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.7</SECTNO> <SUBJECT>Holding and bonding.</SUBJECT> <P>(a) Any marine mammal, marine mammal product, or other cargo seized pursuant to section 107 of the MMPA shall be delivered to the appropriate Regional Director of the National Marine Fisheries Service (see § 201.2 of this title) or his designee, who shall either hold such seized property or arrange for the proper handling and care of such seized property.</P> <P>(b) Any arrangement for the handling and care of seized property shall be in writing and shall state the compensation to be paid. Subpart F of 15 CFR part 904 contains additional procedures that govern seized property that is subject to forfeiture or has been forfeited under the MMPA.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.8</SECTNO> <SUBJECT>Enforcement officers.</SUBJECT> <P>Enforcement Agents of the National Marine Fisheries Service shall en-force the provisions of the MMPA and may -take any actions authorized by the MMPA -with respect to enforcement. In ad-dition, the Secretary may utilize, by -agreement, the personnel, services, -and facilities of any other Federal Agency -for the purposes of enforcing this MMPA. -Pursuant to the terms of section -107(b) of the MMPA, the Secretary may also -designate officers and employees -of any State or of any possession of -the United States to enforce the provi-sions of this MMPA.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Prohibitions</HD> <SECTION> <SECTNO>§ 216.11</SECTNO> <SUBJECT>Prohibited taking.</SUBJECT> <P>Except as otherwise provided in subparts C, D, and I of this part 216 or in part 228 or 229, it is unlawful for:</P> <P>(a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or</P> <P>(b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States, or</P> <P>(c) Any person subject to the jurisdiction of the United States to take any marine mammal during the moratorium.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 FR 21921, May 19, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.12</SECTNO> <SUBJECT>Prohibited importation.</SUBJECT> <P>(a) Except as otherwise provided in subparts C and D of this part 216, it is unlawful for any person to import any marine mammal or marine mammal product into the United States.</P> <P>(b) Regardless of whether an importation is otherwise authorized pursuant to subparts C and D of this part 216, it <PRTPAGE P="14"/>is unlawful for any person to import into the United States any:</P> <P>(1) Marine mammal:</P> <P>(i) Taken in violation of the MMPA, or</P> <P>(ii) Taken in another country in violation to the laws of that country;</P> <P>(2) Any marine mammal product if</P> <P>(i) The importation into the United States of the marine mammal from which such product is made would be unlawful under paragraph (b)(1) of this section, or</P> <P>(ii) The sale in commerce of such product in the country of origin if the product is illegal.</P> <P>(c) Except in accordance with an exception referred to in subpart C and §§ 216.31 (regarding scientific research permits only) and 216.32 of this part 216, it is unlawful to import into the United States any:</P> <P>(1) Marine mammal which was pregnant at the time of taking.</P> <P>(2) Marine mammal which was nursing at the time of taking, or less than 8 months old, whichever occurs later.</P> <P>(3) Specimen of an endangered or threatened species of marine mammal.</P> <P>(4) Specimen taken from a depleted species or stock of marine mammals, or</P> <P>(5) Marine mammal taken in an inhumane manner.</P> <P>(d) It is unlawful to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner proscribed by the Secretary of Commerce for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.13</SECTNO> <SUBJECT>Prohibited uses, possession, transportation, sales, and permits.</SUBJECT> <P>It is unlawful for:</P> <P>(a) Any person to use any port, harbor or other place under the jurisdiction of the United States for any purpose in any way connected with a prohibited taking or an unlawful importation of any marine mammal or marine mammal product; or</P> <P>(b) Any person subject to the jurisdiction of the United States to possess any marine mammal taken in violation of the MMPA or these regulations, or to transport, sell, or offer for sale any such marine mammal or any marine mammal product made from any such mammal.</P> <P>(c) Any person subject to the jurisdiction of the United States to use in a commercial fishery, any means or method of fishing in contravention of regulations and limitations issued by the Secretary of Commerce for that fishery to achieve the purposes of this MMPA.</P> <P>(d) Any person to violate any term, condition, or restriction of any permit issued by the Secretary.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.14</SECTNO> <SUBJECT>Marine mammals taken before the MMPA.</SUBJECT> <P>(a) Section 102(e) of the MMPA provides, in effect, that the MMPA shall not apply to any marine mammal taken prior to December 21, 1972, or to any marine mammal product, consisting of or composed in whole or in part of, any marine mammal taken before that date. This prior status of any marine mammal or marine mammal product may be established by submitting to the Director, National Marine Fisheries Service prior to, or at the time of importation, an affidavit containing the following:</P> <P>(1) The Affiant's name and address;</P> <P>(2) Identification of the Affiant;</P> <P>(3) A description of the marine mammals or marine mammal products which the Affiant desires to import;</P> <P>(4) A statement by the Affiant that, to the best of his knowledge and belief, the marine mammals involved in the application were taken prior to December 21, 1972;</P> <P>(5) A statement by the Affiant in the following language: </P> <EXTRACT> <P>The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief, are complete, true and correct. I understand that this affidavit is being submitted for the purpose of inducing the Federal Government to permit the importation of—under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated thereunder, and that any false statements may subject me to the criminal penalties of 13 <PRTPAGE P="15"/>U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972.</P> </EXTRACT> <P>(b) Either one of two exhibits shall be attached to such affidavit, and will contain either:</P> <P>(1) Records or other available evidence showing that the product consists of or is composed in whole or in part of marine mammals taken prior to the effective date of the MMPA. Such records or other evidentiary material must include information on how, when, where, and by whom the animals were taken, what processing has taken place since taking, and the date and location of such processing; or</P> <P>(2) A statement from a government agency of the country of origin exercising jurisdiction over marine mammals that any and all such mammals from which the products sought to be imported were derived were taken prior to December 21, 1972.</P> <P>(c) No pre-Act marine mammal or pre-Act marine mammal product may be imported unless the requirements of this section have been fulfilled.</P> <P>(d) This section has no application to any marine mammal or marine mammal product intended to be imported pursuant to §§ 216.21, 216.31 or § 216.32.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.15</SECTNO> <SUBJECT>Depleted species.</SUBJECT> <P>The following species or population stocks have been designated by the Assistant Administrator as depleted under the provisions of the MMPA.</P> <P>(a) Hawaiian monk seal <E T="03">(Monachus schauinslandi).</E> </P> <P>(b) Bowhead whale <E T="03">(Balaena mystic-e-tus).</E> </P> <P>(c) North Pacific fur seal <E T="03">(Callorhinus ursinus).</E> Pribilof Island population.</P> <P>(d) Bottlenose dolphin (<E T="03">Tursiops trunca-tus</E>), coastal-migratory stock along the U.S. mid-Atlantic coast.</P> <P>(e) Eastern spinner dolphin (<E T="03">Stenella longirostris orientalis</E>).</P> <P>(f) Northeastern offshore spotted dolphin (<E T="03">Stenella attenuata</E>).</P> <P>(g) Cook Inlet, Alaska, stock of beluga whales (<E T="03">Delphinapterus</E> <E T="03">leucas</E>). The stock includes all beluga whales occurring in waters of the Gulf of Alaska north of 58° North latitude including, but not limited to, Cook Inlet,Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Island and freshwater tributaries to these waters.</P> <CITA>[53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3, 1994; 65 FR 34597, May 31, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.16</SECTNO> <SUBJECT>Prohibitions under the General Authorization for Level B harassment for scientific research.</SUBJECT> <P>It shall be unlawful for any person to:</P> <P>(a) Provide false information in a letter of intent submitted pursuant to § 216.45(b);</P> <P>(b) Violate any term or condition imposed pursuant to § 216.45(d).</P> <CITA>[59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Exceptions</HD> <SECTION> <SECTNO>§ 216.21</SECTNO> <SUBJECT>Actions permitted by international treaty, convention, or agreement.</SUBJECT> <P>The MMPA and these regulations shall not apply to the extent that they are inconsistent with the provisions of any international treaty, convention or agreement, or any statute implementing the same relating to the taking or importation of marine mammals or marine mammal products, which was existing and in force prior to December 21, 1972, and to which the United States was a party. Specifically, the regulations in subpart B of this part and the provisions of the MMPA shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed at Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 1151 through 1187, as in each case, from time to time amended.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.22</SECTNO> <SUBJECT>Taking by State or local government officials.</SUBJECT> <P>(a) A State or local government official or employee may take a marine mammal in the normal course of his duties as an official or employee, and no permit shall be required, if such taking:<PRTPAGE P="16"/> </P> <P>(1) Is accomplished in a humane -manner;</P> <P>(2) Is for the protection or welfare of such mammal or for the protection of the public health or welfare; and</P> <P>(3) Includes steps designed to insure return of such mammal, if not killed in the course of such taking, to its natural habitat. In addition, any such official or employee may, incidental to such taking, possess and transport, but not sell or offer for sale, such mammal and use any port, harbor, or other place under the jurisdiction of the United States. All steps reasonably practicable under the circumstances shall be taken by any such employee or official to prevent injury or death to the marine mammal as the result of such taking. Where the marine mammal in question is injured or sick, it shall be permissible to place it in temporary captivity until such time as it is able to be returned to its natural habitat. It shall be permissible to dispose of a carcass of a marine mammal taken in accordance with this subsection whether the animal is dead at the time of taking or dies subsequent thereto.</P> <P>(b) Each taking permitted under this section shall be included in a written report to be submitted to the Secretary every six months beginning December 31, 1973. Unless otherwise permitted by the Secretary, the report shall contain a description of:</P> <P>(1) The animal involved;</P> <P>(2) The circumstances requiring the taking;</P> <P>(3) The method of taking;</P> <P>(4) The name and official position of the State official or employee involved;</P> <P>(5) The disposition of the animal, including in cases where the animal has been retained in captivity, a description of the place and means of confinement and the measures taken for its maintenance and care; and</P> <P>(6) Such other information as the Secretary may require.</P> <P>(c) Salvage of dead stranded marine mammals or parts therefrom and subsequent transfer.</P> <P>(1) <E T="03">Salvage.</E> In the performance of official duties, a state or local government employee; an employee of the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or any other Federal agency with jurisdiction and conservation responsibilities in marine shoreline areas; or a person authorized under 16 U.S.C. 1382(c) may take and salvage a marine mammal specimen if it is stranded and dead or it was stranded or rescued and died during treatment, transport, captivity or other rehabilitation subsequent to that stranding or distress if salvage is for the purpose of utilization in scientific research or for the purpose of maintenance in a properly curated, professionally accredited scientific collection.</P> <P>(2) <E T="03">Registration.</E> A person salvaging a dead marine mammal specimen under this section must register the salvage of the specimen with the appropriate Regional Office of the National Marine Fisheries Service within 30 days after the taking or death occurs. The registration must include:</P> <P>(i) The name, address, and any official position of the individual engaged in the taking and salvage;</P> <P>(ii) A description of the marine mammal specimen salvaged including the scientific and common names of the species;</P> <P>(iii) A description of the parts salvaged;</P> <P>(iv) The date and the location of the taking;</P> <P>(v) Such other information as deemed necessary by the Assistant Administrator.</P> <P>(3) <E T="03">Identification and curation.</E> The Regional Director will assign a single unique number to each carcass, and the parts thereof, that are salvaged under the provisions of this section. The person who salvaged the specimen may designate the number to be assigned. After this number is assigned, the person who salvaged the specimen must permanently mark that number on each separate hard part of that specimen and must affix that number with tags or labels to each soft part of that specimen or the containers in which that soft part is kept. Each specimen salvaged under this section must be curated in accordance with professional standards.</P> <P>(4) <E T="03">No sale or commercial trade.</E> No person may sell or trade for commercial purposes any marine mammal specimen salvaged under this section.<PRTPAGE P="17"/> </P> <P>(5) <E T="03">Transfer without prior authorization.</E> A person who salvages a marine mammal specimen under this section may transfer that specimen to another person if:</P> <P>(i) The person transferring the marine mammal specimen does not receive remuneration for the specimen;</P> <P>(ii) The person receiving the marine mammal specimen is an employee of the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or any other Federal agency with jurisdiction and conservation responsibilities in marine shoreline areas; is a person authorized under 16 U.S.C. 1382(c); or is a person who has received prior authorization under paragraph (c)(6) of this section;</P> <P>(iii) The marine mammal specimen is transferred for the purpose of scientific research, for the purpose of maintenance in a properly curated, professionally accredited scientific collection, or for educational purposes;</P> <P>(iv) The unique number assigned by the National Marine Fisheries Service is on, marked on, or affixed to the marine mammal specimen or container; and</P> <P>(v) Except as provided under paragraph (c)(8) of this section, the person transferring the marine mammal specimen notifies the appropriate Regional Office of the National Marine Fisheries Service of the transfer, including notification of the number of the specimen transferred and the person to whom the specimen was transferred, within 30 days after the transfer occurs.</P> <P>(6) <E T="03">Other transfers within the United States.</E> Except as provided under paragraphs (c)(5) and (c)(8) of this section, a person who salvages a marine mammal specimen, or who has received a marine mammal specimen under the provisions of this section, may not transfer that specimen to another person within the United States unless the Regional Director of the appropriate Regional Office of the National Marine Fisheries Service grants prior written authorization for the transfer. The Regional Director may grant authorization for the transfer if there is evidence that the conditions listed under paragraphs (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this section are met.</P> <P>(7) <E T="03">Tranfers outside of the United States.</E> A person who salvages a marine mammal specimen, or a person who has received a marine mammal specimen under the provisions of this section, may not transfer that specimen to a person outside of the United States unless the Assistant Administrator grants prior written authorization for the transfer. The Assistant Administrator may grant authorization for the transfer if there is evidence that the conditions listed under paragraphs (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this section are met.</P> <P>(8) <E T="03">Exceptions to requirements for notification or prior authorization.</E> A person may transfer a marine mammal specimen salvaged under this section without the notification required in paragraph (c)(5)(v) of this section or the prior authorization required in paragraph (c)(6) of this section if:</P> <P>(i) The transfer is a temporary transfer to a laboratory or research facility within the United States so that analyses can be performed for the person salvaging the specimen; or</P> <P>(ii) The transfer is a loan of not more than 1 year to another professionally accredited scientific collection within the United States.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.23</SECTNO> <SUBJECT>Native exceptions.</SUBJECT> <P>(a) <E T="03">Taking.</E> Notwithstanding the prohibitions of subpart B of this part 216, but subject to the restrictions contained in this section, any Indian, Aleut, or Eskimo who resides on the coast of the North Pacific Ocean or the Arctic Ocean may take any marine mammal without a permit, if such taking is:</P> <P>(1) By Alaskan Natives who reside in Alaska for subsistence, or</P> <P>(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and</P> <P>(3) In each case, not accomplished in a wasteful manner.</P> <P>(b) <E T="03">Restrictions.</E> (1) No marine mammal taken for subsistence may be sold or otherwise transferred to any person other than an Alaskan Native or delivered, carried, transported, or shipped in interstate or foreign commerce, unless:<PRTPAGE P="18"/> </P> <P>(i) It is being sent by an Alaskan Native directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Alaskan Native; or</P> <P>(ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan Native; or</P> <P>(iii) It is an edible portion and it is sold in an Alaskan Native village or town.</P> <P>(2) No marine mammal taken for purposes of creating and selling authentic native articles of handicraft and clothing may be sold or otherwise transferred to any person other than an Indian, Aleut or Eskimo, or delivered, carried, transported or shipped in interstate or foreign commerce, unless:</P> <P>(i) It is being sent by an Indian, Aleut or Eskimo directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Indian, Aleut or Eskimo; or</P> <P>(ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo; or</P> <P>(iii) It has first been transformed into an authentic native article of handicraft or clothing; or</P> <P>(iv) It is an edible portion and sold (A) in an Alaskan Native village or town, or (B) to an Alaskan Native for his consumption.</P> <P>(c) Any tannery, or person who wishes to act as an agent, within the jurisdiction of the United States may apply to the Director, National Marine Fisheries Service, U.S. Department of Commerce, Washington, DC 20235, for registration as a tannery or an agent which may possess and process marine mammal products for Indians, Aleuts, or Eskimos. The application shall include the following information:</P> <P>(i) The name and address of the applicant;</P> <P>(ii) A description of the applicant's procedures for receiving, storing, processing, and shipping materials;</P> <P>(iii) A proposal for a system of bookkeeping and/or inventory segregation by which the applicant could maintain accurate records of marine mammals received from Indians, Aleuts, or Eskimos pursuant to this section;</P> <P>(iv) Such other information as the Secretary may request;</P> <P>(v) A certification in the following language: </P> <EXTRACT> <P>I hereby certify that the foregoing information is complete, true and correct to the best of my knowledge and belief. I understand that this information is submitted for the purpose of obtaining the benefit of an exception under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972.</P> </EXTRACT> <P>(vi) The signature of the applicant.</P> <FP>The sufficiency of the application shall be determined by the Secretary, and in that connection, he may waive any requirement for information, or require any elaboration or further information deemed necessary. The registration of a tannery or other agent shall be subject to such conditions as the Secretary prescribes, which may include, but are not limited to, provisions regarding records, inventory segregation, reports, and inspection. The Secretary may charge a reasonable fee for processing such applications, including an appropriate apportionment of overhead and administrative expenses of the Department of Commerce.</FP> <P>(d) Notwithstanding the preceding provisions of this section, whenever, under the MMPA, the Secretary determines any species of stock of marine mammals to be depleted, he may prescribe regulations pursuant to section 103 of the MMPA upon the taking of such marine animals by any Indian, Aleut, or Eskimo and, after promulgation of such regulations, all takings of such marine mammals shall conform to such regulations.</P> <P>(e) <E T="03">Marking and reporting of Cook Inlet Beluga Whales</E>. (1) <E T="03">Definitions</E>. In addition to definitions contained in the MMPA and the regulations in this part:</P> <P>(i) <E T="03">Reporting</E> means the collection and delivery of biological data, harvest data, and other information regarding the effect of taking a beluga whale (<E T="03">Delphinapterus</E> <E T="03">leucas</E>) from Cook Inlet, as required by NMFS.<PRTPAGE P="19"/> </P> <P>(ii) <E T="03">Whaling captain or vessel operator</E> means the individual who is identified by Alaskan Natives as the leader of each hunting team (usually the other crew on the boat) and who is the whaling captain; or the individual operating the boat at the time the whale is harvested or transported to the place of processing.</P> <P>(iii) <E T="03">Cook Inlet</E> means all waters of Cook Inlet north of 59° North latitude, including, but not limited to, waters of Kachemak Bay, Kamishak Bay, Chinitna Bay, and Tuxedni Bay.</P> <P>(2) <E T="03">Marking</E>. Each whaling captain or vessel operator, upon killing and landing a beluga whale (<E T="03">Delphinapterus</E> <E T="03">leucas</E>) from Cook Inlet, Alaska, must remove the lower left jawbone, leaving the teeth intact and in place. When multiple whales are harvested during one hunting trip, the jawbones will be marked for identification in the field to ensure correct reporting of harvest information by placing a label marked with the date, time, and location of harvest within the container in which the jawbone is placed. The jawbone(s) must be retained by the whaling captain or vessel operator and delivered to NMFS at the Anchorage Field Office, 222 West 7<E T="51">th</E> Avenue, Anchorage, Alaska 99513 within 72 hours of returning from the hunt.</P> <P>(3) <E T="03">Reporting</E>. Upon delivery to NMFS of a jawbone, the whaling captain or vessel operator must complete and mail a reporting form, available from NMFS, to the NMFS Anchorage Field Office within 30 days. A separate form is required for each whale harvested.</P> <P>(i) To be complete, the form must contain the following information: the date and location of kill, the method of harvest, and the coloration of the whale. The respondent will also be invited to report on any other observations concerning the animal or circumstance of the harvest.</P> <P>(ii) Data collected pursuant to paragraph (e) of this section will be reported on forms obtained from the Anchorage Field Office. These data will be maintained in the NMFS Alaska Regional Office in Juneau, Alaska, where such data will be available for public review.</P> <P>(4) No person may falsify any information required to be set forth on the reporting form as required by paragraph (e) of this section.</P> <P>(5) The Anchorage Field Office of NMFS is located in room 517 of the Federal Office Building, 222 West 7<E T="51">th</E> Avenue; its mailing address is: NMFS, Box 43, Anchorage, AK. 99513.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.24</SECTNO> <SUBJECT>Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean.</SUBJECT> <P>(a)(1) No marine mammal may be taken in the course of a commercial fishing operation by a United States purse seine fishing vessel in the ETP unless the taking constitutes an incidental catch as defined in § 216.3, and vessel and operator permits have been obtained in accordance with these regulations, and such taking is not in violation of such permits or regulations.</P> <P>(2)(i) It is unlawful for any person using a United States purse seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt)) carrying capacity or less to intentionally deploy a net on or to encircle dolphins, or to carry more than two speedboats, if any part of its fishing trip is in the ETP.</P> <P>(ii) It is unlawful for any person using a United States purse seine fishing vessel of greater than 400 short tons (362.8 mt) carrying capacity that does not have a valid permit obtained under these regulations to catch, possess, or land tuna if any part of the vessel's fishing trip is in the ETP.</P> <P>(iii) It is unlawful for any person subject to the jurisdiction of the United States to receive, purchase, or possess tuna caught, possessed, or landed in violation of paragraph (a)(2)(ii) of this section.</P> <P>(iv) It is unlawful for a person subject to the jurisdiction of the United States to intentionally deploy a purse seine net on, or to encircle, dolphins from a vessel operating in the ETP when the DML assigned to that vessel has been reached, or when there is not a DML assigned to that vessel.</P> <P>(3) Upon written request made in advance of entering the ETP, the limitations in paragraphs (a)(2)(i) and <PRTPAGE P="20"/>(a)(2)(ii) of this section may be waived by the Administrator, Southwest Region, for the purpose of allowing transit through the ETP. The waiver will provide, in writing, the terms and conditions under which the vessel must operate, including a requirement to report by radio to the Administrator, Southwest Region, the vessel's date of exit from or subsequent entry into the permit area.</P> <P>(b) <E T="03">Permits</E>—(1) <E T="03">Vessel permit</E>. The owner or managing owner of a United States purse seine fishing vessel of greater than 400 st (362.8 mt) carrying capacity that participates in commercial fishing operations in the ETP must possess a valid vessel permit issued under this paragraph (b) of this section. This permit is not transferable and must be renewed annually. If a vessel permit holder surrenders his/her permit to the Administrator, Southwest Region, the permit will not be returned and a new permit will not be issued before the end of the calendar year. Vessel permits are valid through December 31 of each year.</P> <P>(2) <E T="03">Operator permit</E>. The person in charge of and actually controlling fishing operations (hereinafter referred to as the operator) on a United States purse seine fishing vessel engaged in commercial fishing operations under a vessel permit must possess a valid operator permit issued under paragraph (b) of this section. Such permits are not transferable and must be renewed annually. To receive a permit, the operator must have satisfactorily completed all required training under paragraph (c)(4) of this section. The operator's permit is valid only when the permit holder is on a vessel with a valid vessel permit. Operator permits will be valid through December 31 of each year.</P> <P>(3) <E T="03">Possession and display</E>. A valid vessel permit issued pursuant to paragraph (b)(1) of this section must be on board the vessel while engaged in fishing operations, and a valid operator permit issued pursuant to paragraph (b)(2) of this section must be in the possession of the operator to whom it was issued. Permits must be shown upon request to NMFS enforcement agents, or to U.S. Coast Guard officers, or to designated agents of NMFS or the IATTC (including observers). A vessel owner or operator who is at sea on a fishing trip when his or her permit expires and to whom a permit for the next year has been issued may take marine mammals under the terms of the new permit without having to display it on board the vessel until the vessel returns to port.</P> <P>(4) <E T="03">Application for vessel permit</E>. The owner or managing owner of a purse seine vessel may apply for a vessel permit from the Administrator, Southwest Region, allowing at least 45 days for processing. The application must be signed by the applicant and contain:</P> <P>(i) The name, official number, tonnage, carrying capacity in short or metric tons, maximum speed in knots, processing equipment, and type and quantity of gear, including an inventory of equipment required under paragraph (c)(2) of this section if the application is for purse seining involving the intentional taking of marine mammals, of the vessel that is to be covered under the permit;</P> <P>(ii) A statement of whether the vessel will make sets involving the intentional taking of marine mammals;</P> <P>(iii) The type and identification number(s) of Federal, State, and local commercial fishing licenses under which vessel operations are conducted, and the dates of expiration;</P> <P>(iv) The name(s) of the operator(s) anticipated to be used; and</P> <P>(v) The name of the applicant, whether he/she is the owner or the managing owner, his/her address, telephone and fax numbers, and, if applicable, the name, address, telephone and fax numbers of the agent or organization acting on behalf of the vessel.</P> <P>(5) <E T="03">Application for operator permit</E>. A person wishing to operate a purse seine vessel may apply for an operator permit from the Administrator, Southwest Region, allowing at least 45 days for processing. The application must be signed by the applicant or the applicant's representative, if applicable, and contain:</P> <P>(i) The name, address, telephone and fax numbers of the applicant;</P> <P>(ii) The type and identification number(s) of any Federal, state, and local fishing licenses held by the applicant;<PRTPAGE P="21"/> </P> <P>(iii) The name of the vessel(s) on which the applicant anticipates serving as an operator; and</P> <P>(iv) The date, location, and provider of any training for the operator permit.</P> <P>(6) <E T="03">Fees</E>. (i) <E T="03">Vessel permit application fees</E>. An application for a permit under paragraph (b)(1) of this section must include a fee for each vessel as specified on the application form. The Assistant Administrator may change the amount of this fee at any time if a different fee is determined in accordance with the NOAA Finance Handbook and specified by the Administrator, Southwest Region, on the application form.</P> <P>(ii) <E T="03">Operator permit fee</E>. There is no fee for a operator permit under paragraph (b)(2) of this section. The Assistant Administrator may impose a fee or change the amount of this fee at any time if a different fee is determined in accordance with the NOAA Finance Handbook and specified by the Administrator, Southwest Region, on the application form.</P> <P>(iii) <E T="03">Observer placement fee.</E> The vessel permit holder must submit the fee for the placement of observers, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, by September 1 of the year prior to the year in which the vessel will be operated in the ETP. The Administrator, Southwest Region, will forward all observer placement fees to the IATTC or to the applicable international organization approved by the Administrator, Southwest Region.</P> <P>(7) <E T="03">Application approval</E>. The Administrator, Southwest Region, will determine the adequacy and completeness of an application and, upon determining that an application is adequate and complete, will approve that application and issue the appropriate permit, except for applicants having unpaid or overdue civil penalties, criminal fines, or other liabilities incurred in a legal proceeding.</P> <P>(8) <E T="03">Conditions applicable to all permits</E>— (i) <E T="03">General Conditions</E>. Failure to comply with the provisions of a permit or with these regulations may lead to suspension, revocation, modification, or denial of a permit. The permit holder, vessel, vessel owner, operator, or master may be subject, jointly or severally, to the penalties provided for under the MMPA. Procedures governing permit sanctions and denials are found at subpart D of 15 CFR part 904.</P> <P>(ii) <E T="03">Observer placement</E>. By obtaining a permit, the permit holder consents to the placement of an observer on the vessel during every trip involving operations in the ETP and agrees to payment of the fees for observer placement. No observer will be assigned to a vessel unless that vessel owner has submitted payment of observer fees to the Administrator, Southwest Region. The observers may be placed under an observer program of NMFS, IATTC, or another international observer program approved by the IDCP and the Administrator, Southwest Region.</P> <P>(iii) <E T="03">Explosives</E>. The use of explosive devices is prohibited during all tuna purse seine operations that involve marine mammals.</P> <P>(iv) <E T="03">Reporting requirements</E>. (A) The vessel permit holder of each permitted vessel must notify the Administrator, Southwest Region or the IATTC contact designated by the Administrator, Southwest Region, at least 5 days in advance of the vessel's departure on a fishing voyage to allow for observer placement on every voyage.</P> <P>(B) The vessel permit holder must notify the Administrator, Southwest Region, or the IATTC contact designated by the Administrator, Southwest Region, of any change of vessel operator at least 48 hours prior to departing on a trip. In the case of a change in operator due to an emergency, notification must be made within 72 hours of the change.</P> <P>(v) <E T="03">Data release</E>. By using a permit, the permit holder authorizes the release to NMFS and the IATTC of all data collected by observers aboard purse seine vessels during fishing trips under the IATTC observer program or another international observer program approved by the Administrator, Southwest Region. The permit holder must furnish the international observer program with all release forms required to authorize the observer data to be provided to NMFS and the IATTC. Data obtained under such releases will be used for the same purposes as would data collected directly by observers placed by NMFS and will <PRTPAGE P="22"/>be subject to the same standards of confidentiality.</P> <P>(9) <E T="03">Mortality and serious injury reports</E>. The Administrator, Southwest Region, will provide to the public periodic status reports summarizing the estimated incidental dolphin mortality and serious injury by U.S. vessels of individual species and stocks.</P> <P>(c) <E T="03">Purse seining by vessels with DMLs</E>. In addition to the terms and conditions set forth in paragraph (b) of this section, any permit for a vessel to which a DML has been assigned under paragraph (c)(8) of this section and any operator permit when used on such a vessel are subject to the following terms and conditions:</P> <P>(1) A vessel may be used to chase and encircle schools of dolphins in the ETP only under the immediate direction of the holder of a valid operator's permit.</P> <P>(2) <E T="03">No retention of Marine Mammals</E>. Except as otherwise authorized by a specific permit, marine mammals incidentally taken must be immediately returned to the ocean without further injury. The operator of a purse seine vessel must take every precaution to refrain from causing or permitting incidental mortality or serious injury of marine mammals. Live marine mammals must not be brailed, sacked up, or hoisted onto the deck during ortza retrieval.</P> <P>(3) <E T="03">Gear and equipment required for valid permit</E>. A vessel possessing a vessel permit for purse seining involving the intentional taking of marine mammals may not engage in fishing operations involving the intentional deployment of the net on or encirclement of dolphins unless it is equipped with a dolphin safety panel in its purse seine, has the other required gear and equipment, and uses the required procedures.</P> <P>(i) <E T="03">Dolphin safety panel</E>. The dolphin safety panel must be a minimum of 180 fathoms in length (as measured before installation), except that the minimum length of the panel in nets deeper than 18 strips must be determined in a ratio of 10 fathoms in length for each strip of net depth. It must be installed so as to protect the perimeter of the backdown area. The perimeter of the backdown area is the length of corkline that begins at the outboard end of the last bowbunch pulled and continues to at least two-thirds the distance from the backdown channel apex to the stern tiedown point. The dolphin safety panel must consist of small mesh webbing not to exceed 1 1/4 inches (3.18 centimeter (cm)) stretch mesh extending downward from the corkline and, if present, the base of the dolphin apron to a minimum depth equivalent to two strips of 100 meshes of 4 1/4 inches (10.80 cm) stretch mesh webbing. In addition, at least a 20-fathom length of corkline must be free from bunchlines at the apex of the backdown channel.</P> <P>(ii) <E T="03">Dolphin safety panel markers</E>. Each end of the dolphin safety panel and dolphin apron must be identified with an easily distinguishable marker.</P> <P>(iii) <E T="03">Dolphin safety panel hand holds</E>. Throughout the length of the corkline under which the dolphin safety panel and dolphin apron are located, hand hold openings must be secured so that they will not allow the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped object.</P> <P>(iv) <E T="03">Dolphin safety panel corkline hangings</E>. Throughout the length of the corkline under which the dolphin safety panel and dolphin apron are located, corkline hangings must be inspected by the vessel operator following each trip. Hangings found to have loosened to the extent that a cylindrical object with a 1 3/8 inch (3.50 cm) diameter can be inserted between the cork and corkline hangings, must be tightened so as not to allow the insertion of a cylindrical object with a 1 3/8 inch (3.50 cm) diameter.</P> <P>(v) <E T="03">Speedboats</E>. A minimum of three speedboats in operating condition must be carried. All speedboats carried aboard purse seine vessels and in operating condition must be rigged with tow lines and towing bridles or towing posts. Speedboat hoisting bridles may not be substituted for towing bridles.</P> <P>(vi) <E T="03">Raft</E>. A raft suitable to be used as a dolphin observation-and-rescue platform must be carried.</P> <P>(vii) <E T="03">Face mask and snorkel, or view box</E>. At least two face masks and snorkels or view boxes must be carried.</P> <P>(viii) <E T="03">Lights</E>. The vessel must be equipped with lights capable of producing a minimum of 140,000 lumens of output for use in darkness to ensure <PRTPAGE P="23"/>sufficient light to observe that procedures for dolphin release are carried out and to monitor incidental dolphin mortality.</P> <P>(4) <E T="03">Vessel inspection</E>—(i) <E T="03">Annual</E>. At least once during each calendar year, purse seine nets and other gear and equipment required under § 216.24(c)(2) must be made available for inspection and for a trial set/net alignment by an authorized NMFS inspector or IATTC staff as specified by the Administrator, Southwest Region, in order to obtain a vessel permit.</P> <P>(ii) <E T="03">Reinspection</E>. Purse seine nets and other gear and equipment required by these regulations must be made available for reinspection by an authorized NMFS inspector or IATTC staff as specified by the Administrator, Southwest Region. The vessel permit holder must notify the Administrator, Southwest Region, of any net modification at least 5 days prior to departure of the vessel in order to determine whether a reinspection or trial set/net alignment is required.</P> <P>(iii) Upon failure to pass an inspection or reinspection, a vessel may not engage in purse seining involving the intentional taking of marine mammals until the deficiencies in gear or equipment are corrected as required by NMFS.</P> <P>(5) <E T="03">Operator permit holder training requirements</E>. An operator must maintain proficiency sufficient to perform the procedures required herein, and must attend and satisfactorily complete a formal training session approved by the Administrator, Southwest Region, in order to obtain his or her permit. At the training session an attendee will be instructed on the relevant provisions and regulatory requirements of the MMPA and the IDCP, and the fishing gear and techniques that are required for, or will contribute to, reducing serious injury and mortality of dolphin incidental to purse seining for tuna. Operators who have received a written certificate of satisfactory completion of training and who possess a current or previous calendar year permit will not be required to attend additional formal training sessions unless there are substantial changes in the relevant provisions or implementing regulations of the MMPA or the IDCP, or in fishing gear and techniques. Additional training may be required for any operator who is found by the Administrator, Southwest Region, to lack proficiency in the required fishing procedures or familiarity with the relevant provisions or regulations of the MMPA or the IDCP.</P> <P>(6) <E T="03">Marine mammal release requirements</E>. All operators must use the following procedures during all sets involving the incidental taking of marine mammals in association with the capture and landing of tuna.</P> <P>(i) <E T="03">Backdown procedure</E>. Backdown must be performed following a purse seine set in which dolphins are captured in the course of catching tuna, and must be continued until it is no longer possible to remove live dolphins from the net by this procedure. At least one crewman must be deployed during backdown to aid in the release of dolphins. Thereafter, other release procedures required will be continued so that all live dolphins are released prior to the initiation of the sack-up procedure.</P> <P>(ii) <E T="03">Prohibited use of sharp or pointed instrument</E>. The use of a sharp or pointed instrument to remove any marine mammal from the net is prohibited.</P> <P>(iii) <E T="03">Sundown sets prohibited</E>. On every set encircling dolphin, the backdown procedure must be completed no later than one-half hour after sundown, except as provided here. For the purpose of this section, sundown is defined as the time at which the upper edge of the sun disappears below the horizon or, if the view of the sun is obscured, the local time of sunset calculated from tables developed by the U.S. Naval Observatory or other authoritative source approved by the Administrator, Southwest Region. A sundown set is a set in which the backdown procedure has not been completed and rolling the net to sack-up has not begun within one-half hour after sundown. Should a set extend beyond one-half hour after sundown, the operator must use the required marine mammal release procedures including the use of the high intensity lighting system. In the event a sundown set occurs where the seine skiff was let go 90 or more minutes before sundown, and an earnest effort to <PRTPAGE P="24"/>rescue dolphins is made, the International Review Panel of the IDCP may recommend to the United States that in the view of the International Review Panel, prosecution by the United States is not recommended. Any such recommendation will be considered by the United States in evaluating the appropriateness of prosecution in a particular circumstance.</P> <P>(iv) <E T="03">Dolphin safety panel</E>. During backdown, the dolphin safety panel must be positioned so that it protects the perimeter of the backdown area. The perimeter of the backdown area is the length of corkline that begins at the outboard end of the last bow bunch pulled and continues to at least two-thirds the distance from the backdown channel apex to the stern tiedown point.</P> <P>(7) <E T="03">Experimental fishing operations</E>. The Administrator, Southwest Region, may authorize experimental fishing operations, consistent with the provisions of the IDCP, for the purpose of testing proposed improvements in fishing techniques and equipment that may reduce or eliminate dolphin mortality or serious injury, or do not require the encirclement of dolphins in the course of fishing operations. The Administrator, Southwest Region, may waive, as appropriate, any requirements of this section except DMLs and the obligation to carry an observer.</P> <P>(i) A vessel permit holder may apply to the Administrator, Southwest Region, for an experimental fishing operation waiver allowing for processing no less than 90 days before the date the proposed operation is intended to begin. An application must be signed by the permitted operator and contain:</P> <P>(A) The name(s) of the vessel(s) and the vessel permit holder(s) to participate;</P> <P>(B) A statement of the specific vessel gear and equipment or procedural requirement to be exempted and why such an exemption is necessary to conduct the experiment;</P> <P>(C) A description of how the proposed modification to the gear and equipment or procedures is expected to reduce incidental mortality or serious injury of marine mammals;</P> <P>(D) A description of the applicability of this modification to other purse seine vessels;</P> <P>(E) The planned design, time, duration, and general area of the experimental operation;</P> <P>(F) The name(s) of the permitted operator(s) of the vessel(s) during the experiment; and</P> <P>(G) A statement of the qualifications of the individual or company doing the analysis of the research.</P> <P>(ii) The Administrator, Southwest Region, will acknowledge receipt of the application and, upon determining that it is complete, will publish a notice in the <E T="04">Federal Register</E> summarizing the application, making the full application available for inspection and inviting comments for a minimum period of 30 days from the date of publication.</P> <P>(iii) The Administrator, Southwest Region, after considering the information in the application and the comments received on it, will either issue a waiver to conduct the experiment which includes restrictions or conditions deemed appropriate, or deny the application, giving the reasons for denial.</P> <P>(iv) A waiver for an experimental fishing operation will be valid only for the vessels and operators named in the permit, for the time period and areas specified, for trips carrying an observer designated by the Administrator, Southwest Region, when all the terms and conditions of the permit are met.</P> <P>(v) The Administrator, Southwest Region, may suspend or revoke an experimental fishing waiver in accordance with 15 CFR part 904 if the terms and conditions of the waiver or the provisions of the regulations are not followed.</P> <P>(8) <E T="03">Operator permit holder performance requirements</E>. [Reserved]</P> <P>(9) <E T="03">Vessel permit holder dolphin mortality limits</E>. For purposes of this paragraph, the term “vessel permit holder” includes both the holder of a current vessel permit and also the holder of a vessel permit for the following year.</P> <P>(i) By September 1 each year, a vessel permit holder desiring a DML for the following year must provide to the Administrator, Southwest Region, the name of the United States purse seine fishing vessel(s) of carrying capacity <PRTPAGE P="25"/>greater than 400 st (362.8 mt) carrying capacity that the owner intends to use to intentionally deploy purse seine fishing nets in the ETP to encircle dolphins in an effort to capture tuna during the following year. NMFS will forward the list of purse seine vessels to the Director of the IATTC on or before October 1, or as otherwise required by the IDCP, for assignment of a DML for the following year under the provisions of Annex IV of the Agreement on the IDCP.</P> <P>(ii) Each vessel permit holder that desires a DML only for the period between July 1 to December 31 must provide the Administrator, Southwest Region, by September 1 of the prior year, the name of the United States purse seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying capacity that the owner intends to use to intentionally deploy purse seine fishing nets in the ETP to encircle dolphins in an effort to capture tuna during the period. NMFS will forward the list of purse seine vessels to the Director of the IATTC on or before October 1, or as otherwise required under the IDCP, for possible assignment of a DML for the 6-month period July 1 to December 31. Under the IDCP, the DML will be calculated by the IDCP from any unutilized pool of DMLs in accordance with the procedure described in Annex IV of the Agreement on the IDCP and will not exceed one-third of an unadjusted full-year DML as calculated by the IDCP.</P> <P>(iii)(A) The Administrator, Southwest Region, will notify vessel owners of the DML assigned for each vessel for the following year, or the second half of the year, as applicable.</P> <P>(B) The Administrator, Southwest Region, may adjust the DMLs in accordance with Annex IV of the Agreement on the IDCP. All adjustments of full-year DMLs will be made before January 1, and the Administrator, Southwest Region, will notify the Director of the IATTC of any adjustments prior to a vessel departing on a trip using its adjusted DML. The notification will be no later than February 1 in the case of adjustments to full-year DMLs, and no later than May 1 in the case of adjustments to DMLs for the second half of the year.</P> <P>(C) Within the requirements of Annex IV of the Agreement on the IDCP, the Administrator, Southwest Region, may adjust a vessel's DML if it will further scientific or technological advancement in the protection of marine mammals in the fishery or if the past performance of the vessel indicates that the protection or use of the yellowfin tuna stocks or marine mammals is best served by the adjustment, within the mandates of the MMPA. Experimental fishing operation waivers or scientific research permits will be considered a basis for adjustments.</P> <P>(iv)(A) A vessel assigned a full-year DML that does not make a set on dolphins by April 1 or that leaves the fishery will lose its DML for the remainder of the year, unless the failure to set on dolphins is due to <E T="03">force</E> <E T="03">majeure</E> or other extraordinary circumstances as determined by the International Review Panel.</P> <P>(B) A vessel assigned a DML for the second half of the year will be considered to have lost its DML if the vessel has not made a set on dolphins before December 31, unless the failure to set on dolphins is due to <E T="03">force</E> <E T="03">majeure</E> or extraordinary circumstances as determined by the International Review Panel.</P> <P>(C) Any vessel that loses its DML for 2 consecutive years will not be eligible to receive a DML for the following year.</P> <P>(D) NMFS will determine, based on available information, whether a vessel has left the fishery.</P> <P>(<E T="03">1</E>) A vessel lost at sea, undergoing extensive repairs, operating in an ocean area other than the ETP, or for which other information indicates will no longer be conducting purse seine operations in the ETP for the remainder of the period covered by the DML will be determined to have left the fishery.</P> <P>(<E T="03">2</E>) NMFS will make all reasonable efforts to determine the intentions of the vessel owner, and the owner of any vessel that has been preliminarily determined to have left the fishery will be provided notice of such preliminary determination and given the opportunity to provide information on whether the vessel has left the fishery prior to NMFS making a final determination <PRTPAGE P="26"/>under 15 CFR part 904 and notifying the IATTC.</P> <P>(v) Any vessel that exceeds its assigned DML after any applicable adjustment under paragraph (c)(8)(iii) of this section will have its DML for the subsequent year reduced by 150 percent of the overage, unless another adjustment is determined by the International Review Panel.</P> <P>(vi) A vessel that is covered by a valid vessel permit and that does not normally fish for tuna in the ETP but desires to participate in the fishery on a limited basis may apply for a per-trip DML from the Administrator, Southwest Region, at any time, allowing at least 60 days for processing. The request must state the expected number of trips involving sets on dolphins and the anticipated dates of the trip or trips. The request will be forwarded to the Director of the IATTC for processing in accordance with Annex IV of the Agreement on the IDCP. A per-trip DML will be assigned if one is made available in accordance with the terms of Annex IV of the IDCP. If a vessel assigned a per-trip DML does not set on dolphins during that trip, the vessel will be considered to have lost its DML unless this was a result of <E T="03">force</E> <E T="03">majeure</E> or other extraordinary circumstances as determined by the International Review Panel. After two consecutive losses of a DML, a vessel will not be eligible to receive a DML for the next fishing year.</P> <P>(vii) Observers will make their records available to the vessel operator at any reasonable time, including after each set, in order for the operator to monitor the balance of the DML(s) remaining for use.</P> <P>(viii) Vessel and operator permit holders must not deploy a purse seine net on or encircle any school of dolphins containing individuals of a particular stock of dolphins:</P> <P>(A) When the applicable per-stock per-year dolphin mortality limit for that stock of dolphins (or for that vessel, if so assigned) has been reached or exceeded; or</P> <P>(B) After the time and date provided in actual notification or notification in the <E T="04">Federal Register</E> by the Administrator, Southwest Region, based upon the best available evidence, stating when any applicable per-stock per-year dolphin mortality limit has been reached or exceeded, or is expected to be reached in the near future.</P> <P>(ix) If individual dolphins belonging to a stock that is prohibited from being taken are not reasonably observable at the time the net skiff attached to the net is released from the vessel at the start of a set, the fact that individuals of that stock are subsequently taken will not be cause for enforcement action provided that all procedures required by the applicable regulations have been followed.</P> <P>(x) Vessel and operator permit holders must not intentionally deploy a purse seine net on or encircle dolphins intentionally:</P> <P>(A) When the vessel's DML, as adjusted, is reached or exceeded; or</P> <P>(B) After the date and time provided in actual notification by letter, facsimile, radio, or electronic mail, or notice in the <E T="04">Federal Register</E> by the Administrator, Southwest Region, based upon the best available evidence, that intentional sets on dolphins must cease because the total of the DMLs assigned to the U.S. fleet has been reached or exceeded, or is expected to be exceeded in the near future.</P> <P>(xi) Sanctions recommended by the International Review Panel for any violation of these rules will be considered by NMFS and NOAA in enforcement actions brought under these regulations.</P> <P>(xii) Intentionally deploying a purse seine net on, or to encircle, dolphins after a vessel's DML, as adjusted, has been reached will disqualify the vessel from consideration for a DML for the following year. If already assigned, the DML for the following year will be withdrawn, and the Director of the IATTC will be notified by NMFS that the DML assigned to that vessel will be unutilized. Procedures found at 15 CFR part 904 apply to the withdrawal of the permit.</P> <P>(d) <E T="03">Purse seining by vessels without assigned DMLs</E>. In addition to the requirements of paragraph (b) of this section, a vessel permit used for a trip not involving an assigned DML and the operator's permit when used on such a vessel are subject to the following terms and conditions: a permit holder <PRTPAGE P="27"/>may take marine mammals provided that such taking is an accidental occurrence in the course of normal commercial fishing operations and the vessel does not intentionally deploy its net on, or to encircle, dolphins; marine mammals taken incidental to such commercial fishing operations must be immediately returned to the environment where captured without further injury, using release procedures such as hand rescue, and aborting the set at the earliest effective opportunity; the use of one or more rafts and face masks or view boxes to aid in the rescue of dolphins is recommended.</P> <P>(e) <E T="03">Observers</E>: (1) The holder of a vessel permit must allow an observer duly authorized by the Administrator, Southwest Region, to accompany the vessel on all fishing trips in the ETP for the purpose of conducting research and observing operations, including collecting information that may be used in civil or criminal penalty proceedings, forfeiture actions, or permit sanctions. A vessel that fails to carry an observer in accordance with these requirements may not engage in fishing operations.</P> <P>(2) Research and observation duties will be carried out in such a manner as to minimize interference with commercial fishing operations. Observers must be provided access to vessel personnel and to dolphin safety gear and equipment, electronic navigation equipment, radar displays, high powered binoculars, and electronic communication equipment. The navigator must provide true vessel locations by latitude and longitude, accurate to the nearest minute, upon request by the observer. Observers must be provided with adequate space on the bridge or pilothouse for clerical work, as well as space on deck adequate for carrying out observer duties. No vessel owner, master, operator, or crew member of a permitted vessel may impair, or in any way interfere with, the research or observations being carried out. Masters must allow observers to use vessel communication equipment to report information concerning the take of marine mammals and other observer collected data upon request of the observer.</P> <P>(3) Any marine mammals killed during fishing operations that are accessible to crewmen and requested from the permit holder or master by the observer must be brought aboard the vessel and retained for biological processing, until released by the observer for return to the ocean. Whole marine mammals or marine mammal parts designated as biological specimens by the observer must be retained in cold storage aboard the vessel until retrieved by authorized personnel of NMFS or the IATTC when the vessel returns to port for unloading.</P> <P>(4) It is unlawful for any person to forcibly assault, impede, intimidate, interfere with, or to influence or attempt to influence an observer, or to harass (including sexual harassment) an observer by conduct which has the purpose or effect of unreasonably interfering with the observer's work performance, or which creates an intimidating, hostile, or offensive environment. In determining whether conduct constitutes harassment, the totality of the circumstances, including the nature of the conduct and the context in which it occurred, will be considered. The determination of the legality of a particular action will be made from the facts on a case-by-case basis.</P> <P>(5)(i) All observers must be provided sleeping, toilet and eating accommodations at least equal to that provided to a full crew member. A mattress or futon on the floor or a cot is not acceptable in place of a regular bunk. Meal and other galley privileges must be the same for the observer as for other crew members.</P> <P>(ii) Female observers on a vessel with an all-male crew must be accommodated either in a single-person cabin or, if reasonable privacy can be ensured by installing a curtain or other temporary divider, in a two-person cabin shared with a licensed officer of the vessel. If the cabin assigned to a female observer does not have its own toilet and shower facilities that can be provided for the exclusive use of the observer, then a schedule for time-sharing common facilities must be established before the placement meeting and approved by NMFS or other approved observer program and must be followed during the entire trip.<PRTPAGE P="28"/> </P> <P>(iii) In the event there are one or more female crew members, the female observer must be provided a bunk in a cabin shared solely with female crew members, and provided toilet and shower facilities shared solely with these female crew members.</P> <P>(f) <E T="03">Importation, purchase, shipment, sale and transport</E>. (1)(i) It is illegal to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if the fish have been caught with commercial fishing technology that results in the incidental kill or incidental serious injury of marine mammals in excess of that allowed under this part for U.S. fishermen, or as specified at paragraphs (f)(7) through (f)(9) of this section.</P> <P>(ii) For purposes of this paragraph(f), and in applying the definition of an “intermediary nation,” an import occurs when the fish or fish product is released from a nation's Customs’ custody and enters into the territory of the nation. For other purposes, “import” is defined in § 216.3.</P> <P>(2)(i) <E T="03">HTS numbers requiring a Fisheries Certificate of Origin, subject to yellowfin tuna embargo</E>. The following U.S. Harmonized Tariff Schedule (HTS) numbers identify yellowfin tuna or yellowfin tuna products that are harvested in the ETP purse seine fishery and imported into the United States. All shipments containing tuna or tuna products imported into the United States under these HTS numbers must be accompanied by a Fisheries Certificate of Origin (FCO), NOAA Form 370. Yellowfin tuna identified by any of the following HTS numbers that was harvested using a purse seine in the ETP may not be imported into the United States unless both the nation with jurisdiction over the harvesting vessel and the exporting nation (if different) have an affirmative finding under paragraph (f)(9) of this section.</P> <GPOTABLE CDEF="s30,r50" COLS="2" OPTS="L1,i1"> <BOXHD> <CHED H="1"/> <CHED H="1"/> </BOXHD> <ROW> <ENT I="22">(A) <E T="03">Frozen</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">0303.42.0020 </ENT> <ENT>Yellowfin tuna, whole, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.42.0040 </ENT> <ENT>Yellowfin tuna, eviscerated, head on, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.42.0060 </ENT> <ENT>Yellowfin tuna, other, frozen.</ENT> </ROW> <ROW> <ENT I="22">(B) <E T="03">Canned</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">1604.14.1000 </ENT> <ENT>Tuna, non-specific, in airtight containers, in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.14.2040 </ENT> <ENT>Tuna, other than albacore, not over 7kg, in airtight containers.</ENT> </ROW> <ROW> <ENT I="22">1604.14.3040 </ENT> <ENT>Tuna, other than albacore, in airtight containers, not in oil, over quota.</ENT> </ROW> <ROW> <ENT I="22">(C) <E T="03">Loins</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">1604.14.4000 </ENT> <ENT>Tuna, not in airtight containers, not in oil, over 6.8kg.</ENT> </ROW> <ROW> <ENT I="22">1604.14.5000 </ENT> <ENT>Tuna, other, not in airtight containers.</ENT> </ROW> <ROW> <ENT I="22">(D) <E T="03">Other (only if the product contains tuna)</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">0304.10.4099 </ENT> <ENT>Other fish, fillets and other fish meat, fresh or chilled.</ENT> </ROW> <ROW> <ENT I="22">0304.20.2066 </ENT> <ENT>Other fish, fillets, skinned, in blocks weighing over 4.5kg, frozen.</ENT> </ROW> <ROW> <ENT I="22">0304.20.6096 </ENT> <ENT>Other fish, fillets, frozen.</ENT> </ROW> <ROW> <ENT I="22">0304.90.1089 </ENT> <ENT>Other fish meat, in bulk or immediate containers, fresh or chilled.</ENT> </ROW> <ROW> <ENT I="22">0304.90.9091 </ENT> <ENT>Other fish meat, fresh or chilled.</ENT> </ROW> </GPOTABLE> <P>(ii) <E T="03">HTS numbers requiring a Fisheries Certificate of Origin, not subject to yellowfin tuna embargo</E>. The following HTS numbers identify tuna or tuna products, other than fresh tuna or tuna identified in paragraph (f)(2)(i) of this section, known to be imported into the United States. All shipments imported into the United States under these HTS numbers must be accompanied by a FCO. The shipment may not be imported into the United States if harvested by a large-scale driftnet nation, unless accompanied by the official statement described in paragraph (f)(5)(x) of this section.</P> <GPOTABLE CDEF="s30,r50" COLS="2" OPTS="L1,i1"> <BOXHD> <CHED H="1"/> <CHED H="1"/> </BOXHD> <ROW> <ENT I="22">(A) <E T="03">Frozen</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">0303.41.0000 </ENT> <ENT>Albacore or longfinned tunas, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.43.0000 </ENT> <ENT>Skipjack, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.49.0020 </ENT> <ENT>Bluefin, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.49.0040 </ENT> <ENT>Other tuna, frozen.</ENT> </ROW> <ROW> <ENT I="22">(B) <E T="03">Canned</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">1604.14.2020 </ENT> <ENT>Albacore tuna, in airtight containers, not in oil, not over 7kg, in quota.</ENT> </ROW> <ROW> <ENT I="22">1604.14.3020 </ENT> <ENT>Albacore tuna, in airtight containers, not in oil, not in quota.</ENT> </ROW> </GPOTABLE> <P>(iii) <E T="03">Exports from driftnet nations only: HTS numbers requiring a Fisheries Certificate of Origin and official certification</E>. The following HTS numbers identify categories of fish and shellfish, other than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, known to have been harvested using a large-scale driftnet and imported into the United States. Shipments exported from a large-scale driftnet nation and imported into the United States under any of the HTS numbers listed in paragraph (f)(2) of this section must be accompanied by an FCO and the official <PRTPAGE P="29"/>statement described in paragraph (f)(5)(x) of this section.</P> <GPOTABLE CDEF="s30,r50" COLS="2" OPTS="L1,i1"> <BOXHD> <CHED H="1"/> <CHED H="1"/> </BOXHD> <ROW> <ENT I="22">(A) <E T="03">Frozen</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">0303.10.0012 </ENT> <ENT>Salmon, chinook, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.10.0022 </ENT> <ENT>Salmon, chum, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.10.0032 </ENT> <ENT>Salmon, pink, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.10.0042 </ENT> <ENT>Salmon, sockeye, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.10.0052 </ENT> <ENT>Salmon, coho, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.10.0062 </ENT> <ENT>Salmon, Pacific, non-specific, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.21.0000 </ENT> <ENT>Trout, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.22.0000 </ENT> <ENT>Salmon, Atlantic and Danube, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.29.0000 </ENT> <ENT>Salmonidae, other, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.70.4097 </ENT> <ENT>Fish, other, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.75.0010 </ENT> <ENT>Dogfish, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.75.0090 </ENT> <ENT>Other sharks, frozen.</ENT> </ROW> <ROW> <ENT I="22">0303.79.2041 </ENT> <ENT>Swordfish steaks, frozen</ENT> </ROW> <ROW> <ENT I="22">0303.79.2049 </ENT> <ENT>Swordfish, other, frozen.</ENT> </ROW> <ROW> <ENT I="22"/> </ROW> <ROW> <ENT I="11">0304.20.2066 </ENT> <ENT>Fish, fillet, skinned, in blocks frozen over 4.5kg.</ENT> </ROW> <ROW> <ENT I="22">0304.20.6008 </ENT> <ENT>Salmonidae, salmon fillet, frozen.</ENT> </ROW> <ROW> <ENT I="22">0304.20.6096 </ENT> <ENT>Fish, fillet, frozen.</ENT> </ROW> <ROW> <ENT I="22">0307.49.0010 </ENT> <ENT>Squid, other, fillet, frozen.</ENT> </ROW> <ROW> <ENT I="22">(B) <E T="03">Canned</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">1604.11.2020 </ENT> <ENT>Salmon, pink, canned in oil, in airtight containers.</ENT> </ROW> <ROW> <ENT I="22">1604.11.2030 </ENT> <ENT>Salmon, sockeye, canned in oil, in airtight containers.</ENT> </ROW> <ROW> <ENT I="22">1604.11.2090 </ENT> <ENT>Salmon, other, canned in oil, in airtight containers.</ENT> </ROW> <ROW> <ENT I="22">1604.11.4010 </ENT> <ENT>Salmon, chum, canned, not in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.11.4020 </ENT> <ENT>Salmon, pink, canned, not in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.11.4030 </ENT> <ENT>Salmon, sockeye, canned, not in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.11.4040 </ENT> <ENT>Salmon, other, canned, not in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.11.4050 </ENT> <ENT>Salmon, other, canned, not in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.19.2000 </ENT> <ENT>Fish, other, in airtight containers, not in oil.</ENT> </ROW> <ROW> <ENT I="22">1604.19.3000 </ENT> <ENT>Fish, other, in airtight containers, in oil.</ENT> </ROW> <ROW> <ENT I="22">1605.90.6055 </ENT> <ENT>Squid, loligo, prepared/preserved.</ENT> </ROW> <ROW> <ENT I="22">(C) <E T="03">Other</E>:</ENT> <ENT/> </ROW> <ROW> <ENT I="22">0304.10.4099 </ENT> <ENT>Other fish, fillets and other fish meat, fresh or chilled.</ENT> </ROW> <ROW> <ENT I="22">0304.20.2066 </ENT> <ENT>Other fish, fillets, skinned, in blocks weighing over 4.5kg, frozen.</ENT> </ROW> <ROW> <ENT I="22">0304.20.6098 </ENT> <ENT>Other fish, fillets, frozen.</ENT> </ROW> <ROW> <ENT I="22">0304.90.1089 </ENT> <ENT>Other fish, fillets and fish meat, in bulk or in immediate containers, fresh or chilled.</ENT> </ROW> <ROW> <ENT I="22">0304.90.9092 </ENT> <ENT>Other fish meat, fresh or chilled.</ENT> </ROW> <ROW> <ENT I="22"/> </ROW> <ROW> <ENT I="11">0305.30.6080 </ENT> <ENT>Fish, non-specific, fillet. dried/salted/brine.</ENT> </ROW> <ROW> <ENT I="22">0305.49.4040 </ENT> <ENT>Fish, non-specific, smoked.</ENT> </ROW> <ROW> <ENT I="22">0305.59.2000 </ENT> <ENT>Shark fins.</ENT> </ROW> <ROW> <ENT I="22">0305.59.4000 </ENT> <ENT>Fish, non-specific, dried.</ENT> </ROW> <ROW> <ENT I="22">0305.69.4000 </ENT> <ENT>Salmon, non-specific, salted.</ENT> </ROW> <ROW> <ENT I="22"/> </ROW> <ROW> <ENT I="11">0305.69.5000 </ENT> <ENT>Fish, non-specific, in immediate containers, salted, not over 6.8kg.</ENT> </ROW> <ROW> <ENT I="22">0305.69.6000 </ENT> <ENT>Fish, non-specific, salted, other.</ENT> </ROW> <ROW> <ENT I="22">0307.49.0050 </ENT> <ENT>Squid, non-specific, frozen/dried/salted/brine.</ENT> </ROW> <ROW> <ENT I="22">0307.49.0060 </ENT> <ENT>Squid, non-specific, & cuttle fish frozen/dried/salted/brine.</ENT> </ROW> </GPOTABLE> <P>(3) <E T="03">Imports requiring a Fisheries Certificate of Origin</E>. Shipments containing the following may not be imported into the United States unless a completed FCO is filed with the Customs Service at the time of importation:</P> <P>(i) Tuna classified under an HTS number listed in paragraphs (f)(2)(i) or (f)(2)(ii) of this section, or</P> <P>(ii) Fish classified under an HTS number listed in paragraph (f)(2) of this section that was harvested by a vessel of a large-scale driftnet nation, as identified under paragraph (f)(8) of this section.</P> <P>(4) <E T="03">Disposition of Fisheries Certificates of Origin</E>. The FCO form described in paragraph (f)(5) of this section may be obtained from the Administrator, Southwest Region, or downloaded from the Internet at http://swr.ucsd.edu/noaa370.htm. The FCO required under paragraph (f)(3) of this section must accompany the tuna or tuna products from entry into the United States, through final processing, and it must be endorsed at each change in ownership. FCOs that require multiple endorsements must be submitted to the Administrator, Southwest Region, by the last endorser when all required endorsements are completed. An invoice must accompany the shipment at the time of importation or, in the alternative, must be made available within 30 days of a request by the Secretary or the Administrator, Southwest Region, to produce the invoice.</P> <P>(5) <E T="03">Contents of Fisheries Certificate of Origin</E>. An FCO, certified to be accurate by the first exporter of the accompanying shipment, must include the following information:</P> <P>(i) Customs entry identification;</P> <P>(ii) Date of entry;</P> <P>(iii) Exporter's full name and complete address;</P> <P>(iv) Importer's or consignee's full name and complete address;</P> <P>(v) Species description, product form, and HTS number;</P> <P>(vi) Total net weight of the shipment in kilograms;</P> <P>(vii) Ocean area where the fish were harvested (ETP, Western Pacific Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian Ocean, or other);</P> <P>(viii) Type of fishing gear used to harvest the fish (purse seine, longline, baitboat, large-scale driftnet, gillnet, trawl, pole and line, or other);<PRTPAGE P="30"/> </P> <P>(ix) Country under whose laws the harvesting vessel operated based upon the flag of the vessel or, if a certified charter vessel, the country that accepted responsibility for the vessel's fishing operations;</P> <P>(x) Dates on which the fishing trip began and ended;</P> <P>(xi) If the shipment includes tuna or products harvested with a purse seine net, the name of the harvesting vessel;</P> <P>(xii) Dolphin safe condition of the shipment;</P> <P>(xiv) For shipments harvested by vessels of a nation known to use large-scale driftnets, as determined by the Secretary pursuant to paragraph (f)(8) of this section, a statement must be included on the Fisheries Certificate of Origin that is dated and signed by a responsible government official of the harvesting nation, certifying that the fish or fish products were harvested by a method other than large-scale driftnet; and</P> <P>(xii) If the shipment contains tuna harvested in the ETP by a purse seine vessel of more than 400 st (362.8 mt) carrying capacity, each importer or processor who takes custody of the shipment must sign and date the form to certify that the form and attached documentation accurately describe the shipment of fish that they accompany.</P> <P>(6) <E T="03">Dolphin-safe label</E>. Tuna or tuna products sold in or exported from the United States that include on the label the term “dolphin-safe” or any other term or symbol that claims or suggests the tuna were harvested in a manner not injurious to dolphins are subject to the requirements of subpart H of this part.</P> <P>(7) <E T="03">Scope of embargoes—</E>(i) <E T="03">ETP yellowfin tuna embargo</E>. Yellowfin tuna or yellowfin tuna products harvested using a purse seine in the ETP identified by an HTS number listed in paragraph (f)(2)(i) of this section may not be imported into the United States if such tuna or tuna products were:</P> <P>(A) Harvested on or after March 3, 1999, the effective date of section 4 of the IDCPA, and harvested by, or exported from, a nation that the Assistant Administrator has determined has purse seine vessels of greater than 400 st (362.8 mt) carrying capacity harvesting tuna in the ETP, unless the Assistant Administrator has made an affirmative finding required for importation for that nation under paragraph (f)(9) of this section;</P> <P>(B) Exported from an intermediary nation, as defined in section 3 of the MMPA, and a ban is currently in force prohibiting the importation from that nation under paragraph (f)(9)(viii) of this section; or</P> <P>(C) Harvested before March 3, 1999, the effective date of section 4 of the IDCPA, and would have been banned from importation under section 101(a)(2) of the MMPA at the time of harvest.</P> <P>(ii) <E T="03">Driftnet embargo</E>. A shipment containing an item listed in paragraph (f)(2) of this section may not be imported into the United States if it:</P> <P>(A) Was exported from or harvested on the high seas by any nation determined by the Assistant Administrator to be engaged in large-scale driftnet fishing, unless the FCO is accompanied by an original statement by a responsible government official of the harvesting nation, signed and dated by that official, certifying that the fish or fish products were harvested by a method other than large-scale driftnet; or</P> <P>(B) Is identified on the FCO as having been harvested by a large-scale driftnet.</P> <P>(8) <E T="03">Large-scale driftnet nation: determination</E>. Based upon the best information available, the Assistant Administrator will determine which nations have registered vessels that engage in fishing using large-scale driftnets. Such determinations will be published in the <E T="04">Federal Register</E>. A responsible government official of any such nation may certify to the Assistant Administrator that none of the nation's vessels use large-scale driftnets. Upon receipt of the certification, the Assistant Administrator may find, and publish such finding in the <E T="03">Federal Register</E>, that none of that nation's vessels engage in fishing with large-scale driftnets.</P> <P>(9) <E T="03">Affirmative finding procedure for nations harvesting yellowfin tuna using a purse seine in the ETP</E>. (i) The Assistant Administrator will determine, on an <PRTPAGE P="31"/>annual basis, whether to make an affirmative finding based upon documentary evidence provided by the government of the exporting nation, by the government of the harvesting nation, if different, or by the IDCP and the IATTC, and will publish the finding in the <E T="04">Federal Register</E>. A finding will remain valid for 1 year or for such other period as the Assistant Administrator may determine. An affirmative finding will be terminated if the Assistant Administrator determines that the requirements of this paragraph are no longer being met. Every 5 years, the government of the harvesting nation, must submit such documentary evidence directly to the Assistant Administrator and request an affirmative finding. Documentary evidence needs to be submitted by the harvesting nation for the first affirmative finding subsequent to the effective date of this rule. The Assistant Administrator may require the submission of supporting documentation or other verification of statements made in connection with requests to allow importations. An affirmative finding applies to tuna and tuna products that were harvested by vessels of the nation after February 15, 1999. To make an affirmative finding, the Assistant Administrator must find that:</P> <P>(A) The harvesting nation participates in the IDCP and is either a member of the IATTC or has initiated (and within 6 months thereafter completed) all steps required of applicant nations, in accordance with article V, paragraph 3, of the Convention establishing the IATTC, to become a member of that organization;</P> <P>(B) The nation is meeting its obligations under the IDCP and its obligations of membership in the IATTC, including all financial obligations;</P> <P>(C)(<E T="03">1</E>) The annual total dolphin mortality of the nation's purse seine fleet (including certified charter vessels operating under its jurisdiction) did not exceed the aggregated total of the mortality limits assigned by the IDCP for that nation's purse seine vessels for the year preceding the year in which the finding would start; or</P> <P>(<E T="03">2</E>)(<E T="03">i</E>) Because of extraordinary circumstances beyond the control of the nation and the vessel captains, the total dolphin mortality of the nation's purse seine fleet (including certified charter vessels operating under its jurisdiction) exceeded the aggregated total of the mortality limits assigned by the IDCP for that nation's purse seine vessels; and</P> <P>(<E T="03">ii</E>) Immediately after the national authorities discovered the aggregate mortality of its fleet had been exceeded, the nation required all its vessels to cease fishing for tuna in association with dolphins for the remainder of the calendar year; and</P> <P>(D)(<E T="03">1</E>) For calendar year 2000 and any subsequent years in which the parties agree to a global allocation system for per-stock per-year individual stock quotas, the nation responded to the notification from the IATTC that an individual stock quota had been reached by prohibiting any additional sets on the stock for which the quota had been reached;</P> <P>(<E T="03">2</E>) If a per-stock per-year quota is allocated to each nation, the annual per-stock per-year dolphin mortality of the nation's purse seine fleet (including certified charter vessels operating under its jurisdiction) did not exceed the aggregated total of the per-stock per-year limits assigned by the IDCP for that nation's purse seine vessels (if any) for the year preceding the year in which the finding would start; or</P> <P>(<E T="03">3</E>)(<E T="03">i</E>) Because of extraordinary circumstances beyond the control of the nation and the vessel captains, the per-stock per-year dolphin mortality of the nation's purse seine fleet (including certified charter vessels operating under its jurisdiction) exceeded the aggregated total of the per-stock per-year limits assigned by the IDCP for that nation's purse seine vessels; and</P> <P>(<E T="03">ii</E>) Immediately after the national authorities discovered the aggregate per-stock mortality limits of its fleet had been exceeded, the nation required all its vessels to cease fishing for tuna in association with the stocks whose limits had been exceeded, for the remainder of the calendar year.</P> <P>(ii) <E T="03">Documentary Evidence and Compliance with the IDCP</E>.—(A) <E T="03">Documentary Evidence</E>. The Assistant Administrator will make an affirmative finding under paragraph (f)(9)(i) of this section only <PRTPAGE P="32"/>if the government of the harvesting nation provides directly to the Assistant Administrator, or authorizes the IATTC to release to the Assistant Administrator, complete, accurate, and timely information that enables the Assistant Administrator to determine whether the harvesting nation is meeting the obligations of the IDCP, and whether ETP-harvested tuna imported from such nation comports with the tracking and verification regulations of subpart H of this part.</P> <P>(B) <E T="03">Revocation</E>. After considering the information provided under paragraph (f)(9)(ii)(A) of this section, each party's financial obligations to the IATTC, and any other relevant information, including information that a nation is consistently failing to take enforcement actions on violations which diminish the effectiveness of the IDCP, the Assistant Administrator, in consultation with the Secretary of State, will revoke an affirmative finding issued to a nation that is not meeting the obligations of the IDCP.</P> <P>(iii) A harvesting nation may apply for an affirmative finding at any time by providing to the Assistant Administrator the information and authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of this section, allowing at least 60 days from the submission of complete information to NMFS for processing.</P> <P>(iv) The Assistant Administrator will make or renew an affirmative finding for the period from April 1 through March 31, or portion thereof, if the harvesting nation has provided all the information and authorizations required by paragraphs (f)(9)(i) and (f)(9)(ii) of this section, and has met the requirements of paragraphs (f)(9)(i) and (f)(9)(ii) of this section.</P> <P>(v) <E T="03">Reconsideration of finding</E>. The Assistant Administrator may reconsider a finding upon a request from, and the submission of additional information by, the harvesting nation, if the information indicates that the nation has met the requirements under paragraphs (f)(9)(i) and (f)(9)(ii) of this section.</P> <P>(vi) <E T="03">Intermediary nation</E>. Except as authorized under this paragraph, no tuna or tuna products classified under one of the HTS numbers listed in paragraph (f)(2)(i) of this section may be imported into the United States from any intermediary nation. An “intermediary nation” is a nation that exports yellowfin tuna or yellowfin tuna products to the United States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the United States pursuant to section 101(a)(2)(B) of the MMPA, unless shown not to be yellowfin tuna or yellowfin tuna products harvested using purse seine in the ETP. The Assistant Administrator will publish in the <E T="04">Federal Register</E> a notice announcing when NMFS has determined, based on the best information available, that a nation is an “intermediary nation.” After the effective date of that notice, these import restrictions shall apply. Shipments of yellowfin tuna or yellowfin tuna products shipped through a nation on a through bill of lading or in another manner that does not enter the shipments into that nation as an importation do not make that nation an intermediary nation.</P> <P>(A) <E T="03">Intermediary nation determination status</E>. Imports from an intermediary nation of tuna and tuna products classified under any of the HTS numbers in paragraph (f)(2)(i) of this section may be imported into the United States only if the Assistant Administrator determines and publishes in the <E T="04">Federal Register</E> that the intermediary nation has provided certification and reasonable proof that it has not imported in the preceding 6 months yellowfin tuna or yellowfin tuna products that are subject to a ban on direct importation into the United States under section 101(a)(2)(B) of the MMPA. At that time, the nation shall no longer be considered an “intermediary nation” and these import restrictions shall no longer apply.</P> <P>(B) <E T="03">Changing the status of intermediary nation determinations</E>. The Assistant Administrator will review decisions under this paragraph upon the request of an intermediary nation. Such requests must be accompanied by specific and detailed supporting information or documentation indicating that a review or reconsideration is warranted. For purposes of this paragraph, the term “certification and reasonable <PRTPAGE P="33"/>proof” means the submission to the Assistant Administrator by a responsible government official from the nation of a document reflecting the nation's customs records for the preceding 6 months, together with a certification attesting that the document is accurate.</P> <P>(vii) <E T="03">Pelly certification</E>. After 6 months of an embargo being in place against a nation under this section, that fact will be certified to the President for purposes of certification under section 8(a) of the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as the embargo remains in effect.</P> <P>(viii) <E T="03">Coordination</E>. The Assistant Administrator will promptly advise the Department of State and the Department of the Treasury of embargo decisions, actions and finding determinations.</P> <P>(10) <E T="03">Fish refused entry</E>. If fish is denied entry under paragraph (f)(3) of this section, the District Director of Customs shall refuse to release the fish for entry into the United States and shall issue a notice of such refusal to the importer or consignee.</P> <P>(11) <E T="03">Disposition of fish refused entry into the United States; redelivered fish</E>. Fish which is denied entry under paragraph (f)(3) of this section and which is not exported under Customs supervision within 90 days from the date of notice of refusal of admission or date of redelivery shall be disposed of under Customs laws and regulations. Provided however, that any disposition shall not result in an introduction into the United States of fish caught in violation of the MMPA.</P> <P>(12) <E T="03">Market Prohibitions</E>. It is unlawful for any person to sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna products unless the tuna products are either:</P> <P>(i) Dolphin-safe under subpart H; or</P> <P>(ii) harvested in compliance with the IDCP by vessels under the jurisdiction of a nation that is a member of the IATTC or has initiated, and within 6 months thereafter completes, all steps required by applicant nations to become members of the IATTC.</P> <P>(iii) For purposes of this section, tuna or tuna products are “dolphin-safe” if they are dolphin-safe under subpart H.</P> <P>(g) <E T="03">Penalties</E>. Any person or vessel subject to the jurisdiction of the United States will be subject to the penalties provided for under the MMPA for the conduct of fishing operations in violation of these regulations.</P> <CITA>[65 FR 48, Jan 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.25</SECTNO> <SUBJECT>Exempted marine mammals and marine mammal products.</SUBJECT> <P>(a) The provisions of the MMPA and these regulations shall not apply:</P> <P>(1) To any marine mammal taken before December 21, 1972 <SU>1</SU> <FTREF/>, or</P> <FTNT> <P> <SU>1</SU> In the context of captive maintenance of marine mammals, the only marine mammals exempted under this section are those that were actually captured or otherwise in captivity before December 21, 1972.</P> </FTNT> <P>(2) To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date.</P> <P>(b) The prohibitions contained in § 216.12(c) (3) and (4) shall not apply to marine mammals or marine mammal products imported into the United States before the date on which a notice is published in the <E T="04">Federal Register</E> with respect to the designation of the species or stock concerned as depleted or endangered.</P> <P>(c) Section 216.12(b) shall not apply to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.26</SECTNO> <SUBJECT>Collection of certain marine mammal parts without prior authorization.</SUBJECT> <P>Notwithstanding any other provision of this subpart:</P> <P>(a) Any bones, teeth or ivory of any dead marine mammal may be collectedfrom a beach or from land within <FR>1/4</FR> of a mile of the ocean. The term <E T="03">ocean</E> includes bays and estuaries.</P> <P>(b) Notwithstanding the provisions of subpart D, soft parts that are sloughed, excreted, or discharged naturally by a <PRTPAGE P="34"/>living marine mammal in the wild may be collected or imported for bona fide scientific research and enhancement, provided that collection does not involve the taking of a living marine mammal in the wild.</P> <P>(c) Any marine mammal part collected under paragraph (a) of this section or any marine mammal part collected and imported under paragraph (b) of this section must be registered and identified, and may be transferred or otherwise possessed, in accordance with § 216.22(c). In registering a marine mammal part collected or imported under paragraph (b) of this section, the person who collected or imported the part must also state the scientific research or enhancement purpose for which the part was collected or imported.</P> <P>(d) No person may purchase, sell or trade for commercial purposes any marine mammal part collected or imported under this section.</P> <P>(e) The export of parts collected without prior authorization under paragraph (b) of this section may occur if consistent with the provisions at § 216.37(d) under subpart D.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.27</SECTNO> <SUBJECT>Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.</SUBJECT> <P>(a) <E T="03">Release requirements.</E> (1) Any marine mammal held for rehabilitation must be released within six months of capture or import unless the attending veterinarian determines that:</P> <P>(i) The marine mammal might adversely affect marine mammals in the wild;</P> <P>(ii) Release of the marine mammal to the wild will not likely be successful given the physical condition and behavior of the marine mammal; or</P> <P>(iii) More time is needed to determine whether the release of the marine mammal to the wild will likely be successful. Releasability must be reevaluated at intervals of no less than six months until 24 months from capture or import, at which time there will be a rebuttable presumption that release into the wild is not feasible.</P> <P>(2) The custodian of the rehabilitated marine mammal shall provide written notification prior to any release into the wild.</P> <P>(i) Notification shall be provided to:</P> <P>(A) The NMFS Regional Director at least 15 days in advance of releasing any beached or stranded marine mammal, unless advance notice is waived in writing by the Regional Director; or</P> <P>(B) The Office Director at least 30 days in advance of releasing any imported marine mammal.</P> <P>(ii) Notification shall include the following:</P> <P>(A) A description of the marine mammal, including its physical condition and estimated age;</P> <P>(B) The date and location of release; and</P> <P>(C) The method and duration of transport prior to release.</P> <P>(3) The Regional Director, or the Office Director as appropriate, may:</P> <P>(i) Require additional information prior to any release;</P> <P>(ii) Change the date or location of release, or the method or duration of transport prior to release;</P> <P>(iii) Impose additional conditions to improve the likelihood of success or to monitor the success of the release; or</P> <P>(iv) Require other disposition of the marine mammal.</P> <P>(4) All marine mammals must be released near wild populations of the same species, and stock if known, unless a waiver is granted by the Regional Director or the Office Director.</P> <P>(5) All marine mammals released must be tagged or marked in a manner acceptable to the Regional Director or the Office Director. The tag number or description of the marking must be reported to the Regional Director or Office Director following release.</P> <P>(b) <E T="03">Non-releasability and postponed determinations.</E> (1) The attending veterinarian shall provide the Regional Director or Office Director with a written report setting forth the basis of any determination under paragraphs (a)(1)(i) through (iii) of this section.</P> <P>(2) Upon receipt of a report under paragraph (b)(1) of this section, the Regional Director or Office Director, in their sole discretion, may:</P> <P>(i) Order the release of the marine mammal;<PRTPAGE P="35"/> </P> <P>(ii) Order continued rehabilitation for an additional 6 months; or</P> <P>(iii) Order other disposition as authorized.</P> <P>(3) No later than 30 days after a marine mammal is determined unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of this section, the person with authorized custody must:</P> <P>(i) Request authorization to retain or transfer custody of the marine mammal in accordance with paragraph (c) of this section, or;</P> <P>(ii) Humanely euthanize the marine mammal or arrange any other disposition of the marine mammal authorized by the Regional Director or Office Director.</P> <P>(4) Notwithstanding any of the provisions of this section, the Office Director may require use of a rehabilitated marine mammal for any activity authorized under subpart D in lieu of animals taken from the wild.</P> <P>(5) Any rehabilitated beached or stranded marine mammal placed on public display following a non-releasability determination under paragraph (a)(1) of this section and pending disposition under paragraph (c) of this section, or any marine mammal imported for medical treatment otherwise unavailable and placed on public display pending disposition after such medical treatment is concluded, must be held in captive maintenance consistent with all requirements for public display.</P> <P>(c) <E T="03">Disposition for a special exception purpose.</E> (1) Upon receipt of an authorization request made under paragraph (b)(3)(i) of this section, or release notification under (a)(2), the Office Director may authorize the retention or transfer of custody of the marine mammal for a special exception purpose authorized under subpart D.</P> <P>(2) The Office Director will first consider requests from a person authorized to hold the marine mammal for rehabilitation. The Office Director may authorize such person to retain or transfer custody of the marine mammal for scientific research, enhancement, or public display purposes.</P> <P>(3) The Office Director may authorize retention or transfer of custody of the marine mammal only if:</P> <P>(i) Documentation has been submitted to the Office Director that the person retaining the subject animal or the person receiving custody of the subject animal by transfer, hereinafter referred to as the recipient, complies with public display requirements of 16 U.S.C. 1374(c)(2)(A) or, for purposes of scientific research and enhancement, holds an applicable permit, or an application for such a special exception permit under § 216.33 or a request for a major amendment under § 216.39 has been submitted to the Office Director and has been found complete;</P> <P>(ii) The recipient agrees to hold the marine mammal in conformance with all applicable requirements and standards; and</P> <P>(iii) The recipient acknowledges that the marine mammal is subject to seizure by the Office Director:</P> <P>(A) If, at any time pending issuance of the major amendment or permit, the Office Director determines that seizure is necessary in the interest of the health or welfare of the marine mammal;</P> <P>(B) If the major amendment or permit is denied; or</P> <P>(C) If the recipient is issued a notice of violation and assessment, or is subject to permit sanctions, in accordance with 15 CFR part 904.</P> <P>(4) There shall be no remuneration associated with any transfer, provided that, the transferee may reimburse the transferor for any and all costs associated with the rehabilitation and transport of the marine mammal.</P> <P>(5) Marine mammals undergoing rehabilitation or pending disposition under this section shall not be subject to public display, unless such activities are specifically authorized by the Regional Director or the Office Director, and conducted consistent with the requirements applicable to public display. Such marine mammals shall not be trained for performance or be included in any aspect of a program involving interaction with the public; and</P> <P>(6) Marine mammals undergoing rehabilitation shall not be subject to intrusive research, unless such activities are specifically authorized by the Office Director in consultation with the Marine Mammal Commission and its <PRTPAGE P="36"/>Committee of Scientific Advisors on Marine Mammals, and are conducted pursuant to a scientific research permit.</P> <P>(d) Reporting. In addition to the report required under § 216.22(b), the person authorized to hold marine mammals for rehabilitation must submit reports to the Regional Director or Office Director regarding release or other disposition. These reports must be provided in the form and frequency specified by the Regional Director or Office Director.</P> <CITA>[61 FR 21933, May 10, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Special Exceptions</HD> <SECTION> <SECTNO>§ 216.30</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.31</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of this subpart, the definitions set forth in 50 CFR part 217 shall apply to all threatened and endangered marine mammals, unless a more restrictive definition exists under the MMPA or part 216.</P> <CITA>[61 FR 21935, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.32</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>The regulations of this subpart apply to:</P> <P>(a) All marine mammals and marine mammal parts taken or born in captivity after December 20, 1972; and</P> <P>(b) All marine mammals and marine mammal parts that are listed as threatened or endangered under the ESA.</P> <CITA>[61 FR 21935, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.33</SECTNO> <SUBJECT>Permit application submission, review, and decision procedures.</SUBJECT> <P>(a) <E T="03">Application submission.</E> Persons seeking a special exemption permit under this subpart must submit an application to the Office Director. The application must be signed by the applicant, and provide in a properly formatted manner all information necessary to process the application. Written instructions addressing information requirements and formatting may be obtained from the Office Director upon request.</P> <P>(b) <E T="03">Applications to export living marine mammals.</E> For applicants seeking a special exception permit to export living marine mammals, the application must:</P> <P>(1) Be submitted through the Convention on International Trade in Endangered Fauna and Flora management authority of the foreign government or, if different, the appropriate agency or agencies of the foreign government that exercises oversight over marine mammals.</P> <P>(2) Include a certification from the foreign government that:</P> <P>(i) The information set forth in the application is accurate;</P> <P>(ii) The laws and regulations of the foreign governmentinvolved allow enforcement of the terms and conditions of the permit, and that the foreign government will enforce all terms and conditions; and</P> <P>(iii) The foreign government involved will afford comity to any permit amendment, modification, suspension or revocation decision.</P> <P>(c) <E T="03">Initial review.</E> (1) NMFS will notify the applicant of receipt of the application.</P> <P>(2) During the initial review, the Office Director will determine:</P> <P>(i) Whether the application is complete.</P> <P>(ii) Whether the proposed activity is for purposes authorized under this subpart.</P> <P>(iii) If the proposed activity is for enhancement purposes, whether the species or stock identified in the application is in need of enhancement for its survival or recovery and whether the proposed activity will likely succeed in its objectives.</P> <P>(iv) Whether the activities proposed are to be conducted consistent with the permit restrictions and permit specific conditions as described in § 216.35 and § 216.36(a).</P> <P>(v) Whether sufficient information is included regarding the environmental impact of the proposed activity to enable the Office Director:</P> <P>(A) To make an initial determination under the National Environmental Policy Act (NEPA) as to whether the proposed activity is categorically excluded from preparation of further environmental documentation, or whether the <PRTPAGE P="37"/>preparation of an environmental assessment (EA) or environmental impact statement (EIS) is appropriate or necessary; and</P> <P>(B) To prepare an EA or EIS if an initial determination is made by the Office Director that the activity proposed is not categorically excluded from such requirements.</P> <P>(3) The Office Director may consult with the Marine Mammal Commission (Commission) and its Committee of Scientific Advisors on Marine Mammals (Committee) in making these initial, and any subsequent, determinations.</P> <P>(4) Incomplete applications will be returned with explanation. If the applicant fails to resubmit a complete application or correct the identified deficiencies within 60 days, the application will be deemed withdrawn. Applications that propose activities inconsistent with this subpart will be returned with explanation, and will not be considered further.</P> <P>(d) <E T="03">Notice of receipt and application review.</E> (1) Upon receipt of a valid, complete application, and the preparation of any NEPA documentation that has been determined initially to be required, the Office Director will publish a notice of receipt in the <E T="04">Federal Register</E>. The notice will:</P> <P>(i) Summarize the application, including:</P> <P>(A) The purpose of the request;</P> <P>(B) The species and number of marine mammals;</P> <P>(C) The type and manner of special exception activity proposed;</P> <P>(D) The location(s) in which the marine mammals will be taken, from which they will be imported, or to which they will be exported; and</P> <P>(E) The requested period of the permit.</P> <P>(ii) List where the application is available for review.</P> <P>(iii) Invite interested parties to submit written comments concerning the application within 30 days of the date of the notice.</P> <P>(iv) Include a NEPA statement that an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an EA or EIS, that an EA was prepared resulting in a finding of no significant impact, or that a final EIS has been prepared and is available for review.</P> <P>(2) The Office Director will forward a copy of the complete application to the Commission for comment. If no comments are received within 45 days (or such longer time as the Office Director may establish) the Office Director will consider the Commission to have no objection to issuing a permit.</P> <P>(3) The Office Director may consult with any other person, institution, or agency concerning the application.</P> <P>(4) Within 30 days of publication of the notice of receipt in the <E T="04">Federal Register</E>, any interested party may submit written comments or may request a public hearing on the application.</P> <P>(5) If the Office Director deems it advisable, the Office Director may hold a public hearing within 60 days of publication of the notice of receipt in the <E T="04">Federal Register</E>. Notice of the date, time, and place of the public hearing will be published in the <E T="04">Federal Register</E> not less than 15 days in advance of the public hearing. Any interested person may appear in person or through representatives and may submit any relevant material, data, views, or comments. A summary record of the hearing will be kept.</P> <P>(6) The Office Director may extend the period during which any interested party may submit written comments. Notice of the extension must be published in the <E T="04">Federal Register</E> within 60 days of publication of the notice of receipt in the <E T="04">Federal Register</E>.</P> <P>(7) If, after publishing a notice of receipt, the Office Director determines on the basis of new information that an EA or EIS must be prepared, the Office Director must deny the permit unless an EA is prepared with a finding of no significant impact. If a permit is denied under these circumstances the application may be resubmitted with information sufficient to prepare an EA or EIS, and will be processed as a new application.</P> <P>(e) <E T="03">Issuance or denial procedures.</E> (1) Within 30 days of the close of the public hearing or, if no public hearing is held, within 30 days of the close of the <PRTPAGE P="38"/>public comment period, the Office Director will issue or deny a special exception permit.</P> <P>(2) The decision to issue or deny a permit will be based upon:</P> <P>(i) All relevant issuance criteria set forth at § 216.34;</P> <P>(ii) All purpose-specific issuance criteria as appropriate set forth at § 216.41, § 216.42, and § 216.43;</P> <P>(iii) All comments received or views solicited on the permit application; and</P> <P>(iv) Any other information or data that the Office Director deems relevant.</P> <P>(3) If the permit is issued, upon receipt, the holder must date and sign the permit, and return a copy of the original to the Office Director. The permit shall be effective upon the permit holder's signing of the permit. In signing the permit, the holder:</P> <P>(i) Agrees to abide by all terms and conditions set forth in the permit, and all restrictions and relevant regulations under this subpart; and</P> <P>(ii) Acknowledges that the authority to conduct certain activities specified in the permit is conditional and subject to authorization by the Office Director.</P> <P>(4) Notice of the decision of the Office Director shall be published in the <E T="04">Federal Register</E> within 10 days after the date of permit issuance or denial and shall indicate where copies of the permit, if issued, may be reviewed or obtained. If the permit issued involves marine mammals listed as endangered or threatened under the ESA, the notice shall include a finding by the Office Director that the permit:</P> <P>(i) Was applied for in good faith;</P> <P>(ii) If exercised, will not operate to the disadvantage of such endangered or threatened species; and</P> <P>(iii) Is consistent with the purposes and policy set forth in section 2 of the ESA.</P> <P>(5) If the permit is denied, the Office Director shall provide the applicant with an explanation for the denial.</P> <P>(6) Under the MMPA, the Office Director may issue a permit for scientific research before the end of the public comment period if delaying issuance could result in injury to a species, stock, or individual, or in loss of unique research opportunities. The Office Director also may waive the 30-day comment period required under the ESA in an emergency situation where the health or life of an endangered or threatened marine mammal is threatened and no reasonable alternative is available. If a permit is issued under these circumstances, notice of such issuance before the end of the comment period shall be published in the <E T="04">Federal Register</E> within 10 days of issuance.</P> <P>(7) The applicant or any party opposed to a permit may seek judicial review of the terms and conditions of such permit or of a decision to deny such permit. Review may be obtained by filing a petition for review with the appropriate U.S. District Court as provided for by law.</P> <CITA>[61 FR 21935, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.34</SECTNO> <SUBJECT>Issuance criteria.</SUBJECT> <P>(a) For the Office Director to issue any permit under this subpart, the applicant must demonstrate that:</P> <P>(1) The proposed activity is humane and does not present any unnecessary risks to the health and welfare of marine mammals;</P> <P>(2) The proposed activity is consistent with all restrictions set forth at § 216.35 and any purpose-specific restrictions as appropriate set forth at § 216.41, § 216.42, and § 216.43;</P> <P>(3) The proposed activity, if it involves endangered or threatened marine mammals, will be conducted consistent with the purposes and policies set forth in section 2 of the ESA;</P> <P>(4) The proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock;</P> <P>(5) Whether the applicant's expertise, facilities, and resources are adequate to accomplish successfully the objectives and activities stated in the application;</P> <P>(6) If a live animal will be held captive or transported, the applicant's qualifications, facilities, and resources are adequate for the proper care and maintenance of the marine mammal; and</P> <P>(7) Any requested import or export will not likely result in the taking of marine mammals or marine mammal <PRTPAGE P="39"/>parts beyond those authorized by the permit.</P> <P>(b) The opinions or views of scientists or other persons or organizations knowledgeable of the marine mammals that are the subject of the application or of other matters germane to the application will be considered.</P> <CITA>[61 FR 21936, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.35</SECTNO> <SUBJECT>Permit restrictions.</SUBJECT> <P>The following restrictions shall apply to all permits issued under this subpart:</P> <P>(a) The taking, importation, export, or other permitted activity involving marine mammals and marine mammal parts shall comply with the regulations of this subpart.</P> <P>(b) The maximum period of any special exception permit issued, or any major amendment granted, is five years from the effective date of the permit or major amendment. In accordance with the provisions of § 216.39, the period of a permit may be extended by a minor amendment up to 12 months beyond that established in the original permit.</P> <P>(c) Except as provided for in § 216.41(c)(1)(v), marine mammals or marine mammal parts imported under the authority of a permit must be taken or imported in a humane manner, and in compliance with the Acts and any applicable foreign law. Importation of marine mammals and marine mammal parts is subject to the provisions of 50 CFR part 14.</P> <P>(d) The permit holder shall not take from the wild any marine mammal which at the time of taking is either unweaned or less than eight months old, or is a part of a mother-calf/pup pair, unless such take is specifically authorized in the conditions of the special exception permit. Additionally, the permit holder shall not import any marine mammal that is pregnant or lactating at the time of taking or import, or is unweaned or less than eight months old unless such import is specifically authorized in the conditions of the special exception permit.</P> <P>(e) Captive marine mammals shall not be released into the wild unless specifically authorized by the Office Director under a scientific research or enhancement permit.</P> <P>(f) The permit holder is responsible for all activities of any individual who is operating under the authority of the permit;</P> <P>(g) Individuals conducting activities authorized under the permit must possess qualifications commensurate with their duties and responsibilities, or must be under the direct supervision of a person with such qualifications;</P> <P>(h) Persons who require state or Federal licenses to conduct activities authorized under the permit must be duly licensed when undertaking such activities;</P> <P>(i) Special exception permits are not transferable or assignable to any other person, and a permit holder may not require any direct or indirect compensation from another person in return for requesting authorization for such person to conduct the taking, import, or export activities authorized under the subject permit;</P> <P>(j) The permit holder or designated agent shall possess a copy of the permit when engaged in a permitted activity, when the marine mammal is in transit incidental to such activity, and whenever marine mammals or marine mammal parts are in the possession of the permit holder or agent. A copy of the permit shall be affixed to any container, package, enclosure, or other means of containment, in which the marine mammals or marine mammal parts are placed for purposes of transit, supervision, or care. For marine mammals held captive and marine mammal parts in storage, a copy of the permit shall be kept on file in the holding or storage facility.</P> <CITA>[61 FR 21936, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.36</SECTNO> <SUBJECT>Permit conditions.</SUBJECT> <P>(a) <E T="03">Specific conditions.</E> (1) Permits issued under this subpart shall contain specific terms and conditions deemed appropriate by the Office Director, including, but not limited to:</P> <P>(i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected;</P> <P>(ii) The manner in which marine mammals may be taken according to type of take;</P> <P>(iii) The location(s) in which the marine mammals may be taken, from <PRTPAGE P="40"/>which they may be imported, or to which they may be exported, as applicable, and, for endangered or threatened marine mammal species to be imported or exported, the port of entry or export;</P> <P>(iv) The period during which the permit is valid.</P> <P>(2) [Reserved]</P> <P>(b) <E T="03">Other conditions.</E> In addition to the specific conditions imposed pursuant to paragraph (a) of this section, the Office Director shall specify any other permit conditions deemed appropriate.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.37</SECTNO> <SUBJECT>Marine mammal parts.</SUBJECT> <P>With respect to marine mammal parts acquired by take or import authorized under a permit issued under this subpart:</P> <P>(a) Marine mammal parts are transferrable if:</P> <P>(1) The person transferring the part receives no remuneration of any kind for the marine mammal part;</P> <P>(2) The person receiving the marine mammal part is:</P> <P>(i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any other governmental agency with conservation and management responsibilities, who receives the part in the course of their official duties;</P> <P>(ii) A holder of a special exception permit which authorizes the take, import, or other activity involving the possession of a marine mammal part of the same species as the subject part; or</P> <P>(iii) In the case of marine mammal parts from a species that is not depleted, endangered or threatened, a person who is authorized under section 112(c) of the MMPA and subpart C of this part to take or import marine mammals or marine mammal parts;</P> <P>(iv) Any other person specifically authorized by the Regional Director, consistent with the requirements of paragraphs (a)(1) and (a)(3) through (6) of this section.</P> <P>(3) The marine mammal part is transferred for the purpose of scientific research, maintenance in a properly curated, professionally accredited scientific collection, or education, provided that, for transfers for educational purposes, the recipient is a museum, educational institution or equivalent that will ensure that the part is available to the public as part of an educational program;</P> <P>(4) A unique number assigned by the permit holder is marked on or affixed to the marine mammal part or container;</P> <P>(5) The person receiving the marine mammal part agrees that, as a condition of receipt, subsequent transfers may only occur subject to the provisions of paragraph (a) of this section; and</P> <P>(6) Within 30 days after the transfer, the person transferring the marine mammal part notifies the Regional Director of the transfer, including a description of the part, the person to whom the part was transferred, the purpose of the transfer, certification that the recipient has agreed to comply with the requirements of paragraph (a) of this section for subsequent transfers, and, if applicable, the recipient's permit number.</P> <P>(b) Marine mammal parts may be loaned to another person for a purpose described in paragraph (a)(3) of this section and without the agreement and notification required under paragraphs (a)(5) and (6) of this section, if:</P> <P>(1) A record of the loan is maintained; and</P> <P>(2) The loan is for not more than one year. Loans for a period greater than 12 months, including loan extensions or renewals, require notification of the Regional Director under paragraph (a)(6).</P> <P>(c) Unless other disposition is specified in the permit, a holder of a special exception permit may retain marine mammal parts not destroyed or otherwise disposed of during or after a scientific research or enhancement activity, if such marine mammal parts are:</P> <P>(1) Maintained as part of a properly curated, professionally accredited collection; or</P> <P>(2) Made available for purposes of scientific research or enhancement at the request of the Office Director.</P> <P>(d) Marine mammal parts may be exported and subsequently reimported by a permit holder or subsequent authorized recipient, for the purpose of scientific research, maintenance in a <PRTPAGE P="41"/>properly curated, professionally accredited scientific collection, or education, provided that:</P> <P>(1) The permit holder or other person receives no remuneration for the marine mammal part;</P> <P>(2) A unique number assigned by the permit holder is marked on or affixed to the marine mammal specimen or container;</P> <P>(3) The marine mammal part is exported or reimported in compliance with all applicable domestic and foreign laws;</P> <P>(4) If exported or reimported for educational purposes, the recipient is a museum, educational institution, or equivalent that will ensure that the part is available to the public as part of an educational program; and</P> <P>(5) Special reports are submitted within 30 days after both export and reimport as required by the Office Director under § 216.38.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.38</SECTNO> <SUBJECT>Reporting.</SUBJECT> <P>All permit holders must submit annual, final, and special reports in accordance with the requirements established in the permit, and any reporting format established by the Office Director.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.39</SECTNO> <SUBJECT>Permit amendments.</SUBJECT> <P>(a) <E T="03">General</E>. Special exception permits may be amended by the Office Director. Major and minor amendments may be made to permits in response to, or independent of, a request from the permit holder. Amendments must be consistent with the Acts and comply with the applicable provisions of this subpart.</P> <P>(1) A <E T="03">major amendment</E> means any change to the permit specific conditions under § 216.36(a) regarding:</P> <P>(i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected;</P> <P>(ii) The manner in which these marine mammals may be taken, imported, exported, or otherwise affected, if the proposed change may result in an increased level of take or risk of adverse impact;</P> <P>(iii) The location(s) in which the marine mammals may be taken, from which they may be imported, and to which they may be exported, as applicable; and</P> <P>(iv) The duration of the permit, if the proposed extension would extend the duration of the permit more than 12 months beyond that established in the original permit.</P> <P>(2) A <E T="03">minor amendment</E> means any amendment that does not constitute a major amendment.</P> <P>(b) <E T="03">Amendment requests and proposals</E>. (1) Requests by a permit holder for an amendment must be submitted in writing and include the following:</P> <P>(i) The purpose and nature of the amendment;</P> <P>(ii) Information, not previously submitted as part of the permit application or subsequent reports, necessary to determine whether the amendment satisfies all issuance criteria set forth at § 216.34, and, as appropriate, § 216.41, § 216.42, and § 216.43.</P> <P>(iii) Any additional information required by the Office Director for purposes of reviewing the proposed amendment.</P> <P>(2) If an amendment is proposed by the Office Director, the permit holder will be notified of the proposed amendment, together with an explanation.</P> <P>(c) <E T="03">Review of proposed amendments</E>. (1) <E T="03">Major amendments</E>. The provisions of § 216.33(d) and (e) governing notice of receipt, review and decision shall apply to all proposed major amendments.</P> <P>(2) <E T="03">Minor amendments</E>. (i) After reviewing all appropriate information, the Office Director will provide the permit holder with written notice of the decision on a proposed or requested amendment, together with an explanation for the decision.</P> <P>(ii) If the minor amendment extends the duration of the permit 12 months or less from that established in the original permit, notice of the minor amendment will be published in the <E T="04">Federal Register</E> within 10 days from the date of the Office Director's decision.</P> <P>(iii) A minor amendment will be effective upon a final decision by the Office Director.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <PRTPAGE P="42"/> <SECTNO>§ 216.40</SECTNO> <SUBJECT>Penalties and permit sanctions.</SUBJECT> <P>(a) Any person who violates any provision of this subpart or permit issued thereunder is subject to civil and criminal penalties, permit sanctions and forfeiture as authorized under the Acts, and 15 CFR part 904.</P> <P>(b) All special exception permits are subject to suspension, revocation, modification and denial in accordance with the provisions of subpart D of 15 CFR part 904.</P> <CITA>[61 FR 21938, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.41</SECTNO> <SUBJECT>Permits for scientific research and enhancement.</SUBJECT> <P>In addition to the requirements under §§ 216.33 through 216.38, permits for scientific research and enhancement are governed by the following requirements:</P> <P>(a) <E T="03">Applicant</E>. (1) For each application submitted under this section, the applicant shall be the principal investigator responsible for the overall research or enhancement activity. If the research or enhancement activity will involve a periodic change in the principal investigator or is otherwise controlled by and dependent upon another entity, the applicant may be the institution, governmental entity, or corporation responsible for supervision of the principal investigator.</P> <P>(2) For any scientific research involving captive maintenance, the application must include supporting documentation from the person responsible for the facility or other temporary enclosure.</P> <P>(b) <E T="03">Issuance Criteria</E>. For the Office Director to issue any scientific research or enhancement permit, the applicant must demonstrate that:</P> <P>(1) The proposed activity furthers a bona fide scientific or enhancement purpose;</P> <P>(2) If the lethal taking of marine mammals is proposed:</P> <P>(i) Non-lethal methods for conducting the research are not feasible; and</P> <P>(ii) For depleted, endangered, or threatened species, the results will directly benefit that species or stock, or will fulfill a critically important research need.</P> <P>(3) Any permanent removal of a marine mammal from the wild is consistent with any applicable quota established by the Office Director.</P> <P>(4) The proposed research will not likely have significant adverse effects on any other component of the marine ecosystem of which the affected species or stock is a part.</P> <P>(5) For species or stocks designated or proposed to be designated as depleted, or listed or proposed to be listed as endangered or threatened:</P> <P>(i) The proposed research cannot be accomplished using a species or stock that is not designated or proposed to be designated as depleted, or listed or proposed to be listed as threatened or endangered;</P> <P>(ii) The proposed research, by itself or in combination with other activities will not likely have a long-term direct or indirect adverse impact on the species or stock;</P> <P>(iii) The proposed research will either:</P> <P>(A) Contribute to fulfilling a research need or objective identified in a species recovery or conservation plan, or if there is no conservation or recovery plan in place, a research need or objective identified by the Office Director in stock assessments established under section 117 of the MMPA;</P> <P>(B) Contribute significantly to understanding the basic biology or ecology of the species or stock, or to identifying, evaluating, or resolving conservation problems for the species or stock; or</P> <P>(C) Contribute significantly to fulfilling a critically important research need.</P> <P>(6) For proposed enhancement activities:</P> <P>(i) Only living marine mammals and marine mammal parts necessary for enhancement of the survival, recovery, or propagation of the affected species or stock may be taken, imported, exported, or otherwise affected under the authority of an enhancement permit. Marine mammal parts would include in this regard clinical specimens or other biological samples required for the conduct of breeding programs or the diagnosis or treatment of disease.</P> <P>(ii) The activity will likely contribute significantly to maintaining or increasing distribution or abundance, enhancing the health or welfare of the <PRTPAGE P="43"/>species or stock, or ensuring the survival or recovery of the affected species or stock in the wild.</P> <P>(iii) The activity is consistent with:</P> <P>(A) An approved conservation plan developed under section 115(b) of the MMPA or recovery plan developed under section 4(f) of the ESA for the species or stock; or</P> <P>(B) If there is no conservation or recovery plan, with the Office Director's evaluation of the actions required to enhance the survival or recovery of the species or stock in light of the factors that would be addressed in a conservation or recovery plan.</P> <P>(iv) An enhancement permit may authorize the captive maintenance of a marine mammal from a threatened, endangered, or depleted species or stock only if the Office Director determines that:</P> <P>(A) The proposed captive maintenance will likely contribute directly to the survival or recovery of the species or stock by maintaining a viable gene pool, increasing productivity, providing necessary biological information, or establishing animal reserves required to support directly these objectives; and</P> <P>(B) The expected benefit to the species or stock outweighs the expected benefits of alternatives that do not require removal of marine mammals from the wild.</P> <P>(v) The Office Director may authorize the public display of marine mammals held under the authority of an enhancement permit only if:</P> <P>(A) The public display is incidental to the authorized captive maintenance;</P> <P>(B) The public display will not interfere with the attainment of the survival or recovery objectives;</P> <P>(C) The marine mammals will be held consistent with all requirements and standards that are applicable to marine mammals held under the authority of the Acts and the Animal Welfare Act, unless the Office Director determines that an exception is necessary to implement an essential enhancement activity; and</P> <P>(D) The marine mammals will be excluded from any interactive program and will not be trained for performance.</P> <P>(vi) The Office Director may authorize non-intrusive scientific research to be conducted while a marine mammal is held under the authority of an enhancement permit, only if such scientific research:</P> <P>(A) Is incidental to the permitted enhancement activities; and</P> <P>(B) Will not interfere with the attainment of the survival or recovery objectives.</P> <P>(c) <E T="03">Restrictions</E>. (1) The following restrictions apply to all scientific research permits issued under this subpart:</P> <P>(i) Research activities must be conducted in the manner authorized in the permit.</P> <P>(ii) Research results shall be published or otherwise made available to the scientific community in a reasonable period of time.</P> <P>(iii) Research activities must be conducted under the direct supervision of the principal investigator or a co-investigator identified in the permit.</P> <P>(iv) Personnel involved in research activities shall be reasonable in number and limited to:</P> <P>(A) Individuals who perform a function directly supportive of and necessary to the permitted research activity; and</P> <P>(B) Support personnel included for the purpose of training or as backup personnel for persons described in paragraph (c)(1)(iv)(A).</P> <P>(v) Any marine mammal part imported under the authority of a scientific research permit must not have been obtained as the result of a lethal taking that would be inconsistent with the Acts, unless authorized by the Office Director.</P> <P>(vi) Marine mammals held under a permit for scientific research shall not be placed on public display, included in an interactive program or activity, or trained for performance unless such activities:</P> <P>(A) Are necessary to address scientific research objectives and have been specifically authorized by the Office Director under the scientific research permit; and</P> <P>(B) Are conducted incidental to and do not in any way interfere with the permitted scientific research; and<PRTPAGE P="44"/> </P> <P>(C) Are conducted in a manner consistent with provisions applicable to public display, unless exceptions are specifically authorized by the Office Director.</P> <P>(vii) Any activity conducted incidental to the authorized scientific research activity must not involve any taking of marine mammals beyond what is necessary to conduct the research (i.e., educational and commercial photography).</P> <P>(2) Any marine mammal or progeny held in captive maintenance under an enhancement permit shall be returned to its natural habitat as soon as feasible, consistent with the terms of the enhancement permit and the objectives of an approved conservation or recovery plan. In accordance with section 10(j) of the ESA, the Office Director may authorize the release of any population of an endangered or threatened species outside the current range of such species if the Office Director determines that such release will further the conservation of such species.</P> <CITA>[61 FR 21938, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.42</SECTNO> <RESERVED>Photography. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.43</SECTNO> <RESERVED>Public display. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.44</SECTNO> <SUBJECT>Applicability/transition.</SUBJECT> <P>(a) <E T="03">General</E>. The regulations of this subpart are applicable to all persons, including persons holding permits or other authorizing documents issued before June 10, 1996, by NMFS for the take, import, export, or conduct of any otherwise prohibited activity involving a marine mammal or marine mammal part for special exception purposes.</P> <P>(b) <E T="03">Scientific research</E>. Any intrusive research as defined in § 216.3, initiated after June 10, 1996, must be authorized under a scientific research permit. Intrusive research authorized by the Office Director to be conducted on captive marine mammals held for public display purposes prior to June 10, 1996, must be authorized under a scientific research permit one year after June 10, 1996.</P> <CITA>[61 FR 21939, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.45</SECTNO> <SUBJECT>General Authorization for Level B harassment for scientific research.</SUBJECT> <P>(a) <E T="03">General Authorization.</E> (1) Persons are authorized under section 104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B harassment, as defined in § 216.3, for purposes of bona fide scientific research <E T="03">Provided,</E> That:</P> <P>(i) They submit a letter of intent in accordance with the requirements of paragraph (b) of this section, receive confirmation that the General Authorization applies in accordance with paragraph (c) of this section, and comply with the terms and conditions of paragraph (d) of this section; or</P> <P>(ii) If such marine mammals are listed as endangered or threatened under the ESA, they have been issued a permit under Section 10(a)(1)(A) of the ESA and implementing regulations at 50 CFR parts 217-227, particularly at § 222.23 through § 222.28, to take marine mammals in the wild for the purpose of scientific research, the taking authorized under the permit involves such Level B harassment of marine mammals or marine mammal stocks, and they comply with the terms and conditions of that permit.</P> <P>(2) Except as provided under paragraph (a)(1)(ii) of this section, no taking, including harassment, of marine mammals listed as threatened or endangered under the ESA is authorized under the General Authorization. Marine mammals listed as endangered or threatened under the ESA may be taken for purposes of scientific research only after issuance of a permit for such activities pursuant to the ESA.</P> <P>(3) The following types of research activities will likely qualify for inclusion under the General Authorization: Photo-identification studies, behavioral observations, and vessel and aerial population surveys (except aerial surveys over pinniped rookeries at altitudes of less than 1,000 ft).</P> <P>(b) <E T="03">Letter of intent</E>. Except as provided under paragraph (a)(1)(ii) of this section, any person intending to take marine mammals in the wild by Level B harassment for purposes of bona fide scientific research under the General Authorization must submit, at least 60 <PRTPAGE P="45"/>days before commencement of such research, a letter of intent by certified return/receipt mail to the Chief, Permits Division, F/PR1, Office of Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.</P> <P>(1) The letter of intent must be submitted by the principal investigator (who shall be deemed the applicant). For purposes of this section, the principal investigator is the individual who is responsible for the overall research project, or the institution, governmental entity, or corporation responsible for supervision of the principal investigator.</P> <P>(2) The letter of intent must include the following information:</P> <P>(i) The name, address, telephone number, qualifications and experience of the applicant and any co-investigator(s) to be conducting the proposed research, and a curriculum vitae for each, including a list of publications by each such investigator relevant to the objectives, methodology, or other aspects of the proposed research;</P> <P>(ii) The species or stocks of marine mammals (common and scientific names) that are the subject of the scientific research and any other species or stock of marine mammals that may be harassed during the conduct of the research;</P> <P>(iii) The geographic location(s) in which the research is to be conducted, e.g., geographic name or lat./long.;</P> <P>(iv) The period(s) of time over which the research will be conducted (up to five years), including the field season(s) for the research, if applicable;</P> <P>(v) The purpose of the research, including a description of how the proposed research qualifies as bona fide research as defined in § 216.3; and</P> <P>(vi) The methods to be used to conduct the research.</P> <P>(3) The letter of intent must be signed, dated, and certified by the applicant as follows: </P> <EXTRACT> <P>In accordance with section 104(c)(3)(C) of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 <E T="03">et seq</E>.) and implementing regulations (50 CFR part 216), I hereby notify the National Marine Fisheries Service of my intent to conduct research involving only Level B harassment on marine mammals in the wild, and request confirmation that the General Authorization for Level B Harassment for Scientific Research applies to the proposed research as described herein. I certify that the information in this letter of intent is complete, true, and correct to the best of my knowledge and belief, and I understand that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or penalties under the MMPA and implementing regulations. I acknowledge and accept that authority to conduct scientific research on marine mammals in the wild under the General Authorization is a limited conditional authority restricted to Level B harassment only, and that any other take of marine mammals, including the conduct of any activity that has the potential to injure marine mammals (i.e., Level A harassment), may subject me to penalties under the MMPA and implementing regulations.</P> </EXTRACT> <P>(c) <E T="03">Confirmation that the General Authorization applies or notification of permit requirement</E>.</P> <P>(1) Not later than 30 days after receipt of a letter of intent as described in paragraph (b) of this section, the Chief, Permits Division, NMFS will issue a letter to the applicant either:</P> <P>(i) Confirming that the General Authorization applies to the proposed scientific research as described in the letter of intent;</P> <P>(ii) Notifying the applicant that all or part of the research described in the letter of intent is likely to result in a taking of a marine mammal in the wild involving other than Level B harassment and, as a result, cannot be conducted under the General Authorization, and that a scientific research permit is required to conduct all or part of the subject research; or</P> <P>(iii) Notifying the applicant that the letter of intent fails to provide sufficient information and providing a description of the deficiencies, or notifying the applicant that the proposed research as described in the letter of intent is not bona fide research as defined in § 216.3.</P> <P>(2) A copy of each letter of intent and letter confirming that the General Authorization applies or notifying the applicant that it does not apply will be forwarded to the Marine Mammal Commission.</P> <P>(3) Periodically, NMFS will publish a summary document in the <E T="04">Federal Register</E> notifying the public of letters of confirmation issued.<PRTPAGE P="46"/> </P> <P>(d) <E T="03">Terms and conditions</E>. Persons issued letters of confirmation in accordance with paragraph (c) of this section are responsible for complying with the following terms and conditions:</P> <P>(1) Activities are limited to those conducted for the purposes, by the means, in the locations, and during the periods of time described in the letter of intent and acknowledged as authorized under the General Authorization in the confirmation letter sent pursuant to paragraph (c) of this section;</P> <P>(2) Annual reports of activities conducted under the General Authorization must be submitted to the Chief, Permits Division (address listed in paragraph (b) of this section) within 90 days of completion of the last field season(s) during the calendar year or, if the research is not conducted during a defined field season, no later than 90 days after the anniversary date of the letter of confirmation issued under paragraph (c) of this section. Annual reports must include:</P> <P>(i) A summary of research activities conducted;</P> <P>(ii) Identification of the species and number of each species taken by Level B harassment;</P> <P>(iii) An evaluation of the progress made in meeting the objectives of the research as described in the letter of intent; and</P> <P>(iv) Any incidental scientific, educational, or commercial uses of photographs, videotape, and film obtained as a result of or incidental to the research and if so, names of all photographers.</P> <P>(3) Authorization to conduct research under the General Authorization is for the period(s) of time identified in the letter of intent or for a period of 5 years from the date of the letter of confirmation issued under paragraph (c) of this section, whichever is less, unless extended by the Director or modified, suspended, or revoked in accordance with paragraph (e) of this section;</P> <P>(4) Activities conducted under the General Authorization may only be conducted under the on-site supervision of the principal investigator or co-investigator(s) named in the letter of intent. All personnel involved in the conduct of activities under the General Authorization must perform a function directly supportive of and necessary for the research being conducted, or be one of a reasonable number of support personnel included for the purpose of training or as back-up personnel;</P> <P>(5) The principal investigator must notify the appropriate Regional Director, NMFS, (Regional Director) in writing at least 2 weeks before initiation of on-site activities. The Regional Director shall consider this information in efforts to coordinate field research activities to minimize adverse impacts on marine mammals in the wild. The principal investigator must cooperate with coordination efforts by the Regional Director in this regard;</P> <P>(6) If research activities result in a taking which exceeds Level B harassment, the applicant shall:</P> <P>(i) Report the taking within 12 hours to the Director, Office of Protected Resources, or his designee as set forth in the letter authorizing research; and</P> <P>(ii) Temporarily discontinue for 72 hours all field research activities that resulted in the taking. During this time period, the applicant shall consult with NMFS as to the circumstances surrounding the taking and any precautions necessary to prevent future taking, and may agree to amend the research protocol, as deemed necessary by NMFS.</P> <P>(7) NMFS may review scientific research conducted pursuant to the General Authorization. If requested by NMFS, the applicant must cooperate with any such review and shall:</P> <P>(i) Allow any employee of NOAA or any other person designated by the Director, Office of Protected Resources to observe research activities; and</P> <P>(ii) Provide any documents or other information relating to the scientific research;</P> <P>(8) Any photographs, videotape, or film obtained during the conduct of research under the General Authorization must be identified by a statement that refers to the General Authorization or ESA permit number, and includes the file number provided by NMFS in the confirmation letter, the name of the photographer, and the date the image was taken. This statement must accompany the image(s) in all subsequent uses or sales. The annual report must note incidental scientific, <PRTPAGE P="47"/>educational, or commercial uses of the images, and if there are any such uses, the names of all photographers; and</P> <P>(9) Persons conducting scientific research under authority of the General Authorization may not transfer or assign any authority granted thereunder to any other person.</P> <P>(e) <E T="03">Suspension, revocation, or modification.</E> (1) NMFS may suspend, revoke, or modify the authority to conduct scientific research under the General Authorization if:</P> <P>(i) The letter of intent included false information or statements of a material nature;</P> <P>(ii) The research does not constitute bona fide scientific research;</P> <P>(iii) Research activities result in takings of marine mammals other than by Level B harassment;</P> <P>(iv) Research activities differ from those described in the letter of intent submitted by the applicant and letter of confirmation issued by NMFS; or</P> <P>(v) The applicant violates any term or condition set forth in this section.</P> <P>(2) Any suspension, revocation, or modification is subject to the requirements of 15 CFR part 904.</P> <CITA>[59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.46</SECTNO> <SUBJECT>U.S. citizens on foreign flag vessels operating under the International Dolphin Conservation Program.</SUBJECT> <P>The MMPA's provisions do not apply to a citizen of the United States who incidentally takes any marine mammal during fishing operations in the ETP which are outside the U.S. exclusive economic zone (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)), while employed on a fishing vessel of a harvesting nation that is participating in, and in compliance with, the IDCP.</P> <CITA>[65 FR 56, Jan. 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§§ 216.47-216.49</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Designated Ports</HD> <SECTION> <SECTNO>§ 216.50</SECTNO> <SUBJECT>Importation at designated ports.</SUBJECT> <P>(a) Any marine mammal or marine mammal product which is subject to the jurisdiction of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce and is intended for importation into the United States shall be subject to the provisions of 50 CFR part 14.</P> <P>(b) For the information of importers, designated ports of entry for the United States are: </P> <EXTRACT> <FP>New York, N.Y.</FP> <FP>Miami, Fla.</FP> <FP>Chicago, Ill.</FP> <FP>San Francisco, Calif.</FP> <FP>Los Angeles, Calif.</FP> <FP>New Orleans, La.</FP> <FP>Seattle, Wash.</FP> <FP>Honolulu, Hi.</FP> </EXTRACT> <P>(c) Additionally, marine mammals or marine mammal products which are entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the Virgin Islands and which are not to be forwarded or transhipped within the United States may be imported through the following ports: </P> <EXTRACT> <FP>Alaska—Juneau, Anchorage, Fairbanks</FP> <FP>Hawaii—Honolulu</FP> <FP>Puerto Rico—San Juan</FP> <FP>Guam—Honolulu, Hi.</FP> <FP>American Samoa—Honolulu, Hi.</FP> <FP>Virgin Islands—San Juan, P.R.</FP> </EXTRACT> <P>(d) Importers are advised to see 50 CFR part 14 for importation requirements and information.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Pribilof Islands, Taking for Subsistence Purposes</HD> <SECTION> <SECTNO>§ 216.71</SECTNO> <SUBJECT>Allowable take of fur seals.</SUBJECT> <P>Pribilovians may take fur seals on the Pribilof Islands if such taking is</P> <P>(a) For subsistence uses, and</P> <P>(b) Not accomplished in a wasteful manner.</P> <CITA>[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.72</SECTNO> <SUBJECT>Restrictions on taking.</SUBJECT> <P>(a) The harvests of seals on St. Paul and St. George Islands shall be treated independently for the purposes of this section. Any suspension, termination, or extension of the harvest is applicable only to the island for which it is issued.<PRTPAGE P="48"/> </P> <P>(b) By April 1 of every third year, beginning April 1994, the Assistant Administrator will publish in the <E T="04">Federal Register</E> a summary of the preceding 3 years of harvesting and a discussion of the number of seals expected to be taken annually over the next 3 years to satisfy the subsistence requirements of each island. This discussion will include an assessment of factors and conditions on St. Paul and St. George Islands that influence the need by Pribilof Aleuts to take seals for subsistence uses and an assessment of any changes to those conditions indicating that the number of seals that may be taken for subsistence each year should be made higher or lower. Following a 30-day public comment period, a final notification of the expected annual harvest levels for the next 3 years will be published.</P> <P>(c)(1) No fur seal may be taken on the Pribilof Islands before June 23 of each year.</P> <P>(2) No fur seal may be taken except by experienced sealers using the traditional harvesting methods, including stunning followed immediately by exsanguination. The harvesting method shall include organized drives of subadult males to killing fields unless it is determined by the NMFS representatives, in consultation with the Pribilovians conducting the harvest, that alternative methods will not result in increased disturbance to the rookery or the increased accidental take of female seals.</P> <P>(3) Any taking of adult fur seals or pups, or the intentional taking of subadult female fur seals is prohibited.</P> <P>(4) Only subadult male fur seals 124.5 centimeters or less in length may be taken.</P> <P>(5) Seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists.</P> <P>(d) The scheduling of the harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested seals. The Pribilovians must give adequate advance notice of their harvest schedules to the NMFS representatives to allow for necessary monitoring activities. Scheduling must be consistent with the following restrictions:</P> <P>(1) <E T="03">St. Paul Island</E>—Seals may only be harvested from the following haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, Kitovi, and Reef. No haulout area may be harvested more than once per week.</P> <P>(2) <E T="03">St. George Island</E>—Seals may only be harvested from the following haulout areas: Northeast and Zapadni. Neither haulout area may be harvested more than twice per week.</P> <P>(e)(1) The Assistant Administrator is required to suspend the take provided for in § 215.31 when:</P> <P>(i) He determines, after reasonable notice by NMFS representatives to the Pribilovians on the island, that the subsistence needs of the Pribilovians on the island have been satisfied;</P> <FP>or</FP> <P>(ii) He determines that the harvest is otherwise being conducted in a wasteful manner; or</P> <P>(iii) The lower end of the range of the estimated subsistence level provided in the notice issued under paragraph (b) of this section is reached.</P> <P>(2) A suspension based on a determination under paragraph (e)(1)(ii) of this section may be lifted by the Assistant Administrator if he finds that the conditions which led to the determination that the harvest was being conducted in a wasteful manner have been remedied.</P> <P>(3) A suspension issued in accordance with paragraph (e)(1)(iii) of this section may not exceed 48 hours in duration and shall be followed immediately by a review of the harvest data to determine if a finding under paragraph (e)(1)(i) of this section is warranted. If a the harvest is not suspended under paragraph (e)(1)(i) of this section, the Assistant Administrator must provide a revised estimate of the number of seals required to satisfy the Pribilovians’ subsistence needs.</P> <P>(f) The Assistant Administrator shall terminate the take provided for in § 215.31 on August 8 of each year or when it is determined under paragraph (e)(1)(i) of this section that the subsistence needs of the Pribilovians on the <PRTPAGE P="49"/>island have been satisfied, whichever occurs first.</P> <CITA>[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.73</SECTNO> <SUBJECT>Disposition of fur seal parts.</SUBJECT> <P>Except for transfers to other Alaskan Natives for barter or sharing for personal or family consumption, no part of a fur seal taken for subsistence uses may be sold or otherwise transferred to any person unless it is a nonedible byproduct which:</P> <P>(a) Has been transformed into an article of handicraft, or</P> <P>(b) Is being sent by an Alaskan Native directly, or through a registered agent, to a tannery registered under 50 CFR 216.23(c) for the purpose of processing, and will be returned directly to the Alaskan Native for conversion into an article of handicraft, or</P> <P>(c) Is being sold or transferred to an Alaskan Native, or to an agent registered under 50 CFR 216.23(c) for resale or transfer to an Alaskan Native, who will convert the seal part into a handicraft.</P> <CITA>[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.74</SECTNO> <SUBJECT>Cooperation with Federal officials.</SUBJECT> <P>Pribilovians who engage in the harvest of seals are required to co-operate with scientists engaged in fur -seal research on the Pribilof Islands -who may need assistance in recording -tag or other data and collecting tissue -or other fur seal samples for re-search purposes. In addition, Prib-i-lovians who take fur seals for sub-sistence uses must, consistent with 5 CFR -1320.7(k)(3), cooperate with the NMFS representatives on the Pribilof Islands who are responsible for compiling the following information on a daily basis:</P> <P>(a) The number of seals taken each day in the subsistence harvest,</P> <P>(b) The extent of the utilization of fur seals taken, and</P> <P>(c) Other information determined by the Assistant Administrator to be necessary for determining the subsistence needs of the Pribilovians or for making determinations under § 215.32(e).</P> <CITA>[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Pribilof Islands Administration</HD> <SECTION> <SECTNO>§ 216.81</SECTNO> <SUBJECT>Visits to fur seal rookeries.</SUBJECT> <P>From June 1 to October 15 of each year, no person, except those authorized by a representative of the National Marine Fisheries Service, or accompanied by an authorized employee of the National Marine Fisheries Service, shall approach any fur seal rookery or hauling grounds nor pass beyond any posted sign forbidding passage.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.82</SECTNO> <SUBJECT>Dogs prohibited.</SUBJECT> <P>In order to prevent molestation of fur seal herds, the landing of any dogs at Pribilof Islands is prohibited.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.83</SECTNO> <SUBJECT>Importation of birds or mammals.</SUBJECT> <P>No mammals or birds, except household cats, canaries and parakeets, shall be imported to the Pribilof Islands without the permission of an authorized representative of the National Marine Fisheries Service.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.84</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.85</SECTNO> <SUBJECT>Walrus and Otter Islands.</SUBJECT> <P>By Executive Order 1044, dated February 27, 1909, Walrus and Otter Islands were set aside as bird reservations. All persons are prohibited to land on these islands except those authorized by the appropriate representative of the National Marine Fisheries Service.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.86</SECTNO> <SUBJECT>Local regulations.</SUBJECT> <P>Local regulations will be published from time to time and will be brought to the attention of local residents and persons assigned to duty on the Islands <PRTPAGE P="50"/>by posting in public places and brought to the attention of tourists by personal notice.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.87</SECTNO> <SUBJECT>Wildlife research.</SUBJECT> <P>(a) Wildlife research, other than research on North Pacific fur seals, including specimen collection, may be permitted on the Pribilof Islands subject to the following conditions:</P> <P>(1) Any person or agency, seeking to conduct such research shall first obtain any Federal or State of Alaska permit required for the type of research involved.</P> <P>(2) Any person seeking to conduct such research shall obtain prior approval of the Director, Pribilof Islands Program, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, 1700 Westlake Avenue North, Seattle, WA 98109, by filing with the Director an application which shall include:</P> <P>(i) Copies of the required Federal and State of Alaska permits; and</P> <P>(ii) A resume of the intended research program.</P> <P>(3) All approved research shall be subject to all regulations and administrative procedures in effect on the Pribilof Islands, and such research shall not commence until approval from the Director is received.</P> <P>(4) Any approved research program shall be subject to such terms and conditions as the Director, Pribilof Islands Program deems appropriate.</P> <P>(5) Permission to utilize the Pribilof Islands to conduct an approved research -program may be revoked by the Director, -Pribilof Islands Program at any -time for noncompliance with any terms -and conditions, or for violations of any regulation or administrative procedure in effect on the Pribilof Islands.</P> <CITA>[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Dolphin Safe Tuna Labeling</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1385.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 27794, June 3, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 216.90</SECTNO> <SUBJECT>Purposes.</SUBJECT> <P>This subpart governs the requirements for using the official mark, described in § 216.96, or an alternative mark that refers to dolphins, porpoises, or marine mammals, to label tuna or tuna products offered for sale in or exported from the United States using the term “dolphin-safe” or suggesting the tuna were harvested in a manner not injurious to dolphins.</P> <CITA>[65 FR 56, Jan. 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.91</SECTNO> <SUBJECT>Dolphin-safe labeling standards.</SUBJECT> <P>(a) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or seller of any tuna products that are exported from or offered for sale in the United States to include on the label of those products the term “dolphin-safe” or any other term or symbol that claims or suggests that the tuna contained in the products were harvested using a method of fishing that is not harmful to dolphins if the products contain tuna harvested:</P> <P>(1) <E T="03">ETP large purse seine vessel</E>. In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) carrying capacity unless:</P> <P>(i) The documentation requirements for dolphin-safe tuna under §§ 216.92 and 216.94 are met;</P> <P>(ii) No dolphin were killed or seriously injured during the sets in which the tuna were caught; or</P> <P>(iii) If the Assistant Administrator publishes notification in the <E T="04">Federal Register</E> announcing a finding that the intentional deployment of purse seine nets on or encirclement of dolphins is having a significant adverse impact on any depleted stock:</P> <P>(A) No tuna products were caught on a trip using a purse seine net intentionally deployed on or to encircle dolphins; and</P> <P>(B) No dolphins were killed or seriously injured during the sets in which the tuna were caught.</P> <P>(2) <E T="03">Non-ETP purse seine vessel</E>. Outside the ETP by a vessel using a purse seine net:</P> <P>(i) In a fishery in which the Assistant Administrator has determined that a <PRTPAGE P="51"/>regular and significant association occurs between dolphins and tuna (similar to the association between dolphins and tuna in the ETP), unless such products are accompanied by a written statement, executed by the captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular voyage on which the tuna were caught and no dolphins were killed or seriously injured in the sets in which the tuna were caught; or</P> <P>(ii) In any other fishery unless the products are accompanied by a written statement executed by the captain of the vessel certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular voyage on which the tuna was harvested;</P> <P>(3) <E T="03">Driftnet</E>. By a vessel engaged in large-scale driftnet fishing; or</P> <P>(4) <E T="03">Other fisheries</E>. By a vessel in a fishery other than one described in paragraphs (a)(1) through(a)(3) of this section that is identified by the Assistant Administrator as having a regular and significant mortality or serious injury of dolphins, unless such product is accompanied by a written statement, executed by the captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught, provided that the Assistant Administrator determines that such an observer statement is necessary.</P> <P>(b) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in this section in a campaign or effort to mislead or deceive consumers about the level of protection afforded dolphins under the IDCP.</P> <P>(c) A tuna product that is labeled with the official mark, described in § 216.96, may not be labeled with any other label or mark that refers to dolphins, porpoises, or marine mammals.</P> <CITA>[65 FR 57, Jan. 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.92</SECTNO> <SUBJECT>Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels.</SUBJECT> <P>(a) <E T="03">U.S. vessels</E>. Tuna products that contain tuna harvested by U.S. flag purse seine vessels of greater than 400 st (362.8 mt) carrying capacity in the ETP may be labeled “dolphin-safe” if the following requirements are met:</P> <P>(1) “Dolphin-safe” Tuna Tracking Forms certified by the vessel captain and the observer are submitted to the Regional Administrator, Southwest Region, at the end of the fishing trip during which the tuna was harvested;</P> <P>(2) The tuna has been processed by a U.S. tuna processor in a plant located in one of the 50 states, Puerto Rico, or American Samoa that is in compliance with the tuna tracking and verification requirements of § 216.94;</P> <P>(3) The tuna or tuna products are accompanied by a properly completed FCO;</P> <P>(4) The tuna or tuna products meet the dolphin-safe labeling standards under § 216.91; and</P> <P>(5) The FCO is properly endorsed by each processor certifying that, to the best of his or her knowledge and belief, the FCO and attached documentation are complete and accurate.</P> <P>(b) <E T="03">Imported tuna</E>. Tuna or tuna products harvested in the ETP by purse seine vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States are dolphin safe if:</P> <P>(1) The tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the IDCP and applicable U.S. law, or by a vessel belonging to a nation that has obtained an affirmative finding of § 216.24(f)(9);</P> <P>(2) The tuna or tuna products are accompanied by a properly completed FCO;</P> <P>(3) The tuna or tuna products are accompanied by valid documentation signed by a representative of the appropriate IDCP member nation, certifying that:</P> <P>(i) There was an IDCP approved observer on board the vessel(s) during the entire trip(s); and</P> <P>(ii) The tuna contained in the shipment were caught according to the dolphin-safe labeling standards of § 216.91;<PRTPAGE P="52"/> </P> <P>(4) The documentation provided in paragraph(b)(3) of this section includes a listing of vessel names and identifying numbers of the associated Tuna Tracking Forms for each trip of which tuna in the shipment originates; and</P> <P>(5) The FCO is properly endorsed by each exporter, importer, and processor certifying that, to the best of his or her knowledge and belief, the FCO and attached documentation are complete and accurate.</P> <CITA>[65 FR 57, Jan. 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.93</SECTNO> <SUBJECT>Submission of documentation.</SUBJECT> <P>(a) Requirements for the submission of documents concerning the activities of U.S. flag vessels with greater than 400 st carrying capacity fishing in the ETP are contained in § 216.94.</P> <P>(b) The import documents required by §§ 216.91 and 216.92 must accompany the tuna product whenever it is offered for sale or export, except that these documents need not accompany the product when offered for sale if:</P> <P>(1) The documents do not require further endorsement by any importer or processor and are submitted to officials of the U.S. Customs Service at the time of import; or</P> <P>(2) The documents are endorsed as required by § 216.92(b)(4) and the final processor delivers the endorsed documents to the Administrator, Southwest Region, or to U.S. Customs as required.</P> <CITA>[65 FR 57, Jan. 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.94</SECTNO> <SUBJECT>Tracking and verification program.</SUBJECT> <P>The Administrator, Southwest Region, has established a national tracking and verification program to accurately document the “dolphin-safe” condition of tuna, under the standards set forth in § 216.91(a). The tracking program includes procedures and reports for use when importing tuna into the U.S. and during U.S. purse seine fishing, processing, and marketing in the U.S. and abroad. Verification of tracking system operations is attained through the establishment of audit and document review requirements. The tracking program is consistent with the international tuna tracking and verification program adopted by the Parties to the IDCP.</P> <P>(a) <E T="03">Tuna tracking forms</E>. Whenever a U.S. flag tuna purse seine vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing the IATTC cruise number assigned to that trip, are used by the observer to record every set made during that trip. One TTF is used to record “dolphin-safe” sets and a second TTF is used to record “non-dolphin-safe” sets. The information entered on the TTFs following each set includes date of trip, set number, date of loading, name of the vessel, vessel Captain's name, observer's name, well number, weights by species composition, estimated tons loaded, and date of the set. The observer and the vessel engineer initial the entry for each set, and the vessel Captain and observer review and sign both TTFs at the end of the fishing trip certifying that the information on the form is accurate. The captain's and observer's certification of the TTF on which dolphin-safe sets are recorded complies with 16 U.S.C. 1385(h).</P> <P>(b) <E T="03">Tracking fishing operations</E>. (1) During ETP fishing trips by purse seine vessels, tuna caught in sets designated as “dolphin-safe” by the vessel observer must be stored separately from tuna caught in “non-dolphin-safe” sets from the time of capture through unloading, except as provided in paragraph (b)(2) of this section. Vessel personnel will decide into which wells tuna will be loaded. The observer will initially designate whether each set is “dolphin-safe” or not, based on his/her observation of the set. The observer will initially identify a vessel fish well as “dolphin-safe” if the first tuna loaded into the well during a trip was captured in a set in which no dolphin died or was seriously injured. The observer will initially identify a vessel fish well as “non-dolphin-safe” if the first tuna loaded into the well during a trip was captured in a set in which a dolphin died or was seriously injured. Any tuna loaded into a well previously designated “non-dolphin-safe” or “mixed well” is considered “non-dolphin-safe” tuna. Except as provided for in paragraph (b)(2)(i) of this section, the observer will change the designation of a “dolphin-safe” well to “non-dolphin-safe” if any tuna are loaded into the <PRTPAGE P="53"/>well that were captured in a set in which a dolphin died or was seriously injured.</P> <P>(2) <E T="03">Mixed wells</E>. Only two acceptable conditions exist under which a “mixed” well can be created.</P> <P>(i) In the event that a set has been designated “dolphin-safe” by the observer, but during the loading process dolphin mortality or serious injury is identified, the “dolphin-safe” designation of the set will change to “non-dolphin-safe.” If one or more of the wells into which the newly designated “non-dolphin-safe” tuna are loaded already contains “dolphin-safe” tuna loaded during a previous set, the observer will note in his or her trip records the well numbers and the estimated weight of such “non-dolphin-safe” tuna and designate such well(s) as “mixed well(s).” Once a well has been identified as “non-dolphin-safe” or “mixed” all tuna subsequently loaded into that well will be designated as “non-dolphin-safe.” When the contents of such a “mixed well” are received by a processor, the tuna will be weighed and separated according to the observer's report of the estimated weight of “dolphin-safe” and “non-dolphin-safe” tuna contained in that well. In addition, 15 percent of the “dolphin-safe” tuna unloaded from the “mixed well” will be designated as “non-dolphin-safe.”</P> <P>(ii) Near the end of an ETP fishing trip, if the only well space available is in a “non-dolphin-safe” well, and there is an opportunity to make one last set, “dolphin-safe” tuna caught in that set may be loaded into the “non-dolphin-safe” well. The “dolphin-safe” tuna must be kept physically separate from the “non-dolphin-safe” tuna already in the well, using netting or other material.</P> <P>(3) The captain, managing owner, or vessel agent of a U.S. purse seine vessel returning to port from a trip, any part of which included fishing in the ETP, must provide at least 48 hours notice of the vessel's intended place of landing, arrival time, and schedule of unloading to the Administrator, Southwest Region.</P> <P>(4) If the trip terminates when the vessel enters port to unload part or all of its catch, new TTFs will be assigned to the new trip, and any information concerning tuna retained on the vessel will be recorded as the first entry on the TTFs for the new trip. If the trip is not terminated following a partial unloading, the vessel will retain the original TTFs and submit a copy of those TTFs to the Administrator, Southwest Region, within 5 working days. In either case, the species and amount unloaded will be noted on the respective originals.</P> <P>(5) Tuna offloaded to trucks, storage facilities or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identification of the “dolphin-safe” or “non-dolphin-safe” designation of the tuna as it left the fishing vessel.</P> <P>(6)(i) When ETP caught tuna is to be offloaded from a U.S. purse seiner directly to a U.S. canner within the 50 states, Puerto Rico, or American Samoa, or in any port and subsequently loaded aboard a carrier vessel for transport to a U.S. processing location, a NMFS representative may meet the U.S. purse seiner to receive the TTFs from the vessel observer and to monitor the handling of “dolphin-safe” and “non-dolphin-safe” tuna.</P> <P>(ii) When ETP caught tuna is offloaded from an U.S. purse seiner in any port and subsequently loaded aboard a carrier vessel for transport to a cannery outside the jurisdiction of the United States, a NMFS representative may meet the vessel to receive copies of the TTFs from the observer and monitor the offloading. The U.S. caught tuna becomes the tracking and verification responsibility of the foreign buyer when it is offloaded from the U.S. vessel.</P> <P>(iii) If a NMFS representative does not meet the vessel in port at the time of arrival, the observer may take the signed TTFs to the IATTC office and mail copies to the Administrator, Southwest Region, from that location within 5 working days of the end of the trip.</P> <P>(iv) When ETP caught tuna is offloaded from a U.S. purse seiner directly to a processing facility located outside the jurisdiction of the United States in a country that is a party to the IDCP, the national authority in whose area of jurisdiction the tuna is <PRTPAGE P="54"/>to be processed will assume the responsibility for tracking and verification of the tuna offloaded. A representative of the national authority will receive copies of the TTFs from the observer, and copies of the TTFs will be forwarded to the Administrator, Southwest Region.</P> <P>(c) <E T="03">Tracking cannery operations</E>. (1) Whenever a tuna canning company in the 50 states, Puerto Rico, or American Samoa is scheduled to receive a domestic or imported shipment of ETP caught tuna for processing, the company must provide at least 48 hours notice of the location and arrival date and time of such a shipment, to the Administrator, Southwest Region, so that a NMFS representative can be present to monitor delivery and verify that “dolphin-safe” and “non-dolphin-safe” tuna are clearly identified and remain segregated.</P> <P>(2) At the close of delivery activities, which may include weighing, boxing or containerizing, and transfer to cold storage or processing, the company must provide a copy of the processor's receiving report to the NMFS representative, if present. If a NMFS representative is not present, the company must submit a copy of the processor's receiving report to the Administrator, Southwest Region, electronically, by mail, or by fax within 5 working days. The processor's receiving report must contain, at a minimum: date of delivery, catcher vessel name and flag, trip number and dates, storage container number(s), “dolphin-safe” or “non-dolphin-safe” designation of each container, species, product description, and weight of tuna in each container.</P> <P>(3) Tuna canning companies will report on a monthly basis the amounts of ETP-caught tuna that are removed from cold storage. This report may be submitted in conjunction with the monthly report required in paragraph (c)(5) of this section. This report must contain:</P> <P>(i) The date of removal;</P> <P>(ii) Storage container number(s) and “dolphin-safe” or “non-dolphin-safe” designation of each container; and</P> <P>(iii) Details of the disposition of fish (for example, canning, sale, rejection, etc.).</P> <P>(4) During canning activities, “non-dolphin-safe” tuna may not be mixed in any manner or at any time in its processing with any “dolphin-safe” tuna or tuna products and may not share the same storage containers, cookers, conveyers, tables, or other canning and labeling machinery.</P> <P>(5) Canned tuna processors must submit a report to the Administrator, Southwest Region, of all tuna received at their processing facilities in each calendar month whether or not the tuna is actually canned or stored during that month. Monthly cannery receipt reports must be submitted electronically or by mail before the last day of the month following the month being reported. Monthly reports must contain the following information:</P> <P>(i) <E T="03">Domestic receipts</E>: species, condition (round, loin, dressed, gilled and gutted, other), weight in short tons to the fourth decimal, ocean area of capture (eastern tropical Pacific, western Pacific, Indian, eastern and western Atlantic, other), catcher vessel, trip dates, carrier name, unloading dates, and location of unloading.</P> <P>(ii) <E T="03">Import receipts</E>: In addition to the information required in paragraph (c)(5)(i) of this section, a copy of the FCO for each imported receipt must be provided.</P> <P>(d) <E T="03">Tracking imports</E>. All tuna products, except fresh tuna, that are imported into the United States must be accompanied by a properly certified FCO as required by § 216.24(f).</P> <P>(e) <E T="03">Verification requirements</E>.—(1) <E T="03">Record maintenance</E>. Any exporter, transshipper, importer, or processor of any tuna or tuna products containing tuna harvested in the ETP must maintain records related to that tuna for at least 3 years. These records include, but are not limited to: FCO and required certifications, any report required in paragraph (a) and (b) of this section, invoices, other import documents, and trip reports.</P> <P>(2) <E T="03">Record submission</E>. Within 30 days of receiving a written request from the Administrator, Southwest Region, any exporter, transshipper, importer, or processor of any tuna or tuna products containing tuna harvested in the ETP must submit to the Administrator any record required to be maintained under paragraph (e)(1) of this section.<PRTPAGE P="55"/> </P> <P>(3) <E T="03">Audits and spot-checks</E>. Upon request of the Administrator, Southwest Region, any such exporter, transshipper, importer, or processor must provide the Administrator, Southwest Region, timely access to all pertinent records and facilities to allow for audits and spot-checks on caught, landed, and processed tuna.</P> <P>(f) <E T="03">Confidentiality of proprietary information</E>. Information submitted to the Assistant Administrator under this section will be treated as confidential in accordance with NOAA Administrative Order 216-100 “Protection of Confidential Fisheries Statistics.”</P> <CITA>[65 FR 57, Jan. 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.95</SECTNO> <SUBJECT>False statements or endorsements.</SUBJECT> <P>Any person who knowingly and willfully makes a false statement or false endorsement required by § 216.92 is liable for a civil penalty not to exceed $100,000, that may be assessed in an action brought in any appropriate District Court of the United States on behalf of the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 216.96</SECTNO> <SUBJECT>Official mark for “Dolphin-safe” tuna products.</SUBJECT> <P>(a) This is the “official mark” (see figure 1) designated by the United States Department of Commerce that may be used to label tuna products that meet the “dolphin-safe” standards set forth in the Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and implementing regulations at §§ 216.91 through 216.94:</P> <GPH DEEP="309" SPAN="2"> <PRTPAGE P="56"/> <GID>ER30MY00.019</GID> </GPH> <P>(b) <E T="03">Location and size of the official mark.</E> The official mark on labels must allow the consumer to identify the official mark and be similar in design and scale to figure 1. A full color version of the official mark is available at http://swr.ucsd.edu/dsl.htm.</P> <CITA>[65 FR 34410, May 30, 2000]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 15887, Apr. 10, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 216.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The regulations in this subpart implement section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographic region.</P> </SECTION> <SECTION> <SECTNO>§ 216.102</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>The taking of small numbers of marine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service:</P> <P>(a) Finds, based on the best scientific evidence available, that the total taking by the specified activity during the specified time period will have a negligible impact on species or stock of marine mammal(s) and will not have <PRTPAGE P="57"/>an unmitigable adverse impact on the availability of those species or stocks of marine mammals intended for subsistence uses;</P> <P>(b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an incidental harassment authorization issued under § 216.107, setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and</P> <P>(c) Prescribes either regulations or requirements and conditions contained within an incidental harassment authorization, as appropriate, pertaining to the monitoring and reporting of such taking. The specific regulations governing certain specified activities are contained in subsequent subparts of this part.</P> </SECTION> <SECTION> <SECTNO>§ 216.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In addition to definitions contained in the MMPA, and in § 216.3, and unless the context otherwise requires, in subsequent subparts to this part:</P> <P> <E T="03">Arctic waters</E> means the marine and estuarine waters north of 60° N. lat.</P> <P> <E T="03">Citizens of the United States</E> and <E T="03">U.S. citizens</E> mean individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13). U.S. Federal, state and local government agencies shall also constitute citizens of the United States for purposes of this part.</P> <P> <E T="03">Incidental harassment, incidental taking</E> and <E T="03">incidental, but not intentional, taking</E> all mean an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental. (A complete definition of “take” is contained in § 216.3).</P> <P> <E T="03">Negligible impact</E> is an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.</P> <P> <E T="03">Small numbers</E> means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.</P> <P> <E T="03">Specified activity</E> means any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals.</P> <P> <E T="03">Specified geographical region</E> means an area within which a specified activity is conducted and that has certain biogeographic characteristics.</P> <P> <E T="03">Unmitigable adverse impact</E> means an impact resulting from the specified activity:</P> <P>(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by:</P> <P>(i) Causing the marine mammals to abandon or avoid hunting areas;</P> <P>(ii) Directly displacing subsistence users; or</P> <P>(iii) Placing physical barriers between the marine mammals and the subsistence hunters; and</P> <P>(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.</P> </SECTION> <SECTION> <SECTNO>§ 216.104</SECTNO> <SUBJECT>Submission of requests.</SUBJECT> <P>(a) In order for the National Marine Fisheries Service to consider authorizing the taking by U.S. citizens of small numbers of marine mammals incidental to a specified activity (other than commercial fishing), or to make a finding that an incidental take is unlikely to occur, a written request must be submitted to the Assistant Administrator. All requests must include the following information for their activity:</P> <P>(1) A detailed description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals;</P> <P>(2) The date(s) and duration of such activity and the specific geographical region where it will occur;</P> <P>(3) The species and numbers of marine mammals likely to be found within the activity area;<PRTPAGE P="58"/> </P> <P>(4) A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks of marine mammals likely to be affected by such activities;</P> <P>(5) The type of incidental taking authorization that is being requested (i.e., takes by harassment only; takes by harassment, injury and/or death) and the method of incidental taking;</P> <P>(6) By age, sex, and reproductive condition (if possible), the number of marine mammals (by species) that may be taken by each type of taking identified in paragraph (a)(5) of this section, and the number of times such takings by each type of taking are likely to occur;</P> <P>(7) The anticipated impact of the activity upon the species or stock of marine mammal;</P> <P>(8) The anticipated impact of the activity on the availability of the species or stocks of marine mammals for subsistence uses;</P> <P>(9) The anticipated impact of the activity upon the habitat of the marine mammal populations, and the likelihood of restoration of the affected habitat;</P> <P>(10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations involved;</P> <P>(11) The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance;</P> <P>(12) Where the proposed activity would take place in or near a traditional Arctic subsistence hunting area and/or may affect the availability of a species or stock of marine mammal for Arctic subsistence uses, the applicant must submit either a plan of cooperation or information that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses. A plan must include the following:</P> <P>(i) A statement that the applicant has notified and provided the affected subsistence community with a draft plan of cooperation;</P> <P>(ii) A schedule for meeting with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding any aspects of either the operation or the plan of cooperation;</P> <P>(iii) A description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence whaling or sealing; and</P> <P>(iv) What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve conflicts and to notify the communities of any changes in the operation;</P> <P>(13) The suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity. Monitoring plans should include a description of the survey techniques that would be used to determine the movement and activity of marine mammals near the activity site(s) including migration and other habitat uses, such as feeding. Guidelines for developing a site-specific monitoring plan may be obtained by writing to the Director, Office of Protected Resources; and</P> <P>(14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking and evaluating its effects.</P> <P>(b)(1) The Assistant Administrator shall determine the adequacy and completeness of a request and, if determined to be adequate and complete, will begin the public review process by publishing in the <E T="04">Federal Register</E> either:</P> <P>(i) A proposed incidental harassment authorization; or</P> <P>(ii) A notice of receipt of a request for the implementation or reimplementation of regulations governing the incidental taking.<PRTPAGE P="59"/> </P> <P>(2) Through notice in the <E T="04">Federal Register</E>, newspapers of general circulation, and appropriate electronic media in the coastal areas that may be affected by such activity, NMFS will invite information, suggestions, and comments for a period not to exceed 30 days from the date of publication in the <E T="04">Federal Register</E>. All information and suggestions will be considered by the National Marine Fisheries Service in developing, if appropriate, the most effective regulations governing the issuance of letters of authorization or conditions governing the issuance of an incidental harassment authorization.</P> <P>(3) Applications that are determined to be incomplete or inappropriate for the type of taking requested, will be returned to the applicant with an explanation of why the application is being returned.</P> <P>(c) The Assistant Administrator shall evaluate each request to determine, based upon the best available scientific evidence, whether the taking by the specified activity within the specified geographic region will have a negligible impact on the species or stock and, where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. If the Assistant Administrator finds that the mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that requirement, the Assistant Administrator may make a finding of negligible impact subject to such mitigating measures being successfully implemented. Any preliminary findings of “negligible impact” and “no unmitigable adverse impact” shall be proposed for public comment along with either the proposed incidental harassment authorization or the proposed regulations for the specific activity.</P> <P>(d) If, subsequent to the public review period, the Assistant Administrator finds that the taking by the specified activity would have more than a negligible impact on the species or stock of marine mammal or would have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Assistant Administrator shall publish in the <E T="04">Federal Register</E> the negative finding along with the basis for denying the request.</P> </SECTION> <SECTION> <SECTNO>§ 216.105</SECTNO> <SUBJECT>Specific regulations.</SUBJECT> <P>(a) For all petitions for regulations under this paragraph, applicants must provide the information requested in § 216.104(a) on their activity as a whole, which includes, but is not necessarily limited to, an assessment of total impacts by all persons conducting the activity.</P> <P>(b) For allowed activities that may result in incidental takings of small numbers of marine mammals by harassment, serious injury, death or a combination thereof, specific regulations shall be established for each allowed activity that set forth:</P> <P>(1) Permissible methods of taking;</P> <P>(2) Means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses; and</P> <P>(3) Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses.</P> <P>(c) Regulations will be established based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and opportunity for public review.</P> </SECTION> <SECTION> <SECTNO>§ 216.106</SECTNO> <SUBJECT>Letter of Authorization.</SUBJECT> <P>(a) A Letter of Authorization, which may be issued only to U.S. citizens, is required to conduct activities pursuant to any regulations established under § 216.105. Requests for Letters of Authorization shall be submitted to the Director, Office of Protected Resources. The information to be submitted in a request for an authorization will be specified in the appropriate subpart to this part or may be obtained by writing to the above named person.</P> <P>(b) Issuance of a Letter of Authorization will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations.<PRTPAGE P="60"/> </P> <P>(c) Letters of Authorization will specify the period of validity and any additional terms and conditions appropriate for the specific request.</P> <P>(d) Notice of issuance of all Letters of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> <P>(e) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appropriate, if, after notice and opportunity for public comment, the Assistant Administrator determines that:</P> <P>(1) The regulations prescribed are not being substantially complied with; or</P> <P>(2) The taking allowed is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses.</P> <P>(f) The requirement for notice and opportunity for public review in § 216.106(e) shall not apply if the Assistant Administrator determines that an emergency exists that poses a significant risk to the wellbeing of the species or stocks of marine mammals concerned.</P> <P>(g) A violation of any of the terms and conditions of a Letter of Authorization or of the specific regulations shall subject the Holder and/or any individual who is operating under the authority of the Holder's Letter of Authorization to penalties provided in the MMPA.</P> </SECTION> <SECTION> <SECTNO>§ 216.107</SECTNO> <SUBJECT>Incidental harassment authorization for Arctic waters.</SUBJECT> <P>(a) Except for activities that have the potential to result in serious injury or mortality, which must be authorized under § 216.105, incidental harassment authorizations may be issued, following a 30-day public review period, to allowed activities that may result in only the incidental harassment of a small number of marine mammals. Each such incidental harassment authorization shall set forth:</P> <P>(1) Permissible methods of taking by harassment;</P> <P>(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and</P> <P>(3) Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses.</P> <P>(b) Issuance of an incidental harassment authorization will be based on a determination that the number of marine mammals taken by harassment will be small, will have a negligible impact on the species or stock of marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or stocks for taking for subsistence uses.</P> <P>(c) An incidental harassment authorization will be either issued or denied within 45 days after the close of the public review period.</P> <P>(d) Notice of issuance or denial of an incidental harassment authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance of a determination.</P> <P>(e) Incidental harassment authorizations will be valid for a period of time not to exceed 1 year but may be renewed for additional periods of time not to exceed 1 year for each reauthorization.</P> <P>(f) An incidental harassment authorization shall be modified, withdrawn, or suspended if, after notice and opportunity for public comment, the Assistant Administrator determines that:</P> <P>(1) The conditions and requirements prescribed in the authorization are not being substantially complied with; or</P> <P>(2) The authorized taking, either individually or in combination with other authorizations, is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses.</P> <P>(g) The requirement for notice and opportunity for public review in paragraph (f) of this section shall not apply if the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals concerned.</P> <P>(h) A violation of any of the terms and conditions of an incidental harassment authorization shall subject the <PRTPAGE P="61"/>holder and/or any individual who is operating under the authority of the holder's incidental harassment authorization to penalties provided in the MMPA.</P> </SECTION> <SECTION> <SECTNO>§ 216.108</SECTNO> <SUBJECT>Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters.</SUBJECT> <P>(a) Holders of an incidental harassment authorization in Arctic waters and their employees, agents, and designees must cooperate with the National Marine Fisheries Service and other designated Federal, state, or local agencies to monitor the impacts of their activity on marine mammals. Unless stated otherwise within an incidental harassment authorization, the holder of an incidental harassment authorization effective in Arctic waters must notify the Alaska Regional Director, National Marine Fisheries Service, of any activities that may involve a take by incidental harassment in Arctic waters at least 14 calendar days prior to commencement of the activity.</P> <P>(b) Holders of incidental harassment authorizations effective in Arctic waters may be required by their authorization to designate at least one qualified biological observer or another appropriately experienced individual to observe and record the effects of activities on marine mammals. The number of observers required for monitoring the impact of the activity on marine mammals will be specified in the incidental harassment authorization. If observers are required as a condition of the authorization, the observer(s) must be approved in advance by the National Marine Fisheries Service.</P> <P>(c) The monitoring program must, if appropriate, document the effects (including acoustical) on marine mammals and document or estimate the actual level of take. The requirements for monitoring plans, as specified in the incidental harassment authorization, may vary depending on the activity, the location, and the time.</P> <P>(d) Where the proposed activity may affect the availability of a species or stock of marine mammal for taking for subsistence purposes, proposed monitoring plans or other research proposals must be independently peer-reviewed prior to issuance of an incidental harassment authorization under this subpart. In order to complete the peer-review process within the time frames mandated by the MMPA for an incidental harassment authorization, a proposed monitoring plan submitted under this paragraph must be submitted to the Assistant Administrator no later than the date of submission of the application for an incidental harassment authorization. Upon receipt of a complete monitoring plan, and at its discretion, the National Marine Fisheries Service will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan. The applicant must submit a final monitoring plan to the Assistant Administrator prior to the issuance of an incidental harassment authorization.</P> <P>(e) At its discretion, the National Marine Fisheries Service may place an observer aboard vessels, platforms, aircraft, etc., to monitor the impact of activities on marine mammals.</P> <P>(f)(1) As specified in the incidental harassment authorization, the holder of an incidental harassment authorization for Arctic waters must submit reports to the Assistant Administrator within 90 days of completion of any individual components of the activity (if any), within 90 days of completion of the activity, but no later than 120 days prior to expiration of the incidental harassment authorization, whichever is earlier. This report must include the following information:</P> <P>(i) Dates and type(s) of activity;</P> <P>(ii) Dates and location(s) of any activities related to monitoring the effects on marine mammals; and</P> <P>(iii) Results of the monitoring activities, including an estimate of the actual level and type of take, species name and numbers of each species observed, direction of movement of species, and any observed changes or modifications in behavior.</P> <P>(2) Monitoring reports will be reviewed by the Assistant Administrator and, if determined to be incomplete or inaccurate, will be returned to the <PRTPAGE P="62"/>holder of the authorization with an explanation of why the report is being returned. If the authorization holder disagrees with the findings of the Assistant Administrator, the holder may request an independent peer review of the report. Failure to submit a complete and accurate report may result in a delay in processing future authorization requests.</P> <P>(g) Results of any behavioral, feeding, or population studies, that are conducted supplemental to the monitoring program, should be made available to the National Marine Fisheries Service before applying for an incidental harassment authorization for the following year.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Taking of Ringed Seals Incidental to On-Ice Seismic Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 5283, Feb. 2, 1998, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 63 FR 5283, Feb. 2, 1998, subpart J was revised, effective Feb. 2, 1998, to Dec. 31, 2002.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.111</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>Regulations in this subpart apply only to the incidental taking of ringed seals (<E T="03">Phoca</E> <E T="03">hispida</E>) and bearded seals (<E T="03">Erignathus</E> <E T="03">barbatus</E>) by U.S. citizens engaged in on-ice seismic exploratory and associated activities over the Outer Continental Shelf of the Beaufort Sea of Alaska, from the shore outward to 45 mi (72 km) and from Point Barrow east to Demarcation Point, from January 1 through May 31 of any calendar year.</P> </SECTION> <SECTION> <SECTNO>§ 216.112</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from February 2, 1998 through December 31, 2002.</P> </SECTION> <SECTION> <SECTNO>§ 216.113</SECTNO> <SUBJECT>Permissible methods.</SUBJECT> <P>The incidental, but not intentional, taking of ringed and bearded seals from January 1 through May 31 by U.S. citizens holding a Letter of Authorization, issued under § 216.106, is permitted during the course of the following activities:</P> <P>(a) On-ice geophysical seismic activities involving vibrator-type, airgun, or other energy source equipment shown to have similar or lesser effects.</P> <P>(b) Operation of transportation and camp facilities associated with seismic activities.</P> </SECTION> <SECTION> <SECTNO>§ 216.114</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>(a) All activities identified in § 216.113 must be conducted in a manner that minimizes to the greatest extent practicable adverse effects on ringed and bearded seals and their habitat.</P> <P>(b) All activities identified in § 216.113 must be conducted as far as practicable from any observed ringed or bearded seal or ringed seal lair. No energy source must be placed over an observed ringed seal lair, whether or not any seal is present.</P> </SECTION> <SECTION> <SECTNO>§ 216.115</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) Holders of Letters of Authorization are required to cooperate with the National Marine Fisheries Service and any other Federal, state, or local agency monitoring the impacts on ringed or bearded seals.</P> <P>(b) Holders of Letters of Authorization must designate qualified on-site individuals, as specified in the Letter of Authorization, to observe and record the presence of ringed or bearded seals and ringed seal lairs along shot lines and around camps, and the information required in paragraph (d) of this section.</P> <P>(c) Holders of Letters of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.</P> <P>(d) An annual report must be submitted to the Assistant Administrator for Fisheries within 90 days after completing each year's activities and must include the following information:</P> <P>(1) Location(s) of survey activities.</P> <P>(2) Level of effort (e.g., duration, area surveyed, number of surveys), methods used, and a description of habitat (e.g., ice thickness, surface topography) for each location.</P> <P>(3) Numbers of ringed seals, bearded seals, or other marine mammals observed, proximity to seismic or associated activities, and any seal reactions observed for each location.<PRTPAGE P="63"/> </P> <P>(4) Numbers of ringed seal lairs observed and proximity to seismic or associated activities for each location.</P> <P>(5) Other information as required in a Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.116</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>(a) To incidentally take ringed and bearded seals pursuant to these regulations, each company conducting seismic operations between January 1 and May 31 in the geographical area described in § 216.111, must apply for and obtain a Letter of Authorization in accordance with § 216.106.</P> <P>(b) The application must be submitted to the National Marine Fisheries Service at least 90 days before the activity is scheduled to begin.</P> <P>(c) Applications for Letters of Authorization and for renewals of Letters of Authorization must include the following:</P> <P>(1) Name of company requesting the authorization;</P> <P>(2) A description of the activity including method to be used (vibroseis, airgun, watergun), the dates and duration of the activity, the specific location of the activity and the estimated area that will actually be affected by the exploratory activity;</P> <P>(3) Any plans to monitor the behavior and effects of the activity on marine mammals;</P> <P>(4) A description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence sealing; and</P> <P>(5) What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve conflicts and to notify the communities of any changes in the operation.</P> <P>(d) A copy of the Letter of Authorization must be in the possession of the persons conducting activities that may involve incidental takings of ringed and bearded seals.</P> </SECTION> <SECTION> <SECTNO>§ 216.117</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.111 will be renewed annually upon:</P> <P>(1) Timely receipt of the reports required under § 216.115(d), which have been reviewed by the Assistant Administrator and determined to be acceptable; and</P> <P>(2) A determination that the mitigation measures required under § 216.114(b) and the Letter of Authorization have been undertaken.</P> <P>(b) A notice of issuance of a Letter of Authorization or of a renewal of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> </SECTION> <SECTION> <SECTNO>§ 216.118</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <P>(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 a 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 § 216.117, without modification, is not considered a substantive modification.</P> <P>(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.111, 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 <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> <SECTION> <SECTNO>§ 216.119</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 9930, Mar. 1, 1999, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 9930, Mar. 1, 1999, subpart K was added, effective Mar. 1, 1999, to Dec. 31, 2003.</P> </EFFDNOT> <SECTION> <PRTPAGE P="64"/> <SECTNO>§ 216.120</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>(a) Regulations in this subpart apply only to the incidental taking of those marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in:</P> <P>(1) Launching up to 10 Minuteman and Peacekeeper missiles each year from Vandenberg Air Force Base, for a total of up to 50 missiles over the 5-year authorization period,</P> <P>(2) Launching up to 20 rockets each year from Vandenberg Air Force Base, for a total of up to 100 rocket launches over the 5-year authorization period,</P> <P>(3) Aircraft flight test operations, and</P> <P>(4) Helicopter operations from Vandenberg Air Force Base.</P> <P>(b) The incidental take of marine mammals on Vandenberg Air Force Base and in waters off southern California, under the activity identified in paragraph (a) of this section, is limited to the following species: Harbor seals (<E T="03">Phoca</E> <E T="03">vitulina</E>), California sea lions (<E T="03">Zalophus</E> <E T="03">californianus</E>), northern elephant seals (<E T="03">Mirounga</E> <E T="03">angustirostris</E>), northern fur seals (<E T="03">Callorhinus</E> <E T="03">ursinus</E>), Guadalupe fur seals (<E T="03">Arctocephalus</E> <E T="03">townsendi</E>), and Steller sea lions (<E T="03">Eumetopias</E> <E T="03">jubatus</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.121</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from March 1, 1999, through December 31, 2003.</P> </SECTION> <SECTION> <SECTNO>§ 216.122</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under Letters of Authorization issued pursuant to § 216.106, the 30th Space Wing, U.S. Air Force, its contractors, and clients, may incidentally, but not intentionally, take marine mammals by harassment, within the area described in § 216.120, provided all terms, conditions, and requirements of these regulations and such Letter(s) of Authorization are complied with.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 216.123</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.120 and by a Letter of Authorization issued under § 216.106, no person in connection with the activities described in § 216.120 shall:</P> <P>(a) Take any marine mammal not specified in § 216.120(b);</P> <P>(b) Take any marine mammal specified in § 216.120(b) other than by incidental, unintentional harassment;</P> <P>(c) Take a marine mammal specified in § 216.120(b) if such take results in more than a negligible impact on the species or stocks of such marine mammal; or</P> <P>(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under § 216.106.</P> </SECTION> <SECTION> <SECTNO>§ 216.124</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>(a) The activity identified in § 216.120(a) must be conducted in a manner that minimizes, to the greatest extent possible, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.120, the following mitigation measures must be utilized:</P> <P>(1) All aircraft and helicopter flight paths must maintain a minimum distance of 1,000 ft (305 m) from recognized seal haulouts and rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in emergencies or for real-time security incidents (e.g., search-and-rescue, fire-fighting) which may require approaching pinniped rookeries closer than 1,000 ft (305 m).</P> <P>(2) For missile and rocket launches, unless constrained by other factors including, but not limited to, human safety, national security or launch trajectories, in order to ensure minimum negligible impacts of launches on harbor seals and other pinnipeds, holders of Letters of Authorization must avoid, whenever possible, launches during the harbor seal pupping season of February through May.</P> <P>(3) For Titan IV launches only, the holder of that Letter of Authorization must avoid launches, whenever possible, which predict a sonic boom on the Northern Channel Islands during harbor seal, elephant seal, and California sea lion pupping seasons.</P> <P>(4) If post-launch surveys determine that an injurious or lethal take of a marine mammal has occurred, the launch procedure and the monitoring methods must be reviewed, in cooperation with NMFS, and appropriate <PRTPAGE P="65"/>changes must be made through modification to a Letter of Authorization, prior to conducting the next launch under that Letter of Authorization.</P> <P>(5) Additional mitigation measures as contained in a Letter of Authorization.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 216.125</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) Holders of Letters of Authorization issued pursuant to § 216.106 for activities described in § 216.120(a) are required to cooperate with the National Marine Fisheries Service, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Administrator, Southwest Region, National Marine Fisheries Service, by letter or telephone, at least 2 weeks prior to activities possibly involving the taking of marine mammals.</P> <P>(b) Holders of Letters of Authorization must designate qualified on-site individuals, as specified in the Letter of Authorization, to:</P> <P>(1) Conduct observations on harbor seal, elephant seal, and sea lion activity in the vicinity of the rookery nearest the launch platform or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch and continue for a period of time not less than 48 hours subsequent to launching,</P> <P>(2) Monitor haulout sites on the Northern Channel Islands if it is determined that a sonic boom could impact those areas (this determination will be made in consultation with the National Marine Fisheries Service),</P> <P>(3) As required under a Letter of Authorization, investigate the potential for spontaneous abortion, disruption of effective female-neonate bonding, and other reproductive dysfunction,</P> <P>(4) Supplement observations on Vandenberg and on the Northern Channel Islands, if indicated, with video-recording of mother-pup seal responses for daylight launches during the pupping season, and</P> <P>(5) Conduct acoustic measurements of those launch vehicles not having sound pressure level measurements made previously.</P> <P>(c) Holders of Letters of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.</P> <P>(d) The Holder of the Letter of Authorization must submit a report to the Southwest Administrator, National Marine Fisheries Service within 90 days after each launch. This report must contain the following information:</P> <P>(1) Date(s) and time(s) of the launch,</P> <P>(2) Design of the monitoring program, and</P> <P>(3) Results of the monitoring programs, including, but not necessarily limited to:</P> <P>(i) Numbers of pinnipeds present on the haulout prior to commencement of the launch,</P> <P>(ii) Numbers of pinnipeds that may have been harassed as noted by the number of pinnipeds estimated to have entered the water as a result of launch noise,</P> <P>(iii) The length of time(s) pinnipeds remained off the haulout or rookery,</P> <P>(iv) The numbers of pinniped adults or pups that may have been injured or killed as a result of the launch, and</P> <P>(v) Behavioral modifications by pinnipeds noted that were likely the result of launch noise or the sonic boom.</P> <P>(e) An annual report must be submitted that describes any incidental takings not reported under paragraph (d) of this section.</P> <P>(f) A final report must be submitted at least 180 days prior to expiration of these regulations. This report will:</P> <P>(1) Summarize the activities undertaken and the results reported all previous reports,</P> <P>(2) Assess the impacts at each of the major rookeries,</P> <P>(3) Assess the cumulative impact on pinnipeds and other marine mammals from Vandenberg activities, and</P> <P>(4) State the date(s) location(s) and findings of any research activities related to monitoring the effects on launch noise and sonic booms on marine mammal populations.</P> </SECTION> <SECTION> <PRTPAGE P="66"/> <SECTNO>§ 216.126</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>(a) To incidentally take harbor seals and other marine mammals pursuant to these regulations, either the U.S. citizen (see definition at § 216.103) conducting the activity or the 30th Space Wing on behalf of the U.S. citizen conducting the activity, must apply for and obtain a Letter of Authorization in accordance with § 216.106.</P> <P>(b) The application must be submitted to the National Marine Fisheries Service at least 30 days before the activity is scheduled to begin.</P> <P>(c) Applications for Letters of Authorization and for renewals of Letters of Authorization must include the following:</P> <P>(1) Name of the U.S. citizen requesting the authorization,</P> <P>(2) A description of the activity, the dates of the activity, and the specific location of the activity, and</P> <P>(3) Plans to monitor the behavior and effects of the activity on marine mammals.</P> <P>(d) A copy of the Letter of Authorization must be in the possession of the persons conducting activities that may involve incidental takings of seals and sea lions.</P> </SECTION> <SECTION> <SECTNO>§ 216.127</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>A Letter of Authorization issued under § 216.126 for the activity identified in § 216.120(a) will be renewed annually upon:</P> <P>(a) Timely receipt of the reports required under § 216.125(d), which have been reviewed by the Assistant Administrator and determined to be acceptable;</P> <P>(b) A determination that the mitigation measures required under § 216.124 and the Letter of Authorization have been undertaken; and</P> <P>(c) A notice of issuance of a Letter of Authorization or a renewal of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> </SECTION> <SECTION> <SECTNO>§ 216.128</SECTNO> <SUBJECT>Modifications of Letters of Authorization.</SUBJECT> <P>(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.</P> <P>(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.120(b) or that significantly and detrimentally alters the scheduling of launches, a Letter of Authorization issued pursuant to § 216.106 may be substantively modified without a prior notice and an opportunity for public comment. A notice will be published in the <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Taking of Marine Mammals Incidental to Power Plant Operations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 28120, May 25, 1999, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 28120, May 25, 1999, subpart L was added, effective July 1, 1999 through June 30, 2004.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.130</SECTNO> <SUBJECT>Specified activity, specified geographical region, and incidental take levels.</SUBJECT> <P>(a) Regulations in this subpart apply only to the incidental taking of harbor seals (<E T="03">Phoca</E> <E T="03">vitulina</E>), gray seals (<E T="03">Halichoerus</E> <E T="03">grypus</E>), harp seals (<E T="03">Phoca</E> <E T="03">groenlandica</E>), and hooded seals (<E T="03">Cystophora</E> <E T="03">cristata</E>) by U.S. citizens engaged in power plant operations at the Seabrook Station nuclear power plant, Seabrook, NH.</P> <P>(b) The incidental take of harbor, gray, harp, and hooded seals under the activity identified in this section is limited to 20 harbor seals and 4 of any combination of gray, harp, and hooded seals for each year of the authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.131</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from July 1, 1999 through June 30, 2004.</P> </SECTION> <SECTION> <PRTPAGE P="67"/> <SECTNO>§ 216.132</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>Under a Letter of Authorization issued to North Atlantic Energy Services Corporation for Seabrook Station, the North Atlantic Energy Services Corporation may incidentally, but not intentionally, take marine mammals specified in § 216.130 in the course of operating the station's intake cooling water system.</P> </SECTION> <SECTION> <SECTNO>§ 216.133</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.130(a) and by the Letter of Authorization, issued under § 216.106, the following activities are prohibited:</P> <P>(a) The taking of harbor seals, gray seals, harp seals, and hooded seals that is other than incidental.</P> <P>(b) The taking of any marine mammal not authorized in this applicable subpart or by any other law or regulation.</P> <P>(c) The violation of, or failure to comply with, the terms, conditions, and requirements of this part or a Letter of Authorization issued under § 216.106.</P> </SECTION> <SECTION> <SECTNO>§ 216.134</SECTNO> <SUBJECT>Mitigation requirements.</SUBJECT> <P>The holder of the Letter of Authorization is required to report, within 6 months from the issuance of a final rule, to the Administrator, Northeast Region, NMFS, on possible mitigation measures effecting the least practicable adverse impact on the seals specified in § 216.130. The report shall also include a recommendation of which measures, if any, the holder could feasibly implement. A description of any mitigation measures that Seabrook Station has considered, but determined would not be feasible, must be included as well. After submission of such report, NMFS shall determine whether the holder of the Letter of Authorization must implement measures to effect the least practicable adverse impact on the seals. If NMFS determines that such measures must be implemented then NMFS shall specify, after consultation with the holder of the Letter of Authorization, the schedule and other conditions for implementation of the measures. Implementation of such measures must be completed no later than 42 months after the date of issuance of the final rule. Failure of the holder of the Letter of Authorization to implement such measures in accordance with the NMFS specifications may be grounds to invalidate the Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.135</SECTNO> <SUBJECT>Monitoring and reporting.</SUBJECT> <P>(a) The holder of the Letter of Authorization is required to cooperate with NMFS and any other Federal, state, or local agency monitoring the impacts of the activity on harbor, gray, harp, or hooded seals.</P> <P>(b) The holder of the Letter of Authorization must designate a qualified individual or individuals capable of identifying any seal or seal parts or marine mammal or marine mammal parts, that occur in the intake circulating system, including the intake transition structure, both forebays, and any marine mammal or marine mammal parts observed as a result of screen washings conducted.</P> <P>(c) The holder of the Letter of Authorization must conduct at least two daily visual inspections of the circulating water and service water forebays during the period specified in the Letter of Authorization.</P> <P>(d) The holder of the Letter of Authorization must conduct at least daily inspections of the intake transition structure from April 1 through December, unless weather conditions prevent safe access to the structure.</P> <P>(e) The holder of the Letter of Authorization must conduct screen washings at least daily during the months of higher incidents of observed takes and this period will be specified in the Letter of Authorization. During the months not specified in the LOA, screen washings will be conducted twice a week. Examination of the debris must be conducted to determine if any seal remains are present.</P> <P>(f) The holder of the Letter of Authorization must report orally to the Northeast Regional Administrator, NMFS, by telephone or other acceptable means, any marine mammals or marine mammal parts found in the locations specified in § 216.135(b) through (e). Such oral reports must be made by the close of the next business day following the finding of any marine mammal or marine mammal parts.<PRTPAGE P="68"/> </P> <P>(g) The holder of the Letter of Authorization must arrange to have a necropsy examination performed by qualified individuals on any marine mammal or marine mammal parts recovered through monitoring as specified under § 216.135(b) through (e).</P> <P>(h) The holder of the Letter of Authorization must also provide written notification to the Administrator, Northeast Region, NMFS, of such marine mammal or marine mammal parts found within 30 days from the time of the discovery. This report must contain the results of any examinations or necropsies of the marine mammals in addition to any other information relating to the circumstances of the take.</P> <P>(i) An annual report, identifying mitigation measures implemented to effect the least practicable adverse impact on the seals and/or are being considered for implementation pursuant to the requirements specified at § 216.134, must be submitted to the Administrator, Northeast Region, NMFS, within 30 days prior to the expiration date of the issuance of the Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.136</SECTNO> <SUBJECT>Renewal of the Letter of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.130(a) may be renewed annually provided the following conditions and requirements are satisfied:</P> <P>(1) Timely receipt of the reports required under § 216.135, which have been reviewed by the Administrator, Northeast Region, NMFS, and determined to be acceptable;</P> <P>(2) A determination that the maximum incidental take authorizations in § 216.130(b) will not be exceeded; and</P> <P>(3) A determination that research on mitigation measures required under § 216.134(a) and the Letter of Authorization have been undertaken.</P> <P>(b) If a species’ annual incidental take authorization is exceeded, NMFS will review the documentation submitted under § 216.135, to determine whether or not the taking is having more than a negligible impact on the species or stock involved. The Letter of Authorization may be renewed provided a negligible impact determination is made and other conditions and requirements specified in § 216.136(a) are satisfied, and provided that any modifications of the Letter of Authorization that may be required are done pursuant to § 216.137.</P> <P>(c) Notice of issuance of a renewal of the Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> </SECTION> <SECTION> <SECTNO>§ 216.137</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <P>(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 § 216.136, without modification, is not considered a substantive modification.</P> <P>(b) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.130, the Letter of Authorization issued pursuant to this section may be substantively modified without prior notice and an opportunity for public comment. Notification will be published in the <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> <SECTION> <SECTNO>§§ 216.138-216.140</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subparts M—N[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart O—Taking of Marine Mammals Incidental to Shock Testing the USS SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters of the U.S. Atlantic Coast</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 66076, Dec. 1, 1998, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 63 FR 66076, Dec. 1, 1998, subpart O was added, effective Jan. 1, 1999 through Sept. 30, 2004.</P> </EFFDNOT> <SECTION> <PRTPAGE P="69"/> <SECTNO>§ 216.161</SECTNO> <SUBJECT>Specified activity, geographical region, and incidental take levels.</SUBJECT> <P>(a) Regulations in this subpart apply only to the incidental taking of marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in the detonation of conventional military explosives within the waters of the U.S. Atlantic Coast offshore Mayport, FL for the purpose of shock testing the USS SEAWOLF.</P> <P>(b) The incidental take of marine mammals under the activity identified in paragraph (a) of this section is limited to the following species: Blue whale (<E T="03">Balaenoptera</E> <E T="03">musculus</E>); fin whale (<E T="03">B</E>. <E T="03">physalus</E>); sei whale (<E T="03">B</E>. <E T="03">borealis</E>); Bryde's whale (<E T="03">B</E>. <E T="03">edeni</E>); minke whale (<E T="03">B</E>. <E T="03">acutorostrata</E>); humpback whale (<E T="03">Megaptera</E> <E T="03">novaeangliae</E>); northern right whale (<E T="03">Eubalaena</E> <E T="03">glacialis</E>); sperm whale (<E T="03">Physeter</E> <E T="03">macrocephalus</E>); dwarf sperm whale (<E T="03">Kogia</E> <E T="03">simus</E>); pygmy sperm whale (<E T="03">K</E>. <E T="03">breviceps</E>); pilot whales (<E T="03">Globicephala</E> <E T="03">melas</E>, <E T="03">G</E>. <E T="03">macrorhynchus</E>); Atlantic spotted dolphin (<E T="03">Stenella</E> <E T="03">frontalis</E>); Pantropical spotted dolphin (<E T="03">S</E>. <E T="03">attenuata</E>); striped dolphin (<E T="03">Stenella</E> <E T="03">coeruleoalba</E>); spinner dolphin (<E T="03">S</E>. <E T="03">longirostris</E>); Clymene dolphin (<E T="03">S</E>. <E T="03">clymene</E>); bottlenose dolphin (<E T="03">Tursiops</E> <E T="03">truncatus</E>); Risso's dolphin (<E T="03">Grampus</E> <E T="03">griseus</E>); rough-toothed dolphin (<E T="03">Steno</E> <E T="03">bredanensis</E>); killer whale (<E T="03">Orcinus</E> <E T="03">orca</E>); false killer whale (<E T="03">Pseudorca</E> <E T="03">crassidens</E>); pygmy killer whale (<E T="03">Feresa</E> <E T="03">attenuata</E>); Fraser's dolphin (<E T="03">Lagenodelphis</E> <E T="03">hosei</E>); harbor porpoise (<E T="03">Phocoena</E> <E T="03">phocoena</E>); melon-headed whale (<E T="03">Peponocephala</E> <E T="03">electra</E>); northern bottlenose whale (<E T="03">Hyperoodon</E> <E T="03">ampullatus</E>); Cuvier's beaked whale (<E T="03">Ziphius</E> <E T="03">cavirostris</E>), Blainville's beaked whale (<E T="03">Mesoplodon</E> <E T="03">densirostris</E>); Gervais’ beaked whale (<E T="03">M</E>. <E T="03">europaeus</E>); Sowerby's beaked whale (<E T="03">M</E>. <E T="03">bidens</E>); True's beaked whale (<E T="03">M</E>. <E T="03">mirus</E>); common dolphin (<E T="03">Delphinus</E> <E T="03">delphis</E>); and Atlantic white-sided dolphin (<E T="03">Lagenorhynchus</E> <E T="03">acutus</E>).</P> <P>(c) The incidental take of marine mammals identified in paragraph (b) of this section is limited to a total of 1 mortality, 5 injuries and 1,788 harassment takes for detonations in the area described in paragraph (a) of this section, except that the taking by serious injury or mortality for species listed in paragraph (b) of this section that are also listed as threatened or endangered under § 17.11 of this title, is prohibited.</P> </SECTION> <SECTION> <SECTNO>§ 216.162</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective May 1 through September 30 of any single year between the years 2000 and 2004, inclusive.</P> </SECTION> <SECTION> <SECTNO>§ 216.163</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <P>(a) Under a Letter of Authorization issued pursuant to § 216.106, the U.S. Navy may incidentally, but not intentionally, take marine mammals by harassment, injury or mortality in the course detonating five 4,536 kg (10,000 lb) conventional explosive charges within the area described in § 216.161(a), provided all terms, conditions, and requirements of these regulations and such Letter of Authorization are complied with.</P> <P>(b) The activity identified in paragraph (a) of this section must be conducted in a manner that minimizes, to the greatest extent possible, adverse impacts on marine mammals and their habitat. When detonating explosives, the following mitigation measures must be utilized:</P> <P>(1) If marine mammals are observed within the designated safety zone prescribed in the Letter of Authorization, or within the buffer zone prescribed in the Letter of Authorization and on a course that will put them within the safety zone prior to detonation, detonation must be delayed until marine mammals are either no longer within the safety zone or are on a course within the buffer zone that is taking them away from the safety zone, except that no detonation will occur if a marine mammal listed as threatened or endangered under § 17.11 of this title is detected within the buffer zone and subsequently cannot be detected until such time as sighting and acoustic teams have searched the area for 2.5 hours (approximately 3 times the typical large whale dive duration). If a northern right whale is seen within the safety or buffer zone, detonation must not occur until the animal is positively reacquired outside the buffer zone and at least one additional aerial monitoring of the safety range and buffer <PRTPAGE P="70"/>zone shows that no other right whales are present.</P> <P>(2) If weather and/or sea conditions as described in the Letter of Authorization preclude adequate aerial surveillance, detonation must be delayed until conditions improve sufficiently for aerial surveillance to be undertaken.</P> <P>(3) If post-test surveys determine that an injurious or lethal take of a marine mammal has occurred, or if any marine mammals are observed in the safety range immediately after a detonation, the test procedure and the monitoring methods must be reviewed by NMFS in consultation with the Navy and appropriate changes made prior to conducting the next detonation.</P> </SECTION> <SECTION> <SECTNO>§ 216.164</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.161(b) and by a Letter of Authorization issued under § 216.106, the following activities are prohibited:</P> <P>(a) The taking of a marine mammal that is other than unintentional.</P> <P>(b) The violation of, or failure to comply with, the terms, conditions, and requirements of this part or a Letter of Authorization issued under § 216.106.</P> <P>(c) The incidental taking of any marine mammal of a species not specified in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 216.165</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) The holder of the Letter of Authorization is required to cooperate with the National Marine Fisheries Service and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. The holder must notify the Administrator, Southeast Region at least 2 weeks prior to activities involving the detonation of explosives in order to satisfy paragraph (g) of this section.</P> <P>(b) The holder of the Letter of Authorization must designate qualified on-site individuals, as specified in the Letter of Authorization, to record the effects of explosives detonation on marine mammals that inhabit the Atlantic Ocean test area.</P> <P>(c) The Atlantic Ocean test area must be surveyed by marine mammal biologists and other trained individuals, and the marine mammal populations monitored, approximately 3 weeks prior to detonation, 48-72 hours prior to a scheduled detonation, on the day of detonation, and for a period of time specified in the Letter of Authorization after each detonation. Monitoring shall include, but not necessarily be limited to, aerial, shipboard, and acoustic surveillance sufficient to ensure that no marine mammals are within the designated safety zone nor are likely to enter the designated safety zone immediately prior to, or at the time of, detonation.</P> <P>(d) Under the direction of a certified marine mammal veterinarian, examination and recovery of any dead or injured marine mammals will be conducted. Necropsies will be performed and tissue samples taken from any dead animals. After completion of the necropsy, animals not retained for shoreside examination will be tagged and returned to the sea. The occurrence of live marine mammals will also be documented.</P> <P>(e) The holder of the Letter of Authorization is required to measure during the first detonation, and provide a report on, prior to the second detonation, the attenuation of the sound pressure levels of the HBX1 explosive charge. Measurements must be made at a number of distances from the detonation sufficient to verify the model predictions for the 3.7 km (2 nm) safety zone. Based upon the results of this test, the monitoring and safety zones described in the Letter of Authorization, may be modified accordingly.</P> <P>(f) Activities related to the monitoring described in paragraphs (c) and (d) of this section, or in the Letter of Authorization issued under § 216.106, including the retention of marine mammals, may be conducted without the need for a separate scientific research permit. The use of retained marine mammals for scientific research other than shoreside examination must be authorized pursuant to subpart D of this part.</P> <P>(g) In coordination and compliance with appropriate Navy regulations, at its discretion, the National Marine Fisheries Service may place observer(s) <PRTPAGE P="71"/>on any ship or aircraft involved in marine mammal reconnaissance, or monitoring either prior to, during, or after explosives detonation in order to monitor the impact on marine mammals.</P> <P>(h) A final report must be submitted to the Administrator, Southeast Region, no later than 120 days after completion of shock testing the USS SEAWOLF. This report must contain the following information:</P> <P>(1) Date and time of all detonations conducted under the Letter of Authorization.</P> <P>(2) A description of all pre-detonation and post-detonation activities related to mitigating and monitoring the effects of explosives detonation on marine mammal populations.</P> <P>(3) Results of the monitoring program, including numbers by species/stock of any marine mammals noted injured or killed as a result of the detonation and numbers that may have been harassed due to presence within the designated safety zone.</P> <P>(4) Results of coordination with coastal marine mammal/sea turtle stranding networks.</P> <P>(i) A final report on results of necropsies of stranded marine mammals funded by the U.S. Navy must be submitted to the Director, Office of Protected Resources, no later than 18 months after completion of shock testing the USS SEAWOLF.</P> </SECTION> <SECTION> <SECTNO>§ 216.166</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <P>(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.</P> <P>(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.161(b), or that significantly and detrimentally alters the scheduling of explosives detonation within the area specified in § 216.161(a), the Letter of Authorization issued pursuant to § 216.106 may be substantively modified without prior notice and an opportunity for public comment. A notice will be published in the <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> <SECTION> <SECTNO>§§ 216.167-216.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart P—Taking of Marine Mammals Incidental to Operating A Low Frequency Acoustic Source by the North Pacific Acoustic Laboratory</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 43458, Aug. 17, 2001, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 66 FR 43458, Aug. 17, 2001, subpart P was added, effective Sept. 17, 2001 to Sept. 17, 2006.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.170</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>(a) Regulations in this subpart apply only to the incidental taking of small numbers of marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in conducting acoustic research using a moored, low-frequency acoustic source by the North Pacific Acoustic Laboratory off Kauai, Hawaii.</P> <P>(b) The incidental harassment of marine mammals under the activity identified in paragraph (a) of this section is limited to small numbers of the following species: humpback whales (<E T="03">Megaptera novaengliae</E>), fin whales (<E T="03">Balaenoptera physalus</E>), blue whales (<E T="03">B. musculus</E>), Bryde's whales (<E T="03">B. edeni</E>), minke whales (<E T="03">B. acutorostrata</E>), North Pacific right whales (<E T="03">Balaena japonicus</E>), sperm whales (<E T="03">Physeter macrocephalus</E>), short-finned pilot whales (<E T="03">Globicephala macrorhynchus</E>), beaked whales (<E T="03">Ziphius cavirostris, Berardius bairdi</E>, and <E T="03">Mesoplodon spp</E>.), spinner dolphins (<E T="03">Stenella longirostris</E>), spotted dolphins (<E T="03">Stenella attenuata</E>), striped dolphins (<E T="03">Stenella coeruleoalba</E>), bottlenose dolphins (<E T="03">Tursiops truncatus</E>), rough-toothed dolphins (<E T="03">Steno bredanensis</E>), pygmy sperm whales (<E T="03">Kogia breviceps</E>), dwarf sperm whales (<E T="03">Kogia simus</E>), killer whales (<E T="03">Orcinus orca</E>), false killer whales (<E T="03">Pseudorca crassidens</E>), pygmy killer whales (<E T="03">Feresa attenuata</E>), and melon-headed whales (<E T="03">Peponocephala electra</E>). <PRTPAGE P="72"/>and Hawaiian monk seals (<E T="03">Monachus schauinslandi</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.171</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from September 17, 2001, through September 17, 2006.</P> </SECTION> <SECTION> <SECTNO>§ 216.172</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under a Letter of Authorization issued pursuant to §§ 216.106 and 216.176, the Holder of this Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment within the area described in § 216.170(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the Letter of Authorization.</P> <P>(b) The activities identified in § 216.170(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.</P> </SECTION> <SECTION> <SECTNO>§ 216.173</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.170(b) and by a Letter of Authorization issued under §§ 216.106 and 216.176, no person in connection with the activities described in § 216.170(a) shall:</P> <P>(a) Take any marine mammal not specified in § 216.170(b);</P> <P>(b) Take any marine mammal specified in § 216.170(b) other than by incidental, unintentional harassment;</P> <P>(c) Take any marine mammal specified in § 216.170(b) if such take results in more than a negligible impact on the species or stocks of such marine mammal; or</P> <P>(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§ 216.106 and 216.176.</P> </SECTION> <SECTION> <SECTNO>§ 216.174</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>As described in the Letter of Authorization issued under §§ 216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic source must:</P> <P>(a) Operate at the minimum duty cycle necessary for conducting large-scale acoustic thermometry and long-range propagation objectives.</P> <P>(b) Not increase the duty cycle during the months of January through April.</P> <P>(c) Operate at the minimum power level necessary for conducting large-scale acoustic thermometry and long-range propagation objectives, but no more than 260 Watts.</P> <P>(d) Precede all transmissions from the acoustic source by a 5-minute ramp-up of the acoustic source's power.</P> </SECTION> <SECTION> <SECTNO>§ 216.175</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) The holder of the Letter of Authorization is required to cooperate with the National Marine Fisheries Service and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. The holder must notify the Southwest Regional Administrator at least 2 weeks prior to commencing monitoring activities.</P> <P>(b) The Holder of this Authorization must conduct a minimum of eight surveys each year from February through early April in the area off the north shore of Kauai, Hawaii, as specified in the Letter of Authorization issued under §§ 216.106 and 216.176.</P> <P>(c) The Holder of this Authorization must, through coordination with marine mammal stranding networks in Hawaii, monitor strandings of marine mammals to detect long-term trends in stranding and the potential relationship to the North Pacific Acoustic Laboratory acoustic source.</P> <P>(d) Activities related to the monitoring described in paragraphs (b) and (c) of this section, or in the Letter of Authorization issued under §§ 216.106 and 216.176 may be conducted without the need for a separate scientific research permit.</P> <P>(e) In coordination and compliance with marine mammal researchers operating under this subpart, at its discretion, the National Marine Fisheries Service may place an observer on any aircraft involved in marine mammal surveys in order to monitor the impact on marine mammals.</P> <P>(f) The holder of a Letter of Authorization must annually submit a report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 120 days after <PRTPAGE P="73"/>the conclusion of the humpback whale aerial survey monitoring program. This report must contain all the information required by the Letter of Authorization, including the results, if any, of coordination with coastal marine mammal stranding networks.</P> <P>(g) A final comprehensive report must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service no later than 240 days after completion of the final year of humpback whale aerial survey monitoring conducted under § 216.175. This report must contain all the information required by the Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.176</SECTNO> <SUBJECT>Letter of authorization.</SUBJECT> <P>(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time specified in the Letter of Authorization but may not exceed the period of validity of this subpart.</P> <P>(b) A Letter of Authorization with a period of validity less than the period of validity of this subpart may be renewed subject to renewal conditions in § 216.177.</P> <P>(c) A Letter of Authorization will set forth:</P> <P>(1) Permissible methods of incidental taking;</P> <P>(2) Authorized geographic area for taking;</P> <P>(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking and its habitat; and</P> <P>(4) Requirements for monitoring and reporting incidental takes.</P> <P>(d) Issuance of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, and that the number of marine mammals taken by the activity, specified in § 216.170(b), as a whole, will have no more than a negligible impact on the species or stocks of affected marine mammal(s).</P> <P>(e) Notice of issuance or denial of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of a determination.</P> </SECTION> <SECTION> <SECTNO>§ 216.177</SECTNO> <SUBJECT>Renewal of a letter of authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 and § 216.176 for the activity identified in § 216.170(a) will be renewed annually upon:</P> <P>(1) Notification to the National Marine Fisheries Service that the activity described in the application for a Letter of Authorization submitted under § 216.176 will be undertaken and that there will not be a substantial modification to the described work, mitigation, or monitoring undertaken during the upcoming season;</P> <P>(2) Timely receipt of the monitoring reports required under § 216.175, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable;</P> <P>(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring, and reporting measures required under §§ 216.174 and 216.175 and the Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization; and</P> <P>(4) Renewal of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity continues to be small and that the number of marine mammals taken by the activity, specified in § 216.170(b), will have no more than a negligible impact on the species or stock of affected marine mammal(s).</P> <P>(b) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of a determination.</P> </SECTION> <SECTION> <SECTNO>§ 216.178</SECTNO> <SUBJECT>Modifications to a letter of authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of §§ 216.106 and 216.176, 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 216.176 and subject to the provisions of this subpart shall be made by the National Marine Fisheries Service until after a notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal <PRTPAGE P="74"/>of a Letter of Authorization under § 216.177 without modification, except for the period of validity, is not considered a substantive modification.</P> <P>(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.170(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.176 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the <E T="04">Federal Register</E> within 30 days subsequent to the action.</P> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart Q[Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart R—Taking of Marine Mammals Incidental to Construction and Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 34030, May 25, 2000, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 65 FR 34030, May 25, 2000, subpart R was added, effective May 25, 2000, to May 25, 2005.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.200</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by U.S. citizens engaged in oil and gas development activities in areas within state and/or Federal waters in the U.S. Beaufort Sea specified in paragraph (a) of this section. The authorized activities as specified in a Letter of Authorization issued under §§ 216.106 and 216.208 include, but may not be limited to, site construction, including ice road and pipeline construction, vessel and helicopter activity; and oil production activities, including ice road construction, and vessel and helicopter activity, but excluding seismic operations. </P> <P>(a)(1) Northstar Oil and Gas Development; and</P> <P>(2) [Reserved]</P> <P>(b) The incidental take by harassment, injury or mortality of marine mammals under the activity identified in this section is limited to the following species: bowhead whale (<E T="03">Balaena</E> <E T="03">mysticetus</E>), gray whale (<E T="03">Eschrichtius</E> <E T="03">robustus</E>), beluga whale (<E T="03">Delphinapterus</E> <E T="03">leucas</E>), ringed seal (<E T="03">Phoca</E> <E T="03">hispida</E>), spotted seal (<E T="03">Phoca</E> <E T="03">largha</E>) and bearded seal (<E T="03">Erignathus</E> <E T="03">barbatus</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.201</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from May 25, 2000, until May 25, 2005.</P> </SECTION> <SECTION> <SECTNO>§ 216.202</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under Letters of Authorization issued pursuant to§§ 216.106 and 216.208, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment, injury, and mortality within the area described in § 216.200(a), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate Letter of Authorization.</P> <P>(b) The activities identified in § 216.200 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals, their habitat, and on the availability of marine mammals for subsistence uses.</P> </SECTION> <SECTION> <SECTNO>§ 216.203</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.200 and by a Letter of Authorization issued under §§ 216.106 and 216.208, no person in connection with the activities described in § 216.200 shall:</P> <P>(a) Take any marine mammal not specified in § 216.200(b);</P> <P>(b) Take any marine mammal specified in § 216.200(b) other than by incidental, unintentional harassment, injury or mortality;</P> <P>(c) Take a marine mammal specified in § 216.200(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or</P> <P>(d) Violate, or fail to comply with, the terms, conditions, and requirements of the regulations in this subpart or a Letter of Authorization issued under § 216.106.</P> </SECTION> <SECTION> <PRTPAGE P="75"/> <SECTNO>§ 216.204</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>The activity identified in § 216.200(a) must be conducted in a manner that minimizes, to the greatest extent possible, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.200, the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 216.208 must be utilized.</P> </SECTION> <SECTION> <SECTNO>§ 216.205</SECTNO> <SUBJECT>Measures to ensure availability of species for subsistence uses.</SUBJECT> <P>When applying for a Letter of Authorization pursuant to§ 216.207, or a renewal of a Letter of Authorization pursuant to § 216.209, the applicant must submit a Plan of Cooperation that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses. A plan must include the following:</P> <P>(a) A statement that the applicant has notified and met with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding timing and methods of operation;</P> <P>(b) A description of what measures the applicant has taken and/or will take to ensure that oil development activities will not interfere with subsistence whaling or sealing;</P> <P>(c) What plans the applicant has to continue to meet with the affected communities to notify the communities of any changes in operation.</P> </SECTION> <SECTION> <SECTNO>§ 216.206</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) Holders of Letters of Authorization issued pursuant to§§ 216.106 and 216.208 for activities described in § 216.200 are required to cooperate with the National Marine Fisheries Service, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Administrator, Alaska Region, National Marine Fisheries Service, or his/her designee, by letter or telephone, at least 2 weeks prior to initiating new activities potentially involving the taking of marine mammals.</P> <P>(b) Holders of Letters of Authorization must designate qualified on-site individuals, approved in advance by the National Marine Fisheries Service, to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization issued pursuant to § 216.106 and § 216.208.</P> <P>(c) Holders of Letters of Authorization must conduct all monitoring and/or research required under the Letter of Authorization.</P> <P>(d) Unless specified otherwise in the Letter of Authorization, the Holder of that Letter of Authorization must submit interim reports to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 90 days after completion of the winter monitoring season (approximately September 15th), and 90 days after the open water monitoring season (approximately February 1<E T="51">st</E>). This report must contain all information required by the Letter of Authorization.</P> <P>(e) A draft annual comprehensive report must be submitted by May 1<E T="51">st</E> of the year following the issuance of a LOA;</P> <P>(f) A final annual comprehensive report must be submitted within the time period specified in the governing Letter of Authorization.</P> <P>(g) A final comprehensive report on all marine mammal monitoring and research conducted during the effective period of the regulations in this subpart must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 240 days prior to expiration of these regulations or 240 days after the expiration of these regulations if renewal of the regulations will not be requested.</P> </SECTION> <SECTION> <SECTNO>§ 216.207</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>(a) To incidentally take bowhead whales and other marine mammals pursuant to the regulations in this subpart, the U.S. citizen (see definition at § 216.103) conducting the activity identified in§ 216.200, must apply for and obtain either an initial Letter of Authorization in accordance with <PRTPAGE P="76"/>§§ 216.106 and 216.208, or a renewal under § 216.209.</P> <P>(b) The application for an initial Letter of Authorization must be submitted to the National Marine Fisheries Service at least 180 days before the activity is scheduled to begin.</P> <P>(c) Applications for initial Letters of Authorization must include all information items identified in § 216.104(a).</P> <P>(d) NMFS will review an application for an initial Letter of Authorization in accordance with § 216.104(b) and, if adequate and complete, will publish a notice of receipt of a request for incidental taking and, in accordance with Administrative Procedure Act requirements, a proposed amendment to § 216.200(a). In conjunction with amending § 216.200(a), the National Marine Fisheries Service will provide a minimum of 45 days for public comment on the application for an initial Letter of Authorization.</P> <P>(e) Upon receipt of a complete application for an initial Letter of Authorization, and at its discretion, the National Marine Fisheries Service may submit the monitoring plan to members of a peer review panel for review and/or schedule a workshop to review the plan. Unless specified in the Letter of Authorization, the applicant must submit a final monitoring plan to the Assistant Administrator prior to the issuance of an initial Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.208</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization, unless suspended, revoked or not renewed, will be valid for a period of time not to exceed the period of validity of this subpart, but must be renewed annually subject to annual renewal conditions in § 216.209.</P> <P>(b) Each Letter of Authorization will set forth:</P> <P>(1) Permissible methods of incidental taking;</P> <P>(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and</P> <P>(3) Requirements for monitoring and reporting, including any requirements for the independent peer-review of proposed monitoring plans.</P> <P>(c) Issuance and renewal of each Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.</P> <P>(d) Notice of issuance or denial of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of a determination.</P> </SECTION> <SECTION> <SECTNO>§ 216.209</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 and § 216.208 for the activity identified in § 216.200 will be renewed annually upon:</P> <P>(1) Notification to the National Marine Fisheries Service that the activity described in the application submitted under§ 216.207 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season;</P> <P>(2) Timely receipt of the monitoring reports required under § 216.205, and the Letter of Authorization issued under § 216.208, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable, and the Plan of Cooperation required under § 216.205; and</P> <P>(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring and reporting measures required under § 216.204 and the Letter of Authorization issued under §§ 216.106 and 216.208, were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization.</P> <P>(b) If a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 216.208 indicates that a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season will occur, the National Marine Fisheries Service will provide the public a minimum of 30 days for review and comment on the request. Review <PRTPAGE P="77"/>and comment on renewals of Letters of Authorization are restricted to:</P> <P>(1) New cited information and data that indicates that the determinations made in this subpart are in need of reconsideration,</P> <P>(2) The Plan of Cooperation, and</P> <P>(3) The proposed monitoring plan.</P> <P>(c) A notice of issuance or denial of a Renewal of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of a determination.</P> </SECTION> <SECTION> <SECTNO>§ 216.210</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of§§ 216.106 and 216.208, except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization by the National Marine Fisheries Service, issued pursuant to §§ 216.106 and 216.208 and subject to the provisions of this subpart shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 216.209, without modification (except for the period of validity), is not considered a substantive modification.</P> <P>(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in§ 216.200(b), a Letter of Authorization issued pursuant to§§ 216.106 and 216.208 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the <E T="04">Federal Register</E> within 30 days subsequent to the action.</P> </SECTION> </SUBPART> </PART> <PART> <RESERVED>PARTS 217-221[RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 222</EAR> <HD SOURCE="HED">PART 222—GENERAL ENDANGERED AND THREATENED MARINE SPECIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction and General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>222.101</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <SECTNO>222.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>222.103</SECTNO> <SUBJECT>Federal/state cooperation in the conservation of endangered and threatened species.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Certificates of Exemption for Pre-Act Endangered Species Parts</HD> <SECTNO>222.201</SECTNO> <SUBJECT>General requirements.</SUBJECT> <SECTNO>222.202</SECTNO> <SUBJECT>Certificate renewal.</SUBJECT> <SECTNO>222.203</SECTNO> <SUBJECT>Modification, amendment, suspension, and revocation of certificates.</SUBJECT> <SECTNO>222.204</SECTNO> <SUBJECT>Administration of certificates.</SUBJECT> <SECTNO>222.205</SECTNO> <SUBJECT>Import and export requirements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Permit Procedures</HD> <SECTNO>222.301</SECTNO> <SUBJECT>General requirements.</SUBJECT> <SECTNO>222.302</SECTNO> <SUBJECT>Procedure for obtaining permits.</SUBJECT> <SECTNO>222.303</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <SECTNO>222.304</SECTNO> <SUBJECT>Renewal of permits.</SUBJECT> <SECTNO>222.305</SECTNO> <SUBJECT>Rights of succession and transfer of permits.</SUBJECT> <SECTNO>222.306</SECTNO> <SUBJECT>Modification, amendment, suspension, cancellation, and revocation of permits.</SUBJECT> <SECTNO>222.307</SECTNO> <SUBJECT>Permits for incidental taking of species.</SUBJECT> <SECTNO>222.308</SECTNO> <SUBJECT>Permits for scientific purposes or for the enhancement of propagation or survival of species.</SUBJECT> <SECTNO>222.309</SECTNO> <SUBJECT>Permits for listed species of sea turtles involving the Fish and Wildlife Service.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1531 <E T="03">et seq.</E>; 16 U.S.C. 742a <E T="03">et seq.</E>; 31 U.S.C. 9701.</P> <P>Section 222.403 also issued under 16 U.S.C. 1361 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 14054, Mar. 23, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction and General Provisions</HD> <SECTION> <SECTNO>§ 222.101</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <P>(a) The regulations of parts 222, 223, and 224 of this chapter implement the Endangered Species Act (Act), and govern the taking, possession, transportation, sale, purchase, barter, exportation, importation of, and other requirements pertaining to wildlife and plants under the jurisdiction of the Secretary of Commerce and determined to be threatened or endangered pursuant to section 4(a) of the Act. These regulations are implemented by the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, This part pertains to general provisions and definitions. Specifically, parts 223 and 224 pertain to provisions to threatened species and endangered <PRTPAGE P="78"/>species, respectively. Part 226 enumerates designated critical habitat for endangered and threatened species. Certain of the endangered and threatened marine species enumerated in §§ 224.102 and 223.102 are included in Appendix I or II to the Convention on International Trade of Endangered Species of Wild Fauna and Flora. The importation, exportation, and re-exportation of such species are subject to additional regulations set forth at 50 CFR part 23, chapter I.</P> <P>(b) For rules and procedures relating to species determined to be threatened or endangered under the jurisdiction of the Secretary of the Interior, see 50 CFR parts 10 through 17. For rules and procedures relating to the general implementation of the Act jointly by the Departments of the Interior and Commerce and for certain species under the joint jurisdiction of both the Secretaries of the Interior and Commerce, see 50 CFR Chapter IV. Marine mammals listed as endangered or threatened and subject to these regulations may also be subject to additional requirements pursuant to the Marine Mammal Protection Act (for regulations implementing that act, see 50 CFR part 216).</P> <P>(c) No statute or regulation of any state shall be construed to relieve a person from the restrictions, conditions, and requirements contained in parts 222, 223, and 224 of this chapter. In addition, nothing in parts 222, 223, and 224 of this chapter, including any permit issued pursuant thereto, 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 any other National Marine Fisheries Service enforced statutes or regulations.</P> </SECTION> <SECTION> <SECTNO>§ 222.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Accelerator funnel</E> means a device used to accelerate the flow of water through a shrimp trawl net.</P> <P> <E T="03">Act</E> means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 <E T="03">et seq.</E> </P> <P> <E T="03">Adequately covered</E> means, with respect to species listed pursuant to section 4 of the Act, that a proposed conservation plan has satisfied the permit issuance criteria under section 10(a)(2)(B) of the Act 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 Act 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.</P> <P> <E T="03">Alaska Regional Administrator</E> means the Regional Administrator for the Alaska Region of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, or their authorized representative. Mail sent to the Alaska Regional Administrator should be addressed: Alaska Regional Administrator, F/AK, Alaska Regional Office, National Marine Fisheries Service, NOAA, P.O. Box 21668 Juneau, AK 99802-1668.</P> <P> <E T="03">Approved turtle excluder device (TED)</E> means a device designed to be installed in a trawl net forward of the cod end for the purpose of excluding sea turtles from the net, as described in 50 CFR 223.207.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, or his authorized representative. Mail sent to the Assistant Administrator should be addressed: Assistant Administrator for Fisheries, National Marine Fisheries Service, NOAA, 1315 East-West Highway, Silver Spring, MD 20910.</P> <P> <E T="03">Atlantic Area</E> means all waters of the Atlantic Ocean south of 36°33′00.8″ N. lat. (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).</P> <P> <E T="03">Atlantic Shrimp Fishery—Sea Turtle Conservation Area (Atlantic SFSTCA)</E> 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 <PRTPAGE P="79"/>North Carolina-South Carolina border (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.).</P> <P> <E T="03">Authorized officer</E> means:</P> <P>(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard;</P> <P>(2) Any special agent or enforcement officer of the National Marine Fisheries Service;</P> <P>(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</P> <P>(4) Any Coast Guard personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.</P> <P> <E T="03">Bait shrimper</E> means a shrimp trawler that fishes for and retains its shrimp catch alive for the purpose of selling it for use as bait.</P> <P> <E T="03">Beam trawl</E> means a trawl with a rigid frame surrounding the mouth that is towed from a vessel by means of one or more cables or ropes.</P> <P> <E T="03">Certificate of exemption</E> 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 certificate of exemption.</P> <P> <E T="03">Changed circumstances</E> 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).</P> <P> <E T="03">Commercial activity</E> 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.</P> <P> <E T="03">Conservation plan</E> means the plan required by section 10(a)(2)(A) of the Act that an applicant must submit when applying for an incidental take permit. Conservation plans also are known as “habitat conservation plans” or “HCPs.”</P> <P> <E T="03">Conserved habitat areas</E> means areas explicitly designated for habitat restoration, acquisition, protection, or other conservation purposes under a conservation plan.</P> <P> <E T="03">Cooperative Agreement</E> means an agreement between a state(s) and the National Marine Fisheries Service, NOAA, Department of Commerce, which establishes and maintains an active and adequate program for the conservation of resident species listed as endangered or threatened pursuant to section 6(c)(1) of the Endangered Species Act.</P> <P> <E T="03">Fishing,</E> or <E T="03">to fish,</E> means:</P> <P>(1) The catching, taking, or harvesting of fish or wildlife;</P> <P>(2) The attempted catching, taking, or harvesting of fish or wildlife;</P> <P>(3) Any other activity that can reasonably be expected to result in the catching, taking, or harvesting of fish or wildlife; or</P> <P>(4) Any operations on any waters in support of, or in preparation for, any activity described in paragraphs (1) through (3) of this definition.</P> <P> <E T="03">Footrope</E> means a weighted rope or cable attached to the lower lip (bottom edge) of the mouth of a trawl net along the forward most webbing.</P> <P> <E T="03">Footrope length</E> means the distance between the points at which the ends of the footrope are attached to the trawl net, measured along the forward-most webbing.</P> <P> <E T="03">Foreign commerce</E> includes, among other things, any transaction between persons within one foreign country, or between persons in two or more foreign countries, or between a person within the United States and a person in one or more foreign countries, or between persons within the United States, where the fish or wildlife in question are moving in any country or countries outside the United States.</P> <P> <E T="03">Four-seam, straight-wing trawl</E> 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 <PRTPAGE P="80"/>side panels of webbing. The upper and lower edges of the side panels of webbing are parallel over the entire length.</P> <P> <E T="03">Four-seam, tapered-wing trawl</E> 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.</P> <P> <E T="03">Gulf Area</E> means all waters of the Gulf of Mexico west of 81° W. long. (the line at which the Gulf Area meets the Atlantic Area) and all waters shoreward thereof (including ports).</P> <P> <E T="03">Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA)</E> 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.</P> <P> <E T="03">Habitat restoration activity</E> means an activity that has the sole objective of restoring natural aquatic or riparian habitat conditions or processes.</P> <P> <E T="03">Harm</E> in the definition of “take” in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.</P> <P> <E T="03">Headrope</E> means a rope that is attached to the upper lip (top edge) of the mouth of a trawl net along the forward-most webbing.</P> <P> <E T="03">Headrope length</E> means the distance between the points at which the ends of the headrope are attached to the trawl net, measured along the forward-most webbing.</P> <P> <E T="03">Import</E> 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.</P> <P> <E T="03">Inshore</E> 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.</P> <P> <E T="03">Leatherback conservation zone</E> means that portion of the Atlantic Area lying north of a line along 28°24.6′ N. lat. (Cape Canaveral, FL).</P> <P> <E T="03">Northeast Regional Administrator</E> means the Regional Administrator for the Northeast Region of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, or their authorized representative. Mail sent to the Northeast Regional Administrator should be addressed: Northeast Regional Administrator, F/NE, Northeast Regional Office, National Marine Fisheries Service, NOAA, One Blackburn Drive, Gloucester, MA 01930-2298.</P> <P> <E T="03">Northwest Regional Administrator</E> means the Regional Administrator for the Northwest Region of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, or their authorized representative. Mail sent to the Northwest Regional Administrator should be addressed: Northwest Regional Administrator, F/NW, Northwest Regional Office, National Marine Fisheries Service, NOAA, 7600 Sand Point Way NE, Seattle, WA 98115-0070.</P> <P> <E T="03">Office of Enforcement</E> means the national fisheries enforcement office of the National Marine Fisheries Service. Mail sent to the Office of Enforcement should be addressed: Office of Enforcement, F/EN, National Marine Fisheries Service, NOAA, 8484 Suite 415, Georgia Ave., Silver Spring, MD 20910.</P> <P> <E T="03">Office of Protected Resources</E> means the national program office of the endangered species and marine mammal programs of the National Marine Fisheries Service. Mail sent to the Office of Protected Resources should be addressed: Office of Protected Resources, F/PR, National Marine Fisheries Service, NOAA, 1315 East West Highway, Silver Spring, MD 20910.<PRTPAGE P="81"/> </P> <P> <E T="03">Offshore</E> 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.</P> <P> <E T="03">Operating conservation program</E> means those conservation management activities which are expressly agreed upon and described in a Conservation Plan or its Implementing Agreement. These activities are to be undertaken for the affected species when implementing an approved Conservation Plan, including measures to respond to changed circumstances.</P> <P> <E T="03">Permit</E> 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.</P> <P> <E T="03">Person</E> 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.</P> <P> <E T="03">Possession</E> means the detention and control, or the manual or ideal custody of anything that 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 persons can exercise their power over a corporeal thing at their pleasure to the exclusion of all other persons. Possession includes constructive possession that which means not an actual but an assumed existence one claims to hold by virtue of some title, without having actual custody.</P> <P> <E T="03">Pre-Act endangered species part</E> 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.</P> <P> <E T="03">Properly implemented conservation plan</E> means any conservation plan, implementing agreement, or permit whose commitments and provisions have been or are being fully implemented by the permittee.</P> <P> <E T="03">Pusher-head trawl (chopsticks)</E> means a trawl that is spread by two poles suspended from the bow of the trawler in an inverted “V” configuration.</P> <P> <E T="03">Resident species</E> means, for purposes of entering into cooperative agreements with any state pursuant to section 6(c) of the Act, a species that exists in the wild in that state during any part of its life.</P> <P> <E T="03">Right whale</E> means, as used in part 224 of this chapter, any whale that is a member of the western North Atlantic population of the northern right whale species (<E T="03">Eubalaena glacialis</E>).</P> <P> <E T="03">Roller trawl</E> means a variety of beam trawl that is used, usually by small vessels, for fishing over uneven or vegetated sea bottoms.</P> <P> <E T="03">Scrimshaw product</E> means any art form which involves the substantial etching or engraving of designs upon, 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.</P> <P> <E T="03">Secretary</E> means the Secretary of Commerce or an authorized representative.</P> <P> <E T="03">Shrimp</E> means any species of marine shrimp (Order Crustacea) found in the Atlantic Area or the Gulf Area, including, but not limited to:</P> <P>(1) Brown shrimp (<E T="03">Penaeus aztecus</E>).</P> <P>(2) White shrimp (<E T="03">Penaeus setiferus</E>).</P> <P>(3) Pink shrimp (<E T="03">Penaeus duorarum</E>).</P> <P>(4) Rock shrimp (<E T="03">Sicyonia brevirostris</E>).</P> <P>(5) Royal red shrimp (<E T="03">Hymenopenaeus robustus</E>).</P> <P>(6) Seabob shrimp (<E T="03">Xiphopenaeus kroyeri</E>).</P> <P> <E T="03">Shrimp trawler</E> 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 <PRTPAGE P="82"/>landed catch of shrimp is more than 1 percent, by weight, of all fish comprising its on-board or landed catch.</P> <P> <E T="03">Skimmer trawl</E> means a trawl that is fished along the side of the vessel and is held open by a rigid frame and a lead weight. On its outboard side, the trawl is held open by one side of the frame extending downward and, on its inboard side, by a lead weight attached by cable or rope to the bow of the vessel.</P> <P> <E T="03">Southeast Regional Administrator</E> means the Regional Administrator for the Southeast Region of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, or their authorized representative. Mail sent to the Southeast Regional Administrator should be addressed: Southeast Regional Administrator, F/SE, Southeast Regional Office, National Marine Fisheries Service, NOAA, 9721 Executive Center Drive N., St. Petersburg, FL 33702-2432.</P> <P> <E T="03">Southwest Regional Administrator</E> means the Regional Administrator for the Southwest Region of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, or their authorized representative. Mail sent to the Southwest Regional Administrator should be addressed: Southwest Regional Administrator, F/SW, Southwest Regional Office, National Marine Fisheries Service, NOAA, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 90802-4213.</P> <P> <E T="03">Stretched mesh size</E> means the distance between the centers of the two opposite knots in the same mesh when pulled taut.</P> <P> <E T="03">Summer flounder</E> means the species <E T="03">Paralichthys dentatus.</E> </P> <P> <E T="03">Summer flounder fishery-sea turtle protection area</E> means all offshore waters, bounded on the north by a line along 37°05′ N. lat. (Cape Charles, VA) and bounded on the south by a 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.(the North Carolina-South Carolina border).</P> <P> <E T="03">Summer flounder trawler</E> 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 lb (45.4 kg).</P> <P> <E T="03">Take</E> means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.</P> <P> <E T="03">Taper,</E> 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.</P> <P> <E T="03">Taut</E> means a condition in which there is no slack in the net webbing.</P> <P> <E T="03">Test net,</E> or <E T="03">try net,</E> 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.).</P> <P> <E T="03">Tongue</E> means any piece of webbing along the top, center, leading edge of a trawl, whether lying behind or ahead of 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.</P> <P> <E T="03">Transportation</E> means to ship, convey, carry or transport by any means whatever, and deliver or receive for such shipment, conveyance, carriage, or transportation.<PRTPAGE P="83"/> </P> <P> <E T="03">Triple-wing trawl</E> 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.</P> <P> <E T="03">Two-seam trawl</E> means a design of shrimp trawl in which the main body of the trawl is formed from a top and a bottom panel of webbing that are directly attached to each other down the sides of the trawl.</P> <P> <E T="03">Underway</E> with respect to a vessel, means that the vessel is not at anchor, or made fast to the shore, or aground.</P> <P> <E T="03">Unforeseen circumstances</E> 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.</P> <P> <E T="03">Vessel</E> means a vehicle used, or capable of being used, as a means of transportation on water which includes every description of watercraft, including nondisplacement craft and seaplanes.</P> <P> <E T="03">Vessel restricted in her ability to maneuver</E> has the meaning specified for this term at 33 U.S.C. 2003(g).</P> <P> <E T="03">Wildlife</E> 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.</P> <P> <E T="03">Wing net (butterfly trawl)</E> means a trawl that is fished along the side of the vessel and that is held open by a four-sided, rigid frame attached to the outrigger of the vessel.</P> <CITA>[64 FR 14054, Mar. 23, 1999, as amended at 64 FR 60731, Nov. 8, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 222.103</SECTNO> <SUBJECT>Federal/state cooperation in the conservation of endangered and threatened species.</SUBJECT> <P>(a) <E T="03">Application for and renewal of cooperative agreements.</E> (1) The Assistant Administrator may enter into a Cooperative Agreement with any state that establishes and maintains an active and adequate program for the conservation of resident species listed as endangered or threatened. In order for a state program to be deemed an adequate and active program, the Assistant Administrator must find, and annually reconfirm that the criteria of either sections 6(c)(1) (A) through (E) or sections 6(c)(1) (i) and (ii) of the Act have been satisfied.</P> <P>(2) Following receipt of an application by a state for a Cooperative Agreement with a copy of a proposed state program, and a determination by the Assistant Administrator that the state program is adequate and active, the Assistant Administrator shall enter into an Agreement with the state.</P> <P>(3) The Cooperative Agreement, as well as the Assistant Administrator's finding upon which it is based, must be reconfirmed annually to ensure that it reflects new laws, species lists, rules or regulations, and programs and to demonstrate that it is still adequate and active.</P> <P>(b) <E T="03">Allocation and availability of funds.</E> (1) The Assistant Administrator shall allocate funds, appropriated for the purpose of carrying out section 6 of the Act, to various states using the following as the basis for the determination:</P> <P>(i) The international commitments of the United States to protect endangered or threatened species;</P> <P>(ii) The readiness of a state to proceed with a conservation program consistent with the objectives and purposes of the Act;</P> <P>(iii) The number of federally listed endangered and threatened species within a state;</P> <P>(iv) The potential for restoring endangered and threatened species within a state; and</P> <P>(v) The relative urgency to initiate a program to restore and protect an endangered or threatened species in terms of survival of the species.</P> <P>(2) Funds allocated to a state are available for obligation during the fiscal year for which they are allocated and until the close of the succeeding fiscal year. Obligation of allocated funds occurs when an award or contract is signed by the Assistant Administrator.<PRTPAGE P="84"/> </P> <P>(c) <E T="03">Financial assistance and payments.</E> (1) A state must enter into a Cooperative Agreement before financial assistance is approved by the Assistant Administrator for endangered or threatened species projects. Specifically, the Agreement must contain the actions that are to be taken by the Assistant Administrator and/or by the state, the benefits to listed species expected to be derived from these actions, and the estimated cost of these actions.</P> <P>(2) Subsequent to such Agreement, the Assistant Administrator may further agree with a state to provide financial assistance in the development and implementation of acceptable projects for the conservation of endangered and threatened species. Documents to provide financial assistance will consist of an application for Federal assistance and an award or a contract. The availability of Federal funds shall be contingent upon the continued existence of the Cooperative Agreement and compliance with all applicable Federal regulations for grant administration and cost accounting principles.</P> <P>(3)(i) The payment of the Federal share of costs incurred when conducting activities included under a contract or award shall not exceed 75 percent of the program costs as stated in the agreement. However, the Federal share may be increased to 90 percent when two or more states having a common interest in one or more endangered or threatened resident species, the conservation of which may be enhanced by cooperation of such states, jointly enter into an agreement with the Assistant Administrator.</P> <P>(ii) The state share of program costs may be in the form of cash or in-kind contributions, including real property, subject to applicable Federal regulations.</P> <P>(4) Payments of funds, including payment of such preliminary costs and expenses as may be incurred in connection with projects, shall not be made unless all necessary or required documents are first submitted to and approved by the Assistant Administrator. Payments shall only be made for expenditures reported and certified by the state agency. Payments shall be made only to the state office or official designated by the state agency and authorized under the laws of the state to receive public funds for the state.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Certificates of Exemption for Pre-Act Endangered Species Parts</HD> <SECTION> <SECTNO>§ 222.201</SECTNO> <SUBJECT>General requirements.</SUBJECT> <P>(a) The Assistant Administrator may exempt any pre-Act endangered species part from the prohibitions of sections 9(a)(1)(A), 9(a)(1)(E), or 9(a)(1)(F) of the Act.</P> <P>(1) No person shall engage in any activities identified in such sections of the Act that involve any pre-Act endangered species part without a valid Certificate of Exemption issued pursuant to this subpart B.</P> <P>(2) 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.</P> <P>(3) Any person engaged in activities otherwise prohibited under the Act or regulations shall bear the burden of proving that the exemption or certificate is applicable, was granted, and was valid and in force at the time of the otherwise prohibited activity.</P> <P>(b) Certificates of Exemption issued under this subpart are no longer available to new applicants. However, the Assistant Administrator may renew or modify existing Certificates of Exemptions as authorized by the provisions set forth in this subpart.</P> <P>(c) 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 under paragraph (b) of this section, including the address given in the certificate to which the purchaser's report is to be sent.<PRTPAGE P="85"/> </P> <P>(d) Any purchaser of pre-Act endangered species parts included in a valid Certificate of Exemption, unless an ultimate user, within 30 days after the receipt of such parts, must submit a written report to the address given in the certificate. The report must specify 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. The term “ultimate user”, for purposes of this paragraph, means any person who acquired such endangered species part or product for his or her own consumption or for other personal use (including gifts) and not for resale.</P> </SECTION> <SECTION> <SECTNO>§ 222.202</SECTNO> <SUBJECT>Certificate renewal.</SUBJECT> <P>(a) Any person to whom a Certificate of Exemption has been issued by the National Marine Fisheries Service may apply to the Assistant Administrator for renewal of such certificate. Any person holding a valid Certificate of Exemption which was renewed after October 13, 1982, and was in effect on March 31, 1988, may apply to the Secretary for one renewal for a period not to exceed 5 years.</P> <P>(b) The sufficiency of the application shall be determined by the Assistant Administrator in accordance with the requirements of paragraph (c) of this section. At least 15 days should be allowed for processing. When an application for a renewal has been received and deemed sufficient, the Assistant Administrator shall issue a Certificate of Renewal to the applicant as soon as practicable.</P> <P>(c) The following information will be used as the basis for determining whether an application for renewal of a Certificate of Exemption is complete:</P> <P>(1) Title: Application for Renewal of Certificate of Exemption.</P> <P>(2) The date of application.</P> <P>(3) The identity of the applicant, including complete name, original Certificate of Exemption number, current address, and telephone number. If the applicant is a corporation, partnership, or association, set forth the details.</P> <P>(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 5-year period beginning on the date of the expiration of the previous renewal of the certificate of exemption.</P> <P>(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 to the nearest whole gram; and a detailed description 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 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.</P> <P>(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. The number must remain affixed to the item until the item is sold to an ultimate user, as defined in § 222.201(d).</P> <P>(iii) No renewals will be issued for scrimshaw products in excess of any <PRTPAGE P="86"/>quantities declared in the original application for a Certificate of Exemption.</P> <P>(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, as amended, 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 Act.</P> <P>(7) Signature of the applicant.</P> <P>(d) Upon receipt of an incomplete or improperly executed application for renewal, the applicant shall be notified 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 abandoned.</P> </SECTION> <SECTION> <SECTNO>§ 222.203</SECTNO> <SUBJECT>Modification, amendment, suspension, and revocation of certificates.</SUBJECT> <P>(a) When circumstances have changed so that an applicant or certificate holder desires to have any material, term, or condition of the application or certificate modified, the applicant or certificate holder must submit in writing full justification and supporting information in conformance with the provisions of this part.</P> <P>(b) 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.</P> <P>(c) Any violation of the applicable provisions of parts 222, 223, or 224 of this chapter, or of the Act, or of a condition of the certificate may subject the certificate holder to penalties provided in the Act and to suspension, revocation, or modification of the Certificate of Exemption, as provided in subpart D of 15 CFR part 904.</P> </SECTION> <SECTION> <SECTNO>§ 222.204</SECTNO> <SUBJECT>Administration of certificates.</SUBJECT> <P>(a) 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 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 served by the warehouse or storage facility.</P> <P>(b) Certificates of Exemption issued under this subpart are not transferable. However, 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 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 § 222.201(d).</P> <P>(c) The Certificate of Exemption holder must notify the Assistant Administrator, in writing, of any change in address, in trade name of the business, or in activity specified in the certificate. The Assistant Administrator must be notified within 10 days of a change of address, and within 30 days of a change in trade name. The certificate with the change of address or in trade name must be endorsed by the Assistant Administrator, who shall provide an amended certificate to the person to whom it was issued. A certificate holder who seeks amendment of a certificate may continue all authorized activities while awaiting action by the Assistant Administrator.</P> <P>(d) 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.</P> <P>(e) Any person authorized to enforce the Act may enter the premises of any Certificate of Exemption holder or of any purchaser during business hours, <PRTPAGE P="87"/>including places of storage, for the purpose of inspecting or of examining any records or documents and any endangered species parts.</P> <P>(f) 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.</P> <P>(g)(1) Holders of Certificates of Exemption must maintain records of all pre-Act endangered species parts they receive, sell, transfer, distribute or dispose of otherwise. Purchasers of pre-Act endangered species parts, unless ultimate users, as defined in § 222.201(d), must similarly maintain records of all such parts or products they receive.</P> <P>(2) Such records referred to in paragraph (g)(1) 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 show the name and address of the purchaser, seller, or other transferor; show the type, quantity, and identity of the part or product; show the date of such sale or transfer; and be retained, in accordance with the requirements of this subpart, for a period of not less than 3 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.</P> <P>(i) Each Certificate of Exemption holder must submit a quarterly report (to the address given in the certificate) containing all record information required by paragraph (g)(2) of this section, 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.</P> <P>(ii) Quarterly reports are due on January 15, April 15, July 15, and October 15.</P> <P>(3) The Assistant Administrator may authorize the record information to be submitted in a manner other than that prescribed in paragraph (g)(2) of this section when the record holder demonstrates that an alternate method of reporting is reasonably necessary and will not hinder the effective administration or enforcement of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 222.205</SECTNO> <SUBJECT>Import and export requirements.</SUBJECT> <P>(a) Any fish and wildlife subject to the jurisdiction of the National Marine Fisheries Service and is intended for importation into or exportation from the United States, shall not be imported or exported except at a port(s) designated by the Secretary of the Interior. Shellfish and fishery products that are neither endangered nor threatened species and that 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 are excluded from this requirement. The Secretary of the Interior may permit the importation or exportation at nondesignated ports in the interest of the health or safety of the species for other reasons if the Secretary deems it appropriate and consistent with the purpose of facilitating enforcement of the Act and reducing the costs thereof. Importers and exporters are advised to see 50 CFR part 14 for importation and exportation requirements and information.</P> <P>(b) No pre-Act endangered species part shall be imported into the United States. 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.</P> <P>(c)(1) Any person exporting from the United States any pre-Act endangered species part must possess a valid Certificate of Exemption issued in accordance with the provisions of this subpart. In addition, the exporter must provide to the Assistant Administrator, in writing, not less than 10 days prior to shipment, the following information: The name and address of the foreign consignee, the intended port of exportation, and a complete description of the parts to be exported. No shipment may be made until these requirements are met by the exporter.<PRTPAGE P="88"/> </P> <P>(2) The exporter must send a copy of the Certificate of Exemption, and any endorsements thereto, to the District Director of Customs at the port of exportation, which must precede or accompany the shipment in order to permit the appropriate inspection prior to lading. Upon receipt, the District Director may order such inspection, as deemed necessary; the District will clear the merchandise for export, prior to the lading of the merchandise. If they are satisfied that the shipment is proper and complies with the information contained in the certificate and any endorsement thereto. The certificate, and any endorsements, will be forwarded to the Chief of the Office of Enforcement for NMFS.</P> <P>(3) No pre-Act endangered species part in compliance with the requirements of this subpart may be exported except at a port or ports designated by the Secretary of the Interior, pursuant to § 222.103.</P> <P>(4) Notwithstanding any provision of this subpart, it shall not be required that the Assistant Administrator authorizes the transportation in interstate or foreign commerce of pre-Act endangered species parts.</P> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14054, Mar. 23, 1999, part 222 was revised effective Mar. 23, 1999, with the exception of § 222.205 paragraphs (c)(1) and (c)(2), which contain information collection requirements and will not become effective until approval has been given by the Office of Management and Budget.</P> </EFFDNOT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Permit Procedures</HD> <SECTION> <SECTNO>§ 222.301</SECTNO> <SUBJECT>General requirements.</SUBJECT> <P>(a)(1) The regulations in this subpart C provide uniform rules and procedures for application, issuance, renewal, conditions, and general administration of permits issuable pursuant to parts 222, 223, and 224 of this chapter. While this section provides generic rules and procedures applicable to all permits, other sections may provide more specific rules and procedures with respect to certain types of permits. In such cases, the requirements in all applicable sections must be satisfied.</P> <P>(2) Notwithstanding paragraph (a)(1) of this section, the Assistant Administrator may approve variations from the requirements of parts 222, 223, and 224 of this chapter when the Assistant Administrator finds that an emergency exists and that the proposed variations will not hinder effective administration of those parts and will not be unlawful. Other sections within parts 222, 223, and 224 of this chapter may allow for a waiver or variation of specific requirements for emergency situations, upon certain conditions. In such cases, those conditions must be satisfied in order for the waiver or variation to be lawful.</P> <P>(b) No person shall take, import, export or engage in any other prohibited activity involving any species of fish or wildlife under the jurisdiction of the Secretary of Commerce that has been determined to be endangered under the Act, or that has been determined to be threatened and for which the prohibitions of section 9(a)(1) of the Act have been applied by regulation, without a valid permit issued pursuant to these regulations. The permit shall entitle the person to whom it is issued to engage in the activity specified in the permit, subject to the limitations of the Act and the regulations in parts 222, 223, and 224 of this chapter, for the period stated on the permit, unless sooner modified, suspended or revoked.</P> <P>(c) Each person intending to engage in an activity for which a permit is required by parts 222, 223, and 224 of this chapter or by the Act shall, before commencing such activity, obtain a valid permit authorizing such activity. Any person who desires to obtain permit privileges authorized by parts 222, 223, and 224 of this chapter must apply for such permit in accordance with the requirements of these sections. 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.</P> <P>(d)(1) Any permit issued under these regulations must be in the possession of the person to whom it is issued (or of an agent of such person) while any animal subject to the permit is in the possession of such person or agent. Specifically, a person or his/her agent must be in possession of a permit during the time of the authorized taking, <PRTPAGE P="89"/>importation, exportation, or of any other act and during the period of any transit incident to such taking, importation, exportation, or to any other act.</P> <P>(2) A duplicate copy of the issued permit must be physically attached to the tank, container, package, enclosure, or other means of containment, in which the animal is placed for purposes of storage, transit, supervision, or care.</P> <P>(e) The authorizations on the face of a permit setting 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.</P> <P>(f) Permits shall not be altered, erased, or mutilated, and any permit which has been altered, erased, or mutilated shall immediately become invalid.</P> <P>(g) Any permit issued under parts 222, 223, and 224 of this chapter shall be displayed for inspection, upon request, to an authorized officer, or to any other person relying upon its existence.</P> <P>(h) 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 222, 223, or 224 of this chapter or the provisions of the permit set forth other reporting requirements.</P> <P>(i) 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 the 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.</P> <P>(j) Any person holding a permit pursuant to parts 222, 223, and 224 of this chapter shall allow the Assistant Administrator to enter the permit holder's 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 these regulations or by the Act. Such person shall display any permit issued pursuant to these regulations or to the Act upon request by an authorized officer or by any other person relying on its existence.</P> </SECTION> <SECTION> <SECTNO>§ 222.302</SECTNO> <SUBJECT>Procedure for obtaining permits.</SUBJECT> <P>(a) Applications must be submitted to the Assistant Administrator, by letter containing all necessary information, attachments, certification, and signature, as specified by the regulations in parts 222, 223, and 224 of this chapter, or by the Act. In no case, other than for emergencies pursuant to § 222.301(a)(2), will applications be accepted either orally or by telephone.</P> <P>(b) Applications must be received by the Assistant Administrator at least 90 calendar days prior to the date on which the applicant desires to have the permit made effective, unless otherwise specified in the regulations or guidelines pertaining to a particular permit. The National Marine Fisheries Service will attempt to process applications deemed sufficient in the shortest possible time, but does not guarantee that the permit will be issued 90 days after notice of receipt of the application is published in the <E T="04">Federal Register</E>.</P> <P>(c)(1) Upon receipt of an insufficiently or improperly executed application, the 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.</P> <P>(2) The sufficiency of the application shall be determined by the Assistant Administrator in accordance with the <PRTPAGE P="90"/>requirements of this part. The Assistant Administrator, however, may waive any requirement for information or require any elaboration or further information deemed necessary.</P> </SECTION> <SECTION> <SECTNO>§ 222.303</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <P>(a)(1) No permit may be issued prior to the receipt of a written application unless an emergency pursuant to § 222.301(a)(2) exists, and a written variation from the requirements is recorded by the National Marine Fisheries Service.</P> <P>(2) No representation of an employee or agent of the United States shall be construed as a permit unless it meets the requirements of a permit defined in § 222.102.</P> <P>(3) Each permit shall bear a serial number. Upon renewal, such a number may be reassigned to the permittee to whom issued so long as the permittee maintains continuity of renewal.</P> <P>(b) When an application for a permit received by the Assistant Administrator is deemed sufficient, the Assistant Administrator shall, as soon as practicable, publish a notice in the <E T="04">Federal Register</E>. Information received by the Assistant Administrator as a part of the application shall be available to the public as a matter of public record at every stage of the proceeding. An interested party, within 30 days after the date of publication of such notice, may submit to the Assistant Administrator written data, views, or arguments with respect to the taking, importation, or to other action proposed in the application, and may request a hearing in connection with the action to be taken thereon.</P> <P>(c) If a request for a hearing is made within the 30-day period referred to in paragraph (b) of this section, or if the Assistant Administrator determines that a hearing would otherwise be advisable, the Assistant Administrator may, within 60 days after the date of publication of the notice referred to in paragraph (b) of this section, afford to such requesting party or parties an opportunity for a hearing. Such hearing shall also be open to participation by any interested members of the public. Notice of the date, time, and place of such hearing shall be published in the <E T="04">Federal Register</E> not less than 15 days in advance of such hearing. Any interested person may appear at the hearing in person or through a representative and may submit any relevant material, data, views, comments, arguments, or exhibits. A summary record of the hearing shall be kept.</P> <P>(d) Except as provided in subpart D to 15 CFR part 904, as soon as practicable but not later than 30 days after the close of the hearing. If no hearing is held, as soon as practicable but not later than 30 days from the publication of the notice in the <E T="04">Federal Register</E>, the Assistant Administrator shall issue or deny issuance of the permit. Notice of the decision of the Assistant Administrator shall be published in the <E T="04">Federal Register</E> within 10 days after the date of the issuance or denial and indicate where copies of the permit, if issued, may be obtained.</P> <P>(e)(1) The Assistant Administrator shall issue the permit unless:</P> <P>(i) Denial of the permit has been made pursuant to subpart D to 15 CFR part 904;</P> <P>(ii) The applicant has failed to disclose material or information required, or has made false statements as to any material fact, in connection with the application;</P> <P>(iii) The applicant has failed to demonstrate a valid justification for the permit or a showing of responsibility;</P> <P>(iv) The authorization requested potentially threatens a fish or wildlife population; or</P> <P>(v) The Assistant Administrator finds through further inquiry or investigation, or otherwise, that the applicant is not qualified.</P> <P>(2) The applicant shall be notified in writing of the denial of any permit request, and the reasons thereof. If authorized in the notice of denial, the applicant may submit further information or reasons why the permit should not be denied. Such further information shall not be considered a new application. The final action by the Assistant Administrator shall be considered the final administrative decision of the Department of Commerce.</P> <P>(f) If a permit is issued under § 222.308, the Assistant Administrator shall publish notice thereof in the <E T="04">Federal <PRTPAGE P="91"/>Register</E>, including the Assistant Administrator's finding that such permit—</P> <P>(1) Was applied for in good faith;</P> <P>(2) Will not operate to the disadvantage of such endangered species; and</P> <P>(3) Will be consistent with the purposes and policy set forth in section 2 of the Act.</P> <P>(g) The Assistant Administrator may waive the 30-day period in an emergency situation where the health or life of an endangered animal is threatened and no reasonable alternative is available to the applicant. Notice of any such waiver shall be published by the Assistant Administrator in the <E T="04">Federal Register</E> within 10 days following the issuance of the permit.</P> </SECTION> <SECTION> <SECTNO>§ 222.304</SECTNO> <SUBJECT>Renewal of permits.</SUBJECT> <P>When 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, the permittee shall, unless otherwise notified in writing by the Assistant Administrator, file a request for permit renewal, together with a certified statement, verifying that the information in the original application is still currently correct. If the information is incorrect the permittee shall file a statement of all changes in the original application, accompanied by any required fee at least 30 days prior to the expiration of the 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 the expired permit until the renewal application is acted upon.</P> </SECTION> <SECTION> <SECTNO>§ 222.305</SECTNO> <SUBJECT>Rights of succession and transfer of permits.</SUBJECT> <P>(a)(1) Permits issued pursuant to parts 222, 223, and 224 of this chapter are not transferable or assignable. In the event that a permit authorizes certain activities in connection with a business or commercial enterprise, which is then subject to any subsequent lease, sale or transfer, the successor to that enterprise must obtain a permit prior to continuing the permitted activity, with the exceptions provided in paragraph (a)(2) of this section.</P> <P>(2) 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 that they furnish the permit to the issuing officer for endorsement within 90 days from the date the successor begins to carry on the activity. Such persons are the following:</P> <P>(i) The surviving spouse, child, executor, administrator, or other legal representative of a deceased permittee, and</P> <P>(ii) The receiver or trustee in bankruptcy or a court designated assignee for the benefit of creditors.</P> <P>(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.</P> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14054, Mar. 23, 1999, part 222 was revised effective Mar. 23, 1999, with the exception of § 222.305 paragraph (a), which contains information collection requirements and will not be effective until approval has been given by the Office of Management and Budget.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 222.306</SECTNO> <SUBJECT>Modification, amendment, suspension, cancellation, and revocation of permits.</SUBJECT> <P>(a) When circumstances have changed so that an applicant or a permittee desires to have any term or condition of the application or permit modified, the applicant or permittee must submit in writing full justification and supporting information in conformance with the provisions of this part and the part under which the permit has been issued or requested. Such applications for modification are subject to the same issuance criteria as original applications.</P> <P>(b) Notwithstanding the requirements of paragraph (a) of this section, a permittee may change the mailing address or trade name under which business is conducted without obtaining a new permit or being subject to the same issuance criteria as original permits. The permittee must notify the Assistant Administrator, in writing within 30 days, of any change in address or of any change in the trade <PRTPAGE P="92"/>name for the business or activity specified in the permit. The permit with the change of address or in trade name must be endorsed by the Assistant Administrator, who shall provide an amended permit to the person to whom it was issued.</P> <P>(c) All permits are issued subject to the condition that the National Marine Fisheries Service reserves the right to amend the provisions of a permit for just cause at any time during its term. Such amendments take effect on the date of notification, unless otherwise specified.</P> <P>(d) When any permittee discontinues the permitted activity, the permittee shall, within 30 days thereof, mail the permit and a request for cancellation to the issuing officer, and the permit shall be deemed void upon receipt. No refund of any part of an amount paid as a permit fee shall be made when the operations of the permittee are, for any reason, discontinued during the tenure of an issued permit.</P> <P>(e) Any violation of the applicable provisions of parts 222, 223, or 224 of this chapter, or of the Act, or of a term or condition of the permit may subject the permittee to both the penalties provided in the Act and suspension, revocation, or amendment of the permit, as provided in subpart D to 15 CFR part 904.</P> </SECTION> <SECTION> <SECTNO>§ 222.307</SECTNO> <SUBJECT>Permits for incidental taking of species.</SUBJECT> <P>(a) <E T="03">Scope.</E> (1) The Assistant Administrator may issue permits to take endangered and threatened species incidentally to an otherwise lawful activity under section 10(a)(1)(B) of the Act. The regulations in this section apply to all endangered species, and those threatened species for which the prohibitions of section 9(a)(1) of the Act, under the jurisdiction of the Secretary of Commerce, apply.</P> <P>(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 listed species for which a permit is required, 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.</P> <P>(b) <E T="03">Permit application procedures.</E> Applications should be sent to the Assistant Administrator. The Assistant Administrator shall determine the sufficiency of the application 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 must include the following:</P> <P>(1) The type of application, either:</P> <P>(i) Application for an Individual Incidental Take Permit under the Act; or</P> <P>(ii) Application for a General Incidental Take Permit under the Act;</P> <P>(2) The name, address, and telephone number of the applicant. If the applicant is a partnership or a corporate entity or is representing a group or an organization, the applicable details;</P> <P>(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;</P> <P>(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;</P> <P>(5) A conservation plan, based on the best scientific and commercial data available, which specifies the following:</P> <P>(i) The anticipated impact (i.e., amount, extent, and type of anticipated taking) of the proposed activity on the species or stocks;</P> <P>(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;</P> <P>(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;<PRTPAGE P="93"/> </P> <P>(iv) The alternative actions to such taking that were considered and the reasons why those alternatives are not being used; and</P> <P>(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.</P> <P>(c) <E T="03">Issuance criteria.</E> (1) In determining whether to issue a permit, the Assistant Administrator will consider the following:</P> <P>(i) The status of the affected species or stocks;</P> <P>(ii) The potential severity of direct, indirect, and cumulative impacts on the species or stocks and habitat as a result of the proposed activity;</P> <P>(iii) The availability of effective monitoring techniques;</P> <P>(iv) The use of the best available technology for minimizing or mitigating impacts; and</P> <P>(v) The views of the public, scientists, and other interested parties knowledgeable of the species or stocks or other matters related to the application.</P> <P>(2) To issue the permit, the Assistant Administrator must find that—</P> <P>(i) The taking will be incidental;</P> <P>(ii) The applicant will, to the maximum extent practicable, monitor, minimize, and mitigate the impacts of such taking;</P> <P>(iii) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;</P> <P>(iv) The applicant has amended the conservation plan to include any measures (not originally proposed by the applicant) that the Assistant Administrator determines are necessary or appropriate; and</P> <P>(v) There are adequate assurances that the conservation plan will be funded and implemented, including any measures required by the Assistant Administrator.</P> <P>(d) <E T="03">Permit conditions.</E> In addition to the general conditions set forth in this part, every permit issued under this section will contain such terms and conditions as the Assistant Administrator deems necessary and appropriate, including, but not limited to the following:</P> <P>(1) Reporting requirements or rights of inspection for determining whether the terms and conditions are being complied with;</P> <P>(2) The species and number of animals covered;</P> <P>(3) The authorized method of taking;</P> <P>(4) The procedures to be used to handle or dispose of any animals taken; and</P> <P>(5) The payment of an adequate fee to the National Marine Fisheries Service to process the application.</P> <P>(e) <E T="03">Duration of permits.</E> The duration of permits issued under this section will be such as to provide adequate assurances to the permit holder to commit funding necessary for the activities authorized by the permit, including conservation activities. In determining the duration of a permit, the Assistant Administrator will consider the duration of the proposed activities, as well as the possible positive and negative effects on listed species associated with issuing a permit of the proposed duration, including the extent to which the conservation plan is likely to enhance the habitat of the endangered species or to increase the long-term survivability of the species.</P> <P>(f) <E T="03">Certificates of inclusion.</E> (1) Any individual who wishes to conduct an activity covered by a general incidental take permit must apply to the Assistant Administrator for a Certificate of Inclusion. Each application must be signed and dated and must include the following:</P> <P>(i) The general incidental take permit under which the applicant wants coverage;</P> <P>(ii) The name, address, and telephone number of the applicant. If the applicant is a partnership or a corporate entity, the applicable details;</P> <P>(iii) A description of the activity the applicant seeks to have covered under the general incidental take permit, including the anticipated dates, duration, and specific location; and</P> <P>(iv) A signed certification that the applicant has read and understands the general incidental take permit and the conservation plan, will comply with their terms and conditions, and will <PRTPAGE P="94"/>fund and implement applicable measures of the conservation plan.</P> <P>(2) To issue a Certificate of Inclusion, the Assistant Administrator must find that:</P> <P>(i) The applicant will be engaged in the activity covered by the general permit, and</P> <P>(ii) The applicant has made adequate assurances that the applicable measures of the conservation plan will be funded and implemented.</P> <P>(g) <E T="03">Assurances provided to permittee in case of changed or unforeseen circumstances.</E> The assurances in this paragraph (g) apply only to incidental take permits issued in accordance with paragraph (c) of this section where the conservation plan is being properly implemented, and apply only with respect to species adequately covered by the conservation plan. These assurances cannot be provided to Federal agencies. This rule does not apply to incidental take permits issued prior to March 25, 1998. The assurances provided in incidental take permits issued prior to March 25, 1998, remain in effect, and those permits will not be revised as a result of this rulemaking.</P> <P>(1) <E T="03">Changed circumstances provided for in the plan.</E> If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and were provided for in the plan's operating conservation program, the permittee will implement the measures specified in the plan.</P> <P>(2) <E T="03">Changed circumstances not provided for in the plan.</E> If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and such measures were not provided for in the plan's operating conservation program, NMFS will not require any conservation and mitigation measures in addition to those provided for in the plan without the consent of the permittee, provided the plan is being properly implemented.</P> <P>(3) <E T="03">Unforeseen circumstances.</E> (i) In negotiating unforeseen circumstances, NMFS will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the permittee.</P> <P>(ii) If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, NMFS may require additional measures of the permittee where the conservation plan is being properly implemented. However, such additional measures are limited to modifications within any conserved habitat areas or to the conservation plan's operating conservation program for the affected species. The original terms of the conservation plan will be maintained to the maximum extent possible. Additional conservation and mitigation measures will not involve the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan without the consent of the permittee.</P> <P>(iii) NMFS has the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. These findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. NMFS will consider, but not be limited to, the following factors:</P> <P>(A) Size of the current range of the affected species;</P> <P>(B) Percentage of range adversely affected by the conservation plan;</P> <P>(C) Percentage of range conserved by the conservation plan;</P> <P>(D) Ecological significance of that portion of the range affected by the conservation plan;</P> <P>(E) Level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan; and</P> <P>(F) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.</P> <P>(h) Nothing in this rule will be construed to limit or constrain the Assistant Administrator, any Federal, State, local, or Tribal government agency, or <PRTPAGE P="95"/>a private entity, from taking additional actions at his or her own expense to protect or conserve a species included in a conservation plan.</P> </SECTION> <SECTION> <SECTNO>§ 222.308</SECTNO> <SUBJECT>Permits for scientific purposes or for the enhancement of propagation or survival of species.</SUBJECT> <P>(a) <E T="03">Scope.</E> The Assistant Administrator may issue permits for scientific purposes or for the enhancement of the propagation or survival of the affected endangered or threatened species in accordance with the regulations in parts 222, 223, and 224 of this chapter and under such terms and conditions as the Assistant Administrator may prescribe, authorizing the taking, importation, or other acts otherwise prohibited by section 9 of the Act. Within the jurisdication of a State, more restrictive state laws or regulations in regard to endangered species shall prevail in regard to taking. Proof of compliance with applicable state laws will be required before a permit will be issued.</P> <P>(b) <E T="03">Application procedures.</E> Any person desiring to obtain such a permit may make application therefor to the Assistant Administrator. Permits for marine mammals shall be issued in accordance with the provisions of part 216, subpart D of this chapter. Permits relating to sea turtles may involve the Fish and Wildlife Service, in which case the applicant shall follow the procedures set out in § 222.309. The following information will be used as the basis for determining whether an application is complete and whether a permit for scientific purposes or for enhancement of propagation or survival of the affected species should be issued by the Assistant Administrator. An application for a permit shall provide the following information and such other information that the Assistant Administrator may require:</P> <P>(1) Title, as applicable, either—</P> <P>(i) Application for permit for scientific purposes under the Act; or</P> <P>(ii) Application for permit for the enhancement of the propagation or survival of the endangered species Under the Act.</P> <P>(2) The date of the application.</P> <P>(3) The identity of the applicant including complete name, address, and telephone number. If the applicant is a partnership or a corporate entity, set forth the details. If the endangered species is to be utilized by a person other than the applicant, set forth the name of that person and such other information as would be required if such person were an applicant.</P> <P>(4) A description of the purpose of the proposed acts, including the following:</P> <P>(i) A detailed justification of the need for the endangered species, including a discussion of possible alternatives, whether or not under the control of the applicant; and</P> <P>(ii) A detailed description of how the species will be used.</P> <P>(5) A detailed description of the project, or program, in which the endangered species is to be used, including the following:</P> <P>(i) The period of time over which the project or program will be conducted;</P> <P>(ii) A list of the names and addresses of the sponsors or cooperating institutions and the scientists involved;</P> <P>(iii) A copy of the formal research proposal or contract if one has been prepared;</P> <P>(iv) A statement of whether the proposed project or program has broader significance than the individual researcher's goals. For example, does the proposed project or program respond directly or indirectly to recommendation of any national or international scientific body charged with research or management of the endangered species? If so, how?; and</P> <P>(v) A description of the arrangements, if any, for the disposition of any dead specimen or its skeleton or other remains in a museum or other institutional collection for the continued benefit to science.</P> <P>(6) A description of the endangered species which is the subject of the application, including the following:</P> <P>(i) A list of each species and the number of each, including the common and scientific name, the subspecies (if applicable), population group, and range;</P> <P>(ii) A physical description of each animal, including the age, size, and sex;</P> <P>(iii) A list of the probable dates of capture or other taking, importation, exportation, and other acts which require a permit for each animal and the <PRTPAGE P="96"/>location of capture or other taking, importation, exportation, and other acts which require a permit, as specifically as possible;</P> <P>(iv) A description of the status of the stock of each species related insofar as possible to the location or area of taking;</P> <P>(v) A description of the manner of taking for each animal, including the gear to be used;</P> <P>(vi) The name and qualifications of the persons or entity which will capture or otherwise take the animals; and</P> <P>(vii) If the capture or other taking is to be done by a contractor, a statement as to whether a qualified member of your staff (include name(s) and qualifications) will supervise or observe the capture or other taking. Accompanying such statement shall be a copy of the proposed contract or a letter from the contractor indicating agreement to capture or otherwise take the animals, should a permit be granted.</P> <P>(7) A description of the manner of transportation for any live animal taken, imported, exported, or shipped in interstate commerce, including the following:</P> <P>(i) Mode of transportation;</P> <P>(ii) Name of transportation company;</P> <P>(iii) Length of time in transit for the transfer of the animal(s) from the capture site to the holding facility;</P> <P>(iv) Length of time in transit for any planned future move or transfer of the animals;</P> <P>(v) The qualifications of the common carrier or agent used for transportation of the animals;</P> <P>(vi) A description of the pen, tank, container, cage, cradle, or other devices used to hold the animal at both the capture site and during transportation;</P> <P>(vii) Special care before and during transportation, such as salves, antibiotics, moisture; and</P> <P>(viii) A statement as to whether the animals will be accompanied by a veterinarian or by another similarly qualified person, and the qualifications of such person.</P> <P>(8) Describe the contemplated care and maintenance of any live animals sought, including a complete description of the facilities where any such animals will be maintained including:</P> <P>(i) The dimensions of the pools or other holding facilities and the number, sex, and age of animals by species to be held in each;</P> <P>(ii) The water supply, amount, and quality;</P> <P>(iii) The diet, amount and type, for all animals;</P> <P>(iv) Sanitation practices used;</P> <P>(v) Qualifications and experience of the staff;</P> <P>(vi) A written certification from a licensed veterinarian or from a recognized expert who are knowledgeable on the species (or related species) or group covered in the application. The certificate shall verify that the veterinarian has personally reviewed the amendments for transporting and maintaining the animal(s) and that, in the veterinarian's opinion, they are adequate to provide for the well-being of the animal; and</P> <P>(vii) The availability in the future of a consulting expert or veterinarian meeting paragraph requirements of (b)(8)(vi) in this section.</P> <P>(9) A statement of willingness to participate in a cooperative breeding program and maintain or contribute data to a stud book.</P> <P>(10) A statement of how the applicant's proposed project or program will enhance or benefit the wild population.</P> <P>(11) For the 5 years preceding the date of application, the applicant shall provide a detailed description of all mortalities involving species under the control of or utilized by the applicant and are either presently listed as endangered species or are taxonomically related within the Order to the species which is the subject of this application, including:</P> <P>(i) A list of all endangered species and related species that are the subject of this application that have been captured, transported, maintained, or utilized by the applicant for scientific purposes or for the enhancement of propagation or survival of the affected species, and/or of related species that are captured, transported, maintained, or utilized by the applicant for scientific purposes or for enhancement of propagation or survival of the affected species;<PRTPAGE P="97"/> </P> <P>(ii) The numbers of mortalities among such animals by species, by date, by location of capture, i.e., from which population, and the location of such mortalities;</P> <P>(iii) The cause(s) of any such mortality; and</P> <P>(iv) The steps which have been taken by applicant to avoid or decrease any such mortality.</P> <P>(12) A certification in the following language: I hereby certify that the foregoing information is complete, true, and correct to the best of my knowledge and belief. I understand that this information is submitted for the purpose of obtaining a permit under the Endangered Species Act, as amended, and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or to penalties under the Act.</P> <P>(13) The applicant and/or an officer thereof must sign the application.</P> <P>(14) Assistance in completing this application may be obtained by writing Chief, Endangered Species Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 or calling the Office of Protected Resources at 301-713-1401. Allow at least 90 days for processing.</P> <P>(c) <E T="03">Issuance criteria.</E> In determining whether to issue a permit for scientific purposes or to enhance the propagation or survival of the affected endangered species, the Assistant Administrator shall specifically consider, among other application criteria, the following:</P> <P>(1) Whether the permit was applied for in good faith;</P> <P>(2) Whether the permit, if granted and exercised, will not operate to the disadvantage of the endangered species;</P> <P>(3) Whether the permit would be consistent with the purposes and policy set forth in section 2 of the Act;</P> <P>(4) Whether the permit would further a bona fide and necessary or desirable scientific purpose or enhance the propagation or survival of the endangered species, taking into account the benefits anticipated to be derived on behalf of the endangered species;</P> <P>(5) The status of the population of the requested species and the effect of the proposed action on the population, both direct and indirect;</P> <P>(6) If a live animal is to be taken, transported, or held in captivity, the applicant's qualifications for the proper care and maintenance of the species and the adequacy of the applicant's facilities;</P> <P>(7) Whether alternative non-endangered species or population stocks can and should be used;</P> <P>(8) Whether the animal was born in captivity or was (or will be) taken from the wild;</P> <P>(9) Provision for disposition of the species if and when the applicant's project or program terminates;</P> <P>(10) How the applicant's needs, program, and facilities compare and relate to proposed and ongoing projects and programs;</P> <P>(11) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application; and</P> <P>(12) Opinions or views of scientists or other persons or organizations knowledgeable about the species which is the subject of the application or of other matters germane to the application.</P> <P>(d) <E T="03">Terms and conditions.</E> Permits applied for under this section shall contain terms and conditions as the Assistant Administrator may deem appropriate, including but not limited to the following:</P> <P>(1) The number and kind of species covered;</P> <P>(2) The location and manner of taking;</P> <P>(3) Port of entry or export;</P> <P>(4) The methods of transportation, care, and maintenance to be used with live species;</P> <P>(5) Any requirements for reports or rights of inspections with respect to any activities carried out pursuant to the permit;</P> <P>(6) The transferability or assignability of the permit;</P> <P>(7) The sale or other disposition of the species, its progeny, or the species product; and</P> <P>(8) A reasonable fee covering the costs of issuance of such permit, including reasonable inspections and an appropriate apportionment of overhead <PRTPAGE P="98"/>and administrative expenses of the Department of Commerce. All such fees will be deposited in the Treasury to the credit of the appropriation which is current and chargeable for the cost of furnishing the service.</P> </SECTION> <SECTION> <SECTNO>§ 222.309</SECTNO> <SUBJECT>Permits for listed species of sea turtles involving the Fish and Wildlife Service.</SUBJECT> <P>(a) This section establishes specific procedures for issuance of the following permits: scientific purposes or to enhance the propagation or survival of endangered or threatened species of sea turtles; zoological exhibition or educational purposes for threatened species of sea turtles; and permits that requires coordination with the Fish and Wildlife Service. The National Marine Fisheries Service maintains jurisdiction for such species in the marine environment. The Fish and Wildlife Service maintains jurisdiction for such species of sea turtles in the land environment.</P> <P>(b) For permits relating to any activity in the marine environment exclusively, permit applicants and permittees must comply with the regulations in parts 222, 223, and 224 of this chapter.</P> <P>(c) For permits relating to any activity in the land environment exclusively, permit applicants must submit applications to the Wildlife Permit Office (WPO) of the U.S. Fish and Wildlife Service in accordance with either 50 CFR 17.22(a), if the species is endangered, or 50 CFR 17.32(a), if the species is threatened.</P> <P>(d) For permits relating to any activity in both the land and marine environments, applicants must submit applications to the WPO. WPO will forward the application to NMFS for review and processing of those activities under its jurisdiction. Based on this review and processing, WPO will issue either a permit or a letter of denial in accordance with its own regulations.</P> <P>(e) For permits relating to any activity in a marine environment and that also requires a permit under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (TIAS 8249, July 1, 1975) (50 CFR part 23), applicants must submit applications to the WPO. WPO will forward the application to NMFS for review and processing, after which WPO will issue a combination ESA/CITES permit or a letter of denial.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 223</EAR> <HD SOURCE="HED">PART 223—THREATENED MARINE AND ANADROMOUS SPECIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>223.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>223.102</SECTNO> <SUBJECT>Enumeration of threatened marine and anadromous species.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Restrictions Applicable to Threatened Marine and Anadromous Species</HD> <SECTNO>223.201</SECTNO> <SUBJECT>Guadalupe fur seal.</SUBJECT> <SECTNO>223.202</SECTNO> <SUBJECT>Steller sea lion.</SUBJECT> <SECTNO>223.203</SECTNO> <SUBJECT>Anadromous fish.</SUBJECT> <SECTNO>223.204</SECTNO> <SUBJECT>Exceptions to prohibitions relating to anadromous fish.</SUBJECT> <SECTNO>223.205</SECTNO> <SUBJECT>Sea turtles.</SUBJECT> <SECTNO>223.206</SECTNO> <SUBJECT>Exceptions to prohibitions relating to sea turtles.</SUBJECT> <SECTNO>223.207</SECTNO> <SUBJECT>Approved TEDs.</SUBJECT> <SECTNO>223.209</SECTNO> <SUBJECT>Tribal plans.</SUBJECT> <APP>Figure 1 to Part 223—NMFS TED</APP> <APP>Figure 2 to Part 223—Cameron TED</APP> <APP>Figure 3 to Part 223—Matagorda TED</APP> <APP>Figure 4 to Part 223—Georgia TED</APP> <APP>Figure 5 to Part 223—Net Diagram for the Excluder Panel of the Parker Soft TED</APP> <APP>Figure 6 to Part 223—TED Extension in Summer Flounder Trawl</APP> <APP>Figures 7-9<E T="01">b</E> to Part 223[Reserved]</APP> <APP>Figure 10 to Part 223—Flounder TED</APP> <APP>Figure 11 to Part 223—Jones TED</APP> <APP>Figure 12<E T="01">a</E> to Part 223—Attachment of the Exit Hole Cover</APP> <APP>Figure 12<E T="01">b</E> to Part 223—Grid TED Leatherback Modification</APP> <APP>Figure 13 to Part 223—Single Grid Hard TED Escape Opening</APP> <APP>Figure 14<E T="01">a</E> to Part 223—Maximum Angle of Deflector Bars With Straight Bars Attached to the Bottom of the Frame</APP> <APP>Figure 14<E T="01">b</E> to Part 223—Maximum Angle of Deflector Bars With Bent Bars Attached to the Bottom of the Frame</APP> <APP>Figure 15 to Part 223—Maximum Angle of Deflector Bars With Bars Unattached to the Bottom of the Frame</APP> <APP>Figure 16 to Part 223—Escape Opening and Flap Dimensions for the Double Cover Flap TED</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1531-1543; subpart B, § 223.12 also issued under 16 U.S.C. 1361 <E T="03">et seq</E>.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>43 FR 32809, July 28, 1978, unless otherwise noted. Redesignated at 64 FR 14068, Mar. 23, 1999.</P> </SOURCE> <SUBPART> <PRTPAGE P="99"/> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 223.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) The regulations contained in this part identify the species under the jurisdiction of the Secretary of Commerce that have been determined to be threatened species pursuant to section 4(a) of the Act, and provide for the conservation of such species by establishing rules and procedures to governing activities involving the species.</P> <P>(b) The regulations contained in this part apply only to the threatened species enumerated in § 223.102.</P> <P>(c) The provisions of this part are in addition to, and not in lieu of, other regulations of parts 222 through 226 of this chapter which prescribe additional restrictions or conditions governing threatened species.</P> <CITA>[64 FR 14068, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.102</SECTNO> <SUBJECT>Enumeration of threatened marine and anadromous species.</SUBJECT> <P>The species determined by the Secretary of Commerce to be threatened pursuant to section 4(a) of the Act, as well as species listed under the Endangered Species Conservation of Act of 1969 by the Secretary of the Interior and currently under the jurisdiction of the Secretary of Commerce, are the following:</P> <P>(a) <E T="03">Marine and anadromous fish.</E> (1) Snake River spring/summer chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). Includes all natural population(s) of spring/summer chinook salmon in the mainstem Snake River and any of the following subbasins: Tucannon River, Grande Ronde River, Imnaha River, and Salmon River.</P> <P>(2) Snake River fall chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). Includes all natural population(s) of fall chinook in the mainstem Snake River and any of the following subbasins: Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River.</P> <P>(3) Central California Coast Coho Salmon (<E T="03">Oncorhynchus kisutch</E>). Includes all coho salmon naturally reproduced in streams between Punta Gorda in Humboldt County, CA, and the San Lorenzo River in Santa Cruz County, CA.</P> <P>(4) Southern Oregon/Northern California Coast coho salmon (<E T="03">Oncorhynchus kisutch</E>). Includes all coho salmon naturally reproduced in streams between Cape Blanco in Curry County, OR, and Punta Gorda in Humboldt County, CA.</P> <P>(5) Central California Coast steelhead (<E T="03">Oncorhynchus mykiss</E>). Includes all naturally spawned populations of steelhead (and their progeny) in streams from the Russian River to Aptos Creek, Santa Cruz County, California (inclusive), and the drainages of San Francisco and San Pablo Bays eastward to the Napa River (inclusive), Napa County, California. Excludes the Sacramento-San Joaquin River Basin of the Central Valley of California.</P> <P>(6) South-Central California Coast steelhead (<E T="03">Oncorhynchus mykiss</E>). Includes all naturally spawned populations of steelhead (and their progeny) in streams from the Pajaro River (inclusive), located in Santa Cruz County, California, to (but not including) the Santa Maria River.</P> <P>(7) Snake River Basin steelhead (<E T="03">Oncorhynchus mykiss</E>). Includes all naturally spawned populations of steelhead (and their progeny) in streams in the Snake River Basin of southeast Washington, northeast Oregon, and Idaho.</P> <P>(8) Lower Columbia River steelhead (<E T="03">Oncorhynchus mykiss</E>). Includes all naturally spawned populations of steelhead (and their progeny) in streams and tributaries to the Columbia River between the Cowlitz and Wind Rivers, Washington, inclusive, and the Willamette and Hood Rivers, Oregon, inclusive. Excluded are steelhead in the upper Willamette River Basin above Willamette Falls and steelhead from the Little and Big White Salmon Rivers in Washington;</P> <P>(9) Central Valley, California steelhead (<E T="03">Oncorhynchus mykiss</E>). Includes all naturally spawned populations of steelhead (and their progeny) in the Sacramento and San Joaquin Rivers and their tributaries. Excluded are steelhead from San Francisco and San Pablo Bays and their tributaries.</P> <P>(10) Oregon Coast coho salmon (<E T="03">Oncorhynchus kisutch</E>). Includes all naturally spawned populations of coho <PRTPAGE P="100"/>salmon in streams south of the Columbia River and north of Cape Blanco in Curry County, OR.</P> <P>(11) Gulf sturgeon (Acipenser oxyrinchus desotoi).</P> <P>(12) Hood Canal summer-run chum salmon (<E T="03">Oncorhynchus</E> <E T="03">keta</E>). Includes all naturally spawned populations of summer-run chum salmon in Hood Canal and its tributaries as well as populations in Olympic Peninsula rivers between Hood Canal and Dungeness Bay, Washington;</P> <P>(13) Columbia River chum salmon (<E T="03">Oncorhynchus</E> <E T="03">keta</E>). Includes all naturally spawned populations of chum salmon in the Columbia River and its tributaries in Washington and Oregon.</P> <P>(14) Upper Willamette River steelhead (<E T="03">Oncorhynchus</E> <E T="03">mykiss</E>). Includes all naturally spawned populations of winter-run steelhead in the Willamette River, Oregon, and its tributaries upstream from Willamette Falls to the Calapooia River, inclusive;</P> <P>(15) Middle Columbia River steelhead (<E T="03">Oncorhynchus</E> <E T="03">mykiss</E>). Includes all naturally spawned populations of steelhead in streams from above the Wind River, Washington, and the Hood River, Oregon (exclusive), upstream to, and including, the Yakima River, Washington. Excluded are steelhead from the Snake River Basin.</P> <P>(16) Puget sound chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). Includes all naturally spawned populations of chinook salmon from rivers and streams flowing into Puget Sound including the Straits of Juan De Fuca from the Elwha River eastward, including rivers and streams flowing into Hood Canal, South Sound, North Sound and the Strait of Georgia in Washington.</P> <P>(17) Lower Columbia River chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). Includes all naturally spawned populations of chinook salmon from the Columbia River and its tributaries from its mouth at the Pacific Ocean upstream to a transitional point between Washington and Oregon east of the Hood River and the White Salmon River, and includes the Willamette River to Willamette Falls, Oregon, exclusive of spring-run chinook salmon in the Clackamas River.</P> <P>(18) Upper Willamette River chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). Includes all naturally spawned populations of spring-run chinook salmon in the Clackamas River and in the Willamette River, and its tributaries, above Willamette Falls, Oregon.</P> <P>(19) Ozette Lake sockeye salmon (<E T="03">Oncorhynchus</E> <E T="03">nerka</E>). Includes all naturally spawned populations of sockeye salmon in Ozette Lake and streams and tributaries flowing into Ozette Lake, Washington.</P> <P>(20) Central Valley spring-run chinook salmon (<E T="03">Oncorhynchus</E> <E T="03">tshawytscha</E>). Includes all naturally spawned populations of spring-run chinook salmon in the Sacramento River Basin, and its tributaries, California.</P> <P>(21) California coastal chinook salmon (<E T="03">Oncorhynchus</E> <E T="03">tshawytscha</E>). Includes all naturally spawned populations of chinook salmon from Redwood Creek (Humboldt County, California) through the Russian River (Sonoma County, California).</P> <P>(22) <E T="03">Northern California steelhead (Oncorhynchus mykiss)</E>. Includes all naturally spawned populations of steelhead (and their progeny) in coastal river basins ranging from Redwood Creek in Humboldt County, California to the Gualala River, inclusive, in Mendocino County, California.</P> <P>(b) <E T="03">Marine plants.</E> Johnson's seagrass (Halophila johnsonii).</P> <P>(c) <E T="03">Marine mammals</E>. Guadalupe fur seal (Arctocephalus townsendi); Steller sea lion (<E T="03">Eumetopias jubatus</E>), eastern population, which consists of all Steller sea lions from breeding colonies located east of 144° W. longitude.</P> <P>(d) <E T="03">Sea turtles.</E> Green turtle (<E T="03">Chelonia mydas</E>) except for those populations listed under § 224.101(c) of this chapter; Loggerhead turtle (<E T="03">Caretta caretta</E>); Olive ridley turtle (<E T="03">Lepidochelys olivacea</E>) except for those populations listed under § 224.101(c) of this chapter.</P> <NOTE> <HD SOURCE="HED">Note to § 223.201(d):</HD> <P>Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water.</P> </NOTE> <CITA>[64 FR 14068, Mar. 23, 1999, as amended at 64 FR 14328, Mar. 24, 1999; 64 FR 14517, 14528, 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999; 65 FR 36094, June 7, 2000; 65 FR 60383, Oct. 11, 2000]</CITA> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="101"/> <HD SOURCE="HED">Subpart B—Restrictions Applicable to Threatened Marine and Anadromous Species</HD> <SECTION> <SECTNO>§ 223.201</SECTNO> <SUBJECT>Guadalupe fur seal.</SUBJECT> <P>(a) <E T="03">Prohibitions.</E> The prohibitions of section 9 of the Act (16 U.S.C. 1538) relating to endangered species apply to the Guadalupe fur seal except as provided in paragraph (b) of this section.</P> <P>(b) <E T="03">Exceptions.</E> (1) The Assistant Administrator may issue permits authorizing activities which would otherwise be prohibited under paragraph (a) of this section in accordance with the subject to the provisions of part 222 subpart C—General Permit Procedures.</P> <P>(2) Any Federal, State or local government official, employee, or designated agent may, in the course of official duties, take a stranded Guadalupe fur seal without a permit if such taking:</P> <P>(i) Is accomplished in a humane manner;</P> <P>(ii) Is for the protection or welfare of the animal, is for the protection of the public health or welfare, or is for the salvage or disposal of a dead specimen;</P> <P>(iii) Includes steps designed to ensure the return of the animal to its natural habitat, if feasible; and</P> <P>(iv) Is reported within 30 days to the Regional Administrator, Southwest Region, National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.</P> <P>(3) Any animal or specimen taken under paragraph (b)(2) of this section may only be retained, disposed of, or salvaged in accordance with directions from the Director, Southwest Region.</P> <CITA>[50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.202</SECTNO> <SUBJECT>Steller sea lion.</SUBJECT> <P>(a) <E T="03">General prohibitions.</E> The prohibitions of section 9 of the Act (16 U.S.C. 1538) and the following regulatory provisions shall apply to the eastern population of Steller sea lions:</P> <P>(1) <E T="03">No discharge of firearms.</E> Except as provided in paragraph (b) of this section, no person subject to the jurisdiction of the United States may discharge a firearm at or within 100 yards (91.4 meters) of a Steller sea lion. A firearm is any weapon, such as a pistol or rifle, capable of firing a missile using an explosive charge as a propellant.</P> <P>(2) <E T="03">No approach in buffer areas.</E> Except as provided in paragraph (b) of this section:</P> <P>(i) No owner or operator of a vessel may allow the vessel to approach within 3 nautical miles (5.5 kilometers) of a Steller sea lion rookery site listed in paragraph (a)(3) of this section;</P> <P>(ii) No person may approach on land not privately owned within one-half statutory miles (0.8 kilometers) or within sight of a Steller sea lion rookery site listed in paragraph (a)(3) of this section, whichever is greater, except on Marmot Island; and</P> <P>(iii) No person may approach on land not privately owned within one and one-half statutory miles (2.4 kilometers) or within sight of the eastern shore of Marmot Island, including the Steller sea lion rookery site listed in paragraph (a)(3) of this section, whichever is greater.</P> <P>(3) <E T="03">Listed sea lion rookery sites.</E> Listed Steller sea lion rookery sites consist of the rookeries in the Aleutian Islands and the Gulf of Alaska listed in Table 1.</P> <GPOTABLE CDEF="s25,xl15,xl15,xl15,xl15,8C,r30" COLS="7" OPTS="L2,i1"> <TTITLE>Table 1 to § 223.202—Listed Steller Sea Lion Rookery Sites <SU>1</SU> </TTITLE> <BOXHD> <CHED H="1">Island</CHED> <CHED H="1">From</CHED> <CHED H="2">Lat.</CHED> <CHED H="2">Long.</CHED> <CHED H="1">To</CHED> <CHED H="2">Lat.</CHED> <CHED H="2">Long.</CHED> <CHED H="1">NOAA chart</CHED> <CHED H="1">Notes</CHED> </BOXHD> <ROW> <ENT I="01">1. Outer I. </ENT> <ENT>59°20.5 N </ENT> <ENT>150°23.0 W </ENT> <ENT>59°21.0 N </ENT> <ENT>150°24.5 W </ENT> <ENT>16681 </ENT> <ENT>S quadrant.</ENT> </ROW> <ROW> <ENT I="01">2. Sugarloaf I.</ENT> <ENT>58°53.0 N </ENT> <ENT>152°02.0 W </ENT> <ENT/> <ENT/> <ENT>16580 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">3. Marmot I. </ENT> <ENT>58°14.5 N </ENT> <ENT>151°47.5 W </ENT> <ENT>58°10.0 N </ENT> <ENT>151°51.0 W </ENT> <ENT>16580 </ENT> <ENT>SE quadrant.</ENT> </ROW> <ROW> <ENT I="01">4. Chirikof I. </ENT> <ENT>55°46.5 N </ENT> <ENT>155°39.5 W </ENT> <ENT>55°46.5 N </ENT> <ENT>155°43.0 W </ENT> <ENT>16580 </ENT> <ENT>S quadrant.</ENT> </ROW> <ROW> <ENT I="01">5. Chowiet I. </ENT> <ENT>56°00.5 N </ENT> <ENT>156°41.5 W </ENT> <ENT>56°00.5 N </ENT> <ENT>156°42.0 W </ENT> <ENT>16013 </ENT> <ENT>S quadrant.</ENT> </ROW> <ROW> <ENT I="01">6. Atkins I.</ENT> <ENT>55°03.5 N </ENT> <ENT>159°18.5 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">7. Chernabura I. </ENT> <ENT>54°47.5 N </ENT> <ENT>159°31.0 W </ENT> <ENT>54°45.5 N </ENT> <ENT>159°33.5 W </ENT> <ENT>16540 </ENT> <ENT>SE corner.</ENT> </ROW> <ROW> <ENT I="01">8. Pinnacle Rock </ENT> <ENT>54°46.0 N </ENT> <ENT>161°46.0 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">9. Clubbing Rks (N) </ENT> <ENT>54°43.0 N </ENT> <ENT>162°26.5 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">Clubbing Rks (S) </ENT> <ENT>54°42.0 N </ENT> <ENT>162°26.5 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole Island.</ENT> </ROW> <ROW> <ENT I="01">10. Sea Lion Rks </ENT> <ENT>55°28.0 N </ENT> <ENT>163°12.0 W </ENT> <ENT/> <ENT/> <ENT>16520 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <PRTPAGE P="102"/> <ENT I="01">11. Ugamak I. </ENT> <ENT>54°14.0 N </ENT> <ENT>164°48.0 W </ENT> <ENT>54°13.0 N </ENT> <ENT>164°48.0 W </ENT> <ENT>16520 </ENT> <ENT>E end of island.</ENT> </ROW> <ROW> <ENT I="01">12. Akun I.</ENT> <ENT>54°18.0N </ENT> <ENT>165°32.5W </ENT> <ENT>54°18.0N </ENT> <ENT>165°31.5W </ENT> <ENT>16547 </ENT> <ENT>Billings Head Bight.</ENT> </ROW> <ROW> <ENT I="01">13. Akutan I. </ENT> <ENT>54°03.5 N </ENT> <ENT>166°00.0 W </ENT> <ENT>54°05.5 N </ENT> <ENT>166°05.0 W </ENT> <ENT>16520 </ENT> <ENT>SW corner, Cape Morgan.</ENT> </ROW> <ROW> <ENT I="01">14. Bogoslof I. </ENT> <ENT>53°56.0 N </ENT> <ENT>168°02.0 W </ENT> <ENT/> <ENT/> <ENT>16500 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">15. Ogchul I. </ENT> <ENT>53°00.0 N </ENT> <ENT>168°24.0 W </ENT> <ENT/> <ENT/> <ENT>16500 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">16. Adugak I. </ENT> <ENT>52°55.0 N </ENT> <ENT>169°10.5 W </ENT> <ENT/> <ENT/> <ENT>16500 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">17. Yunaska I. </ENT> <ENT>52°42.0 N </ENT> <ENT>170°38.5 W </ENT> <ENT>52°41.0 N </ENT> <ENT>170°34.5 W </ENT> <ENT>16500 </ENT> <ENT>NE end.</ENT> </ROW> <ROW> <ENT I="01">18. Seguam I. </ENT> <ENT>52°21.0 N </ENT> <ENT>172°35.0 W </ENT> <ENT>52°21.0 N </ENT> <ENT>172°33.0 W </ENT> <ENT>16480 </ENT> <ENT>N coast, Saddleridge Pt.</ENT> </ROW> <ROW> <ENT I="01">19. Agligadak I. </ENT> <ENT>52°06.5 N </ENT> <ENT>172°54.0 W </ENT> <ENT/> <ENT/> <ENT>16480 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">20. Kasatochi I.</ENT> <ENT>52°10.0N </ENT> <ENT>175°31.5W </ENT> <ENT>52°10.5N </ENT> <ENT>175°29.0W </ENT> <ENT>16480 </ENT> <ENT>N half of island.</ENT> </ROW> <ROW> <ENT I="01">21. Adak I.</ENT> <ENT>51°36.5N </ENT> <ENT>176°59.0W </ENT> <ENT>51°38.0N </ENT> <ENT>176°59.5W </ENT> <ENT>16460 </ENT> <ENT>SW Point, Lake Point.</ENT> </ROW> <ROW> <ENT I="01">22. Gramp rock </ENT> <ENT>51°29.0 N </ENT> <ENT>178°20.5 W </ENT> <ENT/> <ENT/> <ENT>16460 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">23. Tag I. </ENT> <ENT>51°33.5 N </ENT> <ENT>178°34.5 W </ENT> <ENT/> <ENT/> <ENT>16460 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">24. Ulak I. </ENT> <ENT>51°20.0 N </ENT> <ENT>178°57.0 W </ENT> <ENT>51°18.5 N </ENT> <ENT>178°59.5 W </ENT> <ENT>16460 </ENT> <ENT>SE corner, Hasgox Pt.</ENT> </ROW> <ROW> <ENT I="01">25. Semisopochnoi </ENT> <ENT>51°58.5 N </ENT> <ENT>179°45.5 E </ENT> <ENT>51°57.0 N </ENT> <ENT>179°46.0 E </ENT> <ENT>16440 </ENT> <ENT>E quadrant, Pochnoi Pt.</ENT> </ROW> <ROW> <ENT I="01">Semisopochnoi </ENT> <ENT>52°01.5 N </ENT> <ENT>179°37.5 E </ENT> <ENT>52°01.5 N </ENT> <ENT>179°39.0 E </ENT> <ENT>16440 </ENT> <ENT>N quadrant, Petrel Pt.</ENT> </ROW> <ROW> <ENT I="01">26. Amchitka I.</ENT> <ENT>51°22.5N </ENT> <ENT>179°28.0E </ENT> <ENT>51°21.5N </ENT> <ENT>179°25.0E </ENT> <ENT>16440 </ENT> <ENT>East Cape.</ENT> </ROW> <ROW> <ENT I="01">27. Amchitka I.</ENT> <ENT>51°32.5N </ENT> <ENT>178°49.5E </ENT> <ENT/> <ENT/> <ENT>16440 </ENT> <ENT>Column Rocks.</ENT> </ROW> <ROW> <ENT I="01">28. Ayugadak Pt. </ENT> <ENT>51°45.5 N </ENT> <ENT>178°24.5 E </ENT> <ENT/> <ENT/> <ENT>16440 </ENT> <ENT>SE coast of Rat Island.</ENT> </ROW> <ROW> <ENT I="01">29. Kiska I. </ENT> <ENT>51°57.5 N </ENT> <ENT>177°21.0 E </ENT> <ENT>51°56.5 N </ENT> <ENT>177°20.0 E </ENT> <ENT>16440 </ENT> <ENT>W central, Lief Cove.</ENT> </ROW> <ROW> <ENT I="01">30. Kiska I. </ENT> <ENT>51°52.5 N </ENT> <ENT>177°13.0 E </ENT> <ENT>51°53.5 N </ENT> <ENT>177°12.0 E </ENT> <ENT>16440 </ENT> <ENT>Cape St. Stephen.</ENT> </ROW> <ROW> <ENT I="01">31. Walrus I. </ENT> <ENT>57°11.0 N </ENT> <ENT>169°56.0 W </ENT> <ENT/> <ENT/> <ENT>16380 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">32. Buldir I. </ENT> <ENT>52°20.5 N </ENT> <ENT>175°57.0 E </ENT> <ENT>52°23.5 N </ENT> <ENT>175°51.0 E </ENT> <ENT>16420 </ENT> <ENT>Se point to NW point.</ENT> </ROW> <ROW> <ENT I="01">33. Agattu I. </ENT> <ENT>52°24.0 N </ENT> <ENT>173°21.5 E </ENT> <ENT/> <ENT/> <ENT>16420 </ENT> <ENT>Gillion Point.</ENT> </ROW> <ROW> <ENT I="01">34. Agattu I. </ENT> <ENT>52°23.5 N </ENT> <ENT>173°43.5 E </ENT> <ENT>52°22.0 N </ENT> <ENT>173°41.0 E </ENT> <ENT>16420 </ENT> <ENT>Cape Sabak.</ENT> </ROW> <ROW> <ENT I="01">35. Attu I.</ENT> <ENT>52°54.5N </ENT> <ENT>172°28.5E </ENT> <ENT>52°57.5N </ENT> <ENT>172°31.5E </ENT> <ENT>16681 </ENT> <ENT>S Quadrant.</ENT> </ROW> <TNOTE> <SU>1</SU> Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower low water.</TNOTE> </GPOTABLE> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="103"/> <GID>EC01JY91.016</GID> </GPH> <GPH DEEP="436" SPAN="2"> <PRTPAGE P="104"/> <GID>EC01JY91.017</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="105"/> <GID>EC01JY91.018</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="106"/> <GID>EC01JY91.019</GID> </GPH> <GPH DEEP="443" SPAN="2"> <PRTPAGE P="107"/> <GID>EC01JY91.020</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="108"/> <GID>EC01JY91.021</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="109"/> <GID>EC01JY91.022</GID> </GPH> <GPH DEEP="446" SPAN="2"> <PRTPAGE P="110"/> <GID>EC01JY91.023</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="111"/> <GID>EC01JY91.024</GID> </GPH> <GPH DEEP="442" SPAN="2"> <PRTPAGE P="112"/> <GID>EC01JY91.025</GID> </GPH> <GPH DEEP="439" SPAN="2"> <PRTPAGE P="113"/> <GID>EC01JY91.026</GID> </GPH> <GPH DEEP="441" SPAN="2"> <PRTPAGE P="114"/> <GID>EC01JY91.027</GID> </GPH> <GPH DEEP="446" SPAN="2"> <PRTPAGE P="115"/> <GID>EC01JY91.028</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="116"/> <GID>EC01JY91.029</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="117"/> <GID>EC01JY91.030</GID> </GPH> <GPH DEEP="433" SPAN="2"> <PRTPAGE P="118"/> <GID>EC01JY91.031</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="119"/> <GID>EC01JY91.032</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="120"/> <GID>EC01JY91.033</GID> </GPH> <GPH DEEP="437" SPAN="2"> <PRTPAGE P="121"/> <GID>EC01JY91.034</GID> </GPH> <GPH DEEP="432" SPAN="2"> <PRTPAGE P="122"/> <GID>EC01JY91.035</GID> </GPH> <GPH DEEP="439" SPAN="2"> <PRTPAGE P="123"/> <GID>EC01JY91.036</GID> </GPH> <GPH DEEP="435" SPAN="2"> <PRTPAGE P="124"/> <GID>EC01JY91.037</GID> </GPH> <GPH DEEP="432" SPAN="2"> <PRTPAGE P="125"/> <GID>EC01JY91.038</GID> </GPH> <GPH DEEP="435" SPAN="2"> <PRTPAGE P="126"/> <GID>EC01JY91.039</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="127"/> <GID>EC01JY91.040</GID> </GPH> <GPH DEEP="423" SPAN="2"> <PRTPAGE P="128"/> <GID>EC01JY91.041</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="129"/> <GID>EC01JY91.042</GID> </GPH> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="130"/> <GID>EC01JY91.043</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="131"/> <GID>EC01JY91.044</GID> </GPH> <PRTPAGE P="132"/> <P>(4) <E T="03">Commercial Fishing Operations.</E> The incidental mortality and serious injury of endangered and threatened Steller sea lions in commercial fisheries can be authorized in compliance with sections 101(a)(5) and 118 of the Marine Mammal Protection Act.</P> <P>(b) <E T="03">Exceptions</E>—(1) <E T="03">Permits.</E> The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under paragraph (a) of this section in accordance with and subject to the provisions of part 222, subpart C—General Permit Procedures.</P> <P>(2) <E T="03">Official activities.</E> The taking of Steller sea lions must be reported within 30 days to the Regional Administrator, Alaska Region. Paragraph (a) of this section does not prohibit or restrict a Federal, state or local government official, or his or her designee, who is acting in the course of official duties from:</P> <P>(i) Taking a Steller sea lion in a humane manner, if the taking is for the protection or welfare of the animal, the protection of the public health and welfare, or the nonlethal removal of nuisance animals; or</P> <P>(ii) Entering the buffer areas to perform activities that are necessary for national defense, or the performance of other legitimate governmental activities.</P> <P>(3) <E T="03">Subsistence takings by Alaska natives.</E> Paragraph (a) of this section does not apply to the taking of Steller sea lions for subsistence purposes under section 10(e) of the Act.</P> <P>(4) <E T="03">Emergency situations.</E> Paragraph (a)(2) of this section does not apply to an emergency situation in which compliance with that provision presents a threat to the health, safety, or life of a person or presents a significant threat to the vessel or property.</P> <P>(5) <E T="03">Exemptions.</E> Paragraph (a)(2) of this section does not apply to any activity authorized by a prior written exemption from the Director, Alaska Region, National Marine Fisheries Service. Concurrently with the issuance of any exemption, the Assistant Administrator will publish notice of the exemption in the <E T="04">Federal Register</E>. An exemption may be granted only if the activity will not have a significant adverse affect on Steller sea lions, the activity has been conducted historically or traditionally in the buffer zones, and there is no readily available and acceptable alternative to or site for the activity.</P> <P>(6) <E T="03">Navigational transit.</E> Paragraph (a)(2) of this section does not prohibit a vessel in transit from passing through a strait, narrows, or passageway listed in this paragraph if the vessel proceeds in continuous transit and maintains a minimum of 1 nautical mile from the rookery site. The listing of a strait, narrows, or passageway does not indicate that the area issafe for navigation. The listed straits, narrows, or passageways include the following:</P> <GPOTABLE CDEF="s40,r100" COLS="2" OPTS="L2,p7,7/8"> <BOXHD> <CHED H="1">Rookery</CHED> <CHED H="1">Straits, narrows, or pass</CHED> </BOXHD> <ROW> <ENT I="01">Akutan Island </ENT> <ENT>Akutan Pass between Cape Morgan and Unalga Island.</ENT> </ROW> <ROW> <ENT I="01">Clubbing Rocks </ENT> <ENT>Between Clubbing Rocks and Cherni Island.</ENT> </ROW> <ROW> <ENT I="01">Outer Island </ENT> <ENT>Wildcat Pass between Rabbit and Ragged Islands.</ENT> </ROW> </GPOTABLE> <P>(c) <E T="03">Penalties.</E> (1) Any person who violates this section or the Act is subject to the penalties specified in section 11 of the Act, and any other penalties provided by law.</P> <P>(2) Any vessel used in violation of this section or the Endangered Species Act is subject to forfeiture under section 11(e)(4)(B) of the Act.</P> <CITA>[55 FR 49210, Nov. 26, 1990, as amended at 56 FR 42542, Aug. 28, 1991; 56 FR 58184, Nov. 18, 1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139, 53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993; 62 FR 24355, May 5, 1997. Redesignated and amended at 64 FR 14068-14069, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.203</SECTNO> <SUBJECT>Anadromous fish.</SUBJECT> <P>(a) <E T="03">Prohibitions</E>. The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered species apply to the threatened species of salmonids listed in § 223.102(a)(1) through (a)(10), and (a)(12) through (a)(19), except as provided in paragraph (b) of this section and § 223.209(a).</P> <P>(b) <E T="03">Limits on the prohibitions</E>. (1) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and other exceptions under the Act relating to endangered species, including regulations in part 222 of this chapter II implementing such exceptions, also apply to the threatened species of salmonids listed in § 223.102(a)(1) <PRTPAGE P="133"/>through (a)(10), and (a)(12) through (a)(19).</P> <P>(2) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to activities specified in an application for a permit for scientific purposes or to enhance the conservation or survival of the species, provided that the application has been received by the Assistant Administrator for Fisheries, NOAA (AA), no later than October 10, 2000. The prohibitions of paragraph (a) of this section apply to these activities upon the AA's rejection of the application as insufficient, upon issuance or denial of a permit, or March 7, 2001, whichever occurs earliest.</P> <P>(3) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(4) through (a)(10), and (a)(12) through (a)(19) do not apply to any employee or designee of NMFS, the United States Fish and Wildlife Service, any Federal land management agency, the Idaho Department of Fish and Game (IDFG), Washington Department of Fish and Wildlife (WDFW), the Oregon Department of Fish and Wildlife (ODFW), California Department of Fish and Game (CDFG), or of any other governmental entity that has co-management authority for the listed salmonids, when the employee or designee, acting in the course of his or her official duties, takes a threatened salmonid without a permit if such action is necessary to:</P> <P>(i) Aid a sick, injured, or stranded salmonid,</P> <P>(ii) Dispose of a dead salmonid, or</P> <P>(iii) Salvage a dead salmonid which may be useful for scientific study.</P> <P>(iv) Each agency acting under this limit on the take prohibitions of paragraph (a) of this section is to report to NMFS the numbers of fish handled and their status, on an annual basis. A designee of the listed entities is any individual the Federal or state fishery agency or other co-manager has authorized in writing to perform the listed functions.</P> <P>(4) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to fishery harvest activities provided that:</P> <P>(i) Fisheries are managed in accordance with a NMFS-approved Fishery Management and Evaluation Plan (FMEP) and implemented in accordance with a letter of concurrence from NMFS. NMFS will approve an FMEP only if it clearly defines its intended scope and area of impact and sets forth the management objectives and performance indicators for the plan. The plan must adequately address the following criteria:</P> <P>(A) Define populations within affected listed ESUs, taking into account spatial and temporal distribution, genetic and phenotypic diversity, and other appropriate identifiably unique biological and life history traits. Populations may be aggregated for management purposes when dictated by information scarcity, if consistent with survival and recovery of the listed ESU. In identifying management units, the plan shall describe the reasons for using such units in lieu of population units, describe how the management units are defined, given biological and life history traits, so as to maximize consideration of the important biological diversity contained within the listed ESU, respond to the scale and complexity of the ESU, and help ensure consistent treatment of listed salmonids across a diverse geographic and jurisdictional range.</P> <P>(B) Utilize the concepts of “viable” and “critical” salmonid population thresholds, consistent with the concepts contained in the technical document entitled “Viable Salmonid Populations (NMFS, 2000b).” The VSP paper provides a framework for identifying the biological requirements of listed salmonids, assessing the effects of management and conservation actions, and ensuring that such actions provide for the survival and recovery of listed species. Proposed management actions must recognize the significant differences in risk associated with viable and critical population threshold states and respond accordingly to minimize the long-term risks to population persistence. Harvest actions impacting populations that are functioning at or <PRTPAGE P="134"/>above the viable threshold must be designed to maintain the population or management unit at or above that level. For populations shown with a high degree of confidence to be above critical levels but not yet at viable levels, harvest management must not appreciably slow the population's achievement of viable function. Harvest actions impacting populations that are functioning at or below critical threshold must not be allowed to appreciably increase genetic and demographic risks facing the population and must be designed to permit the population's achievement of viable function, unless the plan demonstrates that the likelihood of survival and recovery of the entire ESU in the wild would not be appreciably reduced by greater risks to that individual population.</P> <P>(C) Set escapement objectives or maximum exploitation rates for each management unit or population based on its status and on a harvest program that assures that those rates or objectives are not exceeded. Maximum exploitation rates must not appreciably reduce the likelihood of survival and recovery of the ESU. Management of fisheries where artificially propagated fish predominate must not compromise the management objectives for commingled naturally spawned populations.</P> <P>(D) Display a biologically based rationale demonstrating that the harvest management strategy will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild, over the entire period of time the proposed harvest management strategy affects the population, including effects reasonably certain to occur after the proposed actions cease.</P> <P>(E) Include effective monitoring and evaluation programs to assess compliance, effectiveness, and parameter validation. At a minimum, harvest monitoring programs must collect catch and effort data, information on escapements, and information on biological characteristics, such as age, fecundity, size and sex data, and migration timing.</P> <P>(F) Provide for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed.</P> <P>(G) Provide for effective enforcement and education. Coordination among involved jurisdictions is an important element in ensuring regulatory effectiveness and coverage.</P> <P>(H) Include restrictions on resident and anadromous species fisheries that minimize any take of listed species, including time, size, gear, and area restrictions.</P> <P>(I) Be consistent with plans and conditions established within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations.</P> <P>(ii) The state monitors the amount of take of listed salmonids occurring in its fisheries and provides to NMFS on a regular basis, as defined in NMFS' letter of concurrence for the FMEP, a report summarizing this information, as well as the implementation and effectiveness of the FMEP. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the FMEP.</P> <P>(iii) The state confers with NMFS on its fishing regulation changes affecting listed ESUs to ensure consistency with the approved FMEP. Prior to approving a new or amended FMEP, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its availability for public review and comment. Such an announcement will provide for a comment period on the draft FMEP of not less than 30 days.</P> <P>(iv) NMFS provides written concurrence of the FMEP which specifies the implementation and reporting requirements. NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate. On a regular basis, NMFS will evaluate the effectiveness of the program in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If it is not, NMFS will identify ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its <PRTPAGE P="135"/>intention to withdraw the limit for activities associated with that FMEP. Such an announcement will provide for a comment period of not less than 30 days, after which NMFS will make a final determination whether to withdraw the limit so that the prohibitions would then apply to those fishery harvest activities. A template for developing FMEPs is available from NMFS Northwest Region's website (www.nwr.noaa.gov).</P> <P>(v) The prohibitions of paragraph (a) of this section relating to threatened species of steelhead listed in § 223.102 (a)(5) through (a)(9), (a)(14), and (a)(15) do not apply to fisheries managed solely by the states of Oregon, Washington, Idaho, and California until January 8, 2001.</P> <P>(5) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to activity associated with artificial propagation programs provided that:</P> <P>(i) A state or Federal Hatchery and Genetics Management Plan (HGMP) has been approved by NMFS as meeting the following criteria:</P> <P>(A) The HGMP has clearly stated goals, performance objectives, and performance indicators that indicate the purpose of the program, its intended results, and measurements of its performance in meeting those results. Goals shall address whether the program is intended to meet conservation objectives, contribute to the ultimate sustainability of natural spawning populations, and/or intended to augment tribal, recreational, or commercial fisheries. Objectives should enumerate the results desired from the program that will be used to measure the program's success or failure.</P> <P>(B) The HGMP utilizes the concepts of viable and critical salmonid population threshold, consistent with the concepts contained in the technical document entitled “Viable Salmonid Populations” (NMFS, 2000b). Listed salmonids may be purposefully taken for broodstock purposes only if the donor population is currently at or above the viable threshold and the collection will not impair its function; if the donor population is not currently viable but the sole objective of the current collection program is to enhance the propagation or survival of the listed ESU; or if the donor population is shown with a high degree of confidence to be above critical threshold although not yet functioning at viable levels, and the collection will not appreciably slow the attainment of viable status for that population.</P> <P>(C) Taking into account health, abundances, and trends in the donor population, broodstock collection programs reflect appropriate priorities. The primary purpose of broodstock collection programs of listed species is to reestablish indigenous salmonid populations for conservation purposes. Such programs include restoration of similar, at-risk populations within the same ESU, and reintroduction of at-risk populations to underseeded habitat. After the species' conservation needs are met and when consistent with survival and recovery of the ESU, broodstock collection programs may be authorized by NMFS such for secondary purposes, as to sustain tribal, recreational, and commercial fisheries.</P> <P>(D) The HGMP includes protocols to address fish health, broodstock collection, broodstock spawning, rearing and release of juveniles, deposition of hatchery adults, and catastrophic risk management.</P> <P>(E) The HGMP evaluates, minimizes, and accounts for the propagation program's genetic and ecological effects on natural populations, including disease transfer, competition, predation, and genetic introgression caused by the straying of hatchery fish.</P> <P>(F) The HGMP describes interrelationships and interdependencies with fisheries management. The combination of artificial propagation programs and harvest management must be designed to provide as many benefits and as few biological risks as possible for the listed species. For programs whose purpose is to sustain fisheries, HGMPs must not compromise the ability of FMEPs or other management plans to conserve listed salmonids.</P> <P>(G) Adequate artificial propagation facilities exist to properly rear progeny of naturally spawned broodstock, to <PRTPAGE P="136"/>maintain population health and diversity, and to avoid hatchery-influenced selection or domestication.</P> <P>(H) Adequate monitoring and evaluation exist to detect and evaluate the success of the hatchery program and any risks potentially impairing the recovery of the listed ESU.</P> <P>(I) The HGMP provides for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed;</P> <P>(J) NMFS provides written concurrence of the HGMP which specifies the implementation and reporting requirements. For Federally operated or funded hatcheries, the ESA section 7 consultation will achieve this purpose.</P> <P>(K) The HGMP is consistent with plans and conditions set within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations.</P> <P>(ii) The state monitors the amount of take of listed salmonids occurring in its hatchery program and provides to NMFS on a regular basis a report summarizing this information, and the implementation and effectiveness of the HGMP as defined in NMFS' letter of concurrence. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the HGMP.</P> <P>(iii) The state confers with NMFS on a regular basis regarding intended collections of listed broodstock to ensure congruity with the approved HGMP.</P> <P>(iv) Prior to final approval of an HGMP, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its availability for public review and comment for a period of at least 30 days.</P> <P>(v) NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate.</P> <P>(vi) On a regular basis, NMFS will evaluate the effectiveness of the HGMP in protecting and achieving a level of salmonid productivity commensurate with the conservation of the listed salmonids. If the HGMP is not effective, the NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its intention to withdraw the limit on activities associated with that program. Such an announcement will provide for a comment period of no less than 30 days, after which NMFS will make a final determination whether to withdraw the limit so that take prohibitions, likeall other activity not within a limit, would then apply to that program. A template for developing HGMPs is available from NMFS Northwest Region's website (www.nwr.noaa.gov).</P> <P>(6) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(7), (a)(8), (a)(10), and (a)(12) through (a)(19) do not apply to actions undertaken in compliance with a resource management plan developed jointly by the States of Washington, Oregon and/or Idaho and the Tribes (joint plan) within the continuing jurisdiction of <E T="03">United States</E> v. <E T="03">Washington</E> or <E T="03">United States</E> v. <E T="03">Oregon</E>, the on-going Federal court proceedings to enforce and implement reserved treaty fishing rights, provided that:</P> <P>(i) The Secretary has determined pursuant to 50 CFR 223.209 and the government-to-government processes therein that implementing and enforcing the joint tribal/state plan will not appreciably reduce the likelihood of survival and recovery of affected threatened ESUs.</P> <P>(ii) The joint plan will be implemented and enforced within the parameters set forth in <E T="03">United States</E> v. <E T="03">Washington</E> or<E T="03">United States</E> v. <E T="03">Oregon</E>.</P> <P>(iii) In making that determination for a joint plan, the Secretary has taken comment on how any fishery management plan addresses the criteria in § 223.203(b)(4), or on how any hatchery and genetic management plan addresses the criteria in § 223.203(b)(5).</P> <P>(iv) The Secretary shall publish notice in the <E T="04">Federal Register</E> of any determination whether or not a joint plan, will appreciably reduce the likelihood of survival and recovery of affected threatened ESUs, together with a discussion of the biological analysis underlying that determination.<PRTPAGE P="137"/> </P> <P>(v) On a regular basis, NMFS will evaluate the effectiveness of the joint plan in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If the plan is not effective, then NMFS will identify to the jurisdiction ways in which the joint plan needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its intention to withdraw the limit on activities associated with that joint plan. Such an announcement will provide for a comment period of no less than 30 days, after which NMFS will make a final determination whether to withdraw the limit so that take prohibitions would then apply to that joint plan as to all other activity not within a limit.</P> <P>(7) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to scientific research activities provided that:</P> <P>(i) Scientific research activities involving purposeful take is conducted by employees or contractors of the ODFW, WDFW (Agencies), IDFG, or CDFG (Agencies), or as a part of a monitoring and research program overseen by or coordinated with that Agency.</P> <P>(ii) The Agencies provide for NMFS' review and approval a list of all scientific research activities involving direct take planned for the coming year, including an estimate of the total direct take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact.</P> <P>(iii) The Agencies annually provide to NMFS the results of scientific research activities directed at threatened salmonids, including a report of the direct take resulting from the studies and a summary of the results of such studies.</P> <P>(iv) Scientific research activities that may incidentally take threatened salmonids are either conducted by agency personnel, or are in accord with a permit issued by the Agency.</P> <P>(v) The Agencies provide NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take threatened salmonids during the coming year. Such reports shall also contain the amount of incidental take of threatened salmonids occurring in the previous year's scientific research activities and a summary of the results of such research.</P> <P>(vi) Electrofishing in any body of water known or suspected to contain threatened salmonids is conducted in accordance with NMFS “Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a).</P> <P>(vii) NMFS' approval of a research program shall be a written approval by NMFS Northwest or Southwest Regional Administrator.</P> <P>(8) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12), through (a)(19) do not apply to habitat restoration activities, as defined in paragraph (b)(8)(iv) of this section, provided that the activity is part of a watershed conservation plan, and:</P> <P>(i) The watershed conservation plan has been certified by the State of Washington, Oregon, Idaho, or California (State) to be consistent with the state's watershed conservation plan guidelines.</P> <P>(ii) The State's watershed conservation plan guidelines have been found by NMFS to provide for plans that:</P> <P>(A) Take into account the potential severity of direct, indirect, and cumulative impacts of proposed activities in light of the status of affected species and populations.</P> <P>(B) Will not reduce the likelihood of either survival or recovery of listed species in the wild.</P> <P>(C) Ensure that any taking will be incidental.</P> <P>(D) Minimize and mitigate any adverse impacts.</P> <P>(E) Provide for effective monitoring and adaptive management.<PRTPAGE P="138"/> </P> <P>(F) Use the best available science and technology, including watershed analysis.</P> <P>(G) Provide for public and scientific review and input.</P> <P>(H) Include any measures that NMFS determines are necessary or appropriate.</P> <P>(I) Include provisions that clearly identify those activities that are part of plan implementation.</P> <P>(J) Control risk to listed species by ensuring funding and implementation of the above plan components.</P> <P>(iii) NMFS will periodically review state certifications of Watershed Conservation Plans to ensure adherence to approved watershed conservation plan guidelines.</P> <P>(iv) “Habitat restoration activity” is defined as an activity whose primary purpose is to restore natural aquatic or riparian habitat conditions or processes. “Primary purpose” means the activity would not be undertaken but for its restoration purpose.</P> <P>(v) Prior to approving watershed conservation plan guidelines under paragraph (b)(8)(ii) of this section, NMFS will publish notification in the <E T="04">Federal Register</E> announcing the availability of the proposed guidelines for public review and comment. Such an announcement will provide for a comment period on the draft guidelines of no less than 30 days.</P> <P>(9) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to the physical diversion of water from a stream or lake, provided that:</P> <P>(i) NMFS' engineering staff or any resource agency or tribe NMFS designates (authorized officer) has agreed in writing that the diversion facility is screened, maintained, and operated in compliance with Juvenile Fish Screen Criteria, National Marine Fisheries Service, Northwest Region, Revised February 16, 1995, with Addendum of May 9, 1996, or in California with NMFS' Southwest Region “Fish Screening Criteria for Anadromous Salmonids, January 1997” or with any subsequent revision.</P> <P>(ii) The owner or manager of the diversion allows any NMFS engineer or authorized officer access to the diversion facility for purposes of inspection and determination of continued compliance with the criteria.</P> <P>(iii) On a case by case basis, NMFS or an Authorized Officer will review and approve a juvenile fish screen design and construction plan and schedule that the water diverter proposes for screen installation. The plan and schedule will describe interim operation measures to avoid take of threatened salmonids. NMFS may require a commitment of compensatory mitigation if implementation of the plan and schedule is terminated prior to completion. If the plan and schedule are not met, or if a schedule modification is made that is not approved by NMFS or Authorized Officer, or if the screen installation deviates from the approved design, the water diversion will be subject to take prohibitions and mitigation.</P> <P>(iv) This limit on the prohibitions of paragraph (a) of this section does not encompass any impacts of reduced flows resulting from the diversion or impacts caused during installation of the diversion device. These impacts are subject to the prohibition on take of listed salmonids.</P> <P>(10) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to routine road maintenance activities provided that:</P> <P>(i) The activity results from routine road maintenance activity conducted by ODOT employees or agents that complies with ODOT's Transportation Maintenance Management System Water Quality and Habitat Guide (July, 1999); or by employees or agents of a state, county, city or port that complies with a program substantially similar to that contained in the ODOT Guide that is determined to meet or exceed the protections provided by the ODOT Guide; or by employees or agents of a state, county, city or port that complies with a routine road maintenance program that meets proper functioning habitat conditions as described further in subparagraph (ii) following. NMFS' approval of state, city, county, or port programs that are <PRTPAGE P="139"/>equivalent to the ODOT program, or of any amendments, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. Any jurisdiction desiring its routine road maintenance activities to be within this limit must first commit in writing to apply management practices that result in protections equivalent to or better than those provided by the ODOT Guide, detailing how it will assure adequate training, tracking, and reporting, and describing in detail any dust abatement practices it requests to be covered.</P> <P>(ii) NMFS finds the routine road maintenance activities of any state, city, county, or port to be consistent with the conservation of listed salmonids' habitat when it contributes, as does the ODOT Guide, to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than one year, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its intention to withdraw the limit so that take prohibitions would then apply to the program as to all other activity not within a limit. Such an announcement will provide for a comment period of no less than 30 days, after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) prohibitions.</P> <P>(iii) Prior to implementing any changes to a program within this limit the jurisdiction provides NMFS a copy of the proposed change for review and approval as within this limit.</P> <P>(iv) Prior to approving any state, city, county, or port program as within this limit, or approving any substantive change in a program within this limit, NMFS will publish notification in the <E T="04">Federal Register</E> announcing the availability of the program or the draft changes for public review and comment. Such an announcement will provide for a comment period of not less than 30 days.</P> <P>(v) Pesticide and herbicide spraying is not included within this limit, even if in accord with the ODOT guidance.</P> <P>(11) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to activities within the City of Portland, Oregon Parks and Recreation Department's (PP&R) Pest Management Program (March 1997), including its Waterways Pest Management Policy updated December 1, 1999, provided that:</P> <P>(i) Use of only the following chemicals is included within this limit on the take prohibitions: Round Up, Rodeo, Garlon 3A, Surfactant LI-700, Napropamide, Cutrine Plus, and Aquashade.</P> <P>(ii) Any chemical use is initiated in accord with the priorities and decision processes of the Department's Pest Management Policy, including the Waterways Pest Management Policy, updated December 1, 1999.</P> <P>(iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with the buffer application constraints contained in PP&R's Waterways Pest Management Policy (update December 1, 1999).</P> <P>(iv) Prior to implementing any changes to this limit, the PP&R provides NMFS with a copy of the proposed change for review and approval as within this limit.<PRTPAGE P="140"/> </P> <P>(v) Prior to approving any substantive change in a program within this limit, NMFS will publish notification in the <E T="04">Federal Register</E> announcing the availability of the program or the draft changes for public review and comment. Such an announcement will provide for a comment period of no less than 30 days.</P> <P>(vi) NMFS' approval of amendments shall be a written approval by NMFS Northwest Regional Administrator.</P> <P>(vii) NMFS finds the PP&R Pest Management Program activities to be consistent with the conservation of listed salmonids' habitat by contributing to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of a watershed's natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate the effectiveness of an approved program in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than 1 year, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its intention to withdraw the limit so that take prohibitions would then apply to the program as to all other activity not within a limit. Such an announcement will provide for a comment period of no less than 30 days, after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) prohibitions.</P> <P>(12) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19) do not apply to municipal, residential, commercial, and industrial (MRCI) development (including redevelopment) activities provided that:</P> <P>(i) Such development occurs pursuant to city, county, or regional government ordinances or plans that NMFS has determined are adequately protective of listed species; or within the jurisdiction of the Metro regional government in Oregon and pursuant to ordinances that Metro has found comply with its Urban Growth Management Functional Plan (Functional Plan) following a determination by NMFS that the Functional Plan is adequately protective. NMFS approval or determinations about any MRCI development ordinances or plans, including the Functional Plan, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. NMFS will apply the following 12 evaluation considerations when reviewing MRCI development ordinances or plans to assess whether they adequately conserve listed salmonids by maintaining and restoring properly functioning habitat conditions:</P> <P>(A) MRCI development ordinance or plan ensures that development will avoid inappropriate areas such as unstable slopes, wetlands, areas of high habitat value, and similarly constrained sites.</P> <P>(B) MRCI development ordinance or plan adequately avoids stormwater discharge impacts to water quality and quantity or to the hydrograph of the watershed, including peak and base flows of perennial streams.</P> <P>(C) MRCI development ordinance or plan provides adequately protective riparian area management requirements to attain or maintain PFC around all rivers, estuaries, streams, lakes, deepwater habitats, and intermittent streams. Compensatory mitigation is provided, where necessary, to offset unavoidable damage to PFC due to MRCI <PRTPAGE P="141"/>development impacts to riparian management areas.</P> <P>(D) MRCI development ordinance or plan avoids stream crossings by roads, utilities, and other linear development wherever possible, and, where crossings must be provided, minimize impacts through choice of mode, sizing, and placement.</P> <P>(E) MRCI development ordinance or plan adequately protects historical stream meander patterns and channel migration zones and avoids hardening of stream banks and shorelines.</P> <P>(F) MRCI development ordinance or plan adequately protects wetlands and wetland functions, including isolated wetlands.</P> <P>(G) MRCI development ordinance or plan adequately preserves the hydrologic capacity of permanent and intermittent streams to pass peak flows.</P> <P>(H) MRCI development ordinance or plan includes adequate provisions for landscaping with native vegetation to reduce need for watering and application of herbicides, pesticides, and fertilizer.</P> <P>(I) MRCI development ordinance or plan includes adequate provisions to prevent erosion and sediment run-off during construction.</P> <P>(J) MRCI development ordinance or plan ensures that water supply demands can be met without impacting flows needed for threatened salmonids either directly or through groundwater withdrawals and that any new water diversions are positioned and screened in a way that prevents injury or death of salmonids.</P> <P>(K) MRCI development ordinance or plan provides necessary enforcement, funding, reporting, and implementation mechanisms and formal plan evaluations at intervals that do not exceed 5 years.</P> <P>(L) MRCI development ordinance and plan complies with all other state and Federal environmental and natural resource laws and permits.</P> <P>(ii) The city, county or regional government provides NMFS with annual reports regarding implementation and effectiveness of the ordinances, including: any water quality monitoring information the jurisdiction has available; aerial photography (or some other graphic display) of each MRCI development or MRCI expansion area at sufficient detail to demonstrate the width and vegetation condition of riparian set-backs; information to demonstrate the success of stormwater management and other conservation measures; and a summary of any flood damage, maintenance problems, or other issues.</P> <P>(iii) NMFS finds the MRCI development activity to be consistent with the conservation of listed salmonids' habitat when it contributes to the attainment and maintenance of PFC. NMFS defines PFC as the sustained presence of a watershed's habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than 1 year, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its intention to withdraw the limit so that take prohibitions would then apply to the program as to all other activity not within a limit. Such an announcement will provide for a comment period of no less than 30 days, after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) prohibitions.</P> <P>(iv) Prior to approving any city, county, or regional government ordinances or plans as within this limit, or approving any substantive change in <PRTPAGE P="142"/>an ordinance or plan within this limit, NMFS will publish notification in the <E T="04">Federal Register</E> announcing the availability of the ordinance or plan or the draft changes for public review and comment. Such an announcement will provide for a comment period of no less than 30 days.</P> <P>(13) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(12), (a)(13), (a)(16), (a)(17), and (a) (19) do not apply to non-Federal forest management activities conducted in the State of Washington provided that:</P> <P>(i) The action is in compliance with forest practice regulations adopted and implemented by the Washington Forest Practices Board that NMFS has found are at least as protective of habitat functions as are the regulatory elements of the Forests and Fish Report dated April 29, 1999, and submitted to the Forest Practices Board by a consortium of landowners, tribes, and state and Federal agencies.</P> <P>(ii) All non-regulatory elements of the Forests and Fish Report are being implemented.</P> <P>(iii) Actions involving use of herbicides, pesticides, or fungicides are not included within this limit.</P> <P>(iv) Actions taken under alternative plans are included in this limit provided that the Washington Department of Natural Resources (WDNR) finds that the alternate plans protect physical and biological processes at least as well as the state forest practices rules and provided that NMFS, or any resource agency or tribe NMFS designates, has the opportunity to review the plan at every stage of the development and implementation. A plan may be excluded from this limit if, after such review, WDNR determines that the plan is not likely to adequately protect listed salmon.</P> <P>(v) Prior to determining that regulations adopted by the Forest Practice Board are at least as protective as the elements of the Forests and Fish Report, NMFS will publish notification in the <E T="04">Federal Register</E> announcing the availability of the Report and regulations for public review and comment.</P> <P>(vi) NMFS finds the activities to be consistent with the conservation of listed salmonids' habitat by contributing to the attainment and maintenance of PFC. NMFS defines PFC as the sustained presence of a watershed's natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Programs must meet this biological standard in order for NMFS to find they qualify for a habitat-related limit. NMFS uses the best available science to make these determinations. NMFS may review and revise previous findings as new scientific information becomes available. NMFS will evaluate the effectiveness of the program in maintaining and achieving habitat function that provides for conservation of the listed salmonids. If the program is not adequate, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If Washington does not make changes to respond adequately to the new information, NMFS will publish notification in the <E T="04">Federal Register</E> announcing its intention to withdraw the limit on activities associated with the program. Such an announcement will provide for a comment period of no less than 30 days, after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) take prohibitions.</P> <P>(vii) NMFS approval of regulations shall be a written approval by NMFS Northwest Regional Administrator.</P> <P>(c) <E T="03">Affirmative defense</E>. In connection with any action alleging a violation of the prohibitions of paragraph (a) of this section with respect to the threatened species of salmonids listed in § 223.102 (a)(5) through (a)(10), and (a)(12) through (a)(19), any person claiming the benefit of any limit listed in paragraph (b) of this section or <PRTPAGE P="143"/>§ 223.209(a) shall have a defense where the person can demonstrate that the limit is applicable and was in force, and that the person fully complied with the limit at the time of the alleged violation. This defense is an affirmative defense that must be raised, pleaded, and proven by the proponent. If proven, this defense will be an absolute defense to liability under section (a)(1)(G) of the ESA with respect to the alleged violation.</P> <P>(d) <E T="03">Severability</E>. The provisions of this section and the various applications thereof are distinct and severable from one another. If any provision or the application thereof to any person or circumstances is stayed or determined to be invalid, such stay or invalidity shall not affect other provisions, or the application of such provisions to other persons or circumstances, which can be given effect without the stayed or invalid provision or application.</P> <CITA>[65 FR 42475, July 10, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.204</SECTNO> <SUBJECT>Exceptions to prohibitions relating to anadromous fish.</SUBJECT> <P>(a) The following exceptions to the prohibitions of § 223.203(a) of this part apply to the Southern Oregon/Northern California Coast (SONCC) coho salmon.</P> <P>(1) Take of SONCC coho salmon within 3 miles (approximately 5 km) of the coast, and in the bay, estuarine or freshwater fisheries regulated under the sole authority of the State of Oregon is not prohibited, if the take results from a fisheries harvest program conducted in accordance with the Oregon Coastal Salmon Restoration Initiative of March 1997 (OCSRI). NMFS must have issued a written concurrence that the fisheries regulations are consistent with the OCSRI, using information provided through the April 1997 Memorandum of Agreement (MOA) between the State of Oregon and NMFS.</P> <P>(2) Incidental take of SONCC coho salmon in ocean fisheries within 3 miles (approximately 5 km) of the coast that are regulated under the sole authority of the State of California is not prohibited, provided that the ocean salmon fishing regulations adopted by the California Fish and Game Commission and CDFG for recreational and commercial fisheries within 3 miles (approximately 5 km) of the coast are consistent with the Pacific Fishery Management Council's Fishery Management Plan for Ocean Salmon Fisheries and the annual ocean salmon fishing regulations issued by the Secretary of Commerce for the Federal EEZ.</P> <P>(3) Take of SONCC coho salmon in a hatchery program regulated under the sole authority of the State of Oregon is not prohibited, if the take results from a hatchery program conducted in accordance with the OCSRI, and the take is counted against the total allocation of harvest-related mortality as specified in the OCSRI. NMFS must have issued a written concurrence stating that the hatchery program is consistent with the OCSRI including the hatchery and genetic management plan adopted pursuant to the OCSRI, using information provided through the MOA.</P> <P>(4) Take of SONCC coho salmon in fisheries research and monitoring activities conducted in California and Oregon is not prohibited provided that:</P> <P>(i) Research and monitoring involving directed take of coho salmon is conducted by CDFG personnel (in California) and ODFW personnel (in Oregon);</P> <P>(ii) The CDFG and ODFW, respectively, provide NMFS with a list of all research and monitoring activities involving coho salmon directed take planned for the coming year for NMFS’ review and approval. This report shall include an estimate of the total directed take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact;</P> <P>(iii) The CDFG and ODFW, respectively, provide NMFS annually with the results of research and monitoring studies directed at SONCC coho salmon, including a report of the directed take resulting from the studies;</P> <P>(iv) The CDFG and ODFW, provide NMFS annually with a list of all research and monitoring studies permitted that may allow incidental take of listed coho salmon during the coming year and report the level of incidental take of listed coho salmon from the previous year's research and monitoring activities, for NMFS’ review and approval.<PRTPAGE P="144"/> </P> <P>(v) The research and monitoring activities do not include the use of electrofishing in any body of water known or suspected to contain coho salmon.</P> <P>(5) Incidental take of the SONCC coho salmon in Oregon resulting from a habitat restoration activity is not prohibited, provided that:</P> <P>(i) The activity is conducted pursuant to a watershed action or restoration plan that has been affirmed by the state in writing as consistent with NMFS’ approved state watershed plan guidelines set forth in § 222.307(c) of this chapter. NMFS shall also concur in writing that the plan is consistent with the state watershed plan guidelines; or</P> <P>(ii) Until a watershed action or restoration plan is approved by both Oregon and NMFS as described in paragraph (a)(5)(i) of this section, or until August 18, 1999, whichever occurs first, the ODFW has made a written finding that the activity is consistent with state restoration activity guidelines that NMFS has agreed, in writing, meet the standards set forth in § 222.307(c) of this chapter.</P> <P>(6) Incidental take of the SONCC coho salmon in California resulting from a habitat restoration activity, as defined in paragraph (a)(6)(iii) of this section, is not prohibited, provided that California has a program in effect that NMFS finds will assure technically supported watershed assessments and coordinated long-term monitoring strategies for watershed protection plans and activities and:</P> <P>(i) The activity is conducted pursuant to a watershed protection plan that CDFG has affirmed, in writing, is consistent with NMFS’ approved state watershed plan guidelines set forth in § 222.307(c) of this chapter for California's Watershed Protection Program. NMFS must concur, in writing, that the plan is consistent with those guidelines; or</P> <P>(ii) Until a watershed protection or restoration plan is certified by the State of California and NMFS as described in paragraph (a)(6)(i) of this section, or until August 18, 1999, whichever occurs first, when NMFS has made a written finding that the activity is consistent with State of California conservation guidelines previously found to meet the standards set forth in § 222.307(c) of this chapter by NMFS.</P> <CITA>[64 FR 14069, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.205</SECTNO> <SUBJECT>Sea turtles.</SUBJECT> <P>(a) The prohibitions of section 9 of the Act (16 U.S.C. 1538) relating to endangered species apply to threatened species of sea turtle, except as provided in § 223.206.</P> <P>(b) Except as provided in § 223.206, it is unlawful for any person subject to the jurisdiction of the United States to do any of the following:</P> <P>(1) Own, operate, or be on board a vessel, except if that vessel is in compliance with all applicable provisions of § 223.206(d);</P> <P>(2) Fish for, catch, take, harvest, or possess, fish or wildlife while on board a vessel, except if that vessel is in compliance with all applicable provisions of § 223.206(d);</P> <P>(3) Fish for, catch, take, harvest, or possess, fish or wildlife contrary to any notice of tow-time or other restriction specified in, or issued under, § 223.206(d)(3) or (d)(4);</P> <P>(4) Possess fish or wildlife taken in violation of paragraph (b) of this section;</P> <P>(5) Fail to follow any of the sea turtle handling and resuscitation requirements specified in § 223.206(d)(1);</P> <P>(6) Possess a sea turtle in any manner contrary to the handling and resuscitation requirements of § 223.206(d)(1);</P> <P>(7) Fail to comply immediately, in the manner specified at § 600.730 (b) through (d) of this Title, with instructions and signals specified therein issued by an authorized officer, including instructions and signals to haul back a net for inspection;</P> <P>(8) Refuse to allow an authorized officer to board a vessel, or to enter an area where fish or wildlife may be found, for the purpose of conducting a boarding, search, inspection, seizure, investigation, or arrest in connection with enforcement of this section;</P> <P>(9) Destroy, stave, damage, or dispose of in any manner, fish or wildlife, gear, cargo, or any other matter after a communication or signal from an authorized officer, or upon the approach of such an officer or of an enforcement vessel or aircraft, before the officer has <PRTPAGE P="145"/>an opportunity to inspect same, or in contravention of directions from the officer;</P> <P>(10) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, prevent, or interfere with an authorized officer in the conduct of any boarding, search, inspection, seizure, investigation, or arrest in connection with enforcement of this section;</P> <P>(11) Interfere with, delay, or prevent by any means, the apprehension of another person, knowing that such person committed an act prohibited by this section;</P> <P>(12) Resist a lawful arrest for an act prohibited by this section;</P> <P>(13) Make a false statement, oral or written, to an authorized officer or to the agency concerning the fishing for, catching, taking, harvesting, landing, purchasing, selling, or transferring fish or wildlife, or concerning any other matter subject to investigation under this section by such officer, or required to be submitted under this part 223;</P> <P>(14) Sell, barter, trade or offer to sell, barter, or trade, a TED that is not an approved TED; or</P> <P>(15) Attempt to do, solicit another to do, or cause to be done, any of the foregoing.</P> <P>(c) In connection with any action alleging a violation of this section, any person claiming the benefit of any exemption, exception, or permit under this subpart B has the burden of proving that the exemption, exception, or permit is applicable, was granted, and was valid and in force at the time of the alleged violation. Further, any person claiming that a modification made to a TED that is the subject of such an action complies with the requirements of § 223.207 (c) or (d) has the burden of proving such claim.</P> <CITA>[64 FR 14069, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.206</SECTNO> <SUBJECT>Exceptions to prohibitions relating to sea turtles.</SUBJECT> <P>(a) <E T="03">Permits</E>—(1) <E T="03">Scientific research, education, zoological exhibition, or species enhancement permits.</E> The Assistant Administrator may issue permits authorizing activities which would otherwise be prohibited under § 223.205(a) for scientific or educational purposes, for zoological exhibition, or to enhance the propagation or survival of threatened species of sea turtles, in accordance with and subject to the conditions of part 222, subpart C—General Permit Procedures.</P> <P>(2) <E T="03">Incidental-take permits.</E> The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under § 223.205(a) in accordance with section 10(a)(1)(B) of the Act (16 U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to, the implementing regulations in part 222 of this chapter. Such permits may be issued for the incidental taking of threatened and endangered species of sea turtles.</P> <P>(b) <E T="03">Exception for injured, dead, or stranded specimens.</E> If any member of any threatened species of sea turtle is found injured, dead, or stranded, any agent or employee of the National Marine Fisheries Service, the Fish and Wildlife Service, the U.S. Coast Guard, or any other Federal land or water management agency, or any agent or employee of a state agency responsible for fish and wildlife who is designated by his or her agency for such purposes, may, when acting in the course of his or her official duties, take such specimens without a permit if such taking is necessary to aid a sick, injured, or stranded specimen or dispose of a dead specimen or salvage a dead specimen which may be useful for scientific study. Whenever possible, live specimens shall be returned to their aquatic environment as soon as possible. Every action shall be reported in writing to the Assistant Administrator within 30 days, and reports of further occurrence shall be made as deemed appropriate by the Assistant Administrator until the specimen is either returned to its environment or disposed of. Reports shall be mailed by registered or certified mail, return receipt requested, to the Assistant Administrator and shall contain the following information:</P> <P>(1) Name and position of the official or employee involved;</P> <P>(2) Description of the specimen(s) involved;</P> <P>(3) Date and location of disposal;</P> <P>(4) Circumstances requiring the action;</P> <P>(5) Method of disposal;</P> <P>(6) Disposition of the specimen(s), including, where the specimen(s) has <PRTPAGE P="146"/>been retained in captivity, a description of the place and means of confinement, and the measures taken for its maintenance and care; and</P> <P>(7) Such other information as the Assistant Administrator may require.</P> <P>(c) <E T="03">Exception for research or conservation.</E> Any employee or agent of the National Marine Fisheries Service, the Fish and Wildlife Service, or a state fish and wildlife agency operating a conservation program pursuant to the terms of a Cooperative Agreement with the National Marine Fisheries Service or the Fish and Wildlife Service in accordance with section 6(c) of the Act, designated by his or her agency for such purposes, may, when acting in the course of his or her official duties, take any threatened species to carry out scientific research or conservation programs. All such takings shall be reported within 30 days of the taking to the Assistant Administrator who may request additional reports of the taking and research at the Assistant Administrator's discretion.</P> <P>(d) <E T="03">Exception for incidental taking.</E> The prohibitions against taking in § 223.205(a) do not apply to the incidental take of any member of a threatened species of sea turtle (i.e., a take not directed toward such member) during fishing or scientific research activities, to the extent that those involved are in compliance with all applicable requirements of paragraphs (d)(1) through (d)(5) of this section, or in compliance with the terms and conditions of an incidental take permit issued pursuant to paragraph (a)(2) of this section.</P> <P>(1) <E T="03">Handling and resuscitation requirements.</E> (i) Any specimen taken incidentally during the course of fishing or scientific research activities must be handled with due care to prevent injury to live specimens, observed for activity, and returned to the water according to the following procedures:</P> <P>(A) Sea turtles that are dead or actively moving must be released over the stern of the boat. In addition, they must be released only when trawls are not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels.</P> <P>(B) Resuscitation must be attempted on sea turtles that are comatose or inactive but not dead by:</P> <P>(<E T="03">1</E>) Placing the turtle on its back (carapace) and pumping its breastplate (plastron) with hand or foot; or</P> <P>(<E T="03">2</E>) Placing the turtle on its breastplate (plastron) and elevating its hindquarter several inches for a period of 1 up to 24 hours. The amount of the elevation depends on the size of the turtle; greater elevations are needed for larger turtles. Sea turtles being resuscitated must be shaded and kept wet or moist. Those that revive and become active must be released over the stern of the boat only when trawls are not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels. Similarly, sea turtles that fail to move within several hours (up to 24, if possible) must be returned to the water in the same manner.</P> <P>(ii) Any specimen taken incidentally during the course of fishing or scientific research activities must not be consumed, sold, landed, offloaded, transshipped, or kept below deck.</P> <P>(2) <E T="03">Gear requirements</E>—(i) <E T="03">TED requirement for shrimp trawlers.</E> Any shrimp trawler that is in the Atlantic Area or Gulf Area must have an approved TED installed in each net that is rigged for fishing. A net is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to the shrimp trawler. Exceptions to the TED requirement for shrimp trawlers are provided in paragraph (d)(2)(ii) of this section.</P> <P>(ii) <E T="03">Exemptions from the TED requirement</E>—(A) <E T="03">Alternative tow-time restrictions.</E> A shrimp trawler is exempt from the TED requirements of paragraph (d)(2)(i) of this section if it complies with the alternative tow-time restrictions in paragraph (d)(3)(i) of this section and if it:</P> <P>(<E T="03">1</E>) Has on board no power or mechanical-advantage trawl retrieval system (i.e., any device used to haul any part of the net aboard);</P> <P>(<E T="03">2</E>) Is a bait shrimper that retains all live shrimp on board in a container with a circulating seawater system, if <PRTPAGE P="147"/>it does not possess more than 32 pounds (14.5 kg) of dead shrimp on board, and if it has on board a valid original state bait-shrimp license (if in a state that requires such a license);</P> <P>(<E T="03">3</E>) Has only a pusher-head trawl, skimmer trawl, or wing net rigged for fishing; and</P> <P>(<E T="03">4</E>) Is in an area during a period for which tow-time restrictions apply under paragraphs (d)(3) (ii) or (iii) of this section, if it complies with all applicable provisions imposed under those paragraphs.</P> <P>(B) <E T="03">Exempted gear or activities.</E> The following fishing gear or activities are exempted from the TED requirements of paragraph (d)(2)(i) of this section:</P> <P>(<E T="03">1</E>) A single test net (try net) with a headrope length of 12 ft (3.6 m) or less and with a footrope length of 15 ft (4.6 m) or less, if it is either pulled immediately in front of another net or is not connected to another net in any way, if no more than one test net is used at a time, and if it is not towed as a primary net;</P> <P>(<E T="03">2</E>) A beam or roller trawl, if the frame is outfitted with rigid vertical bars, and if none of the spaces between the bars, or between the bars and the frame, exceeds 4 inches (10.2 cm); and</P> <P>(<E T="03">3</E>) A shrimp trawler fishing for, or possessing, royal red shrimp, if royal red shrimp constitutes at least 90 percent (by weight) of all shrimp either found on board, or offloaded from that shrimp trawler.</P> <P>(iii) <E T="03">Gear requirement—summer flounder trawlers</E>—(A) <E T="03">TED requirement</E>. (<E T="03">1</E>) Any summer flounder trawler in the summer flounder fishery-sea turtle protection area must have an approved TED installed in each net that is rigged for fishing. A net is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to the summer flounder trawler. Exceptions to the TED requirement for summer flounder trawlers are provided in paragraph (d)(2)(iii)(B) of this section.</P> <P>(<E T="03">2</E>) Any approved hard TED or special hard TED installed in a summer flounder trawl must be installed in a TED extension. The TED extension is a cylindrical piece of webbing distinct from the main trawl's body, wings, codend, and any other net extension(s). The TED extension must be constructed of webbing no larger than 3.5 inch (8.9 cm) stretched mesh. The TED extension must extend at least 24 inches (61.0 cm) but not more than 36 inches (91.4 cm) forward of the leading edge of the TED and aft of the trailing edge of the grid.</P> <P>(B) <E T="03">Exemptions from the TED requirement.</E> Any summer flounder trawler north of 35°46.1′ N. lat. (Oregon Inlet, NC) from January 15 through March 15 annually is exempt from the TED requirement of paragraph (d)(2)(iii)(A) of this section, unless the Assistant Administrator determines that TED use is necessary to protect sea turtles or ensure compliance, pursuant to the procedures of paragraph (d)(4) of this section.</P> <P>(C) <E T="03">Monitoring.</E> Summer flounder trawlers must carry onboard a NMFS-approved observer if requested by the Southeast Regional Administrator or the Northeast Regional Administrator. A written notification will be sent to the address specified for the vessel in either the NMFS or state fishing permit application, or to the address specified for registration or documentation purposes, or upon written notification otherwise served on the owner or operator of the vessel. Owners and operators must comply with the terms and conditions specified in such written notification. All NMFS-approved observers will report any violations of this section, or other applicable regulations and laws. Information collected by observers may be used for enforcement purposes.</P> <P>(D) <E T="03">Additional sea turtle conservation measures.</E> The Assistant Administrator may impose other such restrictions upon summer flounder trawlers as the Assistant Administrator deems necessary or appropriate to protect sea turtles and ensure compliance, pursuant to the procedures of paragraph (d)(4) of this section. Such measures may include, but are not limited to, a requirement to use TEDs in areas other than summer flounder fishery-sea turtle protection area, a requirement to use limited tow-times, and closure of the fishery.<PRTPAGE P="148"/> </P> <P>(iv) <E T="03">Gear requirement—leatherback conservation zone</E>—(A) <E T="03">Leatherback surveys.</E> From January 1 through June 30 of each year, weekly aerial surveys will be conducted in the leatherback conservation zone by NMFS or state agents, contingent upon weather conditions. If sighting rates of greater than 10 leatherback turtles per 50 nautical miles (92.6 km) of trackline are observed, the aerial surveys of that area will be replicated within 24 hours, or as soon as practicable thereafter.</P> <P>(B) <E T="03">TED requirements and registration.</E> If surveys pursuant to paragraph (d)(2)(iv)(A) of this section indicate a sighting rate within the leatherback conservation zone of greater than 10 leatherback sea turtles per 50 nautical miles (92.6 km) of trackline, NMFS will close an area of the leatherback conservation zone encompassing all, or a portion of, inshore waters and offshore waters 10 nautical miles (18.5 km) seaward of the COLREGS demarcation line, bounded by 1° lat. coinciding with the trackline, within the leatherback conservation zone. This closure will be for a 2-week period. Within such a closed area, fishing by any shrimp trawler required to have a NMFS-approved TED in each net rigged for fishing is prohibited, unless the TED installed is one described at § 223.207(a)(7)(ii)(B) or § 223.207(c)(1)(iv)(B), and the owner or operator of the shrimp trawl has notified the Southeast Regional Administrator of his or her intention to fish in that area, in accordance with the procedure provided in paragraph (d)(5) of this section. If requested in writing from the Southeast Regional Administrator, owners and operators of shrimp trawlers in the leatherback conservation zone must carry NMFS-approved observers aboard such vessel(s). A shrimp trawler in the leatherback conservation zone must comply with the terms and conditions specified in such written request, as well as provide information on trawling hours, gear modifications, and turtle captures.</P> <P>(C) <E T="03">Notification.</E> NMFS will immediately announce specific area closures on the NOAA weather radio channel, in newspapers, and other media. Specific area closures will be effective upon filing for public inspection at the Office of the Federal Register. Owners and operators of shrimp trawl vessels in the leatherback conservation zone are responsible for monitoring the NOAA weather radio channel for closure announcements. Shrimp trawlers may also call the Southeast Regional Office at (813) 570-5312 to receive updated area closure information.</P> <P>(3) <E T="03">Tow-time restrictions</E>—(i) <E T="03">Duration of tows.</E> If tow-time restrictions are utilized pursuant to paragraph (d)(2)(ii), (d)(3)(ii), or (d)(3)(iii) of this section, a shrimp trawler must limit tow times. The tow time is measured from the time that the trawl door enters the water until it is removed from the water. For a trawl that is not attached to a door, the tow time is measured from the time the codend enters the water until it is removed from the water. Tow times may not exceed:</P> <P>(A) 55 minutes from April 1 through October 31; and</P> <P>(B) 75 minutes from November 1 through March 31.</P> <P>(ii) <E T="03">Alternative—special environmental conditions.</E> The Assistant Administrator may allow compliance with tow-time restrictions, as an alternative to the TED requirement of paragraph (d)(2)(i) of this section, if the Assistant Administrator determines that the presence of algae, seaweed, debris or other special environmental conditions in a particular area makes trawling with TED-equipped nets impracticable.</P> <P>(iii) <E T="03">Substitute—ineffectiveness of TEDs.</E> The Assistant Administrator may require compliance with tow-time restrictions, as a substitute for the TED requirement of paragraph (d)(2)(i) of this section, if the Assistant Administrator determines that TEDs are ineffective in protecting sea turtles.</P> <P>(iv) <E T="03">Notice; applicability; conditions.</E> The Assistant Administrator will publish notification concerning any tow-time restriction imposed under paragraph (d)(3)(ii) or (iii) of this section in the <E T="04">Federal Register</E> and will announce it in summary form on channel 16 of the marine VHF radio. A notification of tow-time restrictions will include findings in support of these restrictions as an alternative to, or as substitute for, the TED requirements. The notification will specify the effective dates, the geographic area where <PRTPAGE P="149"/>tow-time restrictions apply, and any applicable conditions or restrictions that the Assistant Administrator determines are necessary or appropriate to protect sea turtles and ensure compliance, including, but not limited to, a requirement to carry observers, to register vessels in accordance with procedures at paragraph (d)(5) of this section, or for all shrimp trawlers in the area to synchronize their tow times so that all trawl gear remains out of the water during certain times. A notification withdrawing tow-time restrictions will include findings in support of that action.</P> <P>(v) <E T="03">Procedures.</E> The Assistant Administrator will consult with the appropriate fishery officials (state or Federal) where the affected shrimp fishery is located in issuing a notification concerning tow-time restrictions. An emergency notification can be effective for a period of up to 30 days and may be renewed for additional periods of up to 30 days each if the Assistant Administrator finds that the conditions necessitating the imposition of tow-time restrictions continue to exist. The Assistant Administrator may invite comments on such an action, and may withdraw or modify the action by following procedures similar to those for implementation. The Assistant Administrator will implement any permanent tow-time restriction through rulemaking.</P> <P>(4) <E T="03">Limitations on incidental takings during fishing activities</E>—(i) <E T="03">Limitations.</E> The exemption for incidental takings of sea turtles in paragraph (d) of this section does not authorize incidental takings during fishing activities if the takings:</P> <P>(A) Would violate the restrictions, terms, or conditions of an incidental take statement or biological opinion;</P> <P>(B) Would violate the restrictions, terms, or conditions of an incidental take permit; or</P> <P>(C) May be likely to jeopardize the continued existence of a species listed under the Act.</P> <P>(ii) <E T="03">Determination; restrictions on fishing activities.</E> The Assistant Administrator may issue a determination that incidental takings during fishing activities are unauthorized. Pursuant thereto, the Assistant Administrator may restrict fishing activities in order to conserve a species listed under the Act, including, but not limited to, restrictions on the fishing activities of vessels subject to paragraph (d)(2) of this section. The Assistant Administrator will take such action if the Assistant Administrator determines that restrictions are necessary to avoid unauthorized takings that may be likely to jeopardize the continued existence of a listed species. The Assistant Administrator may withdraw or modify a determination concerning unauthorized takings or any restriction on fishing activities if the Assistant Administrator determines that such action is warranted.</P> <P>(iii) <E T="03">Notice; applicability; conditions.</E> The Assistant Administrator will publish a notification of a determination concerning unauthorized takings or a notification concerning the restriction of fishing activities in the <E T="04">Federal Register</E>. The Assistant Administrator will provide as much advance notice as possible, consistent with the requirements of the Act, and will announce the notification in summary form on channel 16 of the marine VHF radio. Notification of a determination concerning unauthorized takings will include findings in support of that determination; specify the fishery, including the target species and gear used by the fishery, the area, and the times, for which incidental takings are not authorized; and include such other conditions and restrictions as the Assistant Administrator determines are necessary or appropriate to protect sea turtles and ensure compliance. Notification of restriction of fishing activities will include findings in support of the restriction, will specify the time and area where the restriction is applicable, and will specify any applicable conditions or restrictions that the Assistant Administrator determines are necessary or appropriate to protect sea turtles and ensure compliance. Such conditions and restrictions may include, but are not limited to, limitations on the types of fishing gear that may be used, tow-time restrictions, alteration or extension of the periods of time during which particular tow-time requirements apply, requirements to <PRTPAGE P="150"/>use TEDs, registration of vessels in accordance with procedures at paragraph (d)(5) of this section, and requirements to provide observers. Notification of withdrawal or modification will include findings in support of that action.</P> <P>(iv) <E T="03">Procedures.</E> The Assistant Administrator will consult with the appropriate fisheries officials (state or Federal) where the fishing activities are located in issuing notification of a determination concerning unauthorized takings or notification concerning the restriction of fishing activities. An emergency notification will be effective for a period of up to 30 days and may be renewed for additional periods of up to 30 days each. The Assistant Administrator may invite comments on such action, and may withdraw or modify the action by following procedures similar to those for implementation. The Assistant Administrator will implement any permanent determination or restriction through rulemaking.</P> <P>(5) <E T="03">Registration.</E> If the Assistant Administrator imposes restrictions under paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), or (d)(4)(ii) of this section, the Assistant Administrator may require the owner and operator of a vessel to register before entering an area where, and during the time when, the restrictions apply. If registration is required, the vessel's owner and operator must submit the following information to the NMFS Regional Office:</P> <P>(i) The name and official number (or registration number) of the vessel;</P> <P>(ii) The names, mailing and street addresses, and telephone numbers of the vessel owner and operator;</P> <P>(iii) The permit number or other identification of relevant state or Federal fishing permit(s);</P> <P>(iv) Where and when the vessel intends to fish;</P> <P>(v) Where and when the vessel will depart on any fishing trip, with sufficient specificity to allow for an observer to embark on the trip; and</P> <P>(vi) Any changes in the information submitted under paragraphs (d)(5)(i) through (d)(5)(v) of this section. Failure to do so immediately will void the registration, rendering unlawful any subsequent entry of the fishing vessel into the area where and during the time when the restrictions apply.</P> <P>(6) Restrictions applicable to the California/Oregon drift gillnet fishery—(i) Pacific leatherback conservation area. No person may fish with, set, or haul back drift gillnet gear in U.S. waters of the Pacific Ocean from August 15 through November 15 in the area bounded by straight lines connecting the following coordinates in the order listed:</P> <P>(A) Point Sur (36°18.5′ N) to 34°27′ N 123°35' W′;</P> <P>(B) 34°27′ N 123°35′ W to 34°27′ N 129° W;</P> <P>(C) 34°27′ N 129° W to 45° N 129° W;</P> <P>(D) 45° N 129° W to the point 45° N intersects the Oregon coast.</P> <P>(ii) [Reserved]</P> <CITA>[64 FR 14070, Mar. 23, 1999, as amended at 64 FR 55863, Oct. 15, 1999; 66 FR 1603, Jan. 9, 2001; 66 FR 44551, Aug. 24, 2001]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14070, Mar. 23, 1999, newly redesignated § 223.206 was revised. Paragraph (d)(5) contains information collection requirements and will not become effective until approval has been given by the Office of Management and Budget.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 223.207</SECTNO> <SUBJECT>Approved TEDs.</SUBJECT> <P>Any netting, webbing, or mesh that may be measured to determine compliance with this section is subject to measurement, regardless of whether it is wet or dry. Any such measurement will be of the stretched mesh size.</P> <P>(a) <E T="03">Hard TEDs.</E> Hard TEDs are TEDs with rigid deflector grids and are categorized as “hooped hard TEDs,” such as the NMFS and Cameron TEDs (Figures 1 & 2 to this part), or “single-grid hard TEDs,” such as the Matagorda and Georgia TEDs (Figures 3 & 4 to this part). Hard TEDs complying with the following generic design criteria are approved TEDs:</P> <P>(1) <E T="03">Construction materials.</E> A hard TED must be constructed of one or a combination of the following materials, with minimum dimensions as follows:</P> <P>(i) Solid steel rod with a minimum outside diameter of <FR>1/4</FR> inch (0.64 cm);</P> <P>(ii) Fiberglass or aluminum rod with a minimum outside diameter of <FR>1/2</FR> inch (1.27 cm); or</P> <P>(iii) Steel or aluminum tubing with a minimum outside diameter of <FR>1/2</FR> inch <PRTPAGE P="151"/>(1.27 cm) and a minimum wall thickness of <FR>1/8</FR> inch (0.32 cm) (also known as schedule 40 tubing).</P> <P>(2) <E T="03">Method of attachment.</E> A hard TED must be sewn into the trawl around the entire circumference of the TED with heavy twine.</P> <P>(3) <E T="03">Angle of deflector bars.</E> (i) The angle of the deflector bars must be between 30° and 55° from the normal, horizontal flow through the interior of the trawl, except as provided in paragraph (a)(3)(ii) of this section.</P> <P>(ii) For any shrimp trawler fishing in the Gulf SFSTCA or the Atlantic SFSTCA, a hard TED with the position of the escape opening at the bottom of the net when the net is in its deployed position, the angle of the deflector bars from the normal, horizontal flow through the interior of the trawl, at any point, must not exceed 55°, and:</P> <P>(A) If the deflector bars that run from top to bottom are attached to the bottom frame of the TED, the angle of the bottom-most 4 inches (10.2 cm) of each deflector bar, measured along the bars, must not exceed 45° (Figures 14a and 14b to this part);</P> <P>(B) If the deflector bars that run from top to bottom are not attached to the bottom frame of the TED, the angle of the imaginary lines connecting the bottom frame of the TED to the bottom end of each deflector bar which runs from top to bottom must not exceed 45° (Figure 15 to this part).</P> <P>(4) <E T="03">Space between bars.</E> The space between deflector bars and between the deflector bars and the frame must not exceed 4 inches (10.2 cm).</P> <P>(5) <E T="03">Direction of bars.</E> The deflector bars must run from top to bottom of the TED, as the TED is positioned in the net, except that up to four of the bottom bars and two of the top bars, including the frame, may run from side to side of the TED.</P> <P>(6) <E T="03">Position of escape opening.</E> The entire width of the escape opening from the trawl must be centered on and immediately forward of the frame at either the top or bottom of the net when the net is in its deployed position. The escape opening must be at the top of the net when the slope of the deflector bars from forward to aft is upward, and must be at the bottom when such slope is downward. For a single-grid TED, the escape opening must be cut horizontally along the same plane as the TED, and may not be cut in a fore-and-aft direction.</P> <P>(7) <E T="03">Size of escape opening</E>—(i) <E T="03">Hooped hard TED.</E> On a hooped hard TED, the escape opening must not be smaller than 25 inches by 25 inches (63.5 cm by 63.5 cm) in the Gulf Area, or 30 inches by 30 inches (76.2 cm by 76.2 cm) in the Atlantic Area. A door frame may not be used over the escape opening; however, a webbing flap may be used as provided in paragraph (e)(4)(iv)(C) of this section.</P> <P>(ii) <E T="03">Single-grid hard TED</E>—(A) <E T="03">Escape opening for standard single-grid hard TED.</E> On a single-grid hard TED, the cut in the trawl webbing for the escape opening cannot be narrower than the outside width of the grid minus 4 inches (10.2 cm) on both sides of the grid, when measured as a straight line width. (Figure 13 to this part illustrates the dimensions of this cut.) The resulting escape opening in the net webbing must measure at least 32 inches (81.3 cm) in horizontal taut length and, simultaneously, 10 inches (25.4 cm) in vertical taut height in the Gulf Area; or 35 inches (88.9 cm) in horizontal taut length and, simultaneously, 12 inches (30.5 cm) in vertical taut height in the Atlantic Area. The vertical measurement must be taken at the midpoint of the horizontal measurement.</P> <P>(B) <E T="03">Escape opening for leatherback turtles—</E>(<E T="03">1</E>) <E T="03">Standard leatherback opening.</E> A single-grid hard TED escape opening shall be enlarged to allow leatherback turtles to escape by cutting an exit hole in the extension forward of the TED frame 26 inches (66 cm) deep, on each side, by 83 inches (211 cm) across (Figures 12a and 12b to this part). Excess webbing is removed by cutting across <FR>1/2</FR> mesh forward of the TED frame. The exit hole cover is made by cutting a 133-inch (388 cm) by 58-inch (148 cm) piece of webbing no smaller than 1<FR>1/2</FR> inch (4 cm) stretch mesh and no larger than 1 <FR>5/8</FR> inch (4.2 cm) stretch mesh. The 133-inch (338 cm) edge of the cover is attached to the forward edge of the opening (83-inch (211 cm) edge) with a sewing sequence of 3:2. The cover must overlap 5 inches (13 cm) of the exit hole on each side. The side of the <PRTPAGE P="152"/>cover is attached, maintaining the 5-inch (13 cm) overlap, to the side of the opening by sewing 28 inches (71 cm) of the cover to 26 inches (66 cm) of the opening forward of the TED frame and by sewing 15 inches (38 cm) of the extension behind the TED frame. The cover may extend no more than 24 inches (61 cm) behind the posterior edge of the TED frame. The circumference of the exit opening must be 142 inches (361 cm) when stretched. If an accelerator funnel is used with a single-grid hard TED, modified as above, it must have a minimum circumference of 142 inches (361 cm).</P> <P>(<E T="03">2</E>) <E T="03">Double cover flap TED opening</E>. A single-grid hard TED escape opening shall be enlarged to allow leatherback turtles to escape by cutting an exit hole in the extension forward of the TED frame 20 inches (51 cm) deep, on each side, by 56 inches (142 cm) across. Excess webbing is removed by cutting across ½ mesh forward of the TED frame. The exit hole cover is made by cutting two equal size rectangular panels of webbing with mesh sizes no smaller than 1<FR>1/2</FR> inch (4 cm) stretch mesh and no larger than 1 <FR>5/8</FR> inch (4.2 cm) stretch mesh. Each panel must be no less than 58 inches (147 cm) wide. The 58-inch (147 cm) edges of each panel are attached to the forward edge of the opening (56-inch (142 cm) edge) with a sewing sequence of 3:2. When both panels are attached, they may overlap each other by no more than 15 inches (38 cm). The panels may only be sewn together along the leading edge of the cut. The panels may not overlap the escape hole cut by more than 3 meshes on either side. The outer edges of the panels may be attached in the same row of meshes forward and aft. The end of each panel may not extend more than 6 inches (15 cm) past the posterior edge of the grid. Accelerator funnels and chafing webbing may not be used with this TED. (Figure 16 of this part illustrates the escape opening and flap dimensions for the double cover flap TED.)</P> <P>(8) <E T="03">Size of hoop or grid</E>—(i) <E T="03">Hooped hard TED.</E> (A) An oval front hoop on a hard TED must have an inside horizontal measurement of at least 32 inches (81.3 cm) and an inside vertical measurement of at least 20 inches (50.8 cm) in the Gulf Area, or an inside horizontal measurement of at least 35 inches (88.9 cm) and an inside vertical measurement of at least 30 inches (76.2 cm) in the Atlantic Area.</P> <P>(B) A circular front hoop on a hard TED must have an inside diameter of at least 32 inches (81.3 cm) in the Gulf Area or 35 inches (88.9 cm) in the Atlantic Area.</P> <P>(ii) <E T="03">Single-grid hard TED.</E> A single-grid hard TED must have an inside horizontal and vertical measurement of at least 28 inches (71.1 cm) in the Gulf Area or 30 inches (76.2 cm) in the Atlantic Area. The required inside measurements must be at the mid-point of the deflector grid.</P> <P>(9) <E T="03">Flotation.</E> Floats must be attached to the top one-half of all hard TEDs with bottom escape openings. The floats may be attached either outside or inside the net, but not to a flap. Floats attached inside the net must be behind the rear surface of the TED. Floats must be attached with heavy twine or rope. Floats must be constructed of aluminum, hard plastic, expanded polyvinyl chloride, or expanded ethylene vinyl acetate unless otherwise specified. The requirements of this paragraph may be satisfied by compliance with either the dimension requirements of paragraph (a)(9)(i) of this section, or the buoyancy requirements of paragraph (a)(9)(ii) of this section, or the buoyancy-dimension requirements of paragraph (a)(9)(iii) of this section. If roller gear is used pursuant to paragraph (d)(5) of this section, the roller gear must be included in the circumference measurement of the TED or the total weight of the TED.</P> <P>(i) <E T="03">Float dimension requirements.</E> (A) For hard TEDs with a circumference of 120 inches (304.8 cm) or more, a minimum of either one round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 cm) in diameter, or two expanded polyvinyl chloride or expanded ethylene vinyl acetate floats, each no smaller than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length, must be attached.</P> <P>(B) For hard TEDs with a circumference of less than 120 inches (304.8 cm), a minimum of either one round, aluminum or hard plastic float, no <PRTPAGE P="153"/>smaller than 9.8 inches (25.0 cm) in diameter, or one expanded polyvinyl chloride or expanded ethylene vinyl acetate float, no smaller than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length, must be attached.</P> <P>(ii) <E T="03">Float buoyancy requirements.</E> Floats of any size and in any combination must be attached such that the combined buoyancy of the floats, as marked on the floats, equals or exceeds the weight of the hard TED, as marked on the TED. The buoyancy of the floats and the weight of the TED must be clearly marked on the floats and the TED as follows:</P> <P>(A) <E T="03">Float buoyancy markings.</E> Markings on floats must be made in clearly legible raised or recessed lettering by the original manufacturer. The marking must identify the buoyancy of the float in water, expressed in grams or kilograms, and must include the metric unit of measure. The marking may additionally include the buoyancy in English units. The marking must identify the nominal buoyancy for the manufactured float.</P> <P>(B) <E T="03">TED weight markings.</E> The marking must be made by the original TED manufacturer and must be permanent and clearly legible. The marking must identify the in-air, dry weight of the TED, expressed in grams or kilograms, and must include the metric unit of measure. The marking may additionally include the weight in English units. The marked weight must represent the actual weight of the individual TED as manufactured. Previously manufactured TEDs may be marked upon return to the original manufacturer. Where a TED is comprised of multiple detachable components, the weight of each component must be separately marked.</P> <P>(iii) <E T="03">Buoyancy-dimension requirements.</E> Floats of any size and in any combination, provided that they are marked pursuant to paragraph (a)(9)(ii)(A) of this section, must be attached such that the combined buoyancy of the floats equals or exceeds the following values:</P> <P>(A) For floats constructed of aluminum or hard plastic, regardless of the size of the TED grid, the combined buoyancy must equal or exceed 14 lb (6.4 kg);</P> <P>(B) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate, where the circumference of the TED is 120 inches (304.8 cm) or more, the combined buoyancy must equal or exceed 20 lb (9.1 kg); or</P> <P>(C) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate, where the circumference of the TED is less than 120 inches (304.8 cm), the combined buoyancy must equal or exceed 10 lb (4.5 kg).</P> <P>(b) <E T="03">Special Hard TEDs.</E> Special hard TEDs are hard TEDs which do not meet all of the design and construction criteria of the generic standards specified in paragraph (a) of this section. The following special hard TEDs are approved TEDs:</P> <P>(1) <E T="03">Flounder TED</E> (Figure 10 to this part). The Flounder TED is approved for use only in the Atlantic summer flounder bottom trawl fishery. The Flounder TED is not an approved TED for use by shrimp trawlers. The Flounder TED must be constructed of at least 1<FR>1/4</FR> inch (3.2 cm) outside diameter aluminum or steel pipe with a wall thickness of at least <FR>1/8</FR> inch (0.3 cm). It must have a rectangular frame with outside dimensions which can be no less than 51 inches (129.5 cm) in length and 32 inches (81.3 cm) in width. It must have at least five vertical deflector bars, with bar spacings of no more than 4 inches (10.2 cm). The vertical bars must be connected to the top of the frame and to a single horizontal bar near the bottom. The horizontal bar must be connected at both ends to the sides of the frame and parallel to the bottom bar of the frame. There must be a space no larger than 10 inches (25.4 cm) between the horizontal bar and the bottom bar of the frame. One or more additional vertical bars running from the bottom bar to the horizontal bar must divide the opening at the bottom into two or more rectangles, each with a maximum height of 10 inches (25.4 cm) and a maximum width of 14<FR>1/2</FR> inches (36.8 cm). This TED must comply with paragraphs (a)(2), (a)(3), (a)(6), and (a)(7)(ii) of this section with respect to the method of attachment, the angle of the deflector bars, the position of the escape opening, and the <PRTPAGE P="154"/>size of the escape opening, except that the deflector bars must be positioned in the net to deflect turtles to the escape opening in the top of the trawl. This TED may not be configured with a bottom escape opening. Installation of an accelerator funnel is not permitted with this TED.</P> <P>(2) <E T="03">Jones TED</E> (Figure 11 to this part). The Jones TED must be constructed of at least 1<FR>1/4</FR> inch (3.2 cm) outside diameter aluminum or steel pipe, and the pipe must have a wall thickness of at least <FR>1/8</FR> inch (0.3 cm). It must be generally oval in shape with a flattened bottom. The deflector bars must be attached to the frame at a 45° angle from the horizontal positioning downward and each bar must be attached at only one end to the frame. The deflector bars must be attached and lie in the same plane as the frame. The space between the ends of the bottom deflector bars and the bottom frame bar must be no more than 3 inches (7.6 cm). The spacing between the bottom three deflector bars on each side must be no greater than 2<FR>1/2</FR> inches (6.4 cm). The spacing between all other deflector bars must not exceed 3<FR>1/2</FR> inches (8.9 cm) and spacing between ends of opposing deflector bars also must not exceed 3<FR>1/2</FR> inches (8.9 cm). This TED must comply with paragraphs (a)(2), (a)(3), (a)(6), (a)(7)(ii), (a)(8)(ii), and (a)(9) of this section with respect to the method of attachment, the angle of the deflector bars, the position of the escape opening, the size of the escape opening, the size of the grid, and flotation.</P> <P>(c) <E T="03">Soft TEDs.</E> Soft TEDs are TEDs with deflector panels made from polypropylene or polyethylene netting. The following soft TEDs are approved TEDs:</P> <P>(1) <E T="03">Parker TED.</E> The Parker TED is a soft TED, consisting of a single triangular panel, composed of webbing of two different mesh sizes, that forms a complete barrier inside a trawl and that angles toward an escape opening in the top of the trawl.</P> <P>(i) <E T="03">Excluder Panel.</E> (Figure 5 to this part) The excluder panel of the Parker TED must be constructed of a single triangular piece of 8-inch (20.3 cm) stretched mesh webbing and two trapezoidal pieces of 4-inch (10.2-cm) stretched mesh webbing. The webbing must consist of number 48 (3-mm thick) or larger polypropylene or polyethylene webbing that is heat-set knotted or braided. The leading edge of the 8-inch (20.3-cm) mesh panel must be 36 meshes wide. The 8-inch (20.3-cm) mesh panel must be tapered on each side with all-bar cuts to converge on an apex, such that the length of each side is 36 bars. The leading edges of the 4-inch (10.2-cm) mesh panels must be 8 meshes wide. The edges of the 4-inch (10.2-cm) mesh panels must be cut with all-bar cuts running parallel to each other, such that the length of the inner edge is 72 bars and the length of the outer edge is 89 bars and the resulting fore-and-aft edge is 8 meshes deep. The two 4-inch (10.2-cm) mesh panels must be sewn to the 8-inch (20.3-cm) mesh panel to create a single triangular excluder panel. The 72-bar edge of each 4-inch (10.2-cm) mesh panel must be securely joined with twine to one of the 36-bar edges of the 8-inch (20.3-cm) mesh panel, tied with knots at each knot of the 4-inch (10.2-cm) webbing and at least two wraps of twine around each bar of 4-inch (10.2-cm) mesh and the adjoining bar of the 8-inch (20.3-cm) mesh. The adjoining fore-and-aft edges of the two 4-inch (10.2-cm) mesh panels must be sewn together evenly.</P> <P>(ii) <E T="03">Limitations on which trawls may have a Parker TED installed.</E> The Parker TED must not be installed or used in a two-seam trawl with a tongue, nor in a triple-wing trawl (a trawl with a tongue along the headrope and a second tongue along the footrope). The Parker TED may be installed and used in any other trawl if the taper of the body panels of the trawl does not exceed 4b1p and if it can be properly installed in compliance with paragraph (c)(1)(iii) of this section.</P> <P>(iii) <E T="03">Panel installation</E>—(A) <E T="03">Leading edge attachment.</E> The leading edge of the excluder panel must be attached to the inside of the bottom of the trawl across a straight row of meshes. For a two-seam trawl or a four-seam, tapered-wing trawl, the row of meshes for attachment to the trawl must run the entire width of the bottom body panel, from seam to seam. For a four-seam, straight-wing trawl, the row of meshes for attachment to the trawl must run the entire width of the bottom body <PRTPAGE P="155"/>panel and half the height of each wing panel of the trawl. Every mesh of the leading edge of the excluder panel must be evenly sewn to this row of meshes; meshes may not be laced to the trawl. The row of meshes for attachment to the trawl must contain the following number of meshes, depending on the stretched mesh size used in the trawl:</P> <P>(<E T="03">1</E>) For a mesh size of 2<FR>1/4</FR> inches (5.7 cm), 152-168 meshes;</P> <P>(<E T="03">2</E>) For a mesh size of 2<FR>1/8</FR> inches (5.4 cm), 161-178 meshes;</P> <P>(<E T="03">3</E>) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;</P> <P>(<E T="03">4</E>) For a mesh size of 1<FR>7/8</FR> inches (4.8 cm), 182-202 meshes;</P> <P>(<E T="03">5</E>) For a mesh size of 1<FR>3/4</FR> inches (4.4 cm), 196-216 meshes;</P> <P>(<E T="03">6</E>) For a mesh size of 1<FR>5/8</FR> inches (4.1 cm), 211-233 meshes;</P> <P>(<E T="03">7</E>) For a mesh size of 1<FR>1/2</FR> inches (3.8 cm), 228-252 meshes;</P> <P>(<E T="03">8</E>) For a mesh size of 1<FR>3/8</FR> inches (3.5 cm), 249-275 meshes; and</P> <P>(<E T="03">9</E>) For a mesh size of 1<FR>1/4</FR> inches (3.2 cm), 274-302 meshes.</P> <P>(B) <E T="03">Apex attachment.</E> The apex of the triangular excluder panel must be attached to the inside of the top body panel of the trawl at the centerline of the trawl. The distance, measured aft along the centerline of the top body panel from the same row of meshes for attachment of the excluder panel to the bottom body panel of the trawl, to the apex attachment point must contain the following number of meshes, depending on the stretched mesh size used in the trawl:</P> <P>(<E T="03">1</E>) For a mesh size of 2<FR>1/4</FR> inches (5.7 cm), 78-83 meshes;</P> <P>(<E T="03">2</E>) For a mesh size of 2<FR>1/8</FR> inches (5.4 cm), 83-88 meshes;</P> <P>(<E T="03">3</E>) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;</P> <P>(<E T="03">4</E>) For a mesh size of 1<FR>7/8</FR> inches (4.8 cm), 93-99 meshes;</P> <P>(<E T="03">5</E>) For a mesh size of 1<FR>3/4</FR> inches (4.4 cm), 100-106 meshes;</P> <P>(<E T="03">6</E>) For a mesh size of 1<FR>5/8</FR> inches (4.1 cm), 107-114 meshes;</P> <P>(<E T="03">7</E>) For a mesh size of 1<FR>1/2</FR> inches (3.8 cm), 114-124 meshes;</P> <P>(<E T="03">8</E>) For a mesh size of 1<FR>3/8</FR> inches (3.5 cm), 127-135 meshes; and</P> <P>(<E T="03">9</E>) For a mesh size of 1<FR>1/4</FR> inches (3.2 cm), 137-146 meshes.</P> <P>(C) <E T="03">Side attachment.</E> The sides of the excluder panel must be attached evenly to the inside of the trawl from the outside attachment points of the excluder panel's leading edge to the apex of the excluder panel. Each side must be sewn with the same sewing sequence, and, if the sides of the excluder panel cross rows of bars in the trawl, the crossings must be distributed evenly over the length of the side attachment.</P> <P>(iv) <E T="03">Escape opening.</E> The escape opening for the Parker soft TED must match one of the following specifications:</P> <P>(A) <E T="03">Longitudinal cut.</E> A slit at least 56 inches (1.4 m) in taut length must be cut along the centerline of the top body panel of the trawl net immediately forward of the apex of the panel webbing. The slit must not be covered or closed in any manner. The edges and end points of the slit must not be reinforced in any way; for example, by attaching additional rope or webbing or by changing the orientation of the webbing.</P> <P>(B) <E T="03">Leatherback escape opening.</E> A horizontal cut extending from the attachment of one side of the deflector panel to the trawl to the attachment of the other side of the deflector panel to the trawl must be made in a single row of meshes across the top of the trawl and measure at least 96 inches (244 cm) in taut width. All trawl webbing above the deflector panel between the 96-inch (244-cm) cut and edges of the deflector panel must be removed. A rectangular flap of nylon webbing not larger than 2-inch (5.1-cm) stretched mesh may be sewn to the forward edge of the escape opening. The width of the flap must not be larger than the width of the forward edge of the escape opening. The flap must not extend more than 12 inches (30.4 cm) beyond the rear point of the escape opening. The sides of the flap may be attached to the top of the trawl but must not be attached farther aft than the row of meshes through the rear point of the escape opening. One row of steel chain not larger than <FR>3/16</FR> inch (4.76 mm) may be sewn evenly to the back edge of the flap. The stretched length of the chain must not exceed 96 inches (244 cm). A Parker TED using the escape opening described in this <PRTPAGE P="156"/>paragraph meets the requirements of § 223.206(d)(2)(iv)(B).</P> <P>(2) [Reserved]</P> <P>(d) <E T="03">Allowable modifications to hard TEDs and special hard TEDs.</E> Unless otherwise prohibited in paragraph (b) of this section, only the following modifications may be made to an approved hard TED or an approved special hard TED:</P> <P>(1) <E T="03">Floats.</E> In addition to floats required pursuant to paragraph (a)(9) of this section, floats may be attached to the top one-half of the TED, either outside or inside the net, but not to a flap. Floats attached inside the net must be behind the rear surface at the top of the TED.</P> <P>(2) <E T="03">Accelerator funnel.</E> An accelerator funnel may be installed in the trawl, if it is made of net webbing material with a stretched mesh size not greater than 1<FR>5/8</FR> inches (4.1 cm), if it has an inside horizontal opening of at least 39 inches (99.1 cm) when measured in a taut position, if it is inserted in the net immediately forward of the TED, and if its rear edge does not extend past the bars of the TED. The trailing edge of the accelerator funnel may be attached to the TED on the side opposite the escape opening if not more than <FR>1/3</FR> of the circumference of the funnel is attached, and if the inside horizontal opening of at least 39 inches (99.1 cm) is maintained. In a bottom-opening TED, only the top <FR>1/3</FR> of the circumference of the funnel may be attached to the TED. In a top-opening TED, only the bottom <FR>1/3</FR> of the circumference of the funnel may be attached to the TED.</P> <P>(3) <E T="03">Webbing flap.</E> A webbing flap may be used to cover the escape opening under the following conditions: No device holds it closed or otherwise restricts the opening; it is constructed of webbing with a stretched mesh size no larger than 1<FR>5/8</FR> inches (4.1 cm); it lies on the outside of the trawl; it is attached along its entire forward edge forward of the escape opening; it is not attached on the sides beyond the row of meshes that lies 6 inches (15.2 cm) behind the posterior edge of the grid; and it does not extend more than 24 inches (61.0 cm) beyond the posterior edge of the grid, except for trawlers fishing in the Gulf SFSTCA or Atlantic SFSTCA with a hard TED with the position of the escape opening at the bottom of the net when the net is in its deployed position, in which case the webbing flap must not extend beyond the posterior edge of the grid.</P> <P>(4) <E T="03">Chafing webbing.</E> A single piece of nylon webbing, with a twine size no smaller than size 36 (2.46 mm in diameter), may be attached outside of the escape opening webbing flap to prevent chafing on bottom opening TEDs. This webbing may be attached along its leading edge only. This webbing may not extend beyond the trailing edge or sides of the existing escape opening webbing flap, and it must not interfere or otherwise restrict the turtle escape opening.</P> <P>(5) <E T="03">Roller gear.</E> Roller gear may be attached to the bottom of a TED to prevent chafing on the bottom of the TED and the trawl net. When a webbing flap is used in conjunction with roller gear, the webbing flap must be of a length such that no part of the webbing flap can touch or come in contact with any part of the roller gear assembly or the means of attachment of the roller gear assembly to the TED, when the trawl net is in its normal, horizontal position. Roller gear must be constructed according to one of the following design criteria:</P> <P>(i) A single roller consisting of hard plastic shall be mounted on an axle rod, so that the roller can roll freely about the axle. The maximum diameter of the roller shall be 6 inches (15.24 cm), and the maximum width of the axle rod shall be 12 inches (30.4 cm). The axle rod must be attached to the TED by two support rods. The maximum clearance between the roller and the TED shall not exceed 1 inch (2.5 cm) at the center of the roller. The support rods and axle rod must be made from solid steel or solid aluminum rod no larger than <FR>1/2</FR> inch (1.28 cm) in diameter. The attachment of the support rods to the TED shall be such that there are no protrusions (lips, sharp edges, burrs, etc.) on the front face of the grid. The axle rod and support rods must lie entirely behind the plane of the face of the TED grid.</P> <P>(ii) A single roller consisting of hard plastic tubing shall be tightly tied to the back face of the TED grid with rope <PRTPAGE P="157"/>or heavy twine passed through the center of the roller tubing. The roller shall lie flush against the TED. The maximum outside diameter of the roller shall be 3<FR>1/2</FR> inches (8.0 cm), the minimum outside diameter of the roller shall be 2 inches (5.1 cm), and the maximum length of the roller shall be 12 inches (30.4 cm). The roller must lie entirely behind the plane of the face of the grid.</P> <P>(e) <E T="03">Revision of generic design criteria, and approval of TEDs, of allowable modifications of hard TEDs, and of special hard TEDs.</E> (1) The Assistant Administrator may revise the generic design criteria for hard TEDs set forth in paragraph (a) of this section, may approve special hard TEDs in addition to those listed in paragraph (b) of this section, may approve allowable modifications to hard TEDs in addition to those authorized in paragraph (d) of this section, or may approve other TEDs, by regulatory amendment, if, according to a NMFS-approved scientific protocol, the TED demonstrates a sea turtle exclusion rate of 97 percent or greater (or an equivalent exclusion rate). Two such protocols have been published by NMFS (52 FR 24262, June 29, 1987; and 55 FR 41092, October 9, 1990) and will be used only for testing relating to hard TED designs. Testing under any protocol must be conducted under the supervision of the Assistant Administrator, and shall be subject to all such conditions and restrictions as the Assistant Administrator deems appropriate. Any person wishing to participate in such testing should contact the Director, Southeast Fisheries Science Center, NMFS, 75 Virginia Beach Dr., Miami, FL 33149-1003.</P> <P>(2) Upon application, the Assistant Administrator may issue permits, subject to such conditions and restrictions as the Assistant Administrator deems appropriate, authorizing public or private experimentation aimed at improving shrimp retention efficiency of existing approved TEDs and at developing additional TEDs, or conducting fishery research, that would otherwise be subject to § 223.206(d)(2). Applications should be made to the Southeast Regional Administrator (see § 222.102 definition of “Southeast Regional Administrator”).</P> <CITA>[64 FR 14073, Mar. 23, 1999, as amended at 64 FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; 66 FR 24288, May 14, 2001]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14073, Mar. 23, 1999, § 223.207 was added. Paragraphs (a)(9)(ii) (A) and (B) contain information collection requirements and will not become effective until approved by the Office of Management and Budget.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 223.209</SECTNO> <SUBJECT>Tribal plans.</SUBJECT> <P>(a) <E T="03">Limits on the prohibitions</E>. The prohibitions of § 223.203(a) of this subpart relating to threatened species of salmonids listed in § 223.102 do not apply to any activity undertaken by a tribe, tribal member, tribal permittee, tribal employee, or tribal agent in compliance with a Tribal resource management plan (Tribal Plan), provided that the Secretary determines that implementation of such Tribal Plan will not appreciably reduce the likelihood of survival and recovery of the listed salmonids. In making that determination the Secretary shall use the best available biological data (including any tribal data and analysis) to determine the Tribal Plan's impact on the biological requirements of the species, and will assess the effect of the Tribal Plan on survival and recovery, consistent with legally enforceable tribal rights and with the Secretary's trust responsibilities to tribes.</P> <P>(b) <E T="03">Consideration of a Tribal Plan</E>. (1) A Tribal Plan may include but is not limited to plans that address fishery harvest, artificial production, research, or water or land management, and may be developed by one tribe or jointly with other tribes. The Secretary will consult on a government-to-government basis with any tribe that so requests and will provide to the maximum extent practicable technical assistance in examining impacts on listed salmonids and other salmonids as tribes develop Tribal resource management plans that meet the management responsibilities and needs of the tribes. A Tribal Plan must specify the procedures by which the tribe will enforce its provisions.</P> <P>(2) Where there exists a Federal court proceeding with continuing jurisdiction over the subject matter of a Tribal Plan, the plan may be developed and <PRTPAGE P="158"/>implemented within the ongoing Federal Court proceeding. In such circumstances, compliance with the Tribal Plan's terms shall be determined within that Federal Court proceeding.</P> <P>(3) The Secretary shall seek comment from the public on the Secretary's pending determination whether or not implementation of a Tribal Plan will appreciably reduce the likelihood of survival and recovery of the listed salmonids.</P> <P>(4) The Secretary shall publish notification in the <E T="04">Federal Register</E> of any determination regarding a Tribal Plan and the basis for that determination.</P> <CITA>[65 FR 42485, July 10, 2000]</CITA> <EAR>Pt. 223, Fig. 1</EAR> <GPH DEEP="120" SPAN="2"> <GID>EC01JY91.045</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 1 to Part 223—NMFS TED</HD> </WIDE> <CITA TYPE="W">[60 FR 15519, Mar. 24, 1995]</CITA> <EAR>Pt. 223, Fig. 2</EAR> <GPH DEEP="232" SPAN="2"> <GID>EC01JY91.046</GID> </GPH> <WIDE> <PRTPAGE P="159"/> <HD SOURCE="HD1">Figure 2 to Part 223—Cameron TED</HD> </WIDE> <CITA TYPE="W">[52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> <EAR>Pt. 223, Fig. 3</EAR> <GPH DEEP="203" SPAN="2"> <GID>EC01JY91.047</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 3 to Part 223—Matagorda TED</HD> </WIDE> <CITA TYPE="W">[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]<PRTPAGE P="160"/> </CITA> <EAR>Pt. 223, Fig. 4</EAR> <GPH DEEP="212" SPAN="2"> <GID>EC01JY91.048</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 4 to Part 223—Georgia TED</HD> </WIDE> <CITA TYPE="W">[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> <PRTPAGE P="161"/> <EAR>Pt. 223, Fig. 5</EAR> <GPH DEEP="460" SPAN="2"> <GID>ER13AP98.001</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 5 to Part 223—Net Diagram for the Excluder Panel of the Parker Soft TED</HD> </WIDE> <CITA TYPE="W">[63 FR 17958, Apr. 13, 1998]</CITA> <PRTPAGE P="162"/> <EAR>Pt. 223, Fig. 6</EAR> <GPH DEEP="394" SPAN="2"> <GID>ER15OC99.001</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 6 to Part 223—TED Extension in Summer Flounder Trawl</HD> </WIDE> <CITA TYPE="W">[64 FR 55864, Oct. 15, 1999]</CITA> <WIDE> <HD SOURCE="HD1">Figures 7-<E T="01">9b</E> to Part 223[Reserved]</HD> </WIDE> <PRTPAGE P="163"/> <EAR>Pt. 223, Fig. 10</EAR> <GPH DEEP="378" SPAN="2"> <GID>EC01JY91.056</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 10 to Part 223—Flounder TED</HD> </WIDE> <CITA TYPE="W">[58 FR 54069, Oct. 20, 1993]</CITA> <PRTPAGE P="164"/> <EAR>Pt. 223, Fig. 11</EAR> <GPH DEEP="381" SPAN="2"> <GID>EC01JY91.057</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 11 to Part 223—Jones TED</HD> </WIDE> <CITA TYPE="W">[58 FR 54070, Oct. 20, 1993]</CITA> <PRTPAGE P="165"/> <EAR>Pt. 223, Fig. 12a</EAR> <GPH DEEP="430" SPAN="2"> <GID>EC01JY91.058</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 12A to Part 223—Attachment of the Exit Hole Cover</HD> </WIDE> <CITA TYPE="W">[59 FR 25830, May 18, 1994]</CITA> <PRTPAGE P="166"/> <EAR>Pt. 223, Fig. 12b</EAR> <GPH DEEP="439" SPAN="2"> <GID>EC01JY91.059</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 12B to Part 223—Grid TED Leatherback Modification</HD> </WIDE> <CITA TYPE="W">[59 FR 25831, May 18, 1994]</CITA> <PRTPAGE P="167"/> <EAR>Pt. 223, Fig. 13</EAR> <GPH DEEP="375" SPAN="2"> <GID>EC01JY91.060</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 13 to Part 223—Single Grid Hard TED Escape Opening</HD> </WIDE> <CITA TYPE="W">[60 FR 15520, Mar. 24, 1995]</CITA> <PRTPAGE P="168"/> <EAR>Pt. 223, Figs. 14a and 14b</EAR> <WIDE> <HD SOURCE="HD1">Figure 14A to Part 223—Maximum Angle of Deflector Bars With Straight Bars Attached to the Bottom of the Frame</HD> </WIDE> <GPH DEEP="413" SPAN="2"> <GID>ER19DE96.002</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 14B to Part 223—Maximum Angle of Deflector Bars With Bent Bars Attached to the Bottom of the Frame</HD> </WIDE> <CITA TYPE="W">[61 FR 66946, Dec. 19, 1996]</CITA> <PRTPAGE P="169"/> <EAR>Pt. 223, Fig. 15</EAR> <GPH DEEP="260" SPAN="2"> <GID>ER19DE96.003</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 15 to Part 223—Maximum Angle of Deflector Bars With Bars Unattached to the Bottom of the Frame</HD> </WIDE> <CITA TYPE="W">[61 FR 66947, Dec. 19, 1996]</CITA> </SECTION> <APPENDIX> <PRTPAGE P="170"/> <EAR>Pt. 223, Fig. 16</EAR> <WHED>Figure 16 to Part 223—Escape Opening and Flap Dimensions for the Double Cover Flap TED</WHED> <GPH DEEP="437" SPAN="2"> <GID>ER14MY01.006</GID> </GPH> <CITA TYPE="W">[66 FR 24289, May 14, 2001]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <PRTPAGE P="171"/> <EAR>Pt. 224</EAR> <HD SOURCE="HED">PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>224.101</SECTNO> <SUBJECT>Enumeration of endangered marine and anadromous species.</SUBJECT> <SECTNO>224.102</SECTNO> <SUBJECT>Permits for endangered marine and anadromous species.</SUBJECT> <SECTNO>224.103</SECTNO> <SUBJECT>Special prohibitions for endangered marine mammals.</SUBJECT> <SECTNO>224.104</SECTNO> <SUBJECT>Special requirements for fishing activities to protect endangered sea turtles. </SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1531-1543 and 16 U.S.C. 1361 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 14066, Mar. 23, 1999, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 224.101</SECTNO> <SUBJECT>Enumeration of endangered marine and anadromous species.</SUBJECT> <P>The marine and anadromous species determined by the Secretary of Commerce to be endangered pursuant to section 4(a) of the Act, as well as species listed under the Endangered Species Conservation Act of 1969 by the Secretary of the Interior and currently under the jurisdiction of the Secretary of Commerce, are the following:</P> <P>(a) <E T="03">Marine and anadromous fish.</E> The following table lists the common and scientific names of endangered species, the locations where they are listed, and the citations for the listings and critical habitat designations.<PRTPAGE P="172"/> </P> <GPOTABLE CDEF="s50,xl100,xl100,30,30" COLS="5" OPTS="L2,i1"> <BOXHD> <CHED H="1">Species<SU>1</SU> </CHED> <CHED H="2">Common name</CHED> <CHED H="2">Scientific Name</CHED> <CHED H="1">Where listed</CHED> <CHED H="1">When listed</CHED> <CHED H="1">Critical habitat</CHED> </BOXHD> <ROW> <ENT I="22">Shortnose sturgeon</ENT> <ENT> <E T="03">Acipenser</E> <E T="03">brevirostrum</E> </ENT> <ENT>U.S.A., northwestern Atlantic, in river systems from the Saint John River in New Brunswick, Canada, to the St. Johns River, Florida</ENT> <ENT>32 FR 4001, Mar. 11,1967</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="22">Southern California steelhead</ENT> <ENT> <E T="03">Oncorhynchus</E> <E T="03">mykiss</E> </ENT> <ENT>U.S.A., CA, including all naturally spawned populations of steelhead (and their progeny) in streams from the Santa Maria River, San Luis Obispo County, California (inclusive) to Malibu Creek, Los Angeles County, California (inclusive)</ENT> <ENT>62 FR 43937, Aug. 18, 1997</ENT> <ENT>64 FR 5740, Feb. 5, 1999</ENT> </ROW> <ROW> <ENT I="22">Upper Columbia River steelhead</ENT> <ENT> <E T="03">Oncorhynchus</E> <E T="03">mykiss</E> </ENT> <ENT>U.S.A., WA, including the Wells Hatchery stock and all naturally spawned populations of steelhead (and their progeny) in streams in the Columbia River Basin upstream from the Yakima River, Washington, to the U.S.—Canada Border</ENT> <ENT>62 FR 43937, Aug. 18, 1997</ENT> <ENT>64 FR 5740, Feb. 5, 1999</ENT> </ROW> <ROW> <ENT I="22">Snake River sockeye salmon</ENT> <ENT> <E T="03">Oncorhynchus</E> <E T="03">nerka</E> </ENT> <ENT>U.S.A., ID, Snake River</ENT> <ENT>56 FR 58619, Nov. 20, 1991</ENT> <ENT>58 FR 68543, Dec. 28, 1993</ENT> </ROW> <ROW> <ENT I="22">Upper Columbia River spring-run chinook salmon</ENT> <ENT> <E T="03">Oncorhynchus</E> <E T="03">tshawytscha</E> </ENT> <ENT>U.S.A., WA, including all naturally spawned populations of chinook salmon in Columbia River tributaries upstream of the Rock Island Dam and downstream of Chief Joseph Dam in Washington (excluding the Okanogan River), the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to Chief Joseph Dam in Washington, and the Chiwawa River (spring run), Methow River (spring run), Twisp River (spring run), Chewuch River (spring run), White River (spring run), and Nason Creek (spring run) hatchery stocks (and their progeny)</ENT> <ENT>64 FR 14308, Mar. 24, 1999</ENT> <ENT>65 FR 7764, Feb. 16, 2000</ENT> </ROW> <ROW> <ENT I="22">Sacramento River winter-run chinook salmon</ENT> <ENT> <E T="03">Oncorhynchus</E> <E T="03">tshawytscha</E> </ENT> <ENT>U.S.A., CA, Sacramento River</ENT> <ENT>59 FR 13836, Mar. 23, 1994</ENT> <ENT>58 FR 33212, Jun. 16, 1993</ENT> </ROW> <ROW> <PRTPAGE P="173"/> <ENT I="22">Salmon, Atlantic</ENT> <ENT> <E T="03">Salmo</E> <E T="03">salar</E> </ENT> <ENT>U.S.A., MEGulf of Maine Atlantic Salmon Distinct Population Segment, which includes all naturally reproducing wild populations and those river-specific hatchery populations of Atlantic salmon having historical, river-specific characteristics found north of and including tributaries of the lower Kennebec River to, but not including, the mouth of the St. Croix River at the U.S.-Canada border. To date, the Services have determined that these populations are found in the Dennys, East Machias, Machias, Pleasant, Narraguagus, Sheepscot, and Ducktrap Rivers and in Cove Brook, Maine.</ENT> <ENT/> <ENT>NA</ENT> </ROW> <ROW> <ENT I="22">Totoaba</ENT> <ENT> <E T="03">Cynoscion</E> <E T="03">macdonaldi</E> </ENT> <ENT>Mexico, Gulf of CA</ENT> <ENT>44 FR 29480,May 21, 1979</ENT> <ENT>NA</ENT> </ROW> <TNOTE> <SU>1</SU> Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs)(for a policy statement, see 56 FR 58612, November 20, 1991)</TNOTE> </GPOTABLE> <PRTPAGE P="174"/> <P>(b) <E T="03">Marine mammals.</E> Blue whale (<E T="03">Balaenoptera musculus</E>); Bowhead whale (<E T="03">Balaena mysticetus</E>); Caribbean monk seal (<E T="03">Monachus tropicalis</E>); Chinese river dolphin (<E T="03">Lipotes vexillifer</E>); Cochito (<E T="03">Phocoena sinus</E>); Fin or finback whale (<E T="03">Balaenoptera physalus</E>); Hawaiian monk seal (<E T="03">Monachus schauinslandi</E>); Humpback whale (<E T="03">Megaptera novaeangliae</E>); Indus River dolphin (<E T="03">Platanista minor</E>); Mediterranean monk seal (<E T="03">Monachus monachus</E>); Right whales (<E T="03">Eubalaena spp.</E>); Saimaa seal (<E T="03">Phoca hispida saimensis</E>); Sei whale (<E T="03">Balaenoptera borealis</E>); Sperm whale (<E T="03">Physeter catodon</E>); Western North Pacific (Korean) gray whale (<E T="03">Eschrichtius robustus</E>); Steller sea lion, western population, (<E T="03">Eumetopias jubatus</E>), which consists of Stellar sea lions from breeding colonies located west of 144° W. longitude.</P> <P>(c) <E T="03">Sea turtles.</E> Green turtle (<E T="03">Chelonia mydas</E>) breeding colony populations in Florida and on the Pacific coast of Mexico; Hawksbill turtle (<E T="03">Eretmochelys imbricata</E>); Kemp's ridley turtle (<E T="03">Lepidochelys kempii</E>); Leatherback turtle (<E T="03">Dermochelys coriacea</E>); Olive ridley turtle (<E T="03">Lepidochelys olivacea</E>) breeding colony population on the Pacific coast of Mexico. </P> <NOTE> <HD SOURCE="HED">Note to § 224.101(c):</HD> <P>Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water.</P> </NOTE> <P>(d) <E T="03">Marine invertebrates.</E> White abalone (<E T="03">Haliotis sorenseni</E>).</P> <CITA>[64 FR 14066, Mar. 23, 1999, as amended 64 FR 14328, Mar. 24, 1999; 65 FR 20918, Apr. 19, 2000; 65 FR 69481, Nov. 17, 2000; 66 FR 29055, May 29, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 224.102</SECTNO> <SUBJECT>Permits for endangered marine and anadromous species.</SUBJECT> <P>No person shall take, import, export, or engage in any activity prohibited by section 9 of the Act involving any marine species that has been determined to be endangered under the Endangered Species Conservation Act of 1969 or the Act, and that is under the jurisdiction of the Secretary, without a valid permit issued pursuant to part 222, subpart C of this chapter.</P> </SECTION> <SECTION> <SECTNO>§ 224.103</SECTNO> <SUBJECT>Special prohibitions for endangered marine mammals.</SUBJECT> <P>(a) <E T="03">Approaching humpback whales in Hawaii.</E> Except as provided in part 222, subpart C, of this chapter (General Permit Procedures), it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of the Islands of Hawaii, any of the following acts with respect to humpback whales (<E T="03">Megaptera novaeangliae</E>):</P> <P>(1) Operate any aircraft within 1,000 feet (300 m) of any humpback whale;</P> <P>(2) Approach, by any means, within 100 yard (90 m) of any humpback whale;</P> <P>(3) Cause a vessel or other object to approach within 100 yd (90 m) of a humpback whale; or</P> <P>(4) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movement; or the abandonment of a previously frequented area.</P> <P>(b) <E T="03">Approaching humpback whales in Alaska</E>—(1) <E T="03">Prohibitions.</E> Except as provided under paragraph (b)(2) of this section, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of Alaska, or within inland waters of the state, any of the acts in paragraphs (b)(1)(i) through (b)(1)(iii) of this section with respect to humpback whales (<E T="03">Megaptera novaeangliae</E>):</P> <P>(i) Approach, by any means, including by interception (i.e., placing a vessel in the path of an oncoming humpback whale so that the whale surfaces within 100 yards (91.4 m) of the vessel), within 100 yards (91.4 m) of any humpback whale;<PRTPAGE P="175"/> </P> <P>(ii) Cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale; or</P> <P>(iii) Disrupt the normal behavior or prior activity of a whale by any other act or omission, as described in paragraph (a)(4) of this section.</P> <P>(2) <E T="03">Exceptions.</E> The following exceptions apply to this paragraph (b), but any person who claims the applicability of an exception has the burden of proving that the exception applies:</P> <P>(i) Paragraph (b)(1) of this section does not apply if an approach is authorized by the National Marine Fisheries Service through a permit issued under part 222, subpart C, of this chapter (General Permit Procedures) or through a similar authorization.</P> <P>(ii) Paragraph (b)(1) of this section does not apply to the extent that a vessel is restricted in her ability to maneuver and, because of the restriction, cannot comply with paragraph (b)(1) of this section.</P> <P>(iii) Paragraph (b)(1) of this section does not apply to commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commercial fishing gear. For purposes of this paragraph (b), commercial fishing means taking or harvesting fish or fishery resources to sell, barter, or trade. Commercial fishing does not include commercial passenger fishing operations (i.e. charter operations or sport fishing activities).</P> <P>(iv) Paragraph (b)(1) of this section does not apply to state, local, or Federal government vessels operating in the course of official duty.</P> <P>(v) Paragraph (b)(1) of this section does not affect the rights of Alaska Natives under 16 U.S.C. 1539(e).</P> <P>(vi) These regulations shall not take precedence over any more restrictive conflicting Federal regulation pertaining to humpback whales, including the regulations at 36 CFR 13.65 that pertain specifically to the waters of Glacier Bay National Park and Preserve.</P> <P>(3) <E T="03">General measures.</E> Notwithstanding the prohibitions and exceptions in paragraphs (b)(1) and (2) of this section, to avoid collisions with humpback whales, vessels must operate at a slow, safe speed when near a humpback whale. “Safe speed” has the same meaning as the term is defined in 33 U.S.C. 2006 and the International Regulations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect to avoiding collisions with humpback whales.</P> <P>(c) <E T="03">Approaching North Atlantic right whales</E>—(1) <E T="03">Prohibitions.</E> Except as provided under paragraph (b)(3) of this section, it is unlawful for any person subject to the jurisdiction of the United States to commit, attempt to commit, to solicit another to commit, or cause to be committed any of the following acts:</P> <P>(i) Approach (including by interception) within 500 yards (460 m) of a right whale by vessel, aircraft, or any other means;</P> <P>(ii) Fail to undertake required right whale avoidance measures specified under paragraph (b)(2) of this section.</P> <P>(2) <E T="03">Right whale avoidance measures.</E> Except as provided under paragraph (b)(3) of this section, the following avoidance measures must be taken if within 500 yards (460 m) of a right whale:</P> <P>(i) If underway, a vessel must steer a course away from the right whale and immediately leave the area at a slow safe speed.</P> <P>(ii) An aircraft must take a course away from the right whale and immediately leave the area at a constant airspeed.</P> <P>(3) <E T="03">Exceptions.</E> The following exceptions apply to this section, but any person who claims the applicability of an exception has the burden of proving that the exception applies:</P> <P>(i) Paragraphs (b)(1) and (b)(2) of this section do not apply if a right whale approach is authorized by the National Marine Fisheries Service through a permit issued under part 222, subpart C, of this chapter (General Permit Procedures) or through a similar authorization.</P> <P>(ii) Paragraphs (b)(1) and (b)(2) of this section do not apply where compliance would create an imminent and serious threat to a person, vessel, or aircraft.</P> <P>(iii) Paragraphs (b)(1) and (b)(2) of this section do not apply when approaching to investigate a right whale entanglement or injury, or to assist in the disentanglement or rescue of a right whale, provided that permission <PRTPAGE P="176"/>is received from the National Marine Fisheries Service or designee prior to the approach.</P> <P>(iv) Paragraphs (b)(1) and (b)(2) of this section do not apply to an aircraft unless the aircraft is conducting whale watch activities.</P> <P>(v) Paragraph (b)(2) of this section does not apply to the extent that a vessel is restricted in her ability to maneuver and, because of the restriction, cannot comply with paragraph (b)(2) of this section.</P> <P>(d) <E T="03">Special prohibitions relating to endangered Steller sea lion protection.</E> The regulatory provisions set forth in part 223 of this chapter, which govern threatened Steller sea lions, shall also apply to the western population of Steller sea lions, which consists of all Steller sea lions from breeding colonies located west of 144° W. long.</P> <CITA>[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 29509, May 31, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 224.104</SECTNO> <SUBJECT> Special requirements for fishing activities to protect endangered sea turtles.</SUBJECT> <P>(a) Shrimp fishermen in the southeastern United States and the Gulf of Mexico who comply with rules for threatened sea turtles specified in § 223.206 of this chapter will not be subject to civil penalties under the Act for incidental captures of endangered sea turtles by shrimp trawl gear.</P> <P>(b) Summer flounder fishermen in the Summer flounder fishery-sea turtle protection area who comply with rules for threatened sea turtles specified in § 223.206 of this chapter will not be subject to civil penalties under the Act for incidental captures of endangered sea turtles by summer flounder gear.</P> <P>(c) Special prohibitions relating to leatherback sea turtles are provided at § 223.206 (d)(2)(iv) and § 223.206 (d)(6) of this chapter.</P> <CITA>[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 44552, Aug. 24, 2001]</CITA> </SECTION> </PART> <PART> <RESERVED>PART 225[RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 226</EAR> <HD SOURCE="HED">PART 226—DESIGNATED CRITICAL HABITAT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>226.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>226.201</SECTNO> <SUBJECT>Critical habitat for Hawaiian monk seals.</SUBJECT> <SECTNO>226.202</SECTNO> <SUBJECT>Critical habitat for Steller sea lions.</SUBJECT> <SECTNO>226.203</SECTNO> <SUBJECT>Critical habitat for Northern right whales.</SUBJECT> <SECTNO>226.204</SECTNO> <SUBJECT>Critical habitat for Sacramento winter-run chinook salmon.</SUBJECT> <SECTNO>226.205</SECTNO> <SUBJECT>Critical habitat for Snake River sockeye salmon, Snake River fall chinook salmon, and Snake River spring/summer chinook salmon.</SUBJECT> <SECTNO>226.206</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>226.207</SECTNO> <SUBJECT>Critical habitat for leatherback turtle.</SUBJECT> <SECTNO>226.208</SECTNO> <SUBJECT>Critical habitat for green turtle.</SUBJECT> <SECTNO>226.209</SECTNO> <SUBJECT>Critical habitat for hawksbill turtle.</SUBJECT> <SECTNO>226.210</SECTNO> <SUBJECT>Central California Coast Coho Salmon (Oncorhynchus kisutch), Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).</SUBJECT> <SECTNO>226.212</SECTNO> <SUBJECT>Critical habitat designation for 19 evolutionary significant units of salmon and steelhead in Washington, Oregon, Idaho, and California.</SUBJECT> <SECTNO>226.213</SECTNO> <SUBJECT>Critical habitat for Johnson's seagrass.</SUBJECT> <APP>Table 1 to Part 226—Major Steller Sea Lion Rookery Sites</APP> <APP>Table 2 to Part 226—Major Steller Sea Lion Haulout Sites in Alaska</APP> <APP>Table 3 to Part 226—Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and Snake River Spring/Summer and Fall Chinook Salmon</APP> <APP>Table 4 to Part 226[Reserved]</APP> <APP>Table 5 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central California Coast Coho Salmon, Tribal Lands Within the Range of the ESU, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat</APP> <APP>Table 6 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Southern Oregon/Northern California Coasts Coho Salmon, Tribal Lands Within the Range of the ESU, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat</APP> <APP>Table 7 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Puget Sound Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 8 to Part 226 —Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 9 to Part 226 —Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.<PRTPAGE P="177"/> </APP> <APP>Table 10 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River Spring-run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 11 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central Valley California Spring-run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 12 to Part 226 —Hydrologic Units and Counties Containing Critical Habitat for California Coastal Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 13 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Hood Canal Summer-run Chum Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 14 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Columbia River Chum Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 15 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Oregon Coast Coho Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 16 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Southern California Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 17 to Part 226.—Hydrologic Units and Counties Containing Critical Habitat for South-Central California Coast Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 18 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central California Coast Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 19 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central Valley Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 20 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 21 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Snake River Basin Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 22 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 23 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> <APP>Table 24 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Middle Columbia River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</APP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1533.</P> </AUTH> <SECTION> <SECTNO>§ 226.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>The regulations contained in this part identify those habitats designated by the Secretary of Commerce as critical under section 4 of the Act, for endangered and threatened species under the jurisdiction of the Secretary of Commerce. Those species are enumerated at § 223.102 of this chapter, if threatened and at § 224.101 of this chapter, if endangered. For regulations pertaining to the designation of critical habitat, see part 424 of this title, and for regulations pertaining to prohibitions against the adverse modification or destruction of critical habitat, see part 402 of this title. Maps and charts identifying designated critical habitat that are not provided in this section may be obtained upon request to the Office of Protected Resources (see § 222.102, definition of “Office of Protected Resources”).</P> <CITA>[64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.201</SECTNO> <SUBJECT>Critical habitat for Hawaiian monk seals.</SUBJECT> <HD SOURCE="HD1">Hawaiian Monk Seal</HD> <HD SOURCE="HD2">(Monachus schauinslandi)</HD> <P>All beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 20 fathoms around the following: </P> <EXTRACT> <FP SOURCE="FP-1">Kure Atoll (28<E T="61">°</E>24<E T="61">′</E> N, 178<E T="61">°</E>20<E T="61">′</E> W)<PRTPAGE P="178"/> </FP> <FP SOURCE="FP-1">Midway Islands, except Sand Island and its harbor (28<E T="61">°</E>14<E T="61">′</E> N, 177<E T="61">°</E>22<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Pearl and Hermes Reef (27<E T="61">°</E>55<E T="61">′</E> N, 175<E T="61">°</E> W)</FP> <FP SOURCE="FP-1">Lisianski Island (26<E T="61">°</E>46<E T="61">′</E> N, 173<E T="61">°</E>58<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Laysan Island (25<E T="61">°</E>46<E T="61">′</E> N, 171<E T="61">°</E>44<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Maro Reef (25<E T="61">°</E>25<E T="61">′</E> N, 170<E T="61">°</E>35<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Gardner Pinnacles (25<E T="61">°</E>00<E T="61">′</E> N, 168<E T="61">°</E>00<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">French Frigate Shoals (23<E T="61">°</E>45<E T="61">′</E> N, 166<E T="61">°</E>00<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Necker Island (23<E T="61">°</E>34<E T="61">′</E> N, 164<E T="61">°</E>42<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Nihoa Island (23<E T="61">°</E>03.5<E T="61">′</E> N, 161<E T="61">°</E>55.5<E T="61">′</E> W).</FP> </EXTRACT> <GPH DEEP="428" SPAN="2"> <GID>EC01JY91.000</GID> </GPH> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="179"/> <GID>EC01JY91.001</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="180"/> <GID>EC01JY91.002</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="181"/> <GID>EC01JY91.003</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="182"/> <GID>EC01JY91.004</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="183"/> <GID>EC01JY91.005</GID> </GPH> <GPH DEEP="407" SPAN="2"> <PRTPAGE P="184"/> <GID>EC01JY91.006</GID> </GPH> <GPH DEEP="444" SPAN="2"> <PRTPAGE P="185"/> <GID>EC01JY91.007</GID> </GPH> <CITA TYPE="W">[53 FR 18990, May 26, 1988. Redesignated at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="186"/> <SECTNO>§ 226.202</SECTNO> <SUBJECT>Critical habitat for Stellar sea lions.</SUBJECT> <HD SOURCE="HD1">Steller Sea Lion (<E T="03">Eumetopias jubatus</E>)</HD> <P>(a) <E T="03">Alaska rookeries, haulouts, and associated areas.</E> In Alaska, all major Steller sea lion rookeries identified in Table 1 and major haulouts identified in Table 2 and associated terrestrial, air, and aquatic zones. Critical habitat includes a terrestrial zone that extends 3,000 feet (0.9 km) landward from the baseline or base point of each major rookery and major haulout in Alaska. Critical habitat includes an air zone that extends 3,000 feet (0.9 km) above the terrestrial zone of each major rookery and major haulout in Alaska, measured vertically from sea level. Critical habitat includes an aquatic zone that extends 3,000 feet (0.9 km) seaward in State and Federally managed waters from the baseline or basepoint of each major rookery and major haulout in Alaska that is east of 144° W. longitude. Critical habitat includes an aquatic zone that extends 20 nm (37 km) seaward in State and Federally managed waters from the baseline or basepoint of each major rookery and major haulout in Alaska that is west of 144° W. longitude.</P> <P>(b) <E T="03">California and Oregon rookeries and associated areas.</E> In California and Oregon, all major Steller sea lion rookeries identified in Table 1 and associated air and aquatic zones. Critical habitat includes an air zone that extends 3,000 feet (0.9 km) above areas historically occupied by sea lions at each major rookery in California and Oregon, measured vertically from sea level. Critical habitat includes an aquatic zone that extends 3,000 feet (0.9 km) seaward in State and Federally managed waters from the baseline or basepoint of each major rookery in California and Oregon.</P> <P>(c) <E T="03">Three special aquatic foraging areas in Alaska.</E> Three special aquatic foraging areas in Alaska, including the Shelikof Strait area, the Bogoslof area, and the Seguam Pass area.</P> <P>(1) Critical habitat includes the Shelikof Strait area in the Gulf of Alaska and consists of the area between the Alaska Peninsula and Tugidak, Sitkinak, Aiaktilik, Kodiak, Raspberry, Afognak and Shuyak Islands (connected by the shortest lines); bounded on the west by a line connecting Cape Kumlik (56°38″/157°27′W) and the southwestern tip of Tugidak Island (56°24′N/154°41′W) and bounded in the east by a line connecting Cape Douglas (58°51′N/153°15′W) and the northernmost tip of Shuyak Island (58°37′N/152°22′W).</P> <P>(2) Critical habitat includes the Bogoslof area in the Bering Sea shelf and consists of the area between 170°00′W and 164°00′W, south of straight lines connecting 55°00′N/170°00′W and 55°00′N/168°00′W; 55°30′N/168°00′W and 55°30′N/166°00′W; 56°00′N/166°00′W and 56°00′N/164°00′W and north of the Aleutian Islands and straight lines between the islands connecting the following coordinates in the order listed:</P> <EXTRACT> <FP SOURCE="FP-1">52°49.2′N/169°40.4′W</FP> <FP SOURCE="FP-1">52°49.8′N/169°06.3′W</FP> <FP SOURCE="FP-1">53°23.8′N/167°50.1′W</FP> <FP SOURCE="FP-1">53°18.7′N/167°51.4′W</FP> <FP SOURCE="FP-1">53°59.0′N/166°17.2′W</FP> <FP SOURCE="FP-1">54°02.9′N/166°03.0′W</FP> <FP SOURCE="FP-1">54°07.7′N/165°40.6′W</FP> <FP SOURCE="FP-1">54°08.9′N/165°38.8′W</FP> <FP SOURCE="FP-1">54°11.9′N/165°23.3′W</FP> <FP SOURCE="FP-1">54°23.9′N/164°44.0′W</FP> </EXTRACT> <P>(3) Critical habitat includes the Seguam Pass area and consists of the area between 52°00′N and 53°00′N and between 173°30′W and 172°30′W.</P> <CITA>[58 FR 45278, Aug. 27, 1993. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.203</SECTNO> <SUBJECT>Critical habitat for Northern right whales.</SUBJECT> <HD SOURCE="HD1">Northern Right Whale <E T="03">(Eubalaena glacialis)</E> </HD> <P>(a) <E T="03">Great South Channel.</E> The area bounded by 41°40′ N/69°45′ W; 41°00′ N/69°05′ W; 41°38′ N/68°13′ W; and 42°10′ N/68°31′ W.</P> <P>(b) <E T="03">Cape Cod Bay, Massachusetts.</E> The area bounded by 42°04.8′ N/70°10′ W; 42°12′ N/70°15′ W; 42°12′ N/70°30′ W; 41°46.8′ N/70°30′ W and on the south and east by the interior shore line of Cape Cod, Massachusetts.</P> <P>(c) <E T="03">Southeastern United States.</E> The coastal waters between 31°15′ N and 30°15′ N from the coast out 15 nautical miles; and the coastal waters between <PRTPAGE P="187"/>30°15′ N and 28°00′ N from the coast out 5 nautical miles (Figure 8 to part 226).</P> <CITA>[59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.204</SECTNO> <SUBJECT>Critical habitat for Sacramento winter-run chinook salmon.</SUBJECT> <P>The following waterways, bottom and water of the waterways and adjacent riparian zones: The Sacramento River from Keswick Dam, Shasta County (River Mile 302) to Chipps Island (River Mile 0) at the westward margin of the Sacramento-San Joaquin Delta, all waters from Chipps Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay, Suisun Bay, and Carquinez Strait, all waters of San Pablo Bay westward of the Carquinez Bridge, and all waters of San Francisco Bay (north of the San Francisco/Oakland Bay Bridge) from San Pablo Bay to the Golden Gate Bridge.</P> <CITA>[58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.205</SECTNO> <SUBJECT>Critical habitat for Snake River sockeye salmon, Snake River fall chinook salmon, and Snake River spring/summer chinook salmon.</SUBJECT> <P>The following areas consisting of the water, waterway bottom, and adjacent riparian zone of specified lakes and river reaches in hydrologic units presently or historically accessible to listed Snake River salmon (except reaches above impassable natural falls, and Dworshak and Hells Canyon Dams). Adjacent riparian zones are defined as those areas within a horizontal distance of 300 feet (91.4 m) from the normal line of high water of a stream channel (600 feet or 182.8 m, when both sides of the stream channel are included) or from the shoreline of a standing body of water. The complete text delineating critical habitat for each species follows. Hydrologic units (table 3) are those defined by the Department of the Interior (DOI), U.S. Geological Survey (USGS) publication, “Hydrologic Unit Maps, United States Geological Survey Water Supply Paper 2294, 1987”, and the following DOI, USGS, 1:500,000 scale hydrologic unit map: State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974, which are incorporated by reference. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS publication and maps may be obtained from the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be inspected at NMFS, Endangered Species Branch, Environmental and Technical Services Division, 911 NE. 11th Avenue, room 620, Portland, OR 97232, NMFS, Office of Protected Resources, 1335 East-West Highway, Silver Spring, MD 20910, or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.</P> <P>(a) <E T="03">Snake River Sockeye Salmon (Oncorhynchus nerka).</E> The Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) and including all Columbia River estuarine areas and river reaches upstream to the confluence of the Columbia and Snake Rivers; all Snake River reaches from the confluence of the Columbia River upstream to the confluence of the Salmon River; all Salmon River reaches from the confluence of the Snake River upstream to Alturas Lake Creek; Stanley, Redfish, Yellow Belly, Pettit, and Alturas Lakes (including their inlet and outlet creeks); Alturas Lake Creek, and that portion of Valley Creek between Stanley Lake Creek and the Salmon River. Critical habitat is comprised of all river lakes and reaches presently or historically accessible (except reaches above impassable natural falls, and Dworshak and Hells Canyon Dams) to Snake River sockeye salmon in the following hydrologic units: Lower Salmon, Lower Snake, Lower Snake-Asotin, Lower Snake-Tucannon, Middle Salmon-Chamberlain, Middle Salmon-Panther, and Upper Salmon. Critical habitat borders on or passes through the following counties in Oregon: Clatsop, Columbia, Gillium, Hood River, Morrow, Multnomah, Sherman, Umatilla, Wallowa, Wasco; the following counties in Washington: Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla, Whitman; and the following counties in Idaho: Blaine, <PRTPAGE P="188"/>Custer, Idaho, Lemhi, Lewis, Nez Perce.</P> <P>(b) <E T="03">Snake River Spring/Summer Chinook Salmon (Oncorhynchus tshawytscha)</E>. Geographic Boundaries. Critical habitat is designated to include the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) and including all Columbia River estuarine areas and river reaches proceeding upstream to the confluence of the Columbia and Snake Rivers; all Snake River reaches from the confluence of the Columbia River upstream to Hells Canyon Dam. Critical habitat also includes river reaches presently or historically accessible (except reaches above impassable natural falls (including Napias Creek Falls) and Dworshak and Hells Canyon Dams) to Snake River spring/summer chinook salmon in the following hydrologic units: Hells Canyon, Imnaha, Lemhi, Little Salmon, Lower Grande Ronde, Lower Middle Fork Salmon, Lower Salmon, Lower Snake-Asotin, Lower Snake-Tucannon, Middle Salmon-Chamberlain, Middle Salmon-Panther, Pahsimeroi, South Fork Salmon, Upper Middle Fork Salmon, Upper Grande Ronde, Upper Salmon, Wallowa. Critical habitat borders on or passes through the following counties in Oregon: Baker, Clatsop, Columbia, Gillium, Hood River, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco; the following counties in Washington: Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla, Whitman; and the following counties in Idaho: Adams, Blaine, Custer, Idaho, Lemhi, Lewis, Nez Perce, Valley.</P> <P>(c) <E T="03">Snake River Fall Chinook Salmon (Oncorhynchus tshawytscha).</E> The Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) and including all Columbia River estuarine areas and river reaches proceeding upstream to the confluence of the Columbia and Snake Rivers; the Snake River, all river reaches from the confluence of the Columbia River, upstream to Hells Canyon Dam; the Palouse River from its confluence with the Snake River upstream to Palouse Falls; the Clearwater River from its confluence with the Snake River upstream to its confluence with Lolo Creek; the North Fork Clearwater River from its confluence with the Clearwater River upstream to Dworshak Dam. Critical habitat also includes river reaches presently or historically accessible (except reaches above impassable natural falls, and Dworshak and Hells Canyon Dams) to Snake River fall chinook salmon in the following hydrologic units; Clearwater, Hells Canyon, Imnaha, Lower Grande Ronde, Lower North Fork Clearwater, Lower Salmon, Lower Snake, Lower Snake-Asotin, Lower Snake-Tucannon, and Palouse. Critical habitat borders on or passes through the following counties in Oregon: Baker, Clatsop, Columbia, Gillium, Hood River, Morrow, Multnomah, Sherman, Umatilla, Wallowa, Wasco; the following counties in Washington: Adams, Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, Garfield, Klickitat, Lincoln, Pacific, Skamania, Spokane, Wahkiakum, Walla, Whitman; and the following counties in Idaho: Adams, Benewah, Clearwater, Idaho, Latah, Lewis, Nez Perce, Shoshone, Valley.</P> <CITA>[58 FR 68551, Dec. 28, 1993, as amended at 63 FR 1393, Jan. 9, 1998. Redesignated and amended at 64 FR 14067, Mar. 23, 1999; 64 FR 57403, Oct. 25, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.206</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 226.207</SECTNO> <SUBJECT>Critical habitat for leatherback turtle.</SUBJECT> <HD SOURCE="HD1">Leatherback Sea Turtle (dermochelys coriacea)</HD> <P>The waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands, up to and inclusive of the waters from the hundred fathom curve shoreward to the level of mean high tide with boundaries at 17°42′12″ North and 64°50′00″ West.</P> <CITA>[44 FR 17711, Mar. 23, 1979. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.208</SECTNO> <SUBJECT>Critical habitat for green turtle.</SUBJECT> <P>(a) Culebra Island, Puerto Rico—Waters surrounding the island of Culebra <PRTPAGE P="189"/>from the mean high water line seaward to 3 nautical miles (5.6 km). These waters include Culebra's outlying Keys including Cayo Norte, Cayo Ballena, Cayos Geniqui<AC T="1"/>, Isla Culebrita, Arrecife Culebrita, Cayo de Luis Pen<AC T="6"/>a, Las Hermanas, El Mono, Cayo Lobo, Cayo Lobito, Cayo Botijuela, Alcarraza, Los Gemelos, and Piedra Steven.</P> <P>(b) [Reserved]</P> <CITA>[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.209</SECTNO> <SUBJECT>Critical habitat for hawksbill turtle.</SUBJECT> <P>(a) Mona and Monito Islands, Puerto Rico—Waters surrounding the islands of Mona and Monito, from the mean high water line seaward to 3 nautical miles (5.6 km).</P> <P>(b) [Reserved]</P> <CITA>[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.210</SECTNO> <SUBJECT>Central California Coast Coho Salmon (Oncorhynchus kisutch), Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).</SUBJECT> <P>Critical habitat is designated to include all river reaches accessible to listed coho within the range of the ESUs listed, except for reaches on Indian lands defined in Tables 5 and 6 to this part. Critical habitat consists of the water, substrate, and adjacent riparian zone of estuarine and riverine reaches in hydrologic units and counties identified in Tables 5 and 6 to this part for all of the coho ESUs listed in this section. Accessible reaches are those within the historical range of the ESUs that can still be occupied by any life stage of coho salmon. Inaccessible reaches are those above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years) and specific dams within the historical range of each ESU identified in Tables 5 and 6 to this part. Hydrologic units are those defined by the Department of the Interior (DOI), U.S. Geological Survey (USGS) publication, “Hydrologic Unit Maps,” Water Supply Paper 2294, 1987, and the following DOI, USGS, 1:500,000 scale hydrologic unit maps: State of Oregon, 1974 and State of California, 1978 which are incorporated by reference. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS publication and maps may be obtained from the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be inspected at NMFS, Protected Resources Division, 525 NE Oregon Street—Suite 500, Portland, OR 97232-2737, or NMFS, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.</P> <P>(a) <E T="03">Central California Coast Coho Salmon (Oncorhynchus kisutch).</E> Critical habitat is designated to include all river reaches accessible to listed coho salmon from Punta Gorda in northern California south to the San Lorenzo River in central California, including Arroyo Corte Madera Del Presidio and Corte Madera Creek, tributaries to San Francisco Bay. Critical habitat consists of the water, substrate, and adjacent riparian zone of estuarine and riverine reaches (including off-channel habitats) in hydrologic units and counties identified in Table 5 of this part. Accessible reaches are those within the historical range of the ESU that can still be occupied by any life stage of coho salmon. Inaccessible reaches are those above specific dams identified in Table 5 of this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(b) <E T="03">Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).</E> Critical habitat is designated to include all river reaches accessible to listed coho salmon between Cape Blanco, Oregon, and Punta Gorda, California. Critical habitat consists of the water, substrate, and adjacent riparian zone of estuarine and riverine reaches (including off-channel habitats) in hydrologic units and counties identified in Table 6 of this part. Accessible reaches are those within the historical range of the ESU that can still be occupied by any life stage of coho salmon. Inaccessible reaches are those above specific dams identified in Table 6 of this part or <PRTPAGE P="190"/>above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <CITA>[64 FR 24061, May 5, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.212</SECTNO> <SUBJECT>Critical habitat designation for 19 evolutionary significant units of salmon and steelhead in Washington, Oregon, Idaho, and California.</SUBJECT> <P>Critical habitat is designated to include all river reaches accessible to listed salmon or steelhead within the range of the ESUs listed, except for reaches on Indian lands. Critical habitat consists of the water, substrate, and adjacent riparian zone of estuarine and riverine reaches in hydrologic units and counties identified in Tables 7 through 24 to this part for all of the salmon and steelhead ESUs listed in this section. Accessible reaches are those within the historical range of the ESUs that can still be occupied by any life stage of salmon or steelhead. Inaccessible reaches are those above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years) and specific dams within the historical range of each ESU identified in Tables 7 through 24 to this part. Hydrologic units are those defined by the Department of the Interior (DOI), U.S. Geological Survey (USGS) publication, “Hydrologic Unit Maps,” Water Supply Paper 2294, 1987, and the following DOI, USGS, 1:500,000 Scale Hydrologic Unit Maps: State of Oregon (1974), State of Washington (1974), State of California (1978), and State of Idaho (1981), which are incorporated by reference. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS publicaion and maps may be obtained from the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be inspected at NMFS, Protected Resources Division, 525 NE Oregon Street-Suite 500, Portland, OR 97232-2737, or NMFS, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.</P> <P>(a) <E T="03">Puget Sound Chinook Salmon (Oncorhynchus tshawytscha) geographic boundaries</E>. Critical habitat is designated to include all marine, estuarine and river reaches accessible to listed chinook salmon in Puget Sound. Puget Sound marine areas include South Sound, Hood Canal, and North Sound to the international boundary at the outer extent of the Strait of Georgia, Haro Strait, and the Strait of Juan De Fuca to a straight line extending north from the west end of Freshwater Bay, inclusive. Excluded are areas above specific dams identified in Table 7 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(b) <E T="03">Lower Columbia River Chinook Salmon (Oncorhynchus tshawytscha) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed chinook salmon in Columbia River tributaries between the Grays and White Salmon Rivers in Washington and the Willamette and Hood Rivers in Oregon, inclusive. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to the Dalles Dam. Excluded are areas above specific dams identified in Table 8 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(c) <E T="03">Upper Willamette River chinook salmon (Oncorhynchus tshawytscha) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed chinook salmon in the Clackamas River and the Willamette River and its tributaries above Willamette Falls. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to, and including, the Willamette River in Oregon. Excluded are areas above specific dams identified in Table 9 to this part or above longstanding, naturally <PRTPAGE P="191"/>impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(d) <E T="03">Upper Columbia River Spring-run Chinook salmon (Oncorhynchus tshawytscha) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed chinook salmon in Columbia River tributaries upstream of the Rock Island Dam and downstream of Chief Joseph Dam in Washington, excluding the Okanogan River. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to Chief Joseph Dam in Washington. Excluded are areas above specific dams identified in Table 10 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(e) <E T="03">Central Valley Spring-run chinook salmon (Oncorhynchus tshawytscha) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed chinook salmon in the Sacramento River and its tributaries in California. Also included are river reaches and estuarine areas of the Sacramento-San Joaquin Delta, all waters from Chipps Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay, Suisun Bay, and Carquinez Strait, all waters of San Pablo Bay westward of the Carquinez Bridge, and all waters of San Francisco Bay (north of the San Francisco/Oakland Bay Bridge) from San Pablo Bay to the Golden Gate Bridge. Excluded are areas above specific dams identified in Table 11 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(f) <E T="03">California Coastal Chinook Salmon (Oncorhynchus tshawytscha) geographic boundaries</E>. Critical habitat is designated to include all river reaches and estuarine areas accessible to listed chinook salmon from Redwood Creek (Humboldt County, California) to the Russian River (Sonoma County, California), inclusive. Excluded are areas above specific dams identified in Table 12 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(g) <E T="03">Hood Canal Summer-run Chum Salmon (Oncorhynchus keta) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed chum salmon (including estuarine areas and tributaries) draining into Hood Canal as well as Olympic Peninsula rivers between and including Hood Canal and Dungeness Bay, Washington. Also included are estuarine/marine areas of Hood Canal, Admiralty Inlet, and the Straits of Juan De Fuca to the international boundary and as far west as a straight line extending north from Dungeness Bay. Excluded are areas above specific dams identified in Table 13 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(h) <E T="03">Columbia River Chum Salmon (Oncorhynchus keta) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed chum salmon (including estuarine areas and tributaries) in the Columbia River downstream from Bonneville Dam, excluding Oregon tributaries upstream of Milton Creek at river km 144 near the town of St. Helens. Excluded are areas above specific dams identified in Table 14 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(i) <E T="03">Ozette Lake Sockeye Salmon (Oncorhynchus nerka) geographic boundaries</E>. Critical habitat is designated to include all lake areas and river reaches accessible to listed sockeye salmon in Ozette Lake, located in Clallam County, Washington. Excluded are areas above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(j) <E T="03">Oregon Coast coho salmon (Oncorhynchus kisutch) geographic boundaries</E>. Critical habitat is designated to include all river reaches and estuarine areas accessible to listed coho salmon from coastal streams south of the Columbia River and north <PRTPAGE P="192"/>of Cape Blanco, Oregon. Excluded are areas above specific dams identified in Table 15 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(k) <E T="03">Southern California steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches and estuarine areas accessible to listed steelhead in coastal river basins from the Santa Maria River to Malibu Creek, California (inclusive). Excluded are areas above specific dams identified in Table 16 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(l) <E T="03">South-Central California Coast steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches and estuarine areas accessible to listed steelhead in coastal river basins from the Pajaro River (inclusive) to, but not including, the Santa Maria River, California. Excluded are areas above specific dams identified in Table 17 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(m) <E T="03">Central California Coast steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches and estuarine areas accessible to listed steelhead in coastal river basins from the Russian River to Aptos Creek, California (inclusive), and the drainages of San Francisco and San Pablo Bays. Also included are all waters of San Pablo Bay westward of the Carquinez Bridge and all waters of San Francisco Bay from San Pablo Bay to the Golden Gate Bridge. Excluded is the Sacramento-San Joaquin River Basin of the California Central Valley as well as areas above specific dams identified in Table 18 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(n) <E T="03">Central Valley steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed steelhead in the Sacramento and San Joaquin Rivers and their tributaries in California. Also included are river reaches and estuarine areas of the Sacramento-San Joaquin Delta, all waters from Chipps Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay, Suisun Bay, and Carquinez Strait, all waters of San Pablo Bay westward of the Carquinez Bridge, and all waters of San Francisco Bay (north of the San Francisco/Oakland Bay Bridge) from San Pablo Bay to the Golden Gate Bridge. Excluded are areas of the San Joaquin River upstream of the Merced River confluence and areas above specific dams identified in Table 19 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(o) <E T="03">Upper Columbia River steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed steelhead in Columbia River tributaries upstream of the Yakima River, Washington, and downstream of Chief Joseph Dam. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to Chief Joseph Dam in Washington. Excluded are areas above specific dams identified in Table 20 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(p) <E T="03">Snake River Basin steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed steelhead in the Snake River and its tributaries in Idaho, Oregon, and Washington. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to the confluence with the Snake River. Excluded are areas above specific dams identified in Table 21 to this part or above longstanding, <PRTPAGE P="193"/>naturally impassable barriers (i.e., Napias Creek Falls and other natural waterfalls in existence for at least several hundred years).</P> <P>(q) <E T="03">Lower Columbia River steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed steelhead in Columbia River tributaries between the Cowlitz and Wind Rivers in Washington and the Willamette and Hood Rivers in Oregon, inclusive. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to the Hood River in Oregon. Excluded are areas above specific dams identified in Table 22 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(r) <E T="03">Upper Willamette River steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed steelhead in the Willamette River and its tributaries above Willamette Falls upstream to, and including, the Calapooia River. Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to, and including, the Willamette River in Oregon. Excluded are areas above specific dams identified in Table 23 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <P>(s) <E T="03">Middle Columbia River steelhead (Oncorhynchus mykiss) geographic boundaries</E>. Critical habitat is designated to include all river reaches accessible to listed steelhead in Columbia River tributaries (except the Snake River) between Mosier Creek in Oregon and the Yakima River in Washington (inclusive). Also included are river reaches and estuarine areas in the Columbia River from a straight line connecting the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock jetty (north jetty, Washington side) upstream to the Yakima River in Washington. Excluded are areas above specific dams identified in Table 24 to this part or above longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years).</P> <CITA>[65 FR 7777, Feb. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.213</SECTNO> <SUBJECT>Critical habitat for Johnson's seagrass.</SUBJECT> <P>Critical habitat is designated to include substrate and water in the following ten portions of the Indian River Lagoon and Biscayne Bay within the current range of Johnson's seagrass.</P> <P>(a) A portion of the Indian River, Florida, north of Sebastian Inlet Channel, defined by the following coordinates:</P> <EXTRACT> <P>Northwest corner: 27°51′15.03″N, 80°27′55.49″W</P> <P>Northeast corner: 27°51′16.57″N, 80°27′53.05″W</P> <P>Southwest corner: 27°51′08.85″N, 80°27′50.48″W</P> <P>Southeast corner: 27°51′11.58″N, 80°27′47.35″W </P> </EXTRACT> <P>(b) A portion of the Indian River, Florida, south of the Sebastian Inlet Channel, defined by the following coordinates: </P> <EXTRACT> <P>Northwest corner: 27°51′01.32″N, 80°27′46.10″W</P> <P>Northeast corner: 27°51′02.69″N, 80°27′45.27″W</P> <P>Southwest corner: 27°50′59.08″N, 80°27′41.84″W</P> <P>Southeast corner: 27°51′01.07″N, 80°27′40.50″W </P> </EXTRACT> <P>(c) A portion of the Indian River Lagoon in the vicinity of the Fort Pierce Inlet. This site is located on the north side of the entrance channel just west of a small mangrove vegetated island where the main entrance channel bifurcates to the north. The area is defined by the following coordinates: </P> <EXTRACT> <P>Northwest corner: 27°28′06.00″N, 80°18′48.89″W</P> <P>Northeast corner: 27°28′04.43″N, 80°18′42.25″W</P> <P>Southwest corner: 27°28′02.86″N, 80°18′49.06″W</P> <P>Southeast corner: 27°28′01.46″N, 80°18′42.42″W </P> </EXTRACT> <P>(d) A portion of the Indian River Lagoon, Florida, north of the St. Lucie Inlet, from South Nettles Island to the <PRTPAGE P="194"/>Florida Oceanographic Institute, defined by the following coordinates and excluding the Federally-marked navigation channel of the Intracoastal Waterway (ICW): </P> <EXTRACT> <P>Northwest corner: 27°16′44.04″N, 80°14′00.00″W</P> <P>Northeast corner: 27°16′44.04″N, 80°12′51.33″W</P> <P>Southwest corner: 27°12′49.70″N, 80°11′46.80″W</P> <P>Southeast corner: 27°12′49.70″N, 80°11′02.50″W </P> </EXTRACT> <P>(e) Hobe Sound beginning at State Road 708 (27°03′49.90″N, 80°07′20.57″W) and extending south to 27°00′00.00″N, 80°05′32.54″W and excluding the federally-marked navigation channel of the ICW.</P> <P>(f) Jupiter Inlet at a site located just west of the entrance to Zeek's Marina on the south side of Jupiter Inlet and defined by the following coordinates (note a south central point was included to better define the shape of the southern boundary): </P> <EXTRACT> <P>Northwest corner: 26°56′43.34″N, 80°04′47.84″W</P> <P>Northeast corner: 26°56′40.93″N, 80°04′42.61″W</P> <P>Southwest corner: 26°56′40.73″N, 80°04′48.65″W</P> <P>South central point: 26°56′38.11″N, 80°04′45.83″W</P> <P>Southeast corner: 26°56′38.31″N, 80°04′42.41″W </P> </EXTRACT> <P>(g) A portion of Lake Worth, Florida, just north of Bingham Island defined by the following coordinates and excluding the Federally-marked navigation channel of the ICW: </P> <EXTRACT> <P>Northwest corner: 26°40′44.00″N, 80°02′39.00″W</P> <P>Northeast corner: 26°40′40.00″N, 80°02′34.00″W</P> <P>Southwest corner: 26°40′32.00″N, 80°02′44.00″W</P> <P>Southeast corner: 26°40′33.00″N, 80°02′35.00″W </P> </EXTRACT> <P>(h) A portion of Lake Worth Lagoon, Florida, located just north of the Boynton Inlet, on the west side of the ICW, defined by the following coordinates and excluding the Federally-marked navigation channel of the ICW: </P> <EXTRACT> <P>Northwest corner: 26°33′28.00″N, 80°02′54.00″W</P> <P>Northeast corner: 26°33′30.00″N, 80°03′04.00″W</P> <P>Southwest corner: 26°32′50.00″N, 80°03′11.00″W</P> <P>Southeast corner: 26°32′50.00″N, 80°02′58.00″W </P> </EXTRACT> <P>(i) A portion of northeast Lake Wyman, Boca Raton, Florida, defined by the following coordinates and excluding the Federally-marked navigation channel of the ICW: </P> <EXTRACT> <P>Northwest corner: 26°22′27.00″N, 80°04′23.00″W</P> <P>Northeast corner: 26°22′27.00″N, 80°04′18.00″W</P> <P>Southwest corner: 26°22′05.00″N, 80°04′16.00″W</P> <P>Southeast corner: 26°22′05.00″N, 80°04′18.00″W </P> </EXTRACT> <P>(j) A portion of Northern Biscayne Bay, Florida, defined by the following: The northern boundary of Biscayne Bay Aquatic Preserve, NE 163rd Street, and including all parts of the Biscayne Bay Aquatics Preserve as defined in 18-18.002 of the Florida Administrative Code (F.A.C.) excluding the Oleta River, Miami River and Little River beyond their mouths, the federally-marked navigation channel of the ICW, and all existing federally authorized navigation channels, basins, and berths at the Port of Miami to the currently documented southernmost range of Johnson's seagrass, Central Key Biscayne (25°45′N).</P> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="195"/> <GID>ER05AP00.000</GID> </GPH> <GPH DEEP="430" SPAN="2"> <PRTPAGE P="196"/> <GID>ER05AP00.001</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="197"/> <GID>ER05AP00.002</GID> </GPH> <GPH DEEP="433" SPAN="2"> <PRTPAGE P="198"/> <GID>ER05AP00.003</GID> </GPH> <GPH DEEP="437" SPAN="2"> <PRTPAGE P="199"/> <GID>ER05AP00.004</GID> </GPH> <GPH DEEP="433" SPAN="2"> <PRTPAGE P="200"/> <GID>ER05AP00.005</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="201"/> <GID>ER05AP00.006</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="202"/> <GID>ER05AP00.007</GID> </GPH> <GPH DEEP="424" SPAN="2"> <PRTPAGE P="203"/> <GID>ER05AP00.008</GID> </GPH> <CITA>[65 FR 17795, Apr. 5, 2000]</CITA> <EAR>Pt. 226, Table 1</EAR> <HD SOURCE="HD1">Table 1 to Part 226—Major Stellar Sea Lion Rookery Sites</HD> <P>Major Steller sea lion rookery sites are identified in the following table. Where two sets of coordinates are given, the baseline extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower-low water to the second set of coordinates. Where only one set of coordinates is listed, that location is the base point.<PRTPAGE P="204"/> </P> <GPOTABLE CDEF="s100,r45,r45,r45,r45" COLS="5" OPTS="L2,i1"> <BOXHD> <CHED H="1">State/region/site</CHED> <CHED H="1">Boundaries to—</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> </BOXHD> <ROW> <ENT I="11">Alaska:</ENT> </ROW> <ROW> <ENT I="13">Western Aleutians:</ENT> </ROW> <ROW> <ENT I="15">Agattu I.:</ENT> </ROW> <ROW> <ENT I="07">Cape Sabak <SU>1</SU> </ENT> <ENT>52 23.5N </ENT> <ENT>173 43.5E </ENT> <ENT>52 22.0N </ENT> <ENT>173 41.0E</ENT> </ROW> <ROW> <ENT I="07">Gillon Point <SU>1</SU> </ENT> <ENT>52 24.0N </ENT> <ENT>173 21.5E</ENT> </ROW> <ROW> <ENT I="05">Attu I.<SU>1</SU> </ENT> <ENT>52 54.5N </ENT> <ENT>172 28.5E </ENT> <ENT>52 57.5N </ENT> <ENT>172 31.5E</ENT> </ROW> <ROW> <ENT I="05">Buldir I.<SU>1</SU> </ENT> <ENT>52 20.5N </ENT> <ENT>175 57.0E </ENT> <ENT>52 23.5N </ENT> <ENT>172 51.0E</ENT> </ROW> <ROW> <ENT I="13">Central Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Adak I.<SU>1</SU> </ENT> <ENT>51 36.5N </ENT> <ENT>176 59.0W </ENT> <ENT>51 38.0N </ENT> <ENT>176 59.5W</ENT> </ROW> <ROW> <ENT I="05">Agligadak I.<SU>1</SU> </ENT> <ENT>52 06.5N </ENT> <ENT>172 54.0W</ENT> </ROW> <ROW> <ENT I="15">Amchitka I.:<SU>1</SU> </ENT> </ROW> <ROW> <ENT I="07">Column Rock <SU>1</SU> </ENT> <ENT>51 32.5N </ENT> <ENT>178 49.5E</ENT> </ROW> <ROW> <ENT I="07">East Cape <SU>1</SU> </ENT> <ENT>51 22.5N </ENT> <ENT>179 28.0E </ENT> <ENT>51 21.5N </ENT> <ENT>179 25.0E</ENT> </ROW> <ROW> <ENT I="05">Ayugadak I.<SU>1</SU> </ENT> <ENT>51 45.5N </ENT> <ENT>178 24.5E</ENT> </ROW> <ROW> <ENT I="05">Gramp Rock <SU>1</SU> </ENT> <ENT>51 29.0N </ENT> <ENT>178 20.5W</ENT> </ROW> <ROW> <ENT I="05">Kasatochi I.<SU>1</SU> </ENT> <ENT>52 10.0N </ENT> <ENT>175 31.5W </ENT> <ENT>52 10.5N </ENT> <ENT>175 29.0W</ENT> </ROW> <ROW> <ENT I="15">Kiska I.:</ENT> </ROW> <ROW> <ENT I="07">Lief Cove <SU>1</SU> </ENT> <ENT>51 57.5N </ENT> <ENT>177 21.0E </ENT> <ENT>51 56.5N </ENT> <ENT>177 20.0E</ENT> </ROW> <ROW> <ENT I="07">Cape St. Stephen <SU>1</SU> </ENT> <ENT>51 52.5N </ENT> <ENT>177 13.0E </ENT> <ENT>51 53.5N </ENT> <ENT>177 12.0E</ENT> </ROW> <ROW> <ENT I="05">Seguam I./Saddleridge <SU>1</SU> </ENT> <ENT>52 21.0N </ENT> <ENT>172 35.0W </ENT> <ENT>52 21.0N </ENT> <ENT>172 33.0W</ENT> </ROW> <ROW> <ENT I="15">Semisopochnoi I.:</ENT> </ROW> <ROW> <ENT I="07">Pochnoi Pt <SU>1</SU> </ENT> <ENT>51 58.5N </ENT> <ENT>179 45.5E </ENT> <ENT>51 57.0N </ENT> <ENT>179 46.0E</ENT> </ROW> <ROW> <ENT I="07">Petrel Pt <SU>1</SU> </ENT> <ENT>52 01.5N </ENT> <ENT>179 37.5E </ENT> <ENT>52 01.5E </ENT> <ENT>179 39.0E</ENT> </ROW> <ROW> <ENT I="05">Tag I.<SU>1</SU> </ENT> <ENT>51 33.5N </ENT> <ENT>178 34.5W</ENT> </ROW> <ROW> <ENT I="05">Ulak I.<SU>1</SU> </ENT> <ENT>51 20.0N </ENT> <ENT>178 57.0W </ENT> <ENT>51 18.5N </ENT> <ENT>178 59.5W</ENT> </ROW> <ROW> <ENT I="05">Yunaska I.<SU>1</SU> </ENT> <ENT>52 42.0N </ENT> <ENT>170 38.5W </ENT> <ENT>52 41.0N </ENT> <ENT>170 34.5W</ENT> </ROW> <ROW> <ENT I="13">Eastern Aleutian:</ENT> </ROW> <ROW> <ENT I="05">Adugak I.<SU>1</SU> </ENT> <ENT>52 55.0N </ENT> <ENT>169 10.5W</ENT> </ROW> <ROW> <ENT I="05">Akun I./Billings Head <SU>1</SU> </ENT> <ENT>54 18.0N </ENT> <ENT>165 32.5W </ENT> <ENT>54 18.0N </ENT> <ENT>165 31.5W</ENT> </ROW> <ROW> <ENT I="05">Akutan I./Cape Morgan <SU>1</SU> </ENT> <ENT>54 03.5N </ENT> <ENT>166 00.0W </ENT> <ENT>54 05.5N </ENT> <ENT>166 05.0W</ENT> </ROW> <ROW> <ENT I="05">Bogoslof I.<SU>1</SU> <SU>2</SU> </ENT> <ENT>53 56.0N </ENT> <ENT>168 02.0W</ENT> </ROW> <ROW> <ENT I="05">Ogchul I.<SU>1</SU> </ENT> <ENT>53 00.0N </ENT> <ENT>168 24.0W</ENT> </ROW> <ROW> <ENT I="05">Sea Lion Rocks. (Amak) <SU>1</SU> </ENT> <ENT>55 28.0N </ENT> <ENT>163 12.0W</ENT> </ROW> <ROW> <ENT I="05">Ugamak I.<SU>1</SU> </ENT> <ENT>54 14.0N </ENT> <ENT>164 48.0W </ENT> <ENT>54 13.0N </ENT> <ENT>164 48.0W</ENT> </ROW> <ROW> <ENT I="13">Bering Sea:</ENT> </ROW> <ROW> <ENT I="05">Walrus I.<SU>1</SU> </ENT> <ENT>57 11.0N </ENT> <ENT>169 56.0W</ENT> </ROW> <ROW> <ENT I="13">Western Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Atkins I.<SU>1</SU> </ENT> <ENT>55 03.5N </ENT> <ENT>159 18.5W</ENT> </ROW> <ROW> <ENT I="05">Chernabura I.<SU>1</SU> </ENT> <ENT>54 47.5N </ENT> <ENT>159 31.0W </ENT> <ENT>54 45.5N </ENT> <ENT>159 33.5W</ENT> </ROW> <ROW> <ENT I="05">Clubbing Rocks (N) <SU>1</SU> </ENT> <ENT>54 43.0N </ENT> <ENT>162 26.5W</ENT> </ROW> <ROW> <ENT I="05">Clubbing Rocks (S) <SU>1</SU> </ENT> <ENT>54 42.0N </ENT> <ENT>162 26.5W</ENT> </ROW> <ROW> <ENT I="05">Pinnacle Rock <SU>1</SU> </ENT> <ENT>54 46.0N </ENT> <ENT>161 46.0W</ENT> </ROW> <ROW> <ENT I="13">Central Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Chirikof I.<SU>1</SU> </ENT> <ENT>55 46.5N </ENT> <ENT>155 39.5W </ENT> <ENT>55 46.5N </ENT> <ENT>155 43.0W</ENT> </ROW> <ROW> <ENT I="05">Chowiet I.<SU>1</SU> </ENT> <ENT>56 00.5N </ENT> <ENT>156 41.5W </ENT> <ENT>56 00.5N </ENT> <ENT>156 42.0W</ENT> </ROW> <ROW> <ENT I="05">Marmot I.<SU>1</SU> </ENT> <ENT>58 14.5N </ENT> <ENT>151 47.5W </ENT> <ENT>58 10.0N </ENT> <ENT>151 51.0W</ENT> </ROW> <ROW> <ENT I="05">Outer I.<SU>1</SU> </ENT> <ENT>59 20.5N </ENT> <ENT>150 23.0W </ENT> <ENT>59 21.0N </ENT> <ENT>150 24.5W</ENT> </ROW> <ROW> <ENT I="05">Sugarloaf I.<SU>1</SU> </ENT> <ENT>58 53.0N </ENT> <ENT>152 02.0W</ENT> </ROW> <ROW> <ENT I="13">Eastern Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Seal Rocks <SU>1</SU> </ENT> <ENT>60 10.0N </ENT> <ENT>146 50.0W</ENT> </ROW> <ROW> <ENT I="05">Fish I.<SU>1</SU> </ENT> <ENT>59 53.0N </ENT> <ENT>147 20.5W</ENT> </ROW> <ROW> <ENT I="13">Southeast Alaska:</ENT> </ROW> <ROW> <ENT I="05">Forrester I. </ENT> <ENT>54 51.0N </ENT> <ENT>133 32.0W </ENT> <ENT>54 52.5N </ENT> <ENT>133 35.5W</ENT> </ROW> <ROW> <ENT I="05">Hazy I </ENT> <ENT>55 52.0N </ENT> <ENT>134 34.0W </ENT> <ENT>55 51.5N </ENT> <ENT>134 35.0W</ENT> </ROW> <ROW> <ENT I="05">White Sisters </ENT> <ENT>57 38.0N </ENT> <ENT>136 15.5W</ENT> </ROW> <ROW> <ENT I="11">Oregon:</ENT> </ROW> <ROW> <ENT I="03">Rogue Reef: Pyramid Rock </ENT> <ENT>42 26.4N </ENT> <ENT>124 28.1W</ENT> </ROW> <ROW> <ENT I="13">Orford Reef:</ENT> </ROW> <ROW> <ENT I="05">Long Brown Rock </ENT> <ENT>42 47.3N </ENT> <ENT>124 36.2W</ENT> </ROW> <ROW> <ENT I="05">Seal Rock </ENT> <ENT>42 47.1N </ENT> <ENT>124 35.4W</ENT> </ROW> <ROW> <ENT I="11">California:</ENT> </ROW> <ROW> <ENT I="03">Ano Nuevo I. </ENT> <ENT>37 06.3N </ENT> <ENT>122 20.3W</ENT> </ROW> <ROW> <ENT I="03">Southeast Farallon I. </ENT> <ENT>37 41.3N </ENT> <ENT>123 00.1W</ENT> </ROW> <ROW> <ENT I="03">Sugarloaf I. & Cape Mendocino </ENT> <ENT>40 26.0N </ENT> <ENT>124 24.0W</ENT> </ROW> <TNOTE> <SU>1</SU> Includes an associated 20 NM aquatic zone.</TNOTE> <TNOTE> <SU>2</SU> Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.</TNOTE> </GPOTABLE> <CITA TYPE="W">[58 FR 45278, Aug. 27, 1993]<PRTPAGE P="205"/> </CITA> <EAR>Pt. 226, Table 2</EAR> <HD SOURCE="HD1">Table 2 to Part 226—Major Stellar Sea Lion Haulout Sites in Alaska</HD> <P>Major Steller sea lion haulout sites in Alaska are identified in the following table. Where two sets of coordinates are given, the baseline extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower-low water to the second set of coordinates. Where only one set of coordinates is listed, that location is the basepoint.</P> <GPOTABLE CDEF="s100,r45,r45,r45,r45" COLS="5" OPTS="L2,i1"> <BOXHD> <CHED H="1">State/region/site</CHED> <CHED H="1">Boundaries to—</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> </BOXHD> <ROW> <ENT I="11">Alaska:</ENT> </ROW> <ROW> <ENT I="13">Western Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Alaid I.<SU>1</SU> </ENT> <ENT>52 45.0N</ENT> <ENT>173 56.5E</ENT> <ENT>52 46.5N</ENT> <ENT>173 51.5E</ENT> </ROW> <ROW> <ENT I="05">Attu/Chirikof Pt.<SU>1</SU> </ENT> <ENT>52 30.0N</ENT> <ENT>173 26.7E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Shemya I.<SU>1</SU> </ENT> <ENT>52 44.0N</ENT> <ENT>174 09.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Central Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Amatignak I.<SU>1</SU> </ENT> <ENT>51 13.0N</ENT> <ENT>179 08.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">Amlia I:</ENT> </ROW> <ROW> <ENT I="07">East <SU>1</SU> </ENT> <ENT>52 05.0N</ENT> <ENT>172 58.5W</ENT> <ENT>52 06.0N</ENT> <ENT>172 57.0W</ENT> </ROW> <ROW> <ENT I="07">Sviech. Harbor <SU>1</SU> </ENT> <ENT>52 02.0N</ENT> <ENT>173 23.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Amukta I. & Rocks <SU>1</SU> </ENT> <ENT>52 31.5N</ENT> <ENT>171 16.5W</ENT> <ENT>52 26.5N</ENT> <ENT>171 16.5W</ENT> </ROW> <ROW> <ENT I="05">Anagaksik I.<SU>1</SU> </ENT> <ENT>51 51.0N</ENT> <ENT>175 53.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Atka I.<SU>1</SU> </ENT> <ENT>52 23.5N</ENT> <ENT>174 17.0W</ENT> <ENT>52 24.5N</ENT> <ENT>174 07.5W</ENT> </ROW> <ROW> <ENT I="05">Bobrof I.<SU>1</SU> </ENT> <ENT>51 54.0N</ENT> <ENT>177 27.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Chagulak I.<SU>1</SU> </ENT> <ENT>52 34.0N</ENT> <ENT>171 10.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Chuginadak I.<SU>1</SU> </ENT> <ENT>52 46.5N</ENT> <ENT>169 44.5W</ENT> <ENT>52 46.5N</ENT> <ENT>169 42.0W</ENT> </ROW> <ROW> <ENT I="05">Great Sitkin I.<SU>1</SU> </ENT> <ENT>52 06.0N</ENT> <ENT>176 10.5W</ENT> <ENT>52 07.0N</ENT> <ENT>176 08.5W</ENT> </ROW> <ROW> <ENT I="05">Kagamil I.<SU>1</SU> </ENT> <ENT>53 02.5N</ENT> <ENT>169 41.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">Kanaga I:</ENT> </ROW> <ROW> <ENT I="07">North Cape <SU>1</SU> </ENT> <ENT>51 56.5N</ENT> <ENT>177 09.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">Ship Rock <SU>1</SU> </ENT> <ENT>51 47.0N</ENT> <ENT>177 22.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Kavalga I.<SU>1</SU> </ENT> <ENT>51 34.5N</ENT> <ENT>178 51.5W</ENT> <ENT>51 34.5N</ENT> <ENT>178 49.5W</ENT> </ROW> <ROW> <ENT I="05">Kiska I./Sirius Pt.<SU>1</SU> </ENT> <ENT>52 08.5N</ENT> <ENT>177 36.5E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Kiska I./Sobaka & Vega <SU>1</SU> </ENT> <ENT>51 50.0N</ENT> <ENT>177 20.0E</ENT> <ENT>51 48.5N</ENT> <ENT>177 20.5E</ENT> </ROW> <ROW> <ENT I="05">Little Sitkin I.<SU>1</SU> </ENT> <ENT>51 59.5N</ENT> <ENT>178 30.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Little Tanaga I.<SU>1</SU> </ENT> <ENT>51 50.5N</ENT> <ENT>176 13.0W</ENT> <ENT>51 49.0N</ENT> <ENT>176 13.0W</ENT> </ROW> <ROW> <ENT I="05">Sagigik I.<SU>1</SU> </ENT> <ENT>52 00.5N</ENT> <ENT>173 08.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">Seguam I:</ENT> </ROW> <ROW> <ENT I="07">South <SU>1</SU> </ENT> <ENT>52 19.5N </ENT> <ENT>172 18.0W </ENT> <ENT>52 15.0N </ENT> <ENT>172 37.0W</ENT> </ROW> <ROW> <ENT I="07">Finch Pt.<SU>1</SU> </ENT> <ENT>52 23.5N</ENT> <ENT>172 25.5W</ENT> <ENT>52 23.5N</ENT> <ENT>172 24.0W</ENT> </ROW> <ROW> <ENT I="05">Segula I.<SU>1</SU> </ENT> <ENT>52 00.0N</ENT> <ENT>178 06.5E</ENT> <ENT>52 03.5N</ENT> <ENT>178 09.0E</ENT> </ROW> <ROW> <ENT I="05">Tanaga I.<SU>1</SU> </ENT> <ENT>51 55.0N</ENT> <ENT>177 58.5W</ENT> <ENT>51 55.0N</ENT> <ENT>177 57.0W</ENT> </ROW> <ROW> <ENT I="05">Tanadak I. (Amlia) <SU>1</SU> </ENT> <ENT>52 04.5N</ENT> <ENT>172 57.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Tanadak I. (Kiska) <SU>1</SU> </ENT> <ENT>51 57.0N</ENT> <ENT>177 47.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Ugidak I.<SU>1</SU> </ENT> <ENT>51 35.0N</ENT> <ENT>178 30.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Uliaga I.<SU>1</SU> </ENT> <ENT>53 04.0N</ENT> <ENT>169 47.0W</ENT> <ENT>53 05.0N</ENT> <ENT>169 46.0W</ENT> </ROW> <ROW> <ENT I="05">Unalga & Dinkum Rocks <SU>1</SU> </ENT> <ENT>51 34.0N</ENT> <ENT>179 04.0W</ENT> <ENT>51 34.5N</ENT> <ENT>179 03.0W</ENT> </ROW> <ROW> <ENT I="13">Eastern Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Akutan I./Reef-Lava <SU>1</SU> </ENT> <ENT>54 10.5N</ENT> <ENT>166 04.5W</ENT> <ENT>54 07.5N</ENT> <ENT>166 06.5W</ENT> </ROW> <ROW> <ENT I="05">Amak I.<SU>1</SU> </ENT> <ENT>55 24.0N</ENT> <ENT>163 07.0W</ENT> <ENT>55 26.0N</ENT> <ENT>163 10.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Sedanka & Island <SU>1</SU> </ENT> <ENT>53 50.5N</ENT> <ENT>166 05.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Emerald I.<SU>1</SU> </ENT> <ENT>53 17.5N</ENT> <ENT>167 51.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Old Man Rocks <SU>1</SU> </ENT> <ENT>53 52.0N</ENT> <ENT>166 05.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Polivnoi Rock <SU>1</SU> </ENT> <ENT>53 16.0N</ENT> <ENT>167 58.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Tanginak I.<SU>1</SU> </ENT> <ENT>54 13.0N</ENT> <ENT>165 19.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Tigalda I.<SU>1</SU> </ENT> <ENT>54 08.5N</ENT> <ENT>164 58.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Umnak I./Cape Aslik <SU>1</SU> </ENT> <ENT>53 25.0N</ENT> <ENT>168 24.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Bering Sea:</ENT> </ROW> <ROW> <ENT I="05">Cape Newenham <SU>1</SU> </ENT> <ENT>58 39.0N</ENT> <ENT>162 10.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Hall I.<SU>1</SU> </ENT> <ENT>60 37.0N</ENT> <ENT>173 00.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Round I.<SU>1</SU> </ENT> <ENT>58 36.0N</ENT> <ENT>159 58.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">St. Paul I:</ENT> </ROW> <ROW> <ENT I="07">Northeast Point <SU>1</SU> </ENT> <ENT>57 15.0N</ENT> <ENT>170 06.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">Sea Lion Rock <SU>1</SU> </ENT> <ENT>57 06.0N</ENT> <ENT>170 17.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">St. George I:</ENT> </ROW> <ROW> <ENT I="07">S Rookery <SU>1</SU> </ENT> <ENT>56 33.5N</ENT> <ENT>169 40.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">Dalnoi Point <SU>1</SU> </ENT> <ENT>56 36.0N</ENT> <ENT>169 46.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">St. Lawrence I:</ENT> </ROW> <ROW> <ENT I="07">S Punuk I.<SU>1</SU> </ENT> <ENT>64 04.0N</ENT> <ENT>168 51.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">SW Cape <SU>1</SU> </ENT> <ENT>63 18.0N</ENT> <ENT>171 26.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Western Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Bird I. <SU>1</SU> </ENT> <ENT>54 40.5N </ENT> <ENT>163 18.0W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Castle Rock <SU>1</SU> </ENT> <ENT>55 17.0N</ENT> <ENT>159 30.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <PRTPAGE P="206"/> <ENT I="05">Caton I.<SU>1</SU> </ENT> <ENT>54 23.5N</ENT> <ENT>162 25.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Jude I.<SU>1</SU> </ENT> <ENT>55 16.0N</ENT> <ENT>161 06.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Lighthouse Rocks <SU>1</SU> </ENT> <ENT>55 47.5N</ENT> <ENT>157 24.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Nagai I.<SU>1</SU> </ENT> <ENT>54 52.5N</ENT> <ENT>160 14.0W</ENT> <ENT>54 56.0N</ENT> <ENT>160 15.0W</ENT> </ROW> <ROW> <ENT I="05">Nagai Rocks <SU>1</SU> </ENT> <ENT>55 50.0N</ENT> <ENT>155 46.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sea Lion Rocks (Unga) <SU>1</SU> </ENT> <ENT>55 04.5N</ENT> <ENT>160 31.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">South Rock <SU>1</SU> </ENT> <ENT>54 18.0N</ENT> <ENT>162 43.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Spitz I.<SU>1</SU> </ENT> <ENT>55 47.0N</ENT> <ENT>158 54.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">The Whaleback <SU>1</SU> </ENT> <ENT>55 16.5N</ENT> <ENT>160 06.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Central Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Cape Barnabas <SU>1</SU> </ENT> <ENT>57 10.0N</ENT> <ENT>152 55.0W</ENT> <ENT>57 07.5N</ENT> <ENT>152 55.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Chiniak <SU>1</SU> </ENT> <ENT>57 35.0N</ENT> <ENT>152 09.0W</ENT> <ENT>57 37.5N</ENT> <ENT>152 09.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Gull <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 13.5N</ENT> <ENT>154 09.5W</ENT> <ENT>58 12.5N</ENT> <ENT>154 10.5W</ENT> </ROW> <ROW> <ENT I="05">Cape Ikolik <SU>1</SU> <SU>2</SU> </ENT> <ENT>57 17.0N</ENT> <ENT>154 47.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Kuliak <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 08.0N</ENT> <ENT>154 12.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Sitkinak <SU>1</SU> </ENT> <ENT>56 32.0N</ENT> <ENT>153 52.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Ugat <SU>1</SU> <SU>2</SU> </ENT> <ENT>57 52.0N</ENT> <ENT>153 51.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Gore Point <SU>1</SU> </ENT> <ENT>59 12.0N</ENT> <ENT>150 58.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Gull Point <SU>1</SU> </ENT> <ENT>57 21.5N</ENT> <ENT>152 36.5W</ENT> <ENT>57 24.5N</ENT> <ENT>152 39.0W</ENT> </ROW> <ROW> <ENT I="05">Latax Rocks <SU>1</SU> </ENT> <ENT>58 42.0N</ENT> <ENT>152 28.5W</ENT> <ENT>58 40.5N</ENT> <ENT>152 30.0W</ENT> </ROW> <ROW> <ENT I="05">Long I.<SU>1</SU> </ENT> <ENT>57 45.5N</ENT> <ENT>152 16.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Nagahut Rocks <SU>1</SU> </ENT> <ENT>59 06.0N</ENT> <ENT>151 46.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Puale Bay <SU>1</SU> <SU>2</SU> </ENT> <ENT>57 41.0N</ENT> <ENT>155 23.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sea Lion Rocks (Marmot) <SU>1</SU> </ENT> <ENT>58 21.0N</ENT> <ENT>151 48.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sea Otter I.<SU>1</SU> </ENT> <ENT>58 31.5N</ENT> <ENT>152 13.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Shakun Rock <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 33.0N</ENT> <ENT>153 41.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sud I.<SU>1</SU> </ENT> <ENT>58 54.0N</ENT> <ENT>152 12.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sutwik I.<SU>1</SU> </ENT> <ENT>56 32.0N</ENT> <ENT>157 14.0W</ENT> <ENT>56 32.0N</ENT> <ENT>157 20.0W</ENT> </ROW> <ROW> <ENT I="05">Takli I. <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 03.0N</ENT> <ENT>154 27.5W</ENT> <ENT>58 03.0N</ENT> <ENT>154 30.0W</ENT> </ROW> <ROW> <ENT I="05">Two-headed I.<SU>1</SU> </ENT> <ENT>56 54.5N</ENT> <ENT>153 33.0W</ENT> <ENT>56 53.5N</ENT> <ENT>153 35.5W</ENT> </ROW> <ROW> <ENT I="05">Ugak I.<SU>1</SU> </ENT> <ENT>57 23.0N</ENT> <ENT>152 15.5W</ENT> <ENT>57 22.0N</ENT> <ENT>152 19.0W</ENT> </ROW> <ROW> <ENT I="05">Ushagat I. <SU>1</SU> </ENT> <ENT>58 55.0N </ENT> <ENT>152 22.0W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Eastern Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Cape Fairweather</ENT> <ENT>58 47.5N </ENT> <ENT>137 56.3W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape St. Elias <SU>1</SU> </ENT> <ENT>59 48.0N</ENT> <ENT>144 36.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Chiswell Islands <SU>1</SU> </ENT> <ENT>59 36.0N</ENT> <ENT>149 34.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Graves Rock</ENT> <ENT>58 14.5N </ENT> <ENT>136 45.5W</ENT> </ROW> <ROW> <ENT I="05">Hook Point <SU>1</SU> </ENT> <ENT>60 20.0N</ENT> <ENT>146 15.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Middleton I.<SU>1</SU> </ENT> <ENT>59 26.5N</ENT> <ENT>146 20.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Perry I.<SU>1</SU> </ENT> <ENT>60 39.5N</ENT> <ENT>147 56.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Point Eleanor <SU>1</SU> </ENT> <ENT>60 35.0N</ENT> <ENT>147 34.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Point Elrington <SU>1</SU> </ENT> <ENT>59 56.0N</ENT> <ENT>148 13.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Seal Rocks <SU>1</SU> </ENT> <ENT>60 10.0N</ENT> <ENT>146 50.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">The Needle <SU>1</SU> </ENT> <ENT>60 07.0N</ENT> <ENT>147 37.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Southeast Alaska:</ENT> </ROW> <ROW> <ENT I="05">Benjamin I.</ENT> <ENT>58 33.5N</ENT> <ENT>134 54.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Biali Rock</ENT> <ENT>56 43.0N</ENT> <ENT>135 20.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Biorka I.</ENT> <ENT>56 50.0N </ENT> <ENT>135 34.0W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Addington</ENT> <ENT>55 26.5N </ENT> <ENT>133 49.5W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Cross</ENT> <ENT>57 55.0N </ENT> <ENT>136 34.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Ommaney</ENT> <ENT>56 10.5N </ENT> <ENT>134 42.5W</ENT> </ROW> <ROW> <ENT I="05">Coronation I.</ENT> <ENT>55 56.0N </ENT> <ENT>134 17.0W</ENT> </ROW> <ROW> <ENT I="05">Gran Point</ENT> <ENT>59 08.0N </ENT> <ENT>135 14.5W</ENT> </ROW> <ROW> <ENT I="05">Lull Point</ENT> <ENT>57 18.5N </ENT> <ENT>134 48.5W</ENT> </ROW> <ROW> <ENT I="05">Sunset I.</ENT> <ENT>57 30.5N</ENT> <ENT>133 35.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Timbered I.</ENT> <ENT>55 42.0N</ENT> <ENT>133 48.0W</ENT> <ENT/> <ENT/> </ROW> <TNOTE> <SU>1</SU> Includes an associated 20 NM aquatic zone.</TNOTE> <TNOTE> <SU>2</SU> Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas.</TNOTE> </GPOTABLE> <CITA TYPE="W">[58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]</CITA> <EAR>Pt. 226, Table 3</EAR> <GPOTABLE CDEF="s100,20C,20C,20C" COLS="4" OPTS="L2,i1"> <TTITLE>Table 3 to Part 226—Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and Snake River Spring/Summer and Fall Chinook Salmon</TTITLE> <BOXHD> <CHED H="1">Hydrologic unit name</CHED> <CHED H="1">Hydrologic unit number</CHED> <CHED H="2">Sockeye salmon</CHED> <CHED H="2">Spring/summer chinook salmon</CHED> <CHED H="2">Fall chinook salmon</CHED> </BOXHD> <ROW> <ENT I="01">Hells Canyon</ENT> <ENT/> <ENT>17060101</ENT> <ENT>17060101</ENT> </ROW> <ROW> <PRTPAGE P="207"/> <ENT I="01">Imnaha</ENT> <ENT/> <ENT>17060102</ENT> <ENT>17060102</ENT> </ROW> <ROW> <ENT I="01">Lower Snake—Asotin</ENT> <ENT>17060103</ENT> <ENT>17060103</ENT> <ENT>17060103</ENT> </ROW> <ROW> <ENT I="01">Upper Grande Ronde</ENT> <ENT/> <ENT>17060104</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Wallowa</ENT> <ENT/> <ENT>17060105</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Grande Ronde</ENT> <ENT/> <ENT>17060106</ENT> <ENT>17060106</ENT> </ROW> <ROW> <ENT I="01">Lower Snake—Tucannon</ENT> <ENT>17060107</ENT> <ENT>17060107</ENT> <ENT>17060107</ENT> </ROW> <ROW> <ENT I="01">Palouse</ENT> <ENT/> <ENT/> <ENT>17060108</ENT> </ROW> <ROW> <ENT I="01">Lower Snake</ENT> <ENT>17060110</ENT> <ENT>17060110</ENT> <ENT>17060110</ENT> </ROW> <ROW> <ENT I="01">Upper Salmon</ENT> <ENT>17060201</ENT> <ENT>17060201</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Pahsimeroi</ENT> <ENT/> <ENT>17060202</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Salmon—Panther</ENT> <ENT>17060203</ENT> <ENT>17060203</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lemhi</ENT> <ENT/> <ENT>17060204</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Middle Fork Salmon</ENT> <ENT/> <ENT>17060205</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Middle Fork Salmon</ENT> <ENT/> <ENT>17060206</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Salmon—Chamberlain</ENT> <ENT>17060207</ENT> <ENT>17060207</ENT> <ENT/> </ROW> <ROW> <ENT I="01">South Fork Salmon</ENT> <ENT/> <ENT>17060208</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Salmon</ENT> <ENT>17060209</ENT> <ENT>17060209</ENT> <ENT>17060209</ENT> </ROW> <ROW> <ENT I="01">Little Salmon</ENT> <ENT/> <ENT>17060210</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Clearwater</ENT> <ENT/> <ENT/> <ENT>17060306</ENT> </ROW> <ROW> <ENT I="01">Lower North Fork Clearwater</ENT> <ENT/> <ENT/> <ENT>17060308</ENT> </ROW> <TNOTE> <SU>1</SU> Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS); State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974.</TNOTE> </GPOTABLE> <CITA TYPE="W">[58 FR 68552, Dec. 28, 1993]</CITA> <HD SOURCE="HD1">Table 4[Reserved]</HD> <EAR>Pt. 226, Table 5</EAR> <GPOTABLE CDEF="s50,10,r100,r100" COLS="4" OPTS="L2,i1"> <TTITLE>Table 5 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central California Coast Coho Salmon, Tribal Lands Within the Range of the ESU, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat</TTITLE> <BOXHD> <CHED H="1">Hydrologic<LI>unit name</LI> </CHED> <CHED H="1">Hydrologic unit No.</CHED> <CHED H="1">Counties and tribal lands contained in hydrologic unit and within the range of ESU<E T="51">1 2</E> </CHED> <CHED H="1">Dams (reservoirs)</CHED> </BOXHD> <ROW> <ENT I="01">San Lorenzo-Soquel </ENT> <ENT>18060001 </ENT> <ENT>Santa Cruz (CA), San Mateo (CA) </ENT> <ENT>Newell Dam (Loch Lomond).</ENT> </ROW> <ROW> <ENT I="01">San Francisco Coastal South </ENT> <ENT>18050006 </ENT> <ENT>San Mateo (CA)</ENT> </ROW> <ROW> <ENT I="01">San Pablo Bay </ENT> <ENT>18050002 </ENT> <ENT>Marin (CA), Napa (CA) </ENT> <ENT>Phoenix Dam (Phoenix Lake).</ENT> </ROW> <ROW> <ENT I="01">Tomales-Drake Bays </ENT> <ENT>18050005 </ENT> <ENT>Marin (CA), Sonoma (CA) </ENT> <ENT>Peters Dam (Kent Lake); Seeger Dam (Nicasio Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Bodega Bay </ENT> <ENT>18010111 </ENT> <ENT>Marin (CA), Sonoma (CA)</ENT> </ROW> <ROW> <ENT I="01">Russian </ENT> <ENT>18010110 </ENT> <ENT>Sonoma (CA), Mendocino (CA)—<E T="03">Cloverdale Rancheria; Coyote Valley Rancheria; Dry Creek Rancheria; Guidiville Rancheria; Hopland Rancheria; Lytton Rancheria; Pinoleville Rancheria; Stewarts Point Rancheria</E> </ENT> <ENT>Warm Springs Dam (Lake Sonoma); Coyote Dam (Lake Mendocino).</ENT> </ROW> <ROW> <ENT I="01">Gualala-Salmon </ENT> <ENT>18010109 </ENT> <ENT>Sonoma (CA), Mendocino (CA)</ENT> </ROW> <ROW> <ENT I="01">Big-Navarro-Garcia </ENT> <ENT>18010108 </ENT> <ENT>Mendocino (CA)—<E T="03">Manchester/Point Arena Rancheria</E>;</ENT> </ROW> <TNOTE> <E T="51">1</E> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> <TNOTE> <E T="51">2</E> Tribal lands are specifically excluded from critical habitat for this ESU.</TNOTE> </GPOTABLE> <CITA TYPE="W">[64 FR 24061, May 5, 1999]<PRTPAGE P="208"/> </CITA> <EAR>Pt. 226, Table 6</EAR> <GPOTABLE CDEF="s50,10,r100,r100" COLS="4" OPTS="L2,i1"> <TTITLE>Table 6 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Southern Oregon/Northern California Coasts Coho Salmon, Tribal Lands Within the Range of the ESU, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat</TTITLE> <BOXHD> <CHED H="1">Hydrologic unit name</CHED> <CHED H="1">Hydrologic unit No.</CHED> <CHED H="1">Counties and tribal lands contained in hydrologic unit and within the range of ESU<E T="51">1 2</E> </CHED> <CHED H="1">Dams (reservoirs)</CHED> </BOXHD> <ROW> <ENT I="01">Mattole </ENT> <ENT>18010107 </ENT> <ENT>Humboldt (CA), Mendocino (CA)</ENT> </ROW> <ROW> <ENT I="01">South Fork Eel </ENT> <ENT>18010106 </ENT> <ENT>Mendocino (CA), Humboldt (CA)—<E T="03">Laytonville Rancheria; Sherwood Valley Rancheria</E> </ENT> </ROW> <ROW> <ENT I="01">Lower Eel </ENT> <ENT>18010105 </ENT> <ENT>Mendocino (CA), Humboldt (CA), Trinity (CA)</ENT> </ROW> <ROW> <ENT I="01">Middle Fork Eel </ENT> <ENT>18010104 </ENT> <ENT>Mendocino (CA), Trinity (CA), Glenn (CA), Lake (CA)—<E T="03">Round Valley Reservation</E> </ENT> </ROW> <ROW> <ENT I="01">Upper Eel </ENT> <ENT>18010103 </ENT> <ENT>Mendocino (CA), Glenn (CA), Lake (CA) </ENT> <ENT>Scott Dam (Lake Pillsbury).</ENT> </ROW> <ROW> <ENT I="01">Mad-Redwood </ENT> <ENT>18010102 </ENT> <ENT>Humboldt (CA), Trinity (CA)—<E T="03">Big Lagoon Rancheria; Blue Lake Rancheria</E> </ENT> </ROW> <ROW> <ENT I="01">Smith </ENT> <ENT>18010101 </ENT> <ENT>Del Norte (CA), Curry (OR)—<E T="03">Elk Valley Rancheria; Smith River Rancheria</E> </ENT> </ROW> <ROW> <ENT I="01">South Fork Trinity </ENT> <ENT>18010212 </ENT> <ENT>Humboldt (CA), Trinity (CA)</ENT> </ROW> <ROW> <ENT I="01">Trinity </ENT> <ENT>18010211 </ENT> <ENT>Humboldt (CA), Trinity (CA)—<E T="03">Hoopa Valley Reservation</E> </ENT> <ENT>Lewiston Dam (Lewiston Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Salmon </ENT> <ENT>18010210 </ENT> <ENT>Siskiyou (CA)</ENT> </ROW> <ROW> <ENT I="01">Lower Klamath </ENT> <ENT>18010209 </ENT> <ENT>Del Norte (CA), Humboldt (CA), Siskiyou (CA)—<E T="03">Karuk Reservation; Resighini Rancheria; Yurok Reservation</E> </ENT> </ROW> <ROW> <ENT I="01">Scott </ENT> <ENT>18010208 </ENT> <ENT>Siskiyou (CA)—<E T="03">Quartz Valley Reservation</E> </ENT> </ROW> <ROW> <ENT I="01">Shasta </ENT> <ENT>18010207 </ENT> <ENT>Siskiyou (CA) </ENT> <ENT>Dwinnell Dam (Dwinnell Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Upper Klamath </ENT> <ENT>18010206 </ENT> <ENT>Siskiyou (CA), Jackson (OR) </ENT> <ENT>Irongate Dam (Irongate Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Chetco </ENT> <ENT>17100312 </ENT> <ENT>Curry (OR), Del Norte (CA)</ENT> </ROW> <ROW> <ENT I="01">Illinois </ENT> <ENT>17100311 </ENT> <ENT>Curry (OR), Josephine (OR), Del Norte (CA) </ENT> <ENT>Selmac Lake Dam (Lake Selmac).</ENT> </ROW> <ROW> <ENT I="01">Lower Rogue </ENT> <ENT>17100310 </ENT> <ENT>Curry (OR), Josephine (OR), Jackson (OR)</ENT> </ROW> <ROW> <ENT I="01">Applegate </ENT> <ENT>17100309 </ENT> <ENT>Josephine (OR), Jackson (OR), Siskiyou (CA) </ENT> <ENT>Applegate Dam (Applegate Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Middle Rogue </ENT> <ENT>17100308 </ENT> <ENT>Josephine (OR), Jackson (OR) </ENT> <ENT>Emigrant Lake Dam (Emigrant Lake).</ENT> </ROW> <ROW> <ENT I="01">Upper Rogue </ENT> <ENT>17100307 </ENT> <ENT>Jackson (OR), Klamath (OR), Douglas (OR) </ENT> <ENT>Agate Lake Dam (Agate Lake); Fish Lake Dam (Fish Lake); Willow Lake Dam (Willow Lake); Lost Creek Dam (Lost Creek Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Sixes </ENT> <ENT>17100306 </ENT> <ENT>Curry (OR)</ENT> </ROW> <TNOTE> <E T="51">1</E> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> <TNOTE> <E T="51">2</E> Tribal lands are specifically excluded from critical habitat for this ESU. </TNOTE> </GPOTABLE> <CITA TYPE="W">[64 FR 24061, May 5, 1999]</CITA> <EAR>Pt. 226, Table 7</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 7 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Puget Sound Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Strait of Georgia</ENT> <ENT>17110002</ENT> <ENT>Skagit (WA), Whatcom (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Sand Juan Islands</ENT> <ENT>17110003</ENT> <ENT>San Juan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Nooksack</ENT> <ENT>17110004</ENT> <ENT>Skagit (WA), Whatcom (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Skagit</ENT> <ENT>17110005</ENT> <ENT>Skagit (WA), Whatcom (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Sauk</ENT> <ENT>17110006</ENT> <ENT>Snohomish (WA), Skagit (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Skagit</ENT> <ENT>17110007</ENT> <ENT>Skagit (WA), Snohomish (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Stillaguamish</ENT> <ENT>17110008</ENT> <ENT>Snohomish (WA), Skagit (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Skykomish</ENT> <ENT>17110009</ENT> <ENT>King (WA), Snohomish (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Snoqualmie</ENT> <ENT>17110010</ENT> <ENT>King (WA), Snohomish (WA)</ENT> <ENT>Tolt Dam</ENT> </ROW> <ROW> <ENT I="01">Snohomish</ENT> <ENT>17110011</ENT> <ENT>Snohomish (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lake Washington</ENT> <ENT>17110012</ENT> <ENT>King (WA), Snohomish (WA)</ENT> <ENT>Landsburg Diversion</ENT> </ROW> <ROW> <ENT I="01">Duwamish</ENT> <ENT>17110013</ENT> <ENT>King (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Puyallup</ENT> <ENT>17110014</ENT> <ENT>King (WA), Pierce (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Nisqually</ENT> <ENT>17110015</ENT> <ENT>Pierce (WA), Thurston (WA)</ENT> <ENT>Alder Dam</ENT> </ROW> <ROW> <ENT I="01">Deschutes</ENT> <ENT>17110016</ENT> <ENT>Lewis (WA), Thurston (WA)</ENT> <ENT/> </ROW> <ROW> <PRTPAGE P="209"/> <ENT I="01">Skokomish</ENT> <ENT>17110017</ENT> <ENT>Grays Harbor (WA), Jefferson (WA), Mason (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Hood Canal</ENT> <ENT>17110018</ENT> <ENT>Clallam (WA), Jefferson (WA), Kitsap (WA), Mason (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Puget Sound</ENT> <ENT>17110019</ENT> <ENT>Island (WA), Jefferson (WA), King (WA), Kitsap (WA), Mason (WA), Pierce (WA), Skagit (WA), Snohomish (WA), Thurston (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Dungeness-Elwha</ENT> <ENT>17110020</ENT> <ENT>Clallam (WA), Jefferson (WA)</ENT> <ENT>Elwha Dam</ENT> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7779, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 8</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 8 to Part 226 —Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Middle Columbia-Hood</ENT> <ENT>17070105</ENT> <ENT>Hood River (OR), Klickitat (WA), Skamania (WA), Wasco (OR)</ENT> <ENT>Condit Dam, The Dalles Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clackamas (OR), Clark (WA), Multnomah (OR), Skamania (WA)</ENT> <ENT>Bull Run Dam2</ENT> </ROW> <ROW> <ENT I="01">Lewis</ENT> <ENT>17080002</ENT> <ENT>Clark (WA), Cowlitz (WA), Skamania (WA)</ENT> <ENT>Merwin Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (OR), Cowlitz (WA), Lewis (WA), Skamania (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Cowlitz</ENT> <ENT>17080004</ENT> <ENT>Lewis (WA), Pierce (WA), Skamania (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Cowlitz</ENT> <ENT>17080005</ENT> <ENT>Cowlitz (WA), Lewis (WA), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Clackamas</ENT> <ENT>17090011</ENT> <ENT>Clackamas (OR), Marion (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Clackamas (OR), Columbia (OR), Multnomah (OR), Washington (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7780, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 9</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 9 to Part 226 —Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clark (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (OR), Cowlitz (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Fork Willamette</ENT> <ENT>17090001</ENT> <ENT>Douglas (OR), Lane (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Coast Fork Willamette</ENT> <ENT>17090002</ENT> <ENT>Douglas (OR), Lane (OR)</ENT> <ENT>Cottage Grove Dam, Dorena Dam</ENT> </ROW> <ROW> <ENT I="01">Upper Willamette</ENT> <ENT>17090003</ENT> <ENT>Benton (OR), Lane (OR), Lincoln (OR), Linn (OR), Polk (OR)</ENT> <ENT>Fern Ridge Dam</ENT> </ROW> <ROW> <ENT I="01">McKenzie</ENT> <ENT>17090004</ENT> <ENT>Lane (OR), Linn (OR)</ENT> <ENT>Blue River Dam</ENT> </ROW> <ROW> <PRTPAGE P="210"/> <ENT I="01">North Santiam</ENT> <ENT>17090005</ENT> <ENT>Clackamas (OR), Linn (OR) Marion (OR)</ENT> <ENT>Big Cliff Dam</ENT> </ROW> <ROW> <ENT I="01">South Santiam</ENT> <ENT>17090006</ENT> <ENT>Linn (OR)</ENT> <ENT>Green Peter Dam</ENT> </ROW> <ROW> <ENT I="01">Middle Willamette</ENT> <ENT>17090007</ENT> <ENT>Clackamas (OR), Marion (OR), Polk (OR), Washington (OR), Yamhill (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Yamhill</ENT> <ENT>17090008</ENT> <ENT>Lincoln (OR), Polk (OR), Tillamook (OR), Yamhill (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Molalla-Pudding</ENT> <ENT>17090009</ENT> <ENT>Clackamas (OR), Marion (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Tualatin</ENT> <ENT>17090010</ENT> <ENT>Clackamas (OR), Columbia (OR), Multnomah (OR), Tillamook (OR), Washington (OR), Yamhill (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Clackamas</ENT> <ENT>17090011</ENT> <ENT>Clackamas (OR), Marion (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Clackamas (OR), Columbia (OR), Multnomah (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7780, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 10</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 10 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River Spring-run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Chief Joseph</ENT> <ENT>17020005</ENT> <ENT>Chelan (WA), Douglas (WA), Okanogan (WA)</ENT> <ENT>Chief Joseph</ENT> </ROW> <ROW> <ENT I="01">Similkameen</ENT> <ENT>17020007</ENT> <ENT>Okanogan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Methow</ENT> <ENT>17020008</ENT> <ENT>Okanogan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Columbia-Entiat</ENT> <ENT>17020010</ENT> <ENT>Chelan (WA), Douglas (WA), Grant (WA), Kittitas (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Wenatchee</ENT> <ENT>17020011</ENT> <ENT>Chelan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Columbia-Priest Rapids</ENT> <ENT>17020016</ENT> <ENT>Benton (WA), Grant (WA), Franklin (WA), Kittitas (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Lake Wallula</ENT> <ENT>17070101</ENT> <ENT>Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Hood</ENT> <ENT>17070105</ENT> <ENT>Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clark (WA), Multnomah (OR), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (OR), Cowlitz (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Columbia (OR), Multnomah (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7781, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 11</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 11 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central Valley California Spring-run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Sacramento-Lower Cow-Lower Clear</ENT> <ENT>18020101</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <PRTPAGE P="211"/> <ENT I="01">Lower Cottonwood</ENT> <ENT>18020102</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Sacramento-Lower Thomes</ENT> <ENT>18020103</ENT> <ENT>Butte (CA), Glenn (CA), Tehama (CA)</ENT> <ENT>Black Butte Dam</ENT> </ROW> <ROW> <ENT I="01">Sacramento-Stone Corral</ENT> <ENT>18020104</ENT> <ENT>Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA), Yolo (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Butte</ENT> <ENT>18020105</ENT> <ENT>Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA)</ENT> <ENT>Centerville Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Feather</ENT> <ENT>18020106</ENT> <ENT>Butte (CA), Sutter (CA), Yuba (CA)</ENT> <ENT>Oroville Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Yuba</ENT> <ENT>18020107</ENT> <ENT>Yuba (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Bear</ENT> <ENT>18020108</ENT> <ENT>Placer (CA), Sutter (CA), Yuba (CA)</ENT> <ENT>Camp Far West Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Sacramento</ENT> <ENT>18020109</ENT> <ENT>Sacramento (CA), Solano (CA), Sutter (CA), Placer (CA), Yolo (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Sacramento-Upper Clear</ENT> <ENT>18020112</ENT> <ENT>Shasta (CA)</ENT> <ENT>Keswick Dam, Whiskeytown Dam</ENT> </ROW> <ROW> <ENT I="01">Upper Elder-Upper Thomes</ENT> <ENT>18020114</ENT> <ENT>Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Cow-Battle</ENT> <ENT>18020118</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Mill-Big Chico</ENT> <ENT>18020119</ENT> <ENT>Butte (CA), Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Butte</ENT> <ENT>18020120</ENT> <ENT>Butte (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Yuba</ENT> <ENT>18020125</ENT> <ENT>Nevada (CA), Yuba (CA)</ENT> <ENT>Englebright Dam</ENT> </ROW> <ROW> <ENT I="01">Suisun Bay</ENT> <ENT>18050001</ENT> <ENT>Contra Costa (CA), Napa (CA), Solano (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">San Pablo Bay</ENT> <ENT>18050002</ENT> <ENT>Alameda (CA), Contra Costa (CA), Marin (CA), Napa (CA), San Mateo (CA), Solano (CA), Sonoma (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">San Francisco Bay</ENT> <ENT>18050004</ENT> <ENT>Alameda (CA), Contra Costa (CA), Marin (CA), San Francisco (CA), San Mateo (CA)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7781, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 12</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 12 to Part 226 —Hydrologic Units and Counties Containing Critical Habitat for California Coastal Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Mad-Redwood</ENT> <ENT>18010102</ENT> <ENT>Humboldt (CA), Trinity (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Eel</ENT> <ENT>18010103</ENT> <ENT>Glenn (CA), Lake (CA), Mendocino (CA), Trinity (CA)</ENT> <ENT>Scott Dam</ENT> </ROW> <ROW> <ENT I="01">Middle Fork Eel</ENT> <ENT>18010104</ENT> <ENT>Humboldt (CA), Mendocino (CA), Trinity (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Eel</ENT> <ENT>18010105</ENT> <ENT>Humboldt (CA), Mendocino (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">South Fork Eel</ENT> <ENT>18010106</ENT> <ENT>Humboldt (CA), Mendocino (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Mattole</ENT> <ENT>18010107</ENT> <ENT>Humboldt (CA), Mendocino (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Big-Navarro-Garcia</ENT> <ENT>18010108</ENT> <ENT>Mendocino (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Gualala-Salmon</ENT> <ENT>18010109</ENT> <ENT>Mendocino (CA), Sonoma (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Russian</ENT> <ENT>18010110</ENT> <ENT>Mendocino (CA), Sonoma (CA)</ENT> <ENT>Coyote Dam, Warm Springs Dam</ENT> </ROW> <ROW> <ENT I="01">Bodega Bay</ENT> <ENT>18010111</ENT> <ENT>Marin (CA), Sonoma (CA)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7782, Feb. 16, 2000]<PRTPAGE P="212"/> </CITA> <EAR>Pt. 226, Table 13</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 13 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Hood Canal Summer-run Chum Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Skokomish</ENT> <ENT>17110017</ENT> <ENT>Mason (WA)</ENT> <ENT>Cushman Dam</ENT> </ROW> <ROW> <ENT I="01">Hood Canal </ENT> <ENT>17110018 </ENT> <ENT>Clallam (WA), Jefferson (WA), Kitsap (WA), Mason (WA) </ENT> <ENT/> </ROW> <ROW> <ENT I="01">Puget Sound </ENT> <ENT>17110019 </ENT> <ENT>Island (WA), Jefferson (WA), Kitsap (WA) </ENT> <ENT/> </ROW> <ROW> <ENT I="01">Dungeness-Elwha </ENT> <ENT>17110020 </ENT> <ENT>Clallam (WA), Jefferson (WA) </ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7782, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 14</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 14 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Columbia River Chum Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within rangeof ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Lower Columbia - Sandy </ENT> <ENT>17080001 </ENT> <ENT>Clark (WA), Skamania (WA), Multnomah (OR) </ENT> <ENT>Bonneville Dam</ENT> </ROW> <ROW> <ENT I="01">Lewis </ENT> <ENT>17080002 </ENT> <ENT>Cowlitz (WA), Clark (WA), Skamania (WA) </ENT> <ENT>Merwin Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Columbia - Clatskanie </ENT> <ENT>17080003 </ENT> <ENT>Wahkiakum (WA), Lewis (WA), Cowlitz (WA), Skamania (WA), Clatsop (OR), Columbia (OR) </ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Cowlitz </ENT> <ENT>17080005 </ENT> <ENT>Cowlitz (WA), Lewis (WA), Skamania (WA) </ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia </ENT> <ENT>17080006 </ENT> <ENT>Pacific (WA), Wahkiakum (WA), Lewis (WA), Clatsop (OR) </ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette </ENT> <ENT>17090012 </ENT> <ENT>Columbia (OR), Multnomah (OR), Washington (OR) </ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7782, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 15</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 15 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Oregon Coast Coho Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within the range of ESU<E T="51">X</E> </CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Necanicum</ENT> <ENT>17100201</ENT> <ENT>Clatsop (OR), Tillamook (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Nehalem</ENT> <ENT>17100202</ENT> <ENT>Clatsop (OR), Columbia (OR), Tillamook (OR), Washington (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Wilson-Trask-Nestucca</ENT> <ENT>17100203</ENT> <ENT>Lincoln (OR), Polk (OR), Tillamook (OR), Washington (OR), Yamhill (OR)</ENT> <ENT>McGuire Dam</ENT> </ROW> <ROW> <ENT I="01">Siletz-Yaquina</ENT> <ENT>17100204</ENT> <ENT>Benton (OR), Lincoln (OR), Polk (OR), Tillamook (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Alsea</ENT> <ENT>17100205</ENT> <ENT>Benton (OR), Lane (OR), Lincoln (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Siuslaw</ENT> <ENT>17100206</ENT> <ENT>Benton (OR), Douglas (OR), Lane (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Siltcoos</ENT> <ENT>17100207</ENT> <ENT>Douglas (OR), Lane (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">North Umpqua</ENT> <ENT>17100301</ENT> <ENT>Douglas (OR), Lane (OR)</ENT> <ENT>Cooper Creek Dam, Soda Springs Dam</ENT> </ROW> <ROW> <ENT I="01">South Umpqua</ENT> <ENT>17100302</ENT> <ENT>Coos (OR), Douglas (OR), Josephine (OR)</ENT> <ENT>Ben Irving Dam, Galesville Dam, Win Walker Reservoir</ENT> </ROW> <ROW> <ENT I="01">Umpqua</ENT> <ENT>17100303</ENT> <ENT>Coos (OR), Douglas (OR), Lane (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Coos</ENT> <ENT>17100304</ENT> <ENT>Coos (OR), Douglas (OR)</ENT> <ENT>Lower Pony Creek Dam</ENT> </ROW> <ROW> <PRTPAGE P="213"/> <ENT I="01">Coquille</ENT> <ENT>17100305</ENT> <ENT>Coos (OR), Curry (OR), Douglas (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Sixes</ENT> <ENT>17100306</ENT> <ENT>Coos (OR), Curry (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7782, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 16</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 16 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Southern California Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Cuyama</ENT> <ENT>18060007</ENT> <ENT>San Luis Obispo (CA), Santa Barbara (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Santa Maria</ENT> <ENT>18060008</ENT> <ENT>San Luis Obispo (CA), Santa Barbara (CA)</ENT> <ENT>Vaquero Dam</ENT> </ROW> <ROW> <ENT I="01">San Antonio</ENT> <ENT>18060009</ENT> <ENT>Santa Barbara (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Santa Ynez</ENT> <ENT>18060010</ENT> <ENT>Santa Barbara (CA)</ENT> <ENT>Bradbury Dam</ENT> </ROW> <ROW> <ENT I="01">Santa Barbara Coastal</ENT> <ENT>18060013</ENT> <ENT>Santa Barbara (CA), Ventura (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Ventura</ENT> <ENT>18070101</ENT> <ENT>Santa Barbara (CA), Ventura (CA)</ENT> <ENT>Casitas Dam, Robles Dam</ENT> </ROW> <ROW> <ENT I="01">Santa Clara</ENT> <ENT>18070102</ENT> <ENT>Los Angeles (CA), Santa Barbara (CA), Ventura (CA)</ENT> <ENT>Santa Felicia Dam</ENT> </ROW> <ROW> <ENT I="01">Santa Monica Bay</ENT> <ENT>18070104</ENT> <ENT>Los Angeles (CA), Ventura (CA)</ENT> <ENT>Rindge Dam</ENT> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7783, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 17</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 17 to Part 226.—Hydrologic Units and Counties Containing Critical Habitat for South-Central California Coast Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Pajaro</ENT> <ENT>18060002</ENT> <ENT>Monterey (CA), San Benito (CA), Santa Clara (CA), Santa Cruz (CA)</ENT> <ENT>Chesbro Reservoir, North Fork Pacheco Reservoir</ENT> </ROW> <ROW> <ENT I="01">Estrella</ENT> <ENT>18060004</ENT> <ENT>Monterey (CA), San Luis Obispo (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Salinas</ENT> <ENT>18060005</ENT> <ENT>Monterey (CA), San Benito (CA), San Luis Obispo (CA)</ENT> <ENT>Nacimiento Reservoir, Salinas Dam, San Antonio Reservoir</ENT> </ROW> <ROW> <ENT I="01">Central Coastal</ENT> <ENT>18060006</ENT> <ENT>Monterey (CA), San Luis Obispo (CA)</ENT> <ENT>Lopez Dam, Whale Rock Reservoir</ENT> </ROW> <ROW> <ENT I="01">Alisal-Elkhorn Sloughs</ENT> <ENT>18060011</ENT> <ENT>Monterey (CA), San Benito (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Carmel</ENT> <ENT>18060012</ENT> <ENT>Monterey (CA)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7783, Feb. 16, 2000]<PRTPAGE P="214"/> </CITA> <EAR>Pt. 226, Table 18</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 18 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central California Coast Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Russian</ENT> <ENT>18010110</ENT> <ENT>Mendocino (CA), Sonoma (CA)</ENT> <ENT>Coyote Dam, Warm Springs Dam</ENT> </ROW> <ROW> <ENT I="01">Bodega Bay</ENT> <ENT>18010111</ENT> <ENT>Marin (CA), Sonoma (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Suisun Bay</ENT> <ENT>18050001</ENT> <ENT>Contra Costa (CA), Napa (CA), Solano (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">San Pablo Bay</ENT> <ENT>18050002</ENT> <ENT>Alameda (CA), Contra Costa (CA), Marin (CA), Napa (CA), San Francisco (CA), Solano (CA), Sonoma (CA)</ENT> <ENT>Phoenix Dam, San Pablo Dam</ENT> </ROW> <ROW> <ENT I="01">Coyote</ENT> <ENT>18050003</ENT> <ENT>Alameda (CA), San Mateo (CA), Santa Clara (CA)</ENT> <ENT>Almaden Reservoir, Anderson Reservoir, Calero Reservoir,Guadalupe Reservoir, Searsville Lake, Stevens Creek Reservoir, Vasona Reservoir</ENT> </ROW> <ROW> <ENT I="01">San Francisco Bay</ENT> <ENT>18050004</ENT> <ENT>Alameda (CA), Contra Costa (CA), San Francisco (CA), San Mateo (CA), Santa Clara (CA)</ENT> <ENT>Calaveras Reservoir, Chabot Dam, Crystal Springs Reservoir, Del Valle Reservoir, San Antonio Reservoir</ENT> </ROW> <ROW> <ENT I="01">Tomales-Drake Bays</ENT> <ENT>18050005</ENT> <ENT>Marin (CA), Sonoma (CA)</ENT> <ENT>Peters Dam, Seeger Dam, Soulejule Dam</ENT> </ROW> <ROW> <ENT I="01">San Francisco Coastal South</ENT> <ENT>18050006</ENT> <ENT>San Mateo (CA)</ENT> <ENT>Pilarcitos Dam</ENT> </ROW> <ROW> <ENT I="01">San Lorenzo-Soquel</ENT> <ENT>18060001</ENT> <ENT>San Mateo (CA), Santa Cruz (CA)</ENT> <ENT>Newell Dam</ENT> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7783, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 19</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 19 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Central Valley Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Sacramento-Lower Cow-Lower Clear</ENT> <ENT>18020101</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Cottonwood</ENT> <ENT>18020102</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Sacramento-Lower Thomes</ENT> <ENT>18020103</ENT> <ENT>Butte (CA), Glenn (CA), Tehama (CA)</ENT> <ENT>Black Butte Dam</ENT> </ROW> <ROW> <ENT I="01">Sacramento-Stone Corral</ENT> <ENT>18020104</ENT> <ENT>Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA), Yolo (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Butte</ENT> <ENT>18020105</ENT> <ENT>Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA)</ENT> <ENT>Centerville Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Feather</ENT> <ENT>18020106</ENT> <ENT>Butte (CA), Sutter (CA), Yuba (CA)</ENT> <ENT>Oroville Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Yuba</ENT> <ENT>18020107</ENT> <ENT>Yuba (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Bear</ENT> <ENT>18020108</ENT> <ENT>Placer (CA), Sutter (CA), Yuba (CA)</ENT> <ENT>Camp Far West Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Sacramento</ENT> <ENT>18020109</ENT> <ENT>Placer (CA), Sacramento (CA), Solano (CA), Sutter (CA), Yolo (CA)</ENT> <ENT>Monticello Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Cache</ENT> <ENT>18020110</ENT> <ENT>Yolo (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower American</ENT> <ENT>18020111</ENT> <ENT>Placer (CA), Sacramento (CA), Sutter (CA)</ENT> <ENT>Nimbus Dam</ENT> </ROW> <ROW> <ENT I="01">Sacramento-Upper Clear</ENT> <ENT>18020112</ENT> <ENT>Shasta (CA)</ENT> <ENT>Keswick Dam, Whiskeytown Dam</ENT> </ROW> <ROW> <ENT I="01">Cottonwood Headwaters</ENT> <ENT>18020113</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Elder-Upper Thomes</ENT> <ENT>18020114</ENT> <ENT>Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Cow-Battle</ENT> <ENT>18020118</ENT> <ENT>Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Mill-Big Chico</ENT> <ENT>18020119</ENT> <ENT>Butte (CA), Shasta (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Butte</ENT> <ENT>18020120</ENT> <ENT>Butte (CA), Tehama (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Honcut Headwaters</ENT> <ENT>18020124</ENT> <ENT>Butte (CA), Yuba (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Yuba</ENT> <ENT>18020125</ENT> <ENT>Yuba (CA), Nevada (CA)</ENT> <ENT>Englebright Dam</ENT> </ROW> <ROW> <ENT I="01">Upper Coon-Upper Auburn</ENT> <ENT>18020127</ENT> <ENT>Placer (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle San Joaquin-Lower Merced-Lower Stanislaus</ENT> <ENT>18040002</ENT> <ENT>Calaveras (CA), Merced (CA), San Joaquin (CA), Stanislaus (CA)</ENT> <ENT>Crocker Diversion Dam, La Grange Dam</ENT> </ROW> <ROW> <ENT I="01">San Joaquin Delta</ENT> <ENT>18040003</ENT> <ENT>Alameda (CA), Contra Costa (CA), Sacramento (CA), San Joaquin (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Calaveras-Mormon Slough</ENT> <ENT>18040004</ENT> <ENT>Calaveras (CA), San Joaquin (CA), Stanislaus (CA)</ENT> <ENT/> </ROW> <ROW> <PRTPAGE P="215"/> <ENT I="01">Lower Consumnes-Lower Mokelumne</ENT> <ENT>18040005</ENT> <ENT>Amador (CA), Sacramento (CA), San Joaquin (CA)</ENT> <ENT>Comanche Dam</ENT> </ROW> <ROW> <ENT I="01">Upper Stanislaus</ENT> <ENT>18040010</ENT> <ENT>Calaveras (CA), San Joaquin (CA), Tuolumne (CA)</ENT> <ENT>Goodwin Dam</ENT> </ROW> <ROW> <ENT I="01">Upper Calaveras</ENT> <ENT>18040011</ENT> <ENT>Calaveras (CA)</ENT> <ENT>New Hogan Dam</ENT> </ROW> <ROW> <ENT I="01">Panoche-San Luis Reservoir</ENT> <ENT>18040014</ENT> <ENT>San Joaquin (CA), Stanislaus (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Suisun Bay</ENT> <ENT>18050001</ENT> <ENT>Contra Costa (CA), Solano (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">San Pablo Bay</ENT> <ENT>18050002</ENT> <ENT>Contra Costa (CA), Marin (CA), San Francisco (CA), Solano (CA), Sonoma (CA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">San Francisco Bay</ENT> <ENT>18050004</ENT> <ENT>Alameda (CA), Contra Costa (CA), San Francisco (CA), San Mateo (CA)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7784, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 20</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 20 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Chief Joseph</ENT> <ENT>17020005</ENT> <ENT>Chelan (WA), Douglas (WA), Okanogan (WA)</ENT> <ENT>Chief Joseph Dam</ENT> </ROW> <ROW> <ENT I="01">Okanogan</ENT> <ENT>17020006</ENT> <ENT>Okanogan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Similkameen</ENT> <ENT>17020007</ENT> <ENT>Okanogan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Methow</ENT> <ENT>17020008</ENT> <ENT>Okanogan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Columbia-Entiat</ENT> <ENT>17020010</ENT> <ENT>Chelan (WA), Douglas (WA), Grant (WA), Kittitas (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Wenatchee</ENT> <ENT>17020011</ENT> <ENT>Chelan (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Moses Coulee</ENT> <ENT>17020012</ENT> <ENT>Douglas (WA), Grant (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Columbia-Priest Rapids</ENT> <ENT>17020016</ENT> <ENT>Benton (WA), Franklin (WA), Grant (WA), Kittitas (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Lake Wallula</ENT> <ENT>17070101</ENT> <ENT>Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Hood</ENT> <ENT>17070105</ENT> <ENT>Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clark (WA), Multnomah (OR), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Columbia (OR), Multnomah (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7784, Feb. 16, 2000]<PRTPAGE P="216"/> </CITA> <EAR>Pt. 226, Table 21</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 21 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Snake River Basin Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Hells Canyon</ENT> <ENT>17060101</ENT> <ENT>Adams (ID), Idaho (ID), Wallowa (OR)</ENT> <ENT>Hells Canyon Dam</ENT> </ROW> <ROW> <ENT I="01">Imnaha</ENT> <ENT>17060102</ENT> <ENT>Baker (OR), Union (OR), Wallowa (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Snake-Asotin</ENT> <ENT>17060103</ENT> <ENT>Asotin (WA), Garfield (WA), Nez Perce (ID), Wallowa (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Grande Ronde</ENT> <ENT>17060104</ENT> <ENT>Umatilla (OR), Union (OR), Wallowa (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Wallowa</ENT> <ENT>17060105</ENT> <ENT>Union (OR), Wallowa (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Grande Ronde</ENT> <ENT>17060106</ENT> <ENT>Asotin (WA), Columbia (WA), Garfield (WA), Union (OR), Wallowa (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Snake-Tucannon</ENT> <ENT>17060107</ENT> <ENT>Asotin (WA), Columbia (WA), Garfield (WA), Whitman (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Palouse</ENT> <ENT>17060108</ENT> <ENT>Franklin (WA), Whitman (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Snake</ENT> <ENT>17060110</ENT> <ENT>Columbia (WA), Franklin (WA), Walla Walla (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Salmon</ENT> <ENT>17060201</ENT> <ENT>Blaine (ID), Custer (ID), Lemhi (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Pahsimeroi</ENT> <ENT>17060202</ENT> <ENT>Custer (ID), Lemhi (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Salmon-Panther</ENT> <ENT>17060203</ENT> <ENT>Custer (ID), Lemhi (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lemhi</ENT> <ENT>17060204</ENT> <ENT>Lemhi (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Middle Fork Salmon</ENT> <ENT>17060205</ENT> <ENT>Boise (ID), Custer (ID), Lemhi (ID), Valley (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Middle Fork Salmon</ENT> <ENT>17060206</ENT> <ENT>Idaho (ID), Lemhi (ID), Valley (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Salmon-Chamberlain</ENT> <ENT>17060207</ENT> <ENT>Idaho (ID), Lemhi (ID), Valley (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">South Fork Salmon</ENT> <ENT>17060208</ENT> <ENT>Idaho (ID), Valley (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Salmon</ENT> <ENT>17060209</ENT> <ENT>Idaho (ID), Lewis (ID), Nez Perce (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Little Salmon</ENT> <ENT>17060210</ENT> <ENT>Adams (ID), Idaho (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Selway</ENT> <ENT>17060301</ENT> <ENT>Idaho (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Selway</ENT> <ENT>17060302</ENT> <ENT>Idaho (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lochsa</ENT> <ENT>17060303</ENT> <ENT>Clearwater (ID), Idaho (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Fork Clearwater</ENT> <ENT>17060304</ENT> <ENT>Idaho (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">South Fork Clearwater</ENT> <ENT>17060305</ENT> <ENT>Idaho (ID)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Clearwater</ENT> <ENT>17060306</ENT> <ENT>Clearwater (ID), Idaho (ID), Latah (ID), Lewis (ID), Nez Perce (ID), Whitman (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower North Fork Clearwater</ENT> <ENT>17060308</ENT> <ENT>Clearwater (ID)</ENT> <ENT>Dworshak Dam</ENT> </ROW> <ROW> <ENT I="01">Middle Columbia-Lake Wallula</ENT> <ENT>17070101</ENT> <ENT>Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Hood</ENT> <ENT>17070105</ENT> <ENT>Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clark (WA), Multnomah (OR), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Columbia (OR), Multnomah (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7785, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 22</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 22 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Middle Columbia-Hood</ENT> <ENT>17070105</ENT> <ENT>Hood River (OR), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <PRTPAGE P="217"/> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clackamas (OR), Clark (WA), Multnomah (OR), Skamania (WA)</ENT> <ENT>Bull Run Dam2</ENT> </ROW> <ROW> <ENT I="01">Lewis</ENT> <ENT>17080002</ENT> <ENT>Clark (WA), Cowlitz (WA), Skamania (WA)</ENT> <ENT>Merwin Dam</ENT> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (OR), Cowlitz (WA), Skamania (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Cowlitz</ENT> <ENT>17080005</ENT> <ENT>Cowlitz (WA), Lewis (WA), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Clackamas</ENT> <ENT>17090011</ENT> <ENT>Clackamas (OR), Marion (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Clackamas (OR), Columbia (OR), Multnomah (OR), Washington (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7786, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 23</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 23 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Clark (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Willamette</ENT> <ENT>17090003</ENT> <ENT>Benton (OR), Linn (OR), Polk (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">North Santiam</ENT> <ENT>17090005</ENT> <ENT>Clackamas (OR), Linn (OR), Marion (OR)</ENT> <ENT>Big Cliff Dam</ENT> </ROW> <ROW> <ENT I="01">South Santiam</ENT> <ENT>17090006</ENT> <ENT>Linn (OR)</ENT> <ENT>Green Peter Dam</ENT> </ROW> <ROW> <ENT I="01">Middle Willamette</ENT> <ENT>17090007</ENT> <ENT>Clackamas (OR), Marion (OR), Polk (OR), Washington (OR), Yamhill (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Yamhill</ENT> <ENT>17090008</ENT> <ENT>Lincoln (OR), Polk (OR), Tillamook (OR), Yamhill (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Molalla-Pudding</ENT> <ENT>17090009</ENT> <ENT>Clackamas (OR), Marion (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Tualatin</ENT> <ENT>17090010</ENT> <ENT>Clackamas (OR), Columbia (OR), Multnomah (OR), Tillamook (OR), Washington (OR), Yamhill (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Clackamas (OR), Columbia (OR), Multnomah (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7786, Feb. 16, 2000]</CITA> <EAR>Pt. 226, Table 24</EAR> <GPOTABLE CDEF="s50,10,r50,r50" COLS="4" OPTS="L2,i1"> <TTITLE>Table 24 to Part 226—Hydrologic Units and Counties Containing Critical Habitat for Middle Columbia River Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.</TTITLE> <BOXHD> <CHED H="1">Hydrologic Unit name</CHED> <CHED H="1">Hydrologic Unit number</CHED> <CHED H="1">Counties<E T="51">1</E> within Hydrologic Unit and within range of ESU</CHED> <CHED H="1">Dams/Reservoirs</CHED> </BOXHD> <ROW> <ENT I="01">Upper Columbia-Priest Rapids</ENT> <ENT>17020016</ENT> <ENT>Benton (WA), Franklin (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Yakima</ENT> <ENT>17030001</ENT> <ENT>Kittitas (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Naches</ENT> <ENT>17030002</ENT> <ENT>Kittitas (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <PRTPAGE P="218"/> <ENT I="01">Lower Yakima</ENT> <ENT>17030003</ENT> <ENT>Benton (WA), Klickitat (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Lake Wallula</ENT> <ENT>17070101</ENT> <ENT>Gilliam (OR), Morrow (OR), Umatilla (OR), Benton (WA), Klickitat (WA), Sherman (OR), Walla Walla (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Walla Walla</ENT> <ENT>17070102</ENT> <ENT>Umatilla (OR), Wallowa (OR), Columbia (WA), Walla Walla (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Umatilla</ENT> <ENT>17070103</ENT> <ENT>Morrow (OR), Umatilla (OR), Union (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Willow</ENT> <ENT>17070104</ENT> <ENT>Morrow (OR), Gilliam (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Columbia-Hood</ENT> <ENT>17070105</ENT> <ENT>Hood River (OR), Sherman (OR), Wasco (OR), Klickitat (WA), Skamania (WA)</ENT> <ENT>Condit Dam</ENT> </ROW> <ROW> <ENT I="01">Klickitat</ENT> <ENT>17070106</ENT> <ENT>Klickitat (WA), Yakima (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper John Day</ENT> <ENT>17070201</ENT> <ENT>Crook (OR), Grant (OR), Harney (OR), Wheeler (OR),</ENT> <ENT/> </ROW> <ROW> <ENT I="01">North Fork John Day</ENT> <ENT>17070202</ENT> <ENT>Grant (OR), Morrow (OR), Umatilla (OR), Union (OR), Wheeler (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Fork John Day</ENT> <ENT>17070203</ENT> <ENT>Grant (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower John Day</ENT> <ENT>17070204</ENT> <ENT>Crook (OR), Gilliam (OR), Grant (OR), Jefferson (OR), Morrow (OR), Sherman (OR), Wasco (OR), Wheeler (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Deschutes</ENT> <ENT>17070306</ENT> <ENT>Hood River (OR), Jefferson (OR), Sherman (OR), Wasco (OR)</ENT> <ENT>Pelton Dam</ENT> </ROW> <ROW> <ENT I="01">Trout</ENT> <ENT>17070307</ENT> <ENT>Crook (OR), Jefferson (OR), Wasco (OR)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Sandy</ENT> <ENT>17080001</ENT> <ENT>Multnomah (OR), Clark (WA), Skamania (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia-Clatskanie</ENT> <ENT>17080003</ENT> <ENT>Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Columbia</ENT> <ENT>17080006</ENT> <ENT>Clatsop (OR), Pacific (WA), Wahkiakum (WA)</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Willamette</ENT> <ENT>17090012</ENT> <ENT>Columbia (OR), Multnomah (OR)</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.</TNOTE> </GPOTABLE> <CITA TYPE="W">[65 FR 7786, Feb. 16, 2000]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 228</EAR> <HD SOURCE="HED">PART 228—NOTICE AND HEARING ON SECTION 103(d) REGULATIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>228.1</SECTNO> <SUBJECT>Basis and purpose.</SUBJECT> <SECTNO>228.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>228.3</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <SECTNO>228.4</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>228.5</SECTNO> <SUBJECT>Notification by interested persons.</SUBJECT> <SECTNO>228.6</SECTNO> <SUBJECT>Presiding officer.</SUBJECT> <SECTNO>228.7</SECTNO> <SUBJECT>Direct testimony submitted as written documents.</SUBJECT> <SECTNO>228.8</SECTNO> <SUBJECT>Mailing address.</SUBJECT> <SECTNO>228.9</SECTNO> <SUBJECT>Inspection and copying of documents.</SUBJECT> <SECTNO>228.10</SECTNO> <SUBJECT>Ex parte communications.</SUBJECT> <SECTNO>228.11</SECTNO> <SUBJECT>Prehearing conference.</SUBJECT> <SECTNO>228.12</SECTNO> <SUBJECT>Final agenda of the hearing.</SUBJECT> <SECTNO>228.13</SECTNO> <SUBJECT>Determination to cancel the hearing.</SUBJECT> <SECTNO>228.14</SECTNO> <SUBJECT>Rebuttal testimony and new issues of fact in final agenda.</SUBJECT> <SECTNO>228.15</SECTNO> <SUBJECT>Waiver of right to participate.</SUBJECT> <SECTNO>228.16</SECTNO> <SUBJECT>Conduct of the hearing.</SUBJECT> <SECTNO>228.17</SECTNO> <SUBJECT>Direct testimony.</SUBJECT> <SECTNO>228.18</SECTNO> <SUBJECT>Cross-examination.</SUBJECT> <SECTNO>228.19</SECTNO> <SUBJECT>Oral and written arguments.</SUBJECT> <SECTNO>228.20</SECTNO> <SUBJECT>Recommended decision, certification of the transcript and submission of comments on the recommended decision.</SUBJECT> <SECTNO>228.21</SECTNO> <SUBJECT>Assistant Administrator's decision.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1361 <E T="03">et seq</E>.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 39560, June 27, 2000, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 228.1</SECTNO> <SUBJECT>Basis and purpose.</SUBJECT> <P>(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these regulations authorize the Assistant Administrator of the National Marine Fisheries Service, to:<PRTPAGE P="219"/> </P> <P>(1) Impose regulations governing the taking of marine mammals incidental to commercial fishing operations;</P> <P>(2) Waive the moratorium and to adopt regulations with respect to the taking and importing of animals from each species of marine mammals under the Assistant Administrator's jurisdiction;</P> <P>(3) Prescribe regulations governing the taking of depleted marine mammals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sections, the Act refers the Assistant Administrator to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Assistant Administrator to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)).</P> <P>(b) The purpose of this part is to establish rules of practice and procedure for all hearings conducted pursuant to section 103(d) of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 228.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Party</E> means, for the purposes of this subpart:</P> <P>(1) The Assistant Administrator or the Assistant Administrator's representative;</P> <P>(2) A person who has notified the Assistant Administrator by specified dates of his or her intent to participate in the hearing pursuant to §§ 228.5 and 228.14(b).</P> <P>(b) <E T="03">Witness</E> means, for the purpose of this part, any person who submits written direct testimony on the proposed regulations. A person may be both a party and a witness.</P> </SECTION> <SECTION> <SECTNO>§ 228.3</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <P>The procedural regulations in this part govern the practice and procedure in hearings held under section 103(d) of the Act. These hearings will be governed by the provisions of 5 U.S.C. 556 and section 557 of the Administrative Procedure Act. The regulations shall be construed to secure the just, speedy and inexpensive determination of all issues raised with respect to any waiver or regulation proposed pursuant to section 103(d) of the Act with full protection for the rights of all persons affected thereby.</P> </SECTION> <SECTION> <SECTNO>§ 228.4</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>(a) A notice of hearing on any proposed regulations shall be published in the <E T="04">Federal Register</E>, together with the Assistant Administrator's proposed determination to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where applicable.</P> <P>(b) The notice shall state:</P> <P>(1) The nature of the hearing;</P> <P>(2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hearing;</P> <P>(3) The legal authority under which the hearing is to be held;</P> <P>(4) The proposed regulations and waiver, where applicable, and a summary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d));</P> <P>(5) Issues of fact which may be involved in the hearing;</P> <P>(6) If a draft Environmental Impact Statement is required, the date of publication of the draft and the place(s) where the draft and comments thereon may be viewed and copied;</P> <P>(7) Any written advice received from the Marine Mammal Commission;</P> <P>(8) The place(s) where records and submitted direct testimony will be kept for public inspection;</P> <P>(9) The final date for filing with the Assistant Administrator a notice of intent to participate in the hearing pursuant to § 228.5;</P> <P>(10) The final date for submission of direct testimony on the proposed regulations and waiver, if applicable, and the number of copies required;</P> <P>(11) The docket number assigned to the case which shall be used in all subsequent proceedings; and</P> <P>(12) The place and date of the pre-hearing conference.</P> </SECTION> <SECTION> <SECTNO>§ 228.5</SECTNO> <SUBJECT>Notification by interested persons.</SUBJECT> <P>Any person desiring to participate as a party shall notify the Assistant Administrator, by certified mail, on or before the date specified in the notice.</P> </SECTION> <SECTION> <PRTPAGE P="220"/> <SECTNO>§ 228.6</SECTNO> <SUBJECT>Presiding officer.</SUBJECT> <P>(a) Upon publication of the notice of hearing pursuant to § 228.4, the Assistant Administrator shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding.</P> <P>(b) The presiding officer, in any proceeding under this subpart, shall have power to:</P> <P>(1) Change the time and place of the hearing and adjourn the hearing;</P> <P>(2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing conference to determine the issues for the hearing agenda, and cause to be published in the <E T="04">Federal Register</E> a final hearing agenda;</P> <P>(3) Rule upon motions, requests and admissibility of direct testimony;</P> <P>(4) Administer oaths and affirmations, question witnesses and direct witnesses to testify;</P> <P>(5) Modify or waive any rule (after notice) when determining that no party will be prejudiced;</P> <P>(6) Receive written comments and hear oral arguments;</P> <P>(7) Render a recommended decision; and</P> <P>(8) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding.</P> <P>(c) In case of the absence of the original presiding officer or the original presiding officer's inability to act, the powers and duties to be performed by the original presiding officer under this subpart in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer unless otherwise ordered by the Assistant Administrator.</P> <P>(d) The presiding officer may upon the presiding officer's own motion withdraw as presiding officer in a proceeding if the presiding officer deems himself or herself to be disqualified.</P> <P>(e) A presiding officer may be requested to withdraw at any time prior to the recommended decision. Upon the filing by an interested person in good faith of a timely and sufficient affidavit alleging the presiding officer's personal bias, malice, conflict of interest or other basis which might result in prejudice to a party, the hearing shall recess. The Assistant Administrator shall immediately determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as the Assistant Administrator may deem appropriate in the circumstances.</P> </SECTION> <SECTION> <SECTNO>§ 228.7</SECTNO> <SUBJECT>Direct testimony submitted as written documents.</SUBJECT> <P>(a) Unless otherwise specified, all direct testimony, including accompanying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§ 228.4), the final hearing agenda (§ 228.12), or within 15 days after the conclusion of the prehearing conference (§ 228.14) as the case may be. All direct testimony shall be in affidavit form and exhibits constituting part of such testimony, referred to in the affidavit and made a part thereof, must be attached to the affidavit. Direct testimony submitted with exhibits must state the issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the <E T="04">Federal Register</E>.</P> <P>(b) The direct testimony submitted shall contain:</P> <P>(1) A concise statement of the witness' interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state the witness' relationship to the party; and</P> <P>(2) Facts that are relevant and material.</P> <P>(c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing.</P> <P>(d) Ten copies of all direct testimony must be submitted unless the notice of the hearing specifies otherwise.</P> <P>(e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number.<PRTPAGE P="221"/> </P> <P>(f) Contemporaneous with the publication of the notice of hearing, the Assistant Administrator's direct testimony in support of the proposed regulations and waiver, where applicable, shall be available for public inspection as specified in the notice of hearing. The Assistant Administrator may submit additional direct testimony during the time periods allowed for submission of such testimony by witnesses.</P> </SECTION> <SECTION> <SECTNO>§ 228.8</SECTNO> <SUBJECT>Mailing address.</SUBJECT> <P>Unless otherwise specified in the notice of hearing, all direct testimony shall be addressed to the Presiding Officer, c/o Assistant Administrator, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. All affidavits and exhibits shall be clearly marked with the docket number of the proceedings.</P> </SECTION> <SECTION> <SECTNO>§ 228.9</SECTNO> <SUBJECT>Inspection and copying of documents.</SUBJECT> <P>Any document in a file pertaining to any hearing authorized by this subpart or any document forming part of the record of such a hearing may be inspected and/or copied in the Office of the Assistant Administrator, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-unless the file is in the care and custody of the presiding officer, in which case the presiding officer shall notify the parties as to where and when the record may be inspected.</P> </SECTION> <SECTION> <SECTNO>§ 228.10</SECTNO> <SUBJECT>Ex parte communications.</SUBJECT> <P>(a) After notice of a hearing is published in the <E T="04">Federal Register</E>, all communications, whether oral or written, involving any substantive or procedural issue and directed either to the presiding officer or to the Assistant Administrator, Deputy Assistant Administrator, or Chief of the Marine Mammal Division, National Marine Fisheries Service, without reference to these rules of procedure, shall be deemed ex parte communications and are not to be considered part of the record for decision.</P> <P>(b) A record of oral conversations shall be made by the persons who are contacted. All communications shall be available for public viewing at the place(s) specified in the notice of hearing.</P> <P>(c) The presiding office shall not consult any person or party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate.</P> </SECTION> <SECTION> <SECTNO>§ 228.11</SECTNO> <SUBJECT>Prehearing conference.</SUBJECT> <P>(a) After an examination of all the direct testimony submitted pursuant to § 228.7, the presiding officer shall make a preliminary determination of issues of fact which may be addressed at the hearing.</P> <P>(b) The presiding officer's preliminary determination shall be made available at the place or places provided in the notice of the hearing (§ 228.4(b)(8)) at least 5 days before the prehearing conference.</P> <P>(c) The purpose of the prehearing conference shall be to enable the presiding officer to determine, on the basis of the direct testimony submitted and prehearing discussions:</P> <P>(1) Whether the presiding officer's preliminary determination of issues of fact for the hearing has omitted any significant issues;</P> <P>(2) What facts are not in dispute;</P> <P>(3) Which witnesses may appear at the hearing; and</P> <P>(4) The nature of the interest of each party and which parties' interests are adverse.</P> <P>(d) Only parties may participate in the hearing conference and a party may appear in person or be represented by counsel.</P> <P>(e) Parties who do not appear at the prehearing conference shall be bound by the conference's determinations.</P> </SECTION> <SECTION> <SECTNO>§ 228.12</SECTNO> <SUBJECT>Final agenda of the hearing.</SUBJECT> <P>(a) After the prehearing conference, the presiding officer shall prepare a final agenda which shall be published in the <E T="04">Federal Register</E> within 10 days after the conclusion of the conference. A copy of the final agenda shall be mailed to all parties.</P> <P>(b) The final agenda shall list:</P> <P>(1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the direct testimony submitted which bears on the issues; and<PRTPAGE P="222"/> </P> <P>(2) A final date for submission of direct testimony on issues of fact not included in the notice of hearing if such issues are presented. The final agenda may also specify a final date for submission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing.</P> <P>(c) The presiding officer shall publish with the final agenda a list of witnesses who may appear at the hearing, a list of parties, the nature of the interest of each party, and which parties' interests are adverse on the issues presented.</P> </SECTION> <SECTION> <SECTNO>§ 228.13</SECTNO> <SUBJECT>Determination to cancel the hearing.</SUBJECT> <P>(a) If the presiding officer concludes that no issues of fact are presented by the direct testimony submitted, the presiding officer shall publish such conclusion and notice in the <E T="04">Federal Register</E> that a hearing shall not be held and shall also publish a date for filing written comments on the proposed regulations. Written comments may include proposed findings and conclusions, arguments or briefs.</P> <P>(b) A person need not be a party to submit any written comments.</P> <P>(c) Promptly after expiration of the period for receiving written comments, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the direct testimony and written comments submitted. He shall transfer to the Assistant Administrator his recommended decision, the record and a certificate stating that the record contains all the written direct testimony and comments submitted. The Assistant Administrator shall then make a final decision in accordance with these regulations (§ 228.21).</P> </SECTION> <SECTION> <SECTNO>§ 228.14</SECTNO> <SUBJECT>Rebuttal testimony and new issues of fact in final agenda.</SUBJECT> <P>(a) Direct testimony to rebut testimony offered during the time period specified in the notice of hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the prehearing conference unless the presiding officer otherwise specifies in the final agenda.</P> <P>(b) If the final agenda presents issues not included in the notice of the hearing published pursuant to § 228.4:</P> <P>(1) Any person interested in participating at the hearing on such issues presented shall notify the Assistant Administrator by certified mail of an intent to participate not later than 10 days after publication of the final agenda. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless that person previously notified the Assistant Administrator pursuant to § 228.5; and</P> <P>(2) Additional written direct testimony concerning such issues may be submitted within the time provided in the final agenda. Such direct testimony will comply with the requirements of § 228.7.</P> </SECTION> <SECTION> <SECTNO>§ 228.15</SECTNO> <SUBJECT>Waiver of right to participate.</SUBJECT> <P>Persons who fail to notify the Assistant Administrator pursuant to §§ 228.5 and 228.14 shall be deemed to have waived their right to participate as parties in any part of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 228.16</SECTNO> <SUBJECT>Conduct of the hearing.</SUBJECT> <P>(a) The hearing shall be held at the time and place fixed in the notice of the hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the change in the <E T="04">Federal Register</E> and shall expeditiously notify all parties by telephone or by mail: Provided, that if that change in time or place of hearing is made less than 5 days before the date previously fixed for the hearing, the presiding officer shall also announce, or cause to be announced, the change at the time and place previously fixed for the hearing.</P> <P>(b) The presiding officer shall, at the commencement of the hearing, introduce into the record: the notice of hearing as published in the <E T="04">Federal Register</E>; all subsequent documents published in the <E T="04">Federal Register</E>; the draft Environmental Impact Statement if it is required and the comments thereon and agency responses to the comments; and a list of all parties. Direct testimony shall then be received with respect to the matters specified in the final agenda in such order as the presiding officer shall announce. With <PRTPAGE P="223"/>respect to direct testimony submitted as rebuttal testimony or in response to new issues presented by the prehearing conference, the presiding officer shall determine the relevancy of such testimony.</P> <P>(c) The hearing shall be publicly conducted and reported verbatim by an official reporter.</P> <P>(d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding officer during the hearing, he or she shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling by the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Assistant Administrator's final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings.</P> <P>(e) All motions and requests shall be addressed to, and ruled on by, the presiding officer, if made prior to his certification of the transcript or by the Assistant Administrator if made thereafter.</P> </SECTION> <SECTION> <SECTNO>§ 228.17</SECTNO> <SUBJECT>Direct testimony.</SUBJECT> <P>(a) Only direct testimony submitted by affidavit as provided in these regulations and introduced at the hearing by a witness shall be considered part of the record. Such direct testimony shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof;</P> <P>(b) The witness introducing direct testimony shall:</P> <P>(1) State his or her name, address and occupation;</P> <P>(2) State qualifications for introducing the direct testimony. If an expert, the witness shall briefly state the scientific or technical training which qualifies the witness as an expert;</P> <P>(3) Identify the direct testimony previously submitted in accordance with these regulations; and</P> <P>(4) Submit to appropriate cross and direct examination. Cross-examination shall be by a party whose interests are adverse on the issue presented, to the witness', if the witness is a party, or to the interests of the party who presented the witness.</P> <P>(c) A party shall be deemed to have waived the right to introduce direct testimony if such party fails to present a witness to introduce the direct testimony.</P> <P>(d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States: Provided, that parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.</P> </SECTION> <SECTION> <SECTNO>§ 228.18</SECTNO> <SUBJECT>Cross-examination.</SUBJECT> <P>(a) The presiding officer may:</P> <P>(1) Require the cross-examiner to outline the intended scope of the cross-examination;</P> <P>(2) Prohibit parties from cross-examining witnesses unless the presiding officer has determined that the cross-examiner has an adverse interest on the facts at issue to the party-witness or the party presenting the witness. For the purposes of this subsection, the Assistant Administrator's or his or her representative's interest shall be considered adverse to all parties;</P> <P>(3) Limit the number of times any party or parties having a common interest may cross-examine an “adverse” witness on the same matter; and</P> <P>(4) Exclude cross-examination questions that are immaterial, irrelevant or unduly repetitious.</P> <P>(b) Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or counsel shall state his or her name, address and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be familiar with the direct testimony.</P> <P>(c) Any party or party's counsel who fails to appear at the hearing to cross-examine an “adverse” witness shall be deemed to have waived the right to cross-examine that witness.<PRTPAGE P="224"/> </P> <P>(d) Scientific, technical or commercial publications may only be utilized for the limited purposes of impeaching witnesses under cross-examination unless previously submitted and introduced in accordance with these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 228.19</SECTNO> <SUBJECT>Oral and written arguments.</SUBJECT> <P>(a) The presiding officer may, in his or her discretion, provide for oral argument at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding.</P> <P>(b) The presiding officer shall announce at the hearing a reasonable period of time within which any interested person may file with the presiding officer any written comments on the proposed regulations and waiver, including proposed findings and conclusions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by such party to a ruling of the presiding officer, the party shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state their arguments thereon as a part of the brief.</P> <P>(c) Oral or written arguments shall be limited to issues arising from direct testimony on the record.</P> </SECTION> <SECTION> <SECTNO>§ 228.20</SECTNO> <SUBJECT>Recommended decision, certification of the transcript and submission of comments on the recommended decision.</SUBJECT> <P>(a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Assistant Administrator. The recommended decision shall include:</P> <P>(1) A statement containing a description of the history of the proceedings;</P> <P>(2) Findings on the issues of fact with the reasons therefor; and</P> <P>(3) Rulings on issues of law.</P> <P>(b) The presiding officer shall also transmit to the Assistant Administrator the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified.</P> <P>(c) Immediately after receipt of the recommended decision, the Assistant Administrator shall give notice thereof in the <E T="04">Federal Register</E>, send copies of the recommended decision to all parties, and provide opportunity for the submission of comments. The recommended decision may be reviewed and/or copied in the office of the Assistant Administrator, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.</P> <P>(d) Within 20 days after the notice of receipt of the recommended decision has been published in the <E T="04">Federal Register</E>, any interested person may file with the Assistant Administrator any written comments on the recommended decision. All comments, including recommendations from or consultation with the Marine Mammal Commission, must be submitted during the 20-day period to the Assistant Administrator at the previously mentioned address.</P> </SECTION> <SECTION> <SECTNO>§ 228.21</SECTNO> <SUBJECT>Assistant Administrator's decision.</SUBJECT> <P>(a) Upon receipt of the recommended decision and transcript and after the 20-day period for receiving written comments on the recommended decision has passed, the Assistant Administrator shall make a final decision on the proposed regulations and waiver, where applicable. The Assistant Administrator's decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the presiding officer. The Assistant Administrator may also remand the hearing record to the presiding officer for a fuller development of the record.</P> <P>(b) The Assistant Administrator's decision shall include:</P> <P>(1) A statement containing a description of the history of the proceeding;</P> <P>(2) Findings on the issues of fact with the reasons therefor; and</P> <P>(3) Rulings on issues of law.<PRTPAGE P="225"/> </P> <P>(4) The Assistant Administrator's decision shall be published in the <E T="04">Federal Register</E>. If the waiver is approved, the final adopted regulations shall be promulgated with the decision.</P> </SECTION> </PART> <PART> <EAR>Pt. 229</EAR> <HD SOURCE="HED">PART 229—AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>229.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>229.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>229.3</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>229.4</SECTNO> <SUBJECT>Requirements for Category I and II fisheries.</SUBJECT> <SECTNO>229.5</SECTNO> <SUBJECT>Requirements for Category III fisheries.</SUBJECT> <SECTNO>229.6</SECTNO> <SUBJECT>Reporting requirements.</SUBJECT> <SECTNO>229.7</SECTNO> <SUBJECT>Monitoring of incidental mortalities and serious injuries.</SUBJECT> <SECTNO>229.8</SECTNO> <SUBJECT>Publication of List of Fisheries.</SUBJECT> <SECTNO>229.9</SECTNO> <SUBJECT>Emergency regulations.</SUBJECT> <SECTNO>229.10</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>229.11</SECTNO> <SUBJECT>Confidential fisheries data.</SUBJECT> <SECTNO>229.12</SECTNO> <SUBJECT>Consultation with the Secretary of the Interior.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Takes of Endangered and Threatened Marine Mammals</HD> <SECTNO>229.20</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Take Reduction Plan Regulations and Emergency Regulations</HD> <SECTNO>229.30</SECTNO> <SUBJECT>Basis.</SUBJECT> <SECTNO>229.31</SECTNO> <SUBJECT>Pacific Offshore Cetacean Take Reduction Plan.</SUBJECT> <SECTNO>229.32</SECTNO> <SUBJECT>Atlantic large whale take reduction plan regulations.</SUBJECT> <SECTNO>229.33</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan Implementing Regulations—Gulf of Maine.</SUBJECT> <SECTNO>229.34</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan—Mid-Atlantic.</SUBJECT> <APP>Figure 1 to Part 229—Drift Gillnet Pinger Configuration and Extender Requirements</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1361 <E T="03">et</E> <E T="03">seq</E>.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 45100, Aug. 30, 1995, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 229.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(a) The regulations in this part implement sections 101(a)(5)(E) and 118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1371(a)(5)(E) and 1387) that provide for exceptions for the taking of marine mammals incidental to certain commercial fishing operations from the Act's general moratorium on the taking of marine mammals.</P> <P>(b) Section 118 of the Act, rather than sections 103 and 104, governs the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States, other than vessels fishing for yellowfin tuna in the eastern tropical Pacific Ocean purse seine fishery, and vessels that have valid fishing permits issued in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)).</P> <P>(c) The regulations of Subpart B also govern the incidental taking by commercial fishers of marine mammals from species or stocks designated under the Act as depleted on the basis of their listing as threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 <E T="03">et</E> <E T="03">seq</E>.).</P> <P>(d) The regulations of this part do not apply to the incidental taking of California sea otters or to Northwest treaty Indian tribal members exercising treaty fishing rights.</P> <P>(e) Authorizations under subpart A of this part are exemptions only from the taking prohibitions under the Act and not those under the Endangered Species Act of 1973. To be exempt from the taking prohibitions under the Endangered Species Act, specific authorization under subpart B of this part is required.</P> <P>(f) Authorizations under this part do not apply to the intentional lethal taking of marine mammals in the course of commercial fishing operations except as provided for under §§ 229.4(k) and 229.5(f).</P> <P>(g) The purposes of the regulations in this part are to:</P> <P>(1) Reduce the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations below the potential biological removal level for a particular stock, and</P> <P>(2) Reduce the incidental mortality or serious injury of marine mammals occurring in the course of commercial <PRTPAGE P="226"/>fishing operations to insignificant levels approaching a zero mortality and serious injury rate by the statutory deadline of April 30, 2001.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9086, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In addition to the definitions contained in the Act and § 216.3 of this chapter, and unless the context otherwise requires, in this part 229:</P> <P> <E T="03">Act</E> or <E T="03">MMPA</E> means the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 <E T="03">et</E> <E T="03">seq</E>.).</P> <P> <E T="03">American lobster or lobster</E> means <E T="03">Homarus americanus.</E> </P> <P> <E T="03">Anchored gillnet</E> means any gillnet gear, including a sink gillnet or stab net, that is set anywhere in the water column and which is anchored, secured or weighted to the bottom of the sea. Also called a set gillnet.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration.</P> <P> <E T="03">Authorization Certificate</E> means a document issued by the Assistant Administrator, or designee, under the authority of section 118 of the Act that authorizes the incidental, but not intentional, taking of marine mammals in Category I or II fisheries.</P> <P> <E T="03">Breaking strength</E> means the highest tensile force which an object can withstand before breaking.</P> <P> <E T="03">Bridle</E> means the lines connecting a gillnet to an anchor or buoy line.</P> <P> <E T="03">Buoy line</E> means a line connecting fishing gear in the water to a buoy at the surface of the water.</P> <P> <E T="03">Category I fishery</E> means a commercial fishery determined by the Assistant Administrator to have frequent incidental mortality and serious injury of marine mammals. A commercial fishery that frequently causes mortality or serious injury of marine mammals is one that is by itself responsible for the annual removal of 50 percent or more of any stock's potential biological removal level.</P> <P> <E T="03">Category II fishery</E> means a commercial fishery determined by the Assistant Administrator to have occasional incidental mortality and serious injury of marine mammals. A commercial fishery that occasionally causes mortality or serious injury of marine mammals is one that, collectively with other fisheries, is responsible for the annual removal of more than 10 percent of any marine mammal stock's potential biological removal level and that is by itself responsible for the annual removal of between 1 and 50 percent, exclusive, of any stock's potential biological removal level. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, the Assistant Administrator will determine whether the incidental serious injury or mortality is “occasional” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator. Eligible commercial fisheries not specifically identified in the list of fisheries are deemed to be Category II fisheries until the next list of fisheries is published.</P> <P> <E T="03">Category III fishery</E> means a commercial fishery determined by the Assistant Administrator to have a remote likelihood of, or no known incidental mortality and serious injury of marine mammals. A commercial fishery that has a remote likelihood of causing incidental mortality and serious injury of marine mammals is one that collectively with other fisheries is responsible for the annual removal of:</P> <P>(1) Ten percent or less of any marine mammal stock's potential biological removal level, or</P> <P>(2) More than 10 percent of any marine mammal stock's potential biological removal level, yet that fishery by itself is responsible for the annual removal of 1 percent or less of that stock's potential biological removal level. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, the Assistant Administrator will determine whether the incidental serious injury or mortality is “remote” by evaluating other factors such as fishing techniques, gear used, methods <PRTPAGE P="227"/>used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area or at the discretion of the Assistant Administrator.</P> <P> <E T="03">Commercial fishing operation</E> means the catching, taking, or harvesting of fish from the marine environment (or other areas where marine mammals occur) that results in the sale or barter of all or part of the fish harvested. The term includes licensed commercial passenger fishing vessel (as defined in § 216.3 of this chapter) activities and aquaculture activities.</P> <P> <E T="03">Depleted species</E> means any species or population that has been designated as depleted under the Act and is listed in § 216.15 of this chapter or part 18, subpart E of this title, or any endangered or threatened species of marine mammal.</P> <P> <E T="03">Driftnet, drift gillnet, or drift entanglement gear</E> means a gillnet or gillnets that is/are unattached to the ocean bottom and not anchored, secured or weighted to the bottom, regardless of whether attached to a vessel.</P> <P> <E T="03">Fisher or fisherman</E> means the vessel owner or operator, or the owner or operator of gear in a nonvessel fishery.</P> <P> <E T="03">Fishery</E> has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).</P> <P> <E T="03">Fishing trip</E> means any time spent away from port actively engaged in commercial fishing operations. The end of a fishing trip will be the time of a fishing vessel's return to port or the return of a fisher from tending gear in a nonvessel fishery.</P> <P> <E T="03">Fishing vessel</E> or <E T="03">vessel</E> means any vessel, boat, ship, or other craft that is used for, equipped to be used for, or of a type normally used for, fishing.</P> <P> <E T="03">Float-line</E> means the rope at the top of a gillnet from which the mesh portion of the net is hung.</P> <P> <E T="03">Gillnet</E> means fishing gear consisting of a wall of webbing (meshes) or nets, designed or configured so that the webbing (meshes) or nets are placed in the water column, usually held approximately vertically, and are designed to capture fish by entanglement, gilling, or wedging. The term “gillnet” includes gillnets of all types, including but not limited to sink gillnets, other anchored gillnets (e.g. stab and set nets), and drift gillnets. Gillnets may or may not be attached to a vessel.</P> <P> <E T="03">Groundline,</E> with reference to lobster trap gear, means a line connecting lobster traps in a lobster trap trawl, and, with reference to gillnet gear, means a line connecting a gillnet or gillnet bridle to an anchor or buoy line.</P> <P> <E T="03">Incidental</E> means, with respect to an act, a non-intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action.</P> <P> <E T="03">Injury</E> means a wound or other physical harm. Signs of injury to a marine mammal include, but are not limited to, visible blood flow, loss of or damage to an appendage or jaw, inability to use one or more appendages, asymmetry in the shape of the body or body position, noticeable swelling or hemorrhage, laceration, puncture or rupture of eyeball, listless appearance or inability to defend itself, inability to swim or dive upon release from fishing gear, or signs of equilibrium imbalance. Any animal that ingests fishing gear, or any animal that is released with fishing gear entangling, trailing or perforating any part of the body will be considered injured regardless of the absence of any wound or other evidence of an injury.</P> <P> <E T="03">Interaction</E> means coming in contact with fishing gear or catch. An interaction may be characterized by a marine mammal entangled, hooked, or otherwise trapped in fishing gear, regardless of whether injury or mortality occurs, or situations where marine mammals are preying on catch. Catch means fish or shellfish that has been hooked, entangled, snagged, trapped or otherwise captured by commercial fishing gear.</P> <P> <E T="03">Large mesh gillnet</E> means a gillnet constructed with a mesh size of 7 inches (17.78 cm) to 18 inches (45.72 cm).</P> <P> <E T="03">Lead-line</E> means the rope, weighted or otherwise, to which the bottom edge of a gillnet is attached.</P> <P> <E T="03">List of Fisheries</E> means the most recent final list of commercial fisheries published in the <E T="04">Federal Register</E> by the Assistant Administrator, categorized according to the likelihood of incidental mortality and serious injury <PRTPAGE P="228"/>of marine mammals during commercial fishing operations.</P> <P> <E T="03">Lobster trap</E> means any trap, pot or other similar type of enclosure that is placed on the ocean bottom and is designed to or is capable of catching lobsters. This definition includes but is not limited to lobster pots, black sea bass pots and scup pots.</P> <P> <E T="03">Lobster trap trawl</E> means two or more lobster traps attached to a single groundline.</P> <P> <E T="03">Mesh size</E> means the distance between inside knot to inside knot. Mesh size is measured as described in § 648.80(f)(1) of this title.</P> <P> <E T="03">Mid-Atlantic coastal waters</E> means waters bounded by the line defined by the following points: The southern shoreline of Long Island, New York at 72°30′W, then due south to 33°51′N lat., thence west to the North Carolina/South Carolina border.</P> <P> <E T="03">Minimum population estimate</E> means an estimate of the number of animals in a stock that:</P> <P>(1) Is based on the best available scientific information on abundance, incorporating the precision and variability associated with such information; and</P> <P>(2) Provides reasonable assurance that the stock size is equal to or greater than the estimate.</P> <P> <E T="03">Mudhole</E> means waters off New Jersey bounded as follows: From the point 40°30′ N. latitude where it intersects with the shoreline of New Jersey east to its intersection with 73°20′ W. longitude, then south to its intersection with 40°05′ N. latitude, then west to its intersection with the shoreline of New Jersey.</P> <P> <E T="03">Negligible impact</E> has the same meaning as in § 228.3 of this chapter.</P> <P> <E T="03">Net productivity rate</E> means the annual per capita rate of increase in a stock resulting from additions due to reproduction, less losses due to mortality.</P> <P> <E T="03">Night</E> means any time between one half hour before sunset and one half hour after sunrise.</P> <P> <E T="03">NMFS</E> means the National Marine Fisheries Service.</P> <P> <E T="03">Nonvessel fishery</E> means a commercial fishing operation that uses fixed or other gear without a vessel, such as gear used in set gillnet, trap, beach seine, weir, ranch, and pen fisheries.</P> <P> <E T="03">Observer</E> means an individual authorized by NMFS, or a designated contractor, to record information on marine mammal interactions, fishing operations, marine mammal life history information, and other scientific data, and collect biological specimens during commercial fishing activities.</P> <P> <E T="03">Operator,</E> with respect to any vessel, means the master, captain, or other individual in charge of that vessel.</P> <P> <E T="03">Potential biological removal level</E> means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors:</P> <P>(1) The minimum population estimate of the stock;</P> <P>(2) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and</P> <P>(3) A recovery factor of between 0.1 and 1.0.</P> <P> <E T="03">Regional Fishery Management Council</E> means a regional fishery management council established under section 302 of the Magnuson Fishery Conservation and Management Act.</P> <P> <E T="03">Serious injury</E> means any injury that will likely result in mortality.</P> <P> <E T="03">Shark gillnetting</E> means to fish a gillnet in waters south of the South Carolina/Georgia border with webbing of 5 inches or greater stretched mesh.</P> <P> <E T="03">Sink gillnet</E> or <E T="03">stab net</E> means any gillnet, anchored or otherwise, that is designed to be, or is fished on or near the bottom in the lower third of the water column.</P> <P> <E T="03">Sinking line</E> means rope that sinks and does not float at any point in the water column. Polypropylene rope is not sinking line unless it contains a lead core.</P> <P> <E T="03">Small mesh gillnet</E> means a gillnet constructed with a mesh size of greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).</P> <P> <E T="03">Southern Mid-Atlantic waters</E> means all state and Federal waters off the States of Delaware, Maryland, Virginia, and North Carolina, bounded on <PRTPAGE P="229"/>the north by a line extending eastward from the northern shoreline of Delaware at 38°47′ N. latitude (the latitude that corresponds with Cape Henlopen, DE), east to its intersection with 72°30′ W. longitude, south to the 33°51′ N. latitude (the latitude that corresponds with the North Carolina/South Carolina border), and then west to its intersection with the shoreline of the North Carolina/South Carolina border.</P> <P> <E T="03">Spotter plane</E> means a plane that is deployed for the purpose of locating schools of target fish for a fishing vessel that intends to set fishing gear on them.</P> <P> <E T="03">Stowed</E> means nets that are unavailable for use and that are stored in accordance with the regulations found in § 648.81(e) of this title.</P> <P> <E T="03">Strategic stock</E> means a marine mammal stock:</P> <P>(1) For which the level of direct human-caused mortality exceeds the potential biological removal level;</P> <P>(2) Which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973 within the foreseeable future;</P> <P>(3) Which is listed as a threatened species or endangered species under the Endangered Species Act of 1973; or</P> <P>(4) Which is designated as depleted under the Marine Mammal Protection Act of 1972, as amended.</P> <P> <E T="03">Strikenet</E> or <E T="03">to fish with strikenet gear</E> means a gillnet that is designed so that, when it is deployed, it encircles or encloses an area of water either with the net or by utilizing the shoreline to complete encirclement, or to fish with such a net and method.</P> <P> <E T="03">Take Reduction Plan</E> means a plan developed to reduce the incidental mortality and serious injury of marine mammals during commercial fishing operations in accordance with section 118 of the Marine Mammal Protection Act of 1972, as amended.</P> <P> <E T="03">Take Reduction Team</E> means a team established to recommend methods of reducing the incidental mortality and serious injury of marine mammals due to commercial fishing operations, in accordance with section 118 of the Marine Mammal Protection Act of 1972, as amended.</P> <P> <E T="03">Tended gear or tend</E> means fishing gear that is physically attached to a vessel in a way that is capable of harvesting fish, or to fish with gear attached to the vessel.</P> <P> <E T="03">Tie-down</E> refers to twine used between the floatline and the lead line as a way to create a pocket or bag of netting to trap fish alive.</P> <P> <E T="03">To strikenet for sharks</E> means to fish with strikenet gear in waters south of the South Carolina/Georgia border with webbing of 5 inches or greater stretched mesh.</P> <P> <E T="03">U.S. waters</E> means both state and Federal waters to the outer boundaries of the U.S. exclusive economic zone along the east coast of the United States from the Canadian/U.S. border southward to a line extending eastward from the southernmost tip of Florida on the Florida shore.</P> <P> <E T="03">Vessel owner or operator</E> means the owner or operator of:</P> <P>(1) A fishing vessel that engages in a commercial fishing operation; or</P> <P>(2) Fixed or other commercial fishing gear that is used in a nonvessel fishery.</P> <P> <E T="03">Vessel of the United States</E> has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).</P> <P> <E T="03">Waters off New Jersey</E> means all state and Federal waters off New Jersey, bounded on the north by a line extending eastward from the southern shoreline of Long Island, NY at 40°40′ N. latitude, on the south by a line extending eastward from the northern shoreline of Delaware at 38°47′ N. latitude (the latitude that corresponds with Cape Henlopen, DE), and on the east by the 72°30′ W. longitude. This area includes the Mudhole.</P> <P> <E T="03">Weak link</E> means a breakable component of gear that will part when subject to a certain tension load.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. 24, 1999; 65 FR 80377, Dec. 21, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.3</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>(a) It is prohibited to take any marine mammal incidental to commercial fishing operations except as otherwise provided in part 216 of this chapter or in this part 229.<PRTPAGE P="230"/> </P> <P>(b) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment.</P> <P>(c) It is prohibited to provide false information when registering for an Authorization Certificate, applying for renewal of the Authorization Certificate, reporting the injury or mortality of any marine mammal, or providing information to any observer.</P> <P>(d) It is prohibited to tamper with or destroy observer equipment in any way.</P> <P>(e) It is prohibited to retain any marine mammal incidentally taken in commercial fishing operations unless authorized by NMFS personnel, by designated contractors or an official observer, or by a scientific research permit that is in the possession of the vessel operator.</P> <P>(f) It is prohibited to intentionally lethally take any marine mammal in the course of commercial fishing operations unless imminently necessary in self-defense or to save the life of a person in immediate danger, and such taking is reported in accordance with the requirements of § 229.6.</P> <P>(g) It is prohibited to violate any regulation in this part or any provision of section 118 of the Act.</P> <P>(h) It is prohibited to fish with lobster trap gear in the areas and for the times specified in § 229.32 (b)(2) and (c)(2) through (c)(8) unless the lobster trap gear complies with the closures, marking requirements, modifications, and restrictions specified in § 229.32 (b)(3)(i), (b)(3)(ii), and (c)(1) through (c)(9).</P> <P>(i) It is prohibited to fish with anchored gillnet gear in the areas and for the times specified in § 229.32(b)(2) and (d)(2) through(d)(7) unless that gillnet gear complies with the closures, marking requirements, modifications, and restrictions specified in § 229.32(b)(3)(i), (b)(3)(ii), and (d)(1) through (d)(8).</P> <P>(j) It is prohibited to fish with drift gillnet gear in the areas and for the times specified in § 229.32 (d)(7) and (e)(1) unless the drift gillnet gear complies with the restrictions specified in § 229.32 (e)(1).</P> <P>(k) It is prohibited to fish with shark gillnet gear in the areas and for the times specified in § 229.32(b)(2), (f)(1)(i), and (f)(1)(ii) unless the gear complies with the closures, marking requirements, modifications, and other restrictions specified in § 229.32(b)(3)(i), (b)(3)(ii), and (f)(2) through (f)(3)(iii)(D).</P> <P>(l) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies, from the areas and for the times specified in § 229.33 (a)(1) through (a)(6), except with the use of pingers as provided in § 229.33 (d)(1) through (d)(4). This prohibition does not apply to the use of a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title).</P> <P>(m) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any gillnet gear from the areas and for the times as specified in § 229.34 (b)(1) (ii) or (iii) or (b)(2)(ii).</P> <P>(n) It is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any large mesh or small mesh gillnet gear from the areas and for the times specified in § 229.34 (c)(1) through (c)(4) unless the gear complies with the specified gear restrictions set forth in those provisions.</P> <P>(o) Beginning on January 1, 1999, it is prohibited to fish with, set, or haul back sink gillnets or gillnet gear, or leave such gear in closed areas where pingers are required, as specified under § 229.33 (c)(1) through (c)(4), unless a person on board the vessel during fishing operations possesses a valid pinger certification training certificate issued by NMFS.</P> <P>(p) Beginning on January 1, 2000, it is prohibited to fish with, set, haul back, or possess any large mesh or small mesh gillnet gear in Mid-Atlantic waters in the areas and during the times specified under § 229.34(d), unless the gear is properly tagged in compliance with that provision and unless a net tag certificate is on board the vessel. It is prohibited to refuse to produce a net <PRTPAGE P="231"/>tag certificate or net tags upon the request of an authorized officer.</P> <P>(q) <E T="03">Net tag requirement.</E> Beginning on January 1, 2000, all gillnets fished, hauled, possessed, or deployed during the times and areas specified below must have one tag per net, with one tag secured to every other bridle of every net and with one tag secured to every other bridle of every net within a string of nets. This applies to small mesh and large mesh gillnet gear in New Jersey waters from January 1 through April 30 or in southern Mid-Atlantic waters from February 1 through April 30. The owner or operator of fishing vessels must indicate to NMFS the number of gillnet tags that they are requesting up to the maximum number of nets allowed in those paragraphs and must include a check for the cost of the tags. Vessel owners and operators will be given notice with instructions informing them of the costs associated with this tagging requirement and directions for obtaining tags. Tag numbers will be unique for each vessel and recorded on a certificate. The vessel operator must produce the certificate and all net tags upon request by an authorized officer.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. 24, 1999; 65 FR 80377, Dec. 21, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.4</SECTNO> <SUBJECT>Requirements for Category I and II fisheries.</SUBJECT> <P>(a) <E T="03">General.</E> (1) For a vessel owner or crew members to lawfully incidentally take marine mammals in the course of a commercial fishing operation in a Category I or II fishery, the owner or authorized representative of a fishing vessel or nonvessel fishing gear must have in possession a valid Certificate of Authorization. The owner of a fishing vessel or nonvessel fishing gear is responsible for obtaining a Certificate of Authorization.</P> <P>(2) The granting and administration of Authorization Certificates under this part will be integrated and coordinated with existing fishery license, registration, or permit systems and related programs wherever possible. These programs may include, but are not limited to, state or interjurisdictional fisheries programs. If the administration of Authorization Certificates is integrated into a program, NMFS will publish a notice in the <E T="04">Federal Register</E> announcing the integrated program and summarizing how an owner or authorized representative of a fishing vessel or non-fishing gear may register under that program or how registration will be achieved if no action is required on the part of the affected fisher. NMFS will make additional efforts to contact participants in the affected fishery via other appropriate means of notification.</P> <P>(b) <E T="03">Registration.</E> (1) The owner of a vessel, or for nonvessel gear fisheries, the owner of gear, who participates in a Category I or II fishery is required to be registered for a Certificate of Authorization.</P> <P>(2) Unless a notice is published in the <E T="04">Federal Register</E> announcing an integrated registration program, the owner of a vessel, or for nonvessel fishery, the owner of the gear must register for and receive an Authorization Certificate. To register, owners must submit the following information using the format specified by NMFS:</P> <P>(i) Name, address, and phone number of owner.</P> <P>(ii) Name, address, and phone number of operator, if different from owner, unless the name of the operator is not known or has not been established at the time the registration is submitted.</P> <P>(iii) For a vessel fishery, vessel name, length, home port; U.S. Coast Guard documentation number or state registration number, and if applicable; state commercial vessel license number and for a nonvessel fishery, a description of the gear and state commercial license number, if applicable.</P> <P>(iv) A list of all Category I and II fisheries in which the fisher may actively engage during the calendar year.</P> <P>(v) A certification signed and dated by the owner of an authorized representative of the owner as follows: “I hereby certify that I am the owner of the vessel, that I have reviewed all information contained on this document, and that it is true and complete to the best of my knowledge.”</P> <P>(vi) A check or money order made payable to NMFS in the amount specified in the notice of the final List of <PRTPAGE P="232"/>Fisheries must accompany each registration submitted to NMFS. The amount of this fee will be based on recovering the administrative costs incurred in granting an authorization. The Assistant Administrator may waive the fee requirement for good cause upon the recommendation of the Regional Director.</P> <P>(3) If a notice is published in the <E T="04">Federal Register</E> announcing an integrated registration program, the owner of a vessel, or for nonvessel fishery, the owner of the gear may register by following the directions provided in that notice. If a person receives a registration to which he or she is not entitled or if the registration contains incorrect, inaccurate or incomplete information, the person shall notify NMFS within 10 days following receipt. If a fisher participating in a Category I or II fishery who expects to receive automatic registration does not receive that registration within the time specified in the notice announcing the integrated registration program, the person shall notify NMFS as directed in the notice or may apply for registration by submitting the information required under paragraph (b)(1)(i) through (b)(1)(vi) of this section.</P> <P>(c) <E T="03">Address.</E> Unless the granting and administration of authorizations under this part 229 is integrated and coordinated with existing fishery licenses, registrations, or related programs pursuant to paragraph (a) of this section, requests for registration forms and completed registration and renewal forms should be sent to the NMFS Regional Offices as follows:</P> <P>(1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, Juneau, AK 99802; telephone: 907-586-7235;</P> <P>(2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; telephone: 206-526-4353;</P> <P>(3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; telephone: 562-980-4001;</P> <P>(4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930; telephone: 978-281-9254; or</P> <P>(5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702; telephone: 727-570-5312.</P> <P>(d) <E T="03">Issuance.</E> (1) For integrated fisheries, an Authorization Certificate or other proof of registration will be issued annually to each fisher registered for that fishery.</P> <P>(2) For all other fisheries (i.e., non-integrated fisheries), NMFS will issue an Authorization Certificate and, if necessary, a decal to an owner or authorized representative who:</P> <P>(i) Submits a completed registration form and the required fee.</P> <P>(ii) Has complied with the requirements of this section and §§ 229.6 and 229.7</P> <P>(iii) Has submitted updated registration or renewal registration which includes a statement (yes/no) whether any marine mammals were killed or injured during the current or previous calender year.</P> <P>(3) If a person receives a renewed Authorization Certificate or a decal to which he or she is not entitled, the person shall notify NMFS within 10 days following receipt.</P> <P>(e) <E T="03">Authorization Certificate and decal requirements</E>. (1) If a decal has been issued under the conditions specified in paragraph (e)(2) of this section, the decal must be attached to the vessel on the port side of the cabin or, in the absence of a cabin, on the forward port side of the hull, and must be free of obstruction and in good condition. The decal must be attached to the Authorization Certificate for nonvessel fisheries.</P> <P>(2) The Authorization Certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or, in the case of nonvessel fisheries, the Authorization Certificate with decal attached, or copy must be in the possession of the person in charge of the fishing operation. The Authorization Certificate, or copy, must be made available upon request to any state or Federal enforcement agent authorized to enforce the Act, any designated agent of NMFS, or any contractor providing observer services to NMFS.</P> <P>(3) Authorization Certificates and decals are not transferable. In the event of the sale or change in ownership of the vessel, the Authorization Certificate is void and the new owner must <PRTPAGE P="233"/>register for an Authorization Certificate and decal.</P> <P>(4) An Authorization Certificate holder must notify the issuing office in writing:</P> <P>(i) If the vessel or nonvessel fishing gear will engage in any Category I or II fishery not listed on the initial registration form at least 30 days prior to engaging in that fishery; and,</P> <P>(ii) If there are any changes in the mailing address or vessel ownership within 30 days of such change.</P> <P>(f) <E T="03">Reporting</E>. Any Authorization Certificate holders must comply with the reporting requirements specified under § 229.6.</P> <P>(g) <E T="03">Disposition of marine mammals</E>. Any marine mammal incidentally taken must be immediately returned to the sea with a minimum of further injury, unless directed otherwise by NMFS personnel, a designated contractor or an official observer, or authorized otherwise by a scientific research permit that is in the possession of the operator.</P> <P>(h) <E T="03">Monitoring</E>. Authorization Certificate holders must comply with the observer or other monitoring requirements specified under § 229.7.</P> <P>(i) <E T="03">Deterrence</E>. When necessary to deter a marine mammal from damaging fishing gear, catch, or other private property, or from endangering personal safety, vessel owners and crew members engaged in a Category I or II fishery must comply with all deterrence provisions set forth in the Act and all guidelines and prohibitions published thereunder.</P> <P>(j) <E T="03">Self defense</E>. When imminently necessary in self-defense or to save the life of a person in immediate danger, a marine mammal may be lethally taken if such taking is reported to NMFS in accordance with the requirements of § 229.6.</P> <P>(k) <E T="03">Take reduction plans and emergency regulations</E>. Authorization Certificate holders must comply with any applicable take reduction plans and emergency regulations.</P> <P>(l) <E T="03">Expiration</E>. Authorization Certificates expire at the end of each calendar year.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997; 64 FR 9086, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.5</SECTNO> <SUBJECT>Requirements for Category III fisheries.</SUBJECT> <P>(a) <E T="03">General</E>. Vessel owners and crew members of such vessels engaged only in Category III fisheries may incidentally take marine mammals without registering for or receiving an Authorization Certificate.</P> <P>(b) <E T="03">Reporting</E>. Vessel owners engaged in a Category III fishery must comply with the reporting requirements specified in § 229.6.</P> <P>(c) <E T="03">Disposition of marine mammals</E>. Any marine mammal incidentally taken must be immediately returned to the sea with a minimum of further injury unless directed otherwise by NMFS personnel, a designated contractor, or an official observer, or authorized otherwise by a scientific research permit in the possession of the operator.</P> <P>(d) <E T="03">Monitoring.</E> Vessel owners engaged in a Category III fishery must comply with the observer requirements specified under § 229.7(d).</P> <P>(e) <E T="03">Deterrence</E>. When necessary to deter a marine mammal from damaging fishing gear, catch, or other private property, or from endangering personal safety, vessel owners and crew members engaged in commercial fishing operations must comply with all deterrence provisions set forth in the Act and all guidelines and prohibitions published thereunder.</P> <P>(f) <E T="03">Self-defense</E>. When imminently necessary in self-defense or to save the life of a person in immediate danger, a marine mammal may be lethally taken if such taking is reported to NMFS in accordance with the requirements of § 229.6.</P> <P>(g) <E T="03">Emergency regulations</E>. Vessel owners engaged in a Category III fishery must comply with any applicable emergency regulations.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.6</SECTNO> <SUBJECT>Reporting requirements.</SUBJECT> <P>(a) Vessel owners or operators engaged in any commercial fishery must report all incidental mortality and injury of marine mammals in the course of commercial fishing operations to the Assistant Administrator, or appropriate Regional Office, by mail or other means, such as fax or overnight mail <PRTPAGE P="234"/>specified by the Assistant Administrator. Reports must be sent within 48 hours after the end of each fishing trip during which the incidental mortality or injury occurred, or, for nonvessel fisheries, within 48 hours of an occurrence of an incidental mortality or injury. Reports must be submitted on a standard postage-paid form as provided by the Assistant Administrator. The vessel owner or operator must provide the following information on this form:</P> <P>(1) The vessel name, and Federal, state, or tribal registration numbers of the registered vessel;</P> <P>(2) The name and address of the vessel owner or operator;</P> <P>(3) The name and description of the fishery, including gear type and target species; and</P> <P>(4) The species and number of each marine mammal incidentally killed or injured, and the date, time, and approximate geographic location of such occurrence. A description of the animal(s) killed or injured must be provided if the species is unknown.</P> <P>(b) Participants in nonvessel fisheries must provide all of the information in paragraphs (a)(1) through (a)(4) of this section except, instead of providing the vessel name and vessel registration number, participants in nonvessel fisheries must provide the gear permit number.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.7</SECTNO> <SUBJECT>Monitoring of incidental mortalities and serious injuries.</SUBJECT> <P>(a) <E T="03">Purpose</E>. The Assistant Administrator will establish a program to monitor incidental mortality and serious injury of marine mammals during the course of commercial fishing operations in order to:</P> <P>(1) Obtain statistically reliable estimates of incidental mortality and serious injury;</P> <P>(2) Determine the reliability of reports of incidental mortality and injury under § 229.6; and</P> <P>(3) Identify changes in fishing methods or technology that may increase or decrease incidental mortality and serious injury.</P> <P>(b) <E T="03">Observer program.</E> Pursuant to paragraph (a) of this section, the Assistant Administrator may observe Category I and II vessels as necessary. Observers may, among other tasks:</P> <P>(1) Record incidental mortality and injury, and bycatch of other nontarget species;</P> <P>(2) Record numbers of marine mammals sighted; and</P> <P>(3) Perform other scientific investigations, which may include, but are not limited to, sampling and photographing incidental mortalities and serious injuries.</P> <P>(c) <E T="03">Observer requirements for participants in Category I and II fisheries.</E> (1) If requested by NMFS or by a designated contractor providing observer services to NMFS, a vessel owner/operator must take aboard an observer to accompany the vessel on fishing trips.</P> <P>(2) After being notified by NMFS, or by a designated contractor providing observer services to NMFS, that the vessel is required to carry an observer, the vessel owner/operator must comply with the notification by providing information requested within the specified time on scheduled or anticipated fishing trips.</P> <P>(3) NMFS, or a designated contractor providing observer services to NMFS, may waive the observer requirement based on a finding that the facilities for housing the observer or for carrying out observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized.</P> <P>(4) The vessel owner/operator and crew must cooperate with the observer in the performance of the observer's duties including:</P> <P>(i) Providing, at no cost to the observer, the United States government, or the designated observer provider, food, toilet, bathing, sleeping accommodations, and other amenities that are equivalent to those provided to the crew, unless other arrangements are approved in advance by the Regional Administrator;</P> <P>(ii) Allowing for the embarking and debarking of the observer as specified by NMFS personnel or designated contractors. The operator of a vessel must ensure that transfers of observers at sea are accomplished in a safe manner, via small boat or raft, during daylight hours if feasible, as weather and sea <PRTPAGE P="235"/>conditions allow, and with the agreement of the observer involved;</P> <P>(iii) Allowing the observer access to all areas of the vessel necessary to conduct observer duties;</P> <P>(iv) Allowing the observer access to communications equipment and navigation equipment, when available on the vessel, as necessary to perform observer duties;</P> <P>(v) Providing true vessel locations by latitude and longitude, accurate to the minute, or by loran coordinates, upon request by the observer;</P> <P>(vi) Sampling, retaining, and storing of marine mammal specimens, other protected species specimens, or target or non-target catch specimens, upon request by NMFS personnel, designated contractors, or the observer, if adequate facilities are available and if feasible;</P> <P>(vii) Notifying the observer in a timely fashion of when all commercial fishing operations are to begin and end;</P> <P>(viii) Not impairing or in any way interfering with the research or observations being carried out; and</P> <P>(ix) Complying with other guidelines or regulations that NMFS may develop to ensure the effective deployment and use of observers.</P> <P>(5) Marine mammals or other specimens identified in paragraph (c)(4)(vi) of this section, which are readily accessible to crew members, must be brought on board the vessel and retained for the purposes of scientific research if feasible and requested by NMFS personnel, designated contractors, or the observer. Specimens so collected and retained must, upon request by NMFS personnel, designated contractors, or the observer, be retained in cold storage on board the vessel, if feasible, until removed at the request of NMFS personnel, designated contractors, or the observer, retrieved by authorized personnel of NMFS, or released by the observer for return to the ocean. These biological specimens may be transported on board the vessel during the fishing trip and back to port under this authorization.</P> <P>(d) <E T="03">Observer requirements for participants in Category III fisheries.</E> (1) The Assistant Administrator may place observers on Category III vessels if the Assistant Administrator:</P> <P>(i) Believes that the incidental mortality and serious injury of marine mammals from such fishery may be contributing to the immediate and significant adverse impact on a species or stock listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 <E T="03">et</E> <E T="03">seq</E>.); and</P> <P>(ii) Has complied with § 229.9(a)(3)(i) and (ii); or</P> <P>(iii) Has the consent of the vessel owner.</P> <P>(2) If an observer is placed on a Category III vessel, the vessel owner and/or operator must comply with the requirements of § 229.7(c).</P> <P>(e) <E T="03">Alternative observer program</E>. The Assistant Administrator may establish an alternative observer program to provide statistically reliable information on the species and number of marine mammals incidentally taken in the course of commercial fishing operations. The alternative observer program may include direct observation of fishing activities from vessels, airplanes, or points on shore.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.8</SECTNO> <SUBJECT>Publication of List of Fisheries.</SUBJECT> <P>(a) The Assistant Administrator will publish in the <E T="04">Federal Register</E> a proposed revised List of Fisheries on or about July 1 of each year for the purpose of receiving public comment. Each year, on or about October 1, the Assistant Administrator will publish a final revised List of Fisheries, which will become effective January 1 of the next calendar year.</P> <P>(b) The proposed and final revised List of Fisheries will:</P> <P>(1) Categorize each commercial fishery based on the definitions of Category I, II, and III fisheries set forth in § 229.2; and</P> <P>(2) List the marine mammals that have been incidentally injured or killed by commercial fishing operations and the estimated number of vessels or persons involved in each commercial fishery.</P> <P>(c) The Assistant Administrator may publish a revised List of Fisheries at other times, after notification and opportunity for public comment.<PRTPAGE P="236"/> </P> <P>(d) The revised final List of Fisheries will become effective no sooner than 30 days after publication in the <E T="04">Federal Register</E>.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.9</SECTNO> <SUBJECT>Emergency regulations.</SUBJECT> <P>(a) If the Assistant Administrator finds that the incidental mortality or serious injury of marine mammals from commercial fisheries is having, or is likely to have, an immediate and significant adverse impact on a stock or species, the Assistant Administrator will:</P> <P>(1) In the case of a stock or species for which a take reduction plan is in effect—</P> <P>(i) Prescribe emergency regulations that, consistent with such plan to the maximum extent practicable, reduce incidental mortality and serious injury in that fishery; and</P> <P>(ii) Approve and implement on an expedited basis, any amendments to such plan that are recommended by the Take Reduction Team to address such adverse impact;</P> <P>(2) In the case of a stock or species for which a take reduction plan is being developed—</P> <P>(i) Prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery; and</P> <P>(ii) Approve and implement, on an expedited basis, such plan, which will provide methods to address such adverse impact if still necessary;</P> <P>(3) In the case of a stock or species for which a take reduction plan does not exist and is not being developed, or in the case of a Category III fishery that the Assistant Administrator believes may be contributing to such adverse impact,</P> <P>(i) Prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery, to the extent necessary to mitigate such adverse impact;</P> <P>(ii) Immediately review the stock assessment for such stock or species and the classification of such commercial fishery under this section to determine if a take reduction team should be established and if recategorization of the fishery is warranted; and</P> <P>(iii) Where necessary to address such adverse impact on a species or stock listed as a threatened species or endangered species under the Endangered Species Act (16 U.S.C. 1531 <E T="03">et</E> <E T="03">seq</E>.), place observers on vessels in a Category III fishery if the Assistant Administrator has reason to believe such vessels may be causing the incidental mortality and serious injury to marine mammals from such stock.</P> <P>(b) Prior to taking any action under § 229.9(a)(1) through (3), the Assistant Administrator will consult with the Marine Mammal Commission, all appropriate Regional Fishery Management Councils, state fishery managers, and the appropriate take reduction team, if established.</P> <P>(c) Any emergency regulations issued under this section:</P> <P>(1) Shall be published in the <E T="04">Federal Register</E> and will remain in effect for no more than 180 days or until the end of the applicable commercial fishing season, whichever is earlier, except as provided in paragraph (d) of this section; and</P> <P>(2) May be terminated by notification in the <E T="04">Federal Register</E> at an earlier date if the Assistant Administrator determines that the reasons for the emergency regulations no longer exist.</P> <P>(d) If the Assistant Administrator finds that incidental mortality and serious injury of marine mammals in a commercial fishery is continuing to have an immediate and significant adverse impact on a stock or species, the Assistant Administrator may extend the emergency regulations for an additional period of not more than 90 days or until reasons for the emergency regulations no longer exist, whichever is earlier.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.10</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(a) Except as provided for in paragraphs (b) and (c) of this section, any person who violates any regulation under this part or any provision of section 118 of the MMPA shall be subject to all penalties set forth in the Act.</P> <P>(b) The owner or master of a vessel that fails to comply with a take reduction plan shall be subject to the penalties of sections 105 and 107 of the Act, <PRTPAGE P="237"/>and may be subject to the penalties of section 106 of the Act.</P> <P>(c) The owner of a vessel engaged in a Category I or II fishery who fails to ensure that a decal, or other physical evidence of such authorization issued by NMFS, is displayed on the vessel or is in possession of the operator of the vessel shall be subject to a penalty of not more than $100.</P> <P>(d) Failure to comply with take reduction plans or emergency regulations issued under this part may result in suspension or revocation of an Authorization Certificate, and failure to comply with a take reduction plan or emergency regulation is also subject to the penalties of sections 105 and 107 of the Act, and may be subject to the penalties of section 106 of the Act.</P> <P>(e) For fishers operating in Category I or II fisheries, failure to report all incidental injuries and mortalities within 48 hours of the end of each fishing trip, or failure to comply with requirements to carry an observer, will subject such persons to the penalties of sections 105 and 107 and may subject them to the penalties of section 106 of the Act, which will result in suspension, revocation, or denial of an Authorization Certificate until such requirements have been fulfilled.</P> <P>(f) For fishers operating in Category III fisheries, failure to report all incidental injuries and mortalities within 48 hours of the end of each fishing trip will subject such persons to the penalties of sections 105 and 107, and may subject them to section 106, of the Act.</P> <P>(g) <E T="03">Suspension, revocation or denial of Authorization Certificates</E>. (1) Until the Authorization Certificate holder complies with the regulations under this part, the Assistant Administrator shall suspend or revoke an Authorization Certificate or deny an annual renewal of an Authorization Certificate in accordance with the provisions in 15 CFR part 904 if the Authorization Certificate holder fails to report all incidental mortality and injury of marine mammals as required under § 229.6; or fails to take aboard an observer if requested by NMFS or its designated contractors.</P> <P>(2) The Assistant Administrator may suspend or revoke an Authorization Certificate or deny an annual renewal of an Authorization Certificate in accordance with the provisions in 15 CFR part 904 if the Authorization Certificate holder fails to comply with any applicable take reduction plan, take reduction regulations, or emergency regulations developed under this subpart or subparts B and C of this part or if the Authorization Certificate holder fails to comply with other requirements of these regulations;</P> <P>(3) A suspended Authorization Certificate may be reinstated at any time at the discretion of the Assistant Administrator provided the Assistant Administrator has determined that the reasons for the suspension no longer apply or corrective actions have been taken.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.11</SECTNO> <SUBJECT>Confidential fisheries data.</SUBJECT> <P>(a) Proprietary information collected under this part is confidential and includes information, the unauthorized disclosure of which could be prejudicial or harmful, such as information or data that are identifiable with an individual fisher. Proprietary information obtained under part 229 will not be disclosed, in accordance with NOAA Administrative Order 216-100, except:</P> <P>(1) To Federal employees whose duties require access to such information;</P> <P>(2) To state employees under an agreement with NMFS that prevents public disclosure of the identity or business of any person;</P> <P>(3) When required by court order; or</P> <P>(4) In the case of scientific information involving fisheries, to employees of Regional Fishery Management Councils who are responsible for fishery management plan development and monitoring.</P> <P>(5) To other individuals or organizations authorized by the Assistant Administrator to analyze this information, so long as the confidentiality of individual fishers is not revealed.</P> <P>(b) Information will be made available to the public in aggregate, summary, or other such form that does not disclose the identity or business of any person in accordance with NOAA Administrative Order 216-100. Aggregate <PRTPAGE P="238"/>or summary form means data structured so that the identity of the submitter cannot be determined either from the present release of the data or in combination with other releases.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.12</SECTNO> <SUBJECT>Consultation with the Secretary of the Interior.</SUBJECT> <P>The Assistant Administrator will consult with the Secretary of the Interior prior to taking actions or making determinations under this part that affect or relate to species or population stocks of marine mammals for which the Secretary of the Interior is responsible under the Act.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Takes of Endangered and Threatened Marine Mammals</HD> <SECTION> <SECTNO>§ 229.20</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <P>(a) <E T="03">Determinations</E>. During a period of up to 3 consecutive years, NMFS will allow the incidental, but not the intentional, taking by persons using vessels of the United States or foreign vessels that have valid fishing permits issued by the Assistant Administrator in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)), while engaging in commercial fishing operations, of marine mammals from a species or stock designated as depleted because of its listing as an endangered species or threatened species under the Endangered Species Act of 1973 if the Assistant Administrator determines that:</P> <P>(1) The incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock;</P> <P>(2) A recovery plan has been developed or is being developed for such species or stock pursuant to the Endangered Species Act of 1973; and</P> <P>(3) Where required under regulations in subpart A of this part:</P> <P>(i) A monitoring program has been established under § 229.7;</P> <P>(ii) Vessels engaged in such fisheries are registered in accordance with § 229.4; and</P> <P>(iii) A take reduction plan has been developed or is being developed for such species or stock in accordance with regulations at subpart C of this part.</P> <P>(b) <E T="03">Procedures for making determinations</E>. In making any of the determinations listed in paragraph (a) of this section, the Assistant Administrator will publish an announcement in the <E T="04">Federal Register</E> of fisheries having takes of marine mammals listed under the Endangered Species Act, including a summary of available information regarding the fisheries interactions with listed species. Any interested party may, within 45 days of such publication, submit to the Assistant Administrator written data or views with respect to the listed fisheries. As soon as practicable after the end of the 45 days following publication, NMFS will publish in the <E T="04">Federal Register</E> a list of the fisheries for which the determinations listed in paragraph (a) of this section have been made. This publication will set forth a summary of the information used to make the determinations.</P> <P>(c) <E T="03">Issuance of authorization</E>. The Assistant Administrator will issue appropriate permits for vessels in fisheries that are required to register under § 229.4 and for which determinations under the procedures of paragraph (b) of this section can be made.</P> <P>(d) <E T="03">Category III fisheries</E>. Vessel owners engaged only in Category III fisheries for which determinations are made under the procedures of paragraph (b) of this section will not be subject to the penalties of this Act for the incidental taking of marine mammals to which this subpart applies, as long as the vessel owner or operator of such vessel reports any incidental mortality or injury of such marine mammals in accordance with the requirements of § 229.6.</P> <P>(e) <E T="03">Emergency authority</E>. During the course of the commercial fishing season, if the Assistant Administrator determines that the level of incidental mortality or serious injury from commercial fisheries for which such a determination was made under this section has resulted or is likely to result in an impact that is more than negligible on the endangered or threatened <PRTPAGE P="239"/>species or stock, the Assistant Administrator will use the emergency authority of § 229.9 to protect such species or stock, and may modify any permit granted under this paragraph as necessary.</P> <P>(f) <E T="03">Suspension, revocation, modification and amendment</E>. The Assistant Administrator may, pursuant to the provisions of 15 CFR part 904, suspend or revoke a permit granted under this section if the Assistant Administrator determines that the conditions or limitations set forth in such permit are not being complied with. The Assistant Administrator may amend or modify, after notification and opportunity for public comment, the list of fisheries published in accordance with paragraph (b) of this section whenever the Assistant Administrator determines there has been a significant change in the information or conditions used to determine such a list.</P> <P>(g) <E T="03">Southern sea otters</E>. This subpart does not apply to the taking of Southern (California) sea otters.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Take Reduction Plan Regulations and Emergency Regulations</HD> <SECTION> <SECTNO>§ 229.30</SECTNO> <SUBJECT>Basis.</SUBJECT> <P>Section 118(f)(9) of the Act authorizes the Director, NMFS, to impose regulations governing commercial fishing operations, when necessary, to implement a take reduction plan in order to protect or restore a marine mammal stock or species covered by such a plan.</P> <CITA>[64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.31</SECTNO> <SUBJECT>Pacific Offshore Cetacean Take Reduction Plan.</SUBJECT> <P>(a) <E T="03">Purpose and scope.</E> The purpose of this section is to implement the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b) through (d) of this section apply to all U.S. drift gillnet fishing vessels operating in waters seaward of the coast of California or Oregon, including adjacent high seas waters. For purposes of this section, the fishing season is defined as beginning May 1 and ending on January 31 of the following year.</P> <P>(b) <E T="03">Extenders.</E> An <E T="03">extender</E> is a line that attaches a buoy (float) to a drift gillnet's floatline. The floatline is attached to the top of the drift gillnet. All extenders (buoy lines) must be at least 6 fathoms (36 ft; 10.9 m) in length during all sets. Accordingly, all floatlines must be fished at a minimum of 36 feet (10.9 m) below the surface of the water.</P> <P>(c) <E T="03">Pingers.</E> (1) For the purposes of this paragraph (c), a pinger is an acoustic deterrent device which, when immersed in water, broadcasts a 10 kHz (<E T="61">±</E> 2 kHz) sound at 132 dB (<E T="61">±</E> 4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15 milliseconds), and repeating every 4 seconds (+ .2 seconds); and remains operational to a water depth of at least 100 fathoms (600 ft or 182.88 m).</P> <P>(2) While at sea, operators of drift gillnet vessels with gillnets onboard must carry enough pingers on the vessel to meet the requirements set forth under paragraphs (c)(3) through(6) of this section.</P> <P>(3) <E T="03">Floatline.</E> Pingers shall be attached within 30 ft (9.14 m) of the floatline and spaced no more than 300 ft (91.44 m) apart.</P> <P>(4) <E T="03">Leadline.</E> Pingers shall be attached within 36 ft (10.97 m) of the leadline and spaced no more than 300 ft (91.44 m) apart.</P> <P>(5) <E T="03">Staggered Configuration.</E> Pingers attached within 30 ft (9.14 m) of the floatline and within 36 ft (10.97 m) of the leadline shall be staggered such that the horizontal distance between them is no more than 150 ft (45.5 m).</P> <P>(6) Any materials used to weight pingers must not change its specifications set forth under paragraph (c)(1) of this section.</P> <P>(7) The pingers must be operational and functioning at all times during deployment.</P> <P>(8) If requested, NMFS may authorize the use of pingers with specifications or pinger configurations differing from those set forth in paragraphs (c)(1) and (c)(3) of this section for limited, experimental purposes within a single fishing season.</P> <P>(d) <E T="03">Skipper education workshops.</E> After notification from NMFS, vessel operators must attend a skipper education workshop before commencing fishing <PRTPAGE P="240"/>each fishing season. For the 1997/1998 fishing season, all vessel operators must have attended one skipper education workshop by October 30, 1997. NMFS may waive the requirement to attend these workshops by notice to all vessel operators.</P> <CITA>[62 FR 51813, Oct. 3, 1997, as amended at 63 FR 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.32</SECTNO> <SUBJECT>Atlantic large whale take reduction plan regulations.</SUBJECT> <P>(a)(1) <E T="03">Regulated waters.</E> The regulations in this section apply to all U.S. waters in the Atlantic except for the areas exempted in paragraph (a)(2) of this section.</P> <P>(2) <E T="03">Exempted waters.</E> The regulations in this section do not apply to waters landward of the first bridge over any embayment, harbor, or inlet and to waters landward of the following lines:</P> <EXTRACT> <HD SOURCE="HD3">Rhode Island</HD> <FP SOURCE="FP-1">41° 27.99′ N 71° 11.75′ W TO 41° 28.49′ N 71° 14.63′ W (Sakonnet River)</FP> <FP SOURCE="FP-1">41° 26.96′ N 71° 21.34′ W TO 41° 26.96′ 71° 25.92″ W (Narragansett Bay)</FP> <FP SOURCE="FP-1">41° 22.41′ N 71° 30.80′ W TO 41° 22.41′ N 71° 30.85′ W (Pt. Judith Pond Inlet)</FP> <FP SOURCE="FP-1">41° 21.31′ 71° 38.30′ W TO 41° 21.30′ N 71° 38.33′ W (Ninigret Pond Inlet)</FP> <FP SOURCE="FP-1">41° 19.90′ N 71° 43.08′ W TO 41° 19.90′ N 71° 43.10′ W (Quonochontaug Pond Inlet)</FP> <FP SOURCE="FP-1">41° 19.66′ N 71° 45.75′ W TO 41° 19.66′ N 71° 45.78′ W (Weekapaug Pond Inlet)</FP> <HD SOURCE="HD3">New York</HD> <P>West of the line from the Northern fork of the eastern end of Long Island, NY (Orient Pt.) to Plum Island to Fisher's Island to Watch Hill, RI. (Long Island Sound) </P> <FP SOURCE="FP-1">41° 11.40′ N 72° 09.70′ W TO 41° 04.50′ N 71° 51.60;min; W (Gardiners Bay)</FP> <FP SOURCE="FP-1">40° 50.30′ 72° 28.50′ W TO 40° 50.36′ N 72° 28.67′ W (Shinnecock Bay Inlet)</FP> <FP SOURCE="FP-1">40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ W (Moriches Bay Inlet)</FP> <FP SOURCE="FP-1">40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ W (Fire Island Inlet)</FP> <FP SOURCE="FP-1">40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ W (Jones Inlet)</FP> <HD SOURCE="HD3">New Jersey</HD> <FP SOURCE="FP-1">39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ W (Barnegat Inlet)</FP> <FP SOURCE="FP-1">39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ W (Beach Haven to Brigantine Inlet)</FP> <FP SOURCE="FP-1">38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ W (Cape May Inlet)</FP> <FP SOURCE="FP-1">39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ W (Delaware Bay)</FP> <HD SOURCE="HD3">Maryland/Virginia</HD> <FP SOURCE="FP-1">38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ W (Ocean City Inlet)</FP> <FP SOURCE="FP-1">37° 52.50′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ W (Chincoteague to Ship Shoal Inlet)</FP> <FP SOURCE="FP-1">37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ W (Little Inlet)</FP> <FP SOURCE="FP-1">37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.50′ W (Smith Island Inlet)</FP> <HD SOURCE="HD3">North Carolina to Florida</HD> <P>All marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by the National Oceanic and Atmospheric Administration (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80.</P> </EXTRACT> <P>(b) <E T="03">Gear marking requirements</E>. (1) Specified gear consists of lobster trap gear and gillnet gear set in specified areas.</P> <P>(2) <E T="03">Specified areas</E>. The following areas are specified for gear marking purposes: CCB Restricted Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, Northern Nearshore Lobster Waters Area, GSC Restricted Lobster Area, GSC Restricted Gillnet Area, GSC Sliver Restricted Area, Southern Nearshore Lobster Waters Area, Offshore Lobster Waters Area, Other Northeast Gillnet Waters Area, and Southeast U.S. Observer Area.</P> <P>(3) <E T="03">Requirements for Southeast U.S. Observer Area</E>. Any person who owns or fishes with specified fishing gear in the Southeast U.S. Observer Area must mark that gear in accordance with (b)(3)(i) and (b)(3)(ii) of this section, unless otherwise required by the Assistant Administrator under paragraph (g) of this section.</P> <P>(i) <E T="03">Color code</E>. Specified gear in the Southeast U.S. Observer Area must be marked with the appropriate color code to designate gear types and areas as follows:</P> <P>(A) <E T="03">Gear type code—Gillnet gear</E>. Gillnet gear must be marked with a green marking.</P> <P>(B) <E T="03">Area code</E>. Gear set in the Southeast U.S. Observer Area must be marked with a blue marking.</P> <P>(ii) <E T="03">Markings</E>. All specified gear in specified areas must be marked with two color codes, one designating the gear type, the other indicating the area where the gear is set. Each color of the <PRTPAGE P="241"/>two-color code must be permanently marked on or along the line or lines specified under (f)(2) of this section. Each color mark of the color codes must be clearly visible when the gear is hauled or removed from the water. Each mark must be at least 4 inches (10.2 cm) long. The two color marks must be placed within 6 inches (15.2 cm) of each other. If the color of the rope is the same as or similar to a color code, a white mark may be substituted for that color code. In marking or affixing the color code, the line may be dyed, painted, or marked with thin colored whipping line, thin colored plastic, or heat-shrink tubing, or other material; or a thin line may be woven into or through the line; or the line may be marked as approved in writing by the Assistant Administrator (AA).</P> <P>(4) <E T="03">Requirements for other specified areas</E>. Any person who owns or fishes with specified gear in the other specified areas must mark that gear in accordance with (b)(4)(i) and (b)(4)(ii) of this section, unless otherwise required by the Assistant Administrator under paragraph (g) of this section. For the purposes of the following gear marking requirements only, lobster trap gear set in the CCB Restricted Area during the winter restricted period, the Federal-water portion of the CCB Restricted Area during the off-peak period, and the Stellwagen Bank/Jeffreys Ledge Restricted Area shall comply with the requirements for the Northern Nearshore Lobster Waters Area. Lobster gear set in the GSC Restricted Lobster Area shall comply with the requirements for the Offshore Lobster Waters Area. Similarly, anchored gillnet gear set in the CCB Restricted area, Stellwagen Bank/Jeffreys Ledge Restricted Area, GSC Restricted Gillnet Area, and GSC Silver Restricted Area shall comply with the requirements for gillnet gear in the Other Northeast Gillnet Waters Area.</P> <P>(i) <E T="03">Color code</E>. Specified gear must be marked with the appropriate colors to designate gear-types and areas as follows:</P> <P>(A) Lobster trap gear in the Northern Nearshore Lobster Waters Area must be marked with a red marking.</P> <P>(B) Lobster trap gear in the Southern Nearshore Lobster Waters Area must be marked with an orange marking.</P> <P>(C) Lobster trap gear in the Offshore Lobster Waters Area must be marked with a black marking.</P> <P>(D) Gillnet gear in the Other Northeast Gillnet Waters Area must be marked with a green marking.</P> <P>(ii) <E T="03">Markings</E>. All specified gear in specified areas must be marked with one color code (see paragraph (4)(i) of this section) which indicates the gear type and general area where the gear is set. Each color code must be permanently affixed on or along the line or lines. Each color code must be clearly visible when the gear is hauled or removed from the water. Each mark must be at least 4 inches (10.2 cm) long. The mark must be placed along the buoy line midway in the water column.</P> <P>(5) <E T="03">Changes to requirements</E>. If the Assistant Administrator revises the gear marking requirements in accordance with paragraph (g) of this section, the gear must be marked in compliance with those requirements.</P> <P>(c) <E T="03">Restrictions applicable to lobster trap gear in regulated waters—</E> <E T="01">(1)</E> Universal lobster trap gear requirements. In addition to the area-specific measures listed in (c)(2) through (c)(8) of this section, all lobster trap gear in regulated waters, including the Northern Inshore State Lobster Waters Area, must comply with the universal gear requirements listed here<SU>1</SU> <FTREF/>. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <FTNT> <P> <SU>1</SU> Fishers are also encouraged to maintain their buoy lines to be as knot-free as possible. Splices are not considered to be an entanglement threat and are thus preferable to knots.</P> </FTNT> <P>(i) <E T="03">No line floating at the surface.</E> No person may fish with lobster trap gear that has any portion of the buoy line that is directly connected to the gear at the ocean bottom floating at the surface at any time. If more than one buoy is attached to a single buoy line or if a high flyer and a buoy are used together on a single buoy line, floating line may be used between these objects.</P> <P>(ii) <E T="03">No wet storage of gear</E>. Lobster traps must be hauled out of the water at least once every 30 days.<PRTPAGE P="242"/> </P> <P>(2) <E T="03">Cape Cod Bay Restricted Area</E>—(i) <E T="03">Area</E>. The CCB restricted area consists of the CCB right whale critical habitat area specified under 50 CFR 226.203(b) unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Area-specific gear requirements during the winter restricted period</E>. No person may fish with lobster trap gear in the CCB Restricted Area during the winter restricted period unless that person's gear complies with the gear marking requirements in paragraph (b) of this section, the universal lobster trap gear requirements in (c)(1) of this section, and the area-specific requirements listed below for the winter restricted period. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(A) <E T="03">Winter restricted period</E>. The winter restricted period for the CCB Restricted Area is from January 1 through May 15 of each year unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Weak links</E>. All buoy lines shall be attached to the main buoy with a weak link meeting the following specifications:</P> <P>(<E T="03">1</E>) The breaking strength of the weak link must not exceed 500 lb (226.7 kg).</P> <P>(<E T="03">2</E>) The weak link must be chosen from the following list of combinations approved by the NMFS gear research program: swivels, plastic weak links, rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the Assistant Administrator.</P> <P>(C) <E T="03">Single traps and multiple-trap trawls</E>. Single traps and three-trap trawls are prohibited. All traps must be set in either a two-trap string or in a trawl of four or more traps. A two-trap string must have no more than one buoy line.</P> <P>(D) <E T="03">Sinking buoy lines</E>. All buoy lines must be comprised of sinking line except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line.</P> <P>(E) <E T="03">Sinking ground line</E>. All ground lines must be comprised entirely of sinking line.</P> <P>(iii) <E T="03">Area-specific gear requirements during the other restricted period</E>. No person may fish with lobster trap gear in the CCB Restricted Area during the other restricted period unless that person's gear complies with the gear marking requirements in paragraph (b) of this section and the universal lobster trap gear requirements in (c)(1) of this section as well as the area-specific requirements listed below for the other restricted period. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(A) <E T="03">Other restricted period</E>. The other restricted period for the CCB Restricted Area is from May 16 through December 31 of each year unless the Assistant Administrator revises that period in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Gear requirements</E>—(<E T="03">1</E>) <E T="03">State-water portion</E>. No person may fish with lobster trap gear in the state-water portion of the CCB Restricted Area during the other restricted period unless that person's gear complies with the requirements for the Northern Inshore State Lobster Waters Area listed in (c)(6) of this section. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(<E T="03">2</E>) <E T="03">Federal-water portion</E>. No person may fish with lobster trap gear in the federal-water portion of the CCB Restricted Area during the other restricted period unless that person's gear complies with the requirements for the Northern Nearshore Lobster Waters Area in (c)(7) of this section. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(3) <E T="03">Great South Channel Restricted Lobster Area</E>—(i) <E T="03">Area</E>. The GSC Restricted Lobster Area consists of the GSC right whale critical habitat area specified under 50 CFR 226.203(a) unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Closure during the spring restricted period</E>—(A) <E T="03">Spring restricted period</E>. The spring restricted period for the GSC <PRTPAGE P="243"/>Restricted Lobster Area is from April 1 through June 30 of each year unless the Assistant Administrator revises this period in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Closure</E>. During the spring restricted period, no person may fish with or set lobster trap gear in this Area unless the Assistant Administrator specifies gear modifications or alternative fishing practices in accordance with paragraph (g) of this section and the gear or practices comply with those specifications.</P> <P>(iii) <E T="03">Area-specific gear requirements for the other restricted period</E>. No person may fish with lobster trap gear in the GSC Restricted Lobster Area unless that person's gear complies with the gear marking requirements in paragraph (b) of this section, the universal lobster trap gear requirements in (c)(1) of this section, and the area-specific requirements listed here for the other restricted period. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(A) <E T="03">Other restricted period</E>. The other restricted period for the GSC Restricted Lobster Area is July 1 through March 31, unless the Assistant Administrator revises the timing in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Weak links</E>. All buoy lines must be attached to the main buoy with a weak link meeting the specifications listed in subparagraph (c)(5)(ii)(A) below for the Offshore Lobster Waters Area.</P> <P>(4) <E T="03">Stellwagen Bank/Jeffreys Ledge Restricted Area</E>—(i) <E T="03">Area</E>. The Stellwagen Bank/Jeffreys Ledge Restricted Area includes all federal waters of the Gulf of Maine, except those designated as right whale critical habitat under 50 CFR 226.203(b), that lie south of 43°15' N. lat. and west of 70° W long. The Assistant Administrator may change that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Area-specific gear requirements</E>. No person may fish with lobster trap gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that person's gear complies with the gear marking requirements in paragraph (b) of this section, the universal lobster trap gear requirements in (c)(1) of this section, and the requirements listed for the Northern Nearshore Lobster Waters Area in (c)(7) of this section. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(5) <E T="03">Offshore Lobster Waters Area</E>—(i) <E T="03">Area</E>. The Offshore Lobster Waters Area includes all waters bounded by straight lines connecting the following points in the order stated (including the area known as the Area 2/3 Overlap in the American Lobster Fishery regulations at 50 CFR 697.18 but not including the GSC Restricted Lobster Area):</P> <GPOTABLE CDEF="s10,10,10" COLS="3" OPTS="L1,i1"> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">Latitude (°N)</CHED> <CHED H="1">Longitude (°W)</CHED> </BOXHD> <ROW> <ENT I="01">A</ENT> <ENT>43° 58′</ENT> <ENT>67° 22′</ENT> </ROW> <ROW> <ENT I="01">B</ENT> <ENT>43° 41′</ENT> <ENT>68° 00′</ENT> </ROW> <ROW> <ENT I="01">C</ENT> <ENT>43° 12′</ENT> <ENT>69° 00′</ENT> </ROW> <ROW> <ENT I="01">D</ENT> <ENT>42° 49′</ENT> <ENT>69° 40′</ENT> </ROW> <ROW> <ENT I="01">E</ENT> <ENT>42° 15.5′</ENT> <ENT>69° 40′</ENT> </ROW> <ROW> <ENT I="01">F</ENT> <ENT>42° 10′</ENT> <ENT>69° 56′</ENT> </ROW> <ROW> <ENT I="01">K</ENT> <ENT>41° 10′</ENT> <ENT>69° 6.5′</ENT> </ROW> <ROW> <ENT I="01">N</ENT> <ENT>40° 45.5′</ENT> <ENT>71° 34′</ENT> </ROW> <ROW> <ENT I="01">M</ENT> <ENT>40° 27.5′</ENT> <ENT>72° 14′</ENT> </ROW> <ROW> <ENT I="01">U</ENT> <ENT>40° 12.5′</ENT> <ENT>72° 48.5′</ENT> </ROW> <ROW> <ENT I="01">V</ENT> <ENT>39° 50′</ENT> <ENT>73° 01′</ENT> </ROW> <ROW> <ENT I="01">X</ENT> <ENT>38° 39.5′</ENT> <ENT>73° 40′</ENT> </ROW> <ROW> <ENT I="01">Y</ENT> <ENT>38° 12′</ENT> <ENT>73° 55′</ENT> </ROW> <ROW> <ENT I="01">Z</ENT> <ENT>37° 12′</ENT> <ENT>74° 44′</ENT> </ROW> <ROW> <ENT I="01">ZA</ENT> <ENT>35° 34′</ENT> <ENT>74° 51′</ENT> </ROW> <ROW> <ENT I="01">ZB</ENT> <ENT>35° 14.5′</ENT> <ENT>75° 31′<SU>1</SU> </ENT> </ROW> <TNOTE> <SU>1</SU> From Point ZB east to the EEZ boundary, thence along the seaward EEZ boundary to Point A.</TNOTE> </GPOTABLE> <P>(ii) <E T="03">Area-specific gear requirements</E>. No person may fish with lobster trap gear in the Offshore Lobster Waters Area unless that person's gear complies with the gear marking requirements in paragraph (b) of this section, the universal lobster trap gear requirements in (c)(1) of this section, and the gear requirements listed here. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(A) <E T="03">Weak Links</E>. All buoy lines must be attached to the main buoy with a weak link meeting the following specifications:</P> <P>(<E T="03">1</E>) The weak link must be chosen from the following list of combinations approved by the NMFS gear research program: swivels, plastic weak links, rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the Assistant Administrator.</P> <P>(<E T="03">2</E>) The breaking strength of these weak links must not exceed 3780 lb (1714.3 kg).<PRTPAGE P="244"/> </P> <P>(<E T="03">3</E>) Weak links must be designed such that the bitter end of the buoy line is clean and free of any knots when the link breaks. Splices are not considered to be knots for the purposes of this provision.</P> <P>(B) [Reserved]</P> <P>(6) <E T="03">Northern Inshore State Lobster Waters Area</E>—(i) <E T="03">Area</E>. The Northern Inshore State Lobster Waters Area includes the state waters of Rhode Island, Massachusetts, New Hampshire, and Maine but does not include waters exempted under (a)(2) of this section.</P> <P>(ii) <E T="03">Area-specific gear requirements</E>. No person may fish with lobster trap gear in the Northern Inshore State Lobster Waters Area unless that person's gear complies with the universal lobster trap gear requirements in (c)(1) of this section and at least one of the options on the Lobster Take Reduction Technology List in (c)(9) of this section. The Assistant Administrator may revise this requirement in accordance with paragraph (g) of this section.</P> <P>(7) <E T="03">Northern Nearshore Lobster Waters Area</E>—(i) <E T="03">Area</E>. The Northern Nearshore Lobster Waters Area includes all Federal waters of EEZ Nearshore Management Area 1, Area 2, and the Outer Cape Lobster Management Area as defined in the American Lobster Fishery regulations at 50 CFR 697.18, with the exception of the CCB Restricted Area and the Stellwagen Bank/Jeffreys Ledge Restricted Area.</P> <P>(ii) <E T="03">Area-specific gear requirements</E>. No person may fish with lobster trap gear in the Northern Nearshore Lobster Waters Area unless that person's gear complies with the gear marking requirements in paragraph (b) of this section, the universal lobster trap gear requirements in (c)(1) of this section, and the gear requirements listed below for this area. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(A) <E T="03">Weak Links</E>. All buoy lines must be attached to the main buoy with a weak link meeting the following specifications:</P> <P>(<E T="03">1</E>) The weak link must be chosen from the following list of combinations approved by the NMFS gear research program: swivels, plastic weak links, rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the Assistant Administrator.</P> <P>(<E T="03">2</E>) The breaking strength of these weak links must not exceed 600 lb (272.4 kg).</P> <P>(<E T="03">3</E>) Weak links must be designed such that the bitter end of the buoy line is clean and free of any knots when the link breaks. Splices are not considered to be knots for the purposes of this provision.</P> <P>(B) <E T="03">Single traps and multiple-trap trawls</E>. Single traps are prohibited. All traps must be set in trawls of two or more traps. All trawls up to and including five traps must have no more than one buoy line.</P> <P>(8) <E T="03">Southern Nearshore Lobster Waters Area</E>—(i) <E T="03">Area</E>. The Southern Nearshore Lobster Waters Area includes all state and federal waters which fall within EEZ Nearshore Management Area 4 and EEZ Nearshore Management Area 5 as described in the American Lobster Fishery regulations in 50 CFR 697.18.</P> <P>(ii) <E T="03">Area-specific gear requirements for the restricted period</E>—(A) <E T="03">Restricted period</E>. The restricted period for Southern Nearshore Lobster Waters is from October 1 through April 30 unless the AA revises this period in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Gear requirements</E>. No person may fish with lobster trap gear in the Southern Nearshore Lobster Waters Area during the restricted period unless that person's gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal lobster trap gear requirements in (c)(1) of this section, and at least one of the options on the Lobster Take Reduction Technology List in (c)(9) of this section. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(9) <E T="03">Lobster Take Reduction Technology List</E>. The following gear modification options comprise the Lobster Take Reduction Technology List:</P> <P>(i) All buoy lines must be 7/16 inches (1.11 cm) or less in diameter.</P> <P>(ii) All buoys must be attached to the buoy line with a weak link meeting the following specifications:</P> <P>(A) The weak link must be chosen from the following list of combinations <PRTPAGE P="245"/>approved by the NMFS gear research program: swivels, plastic weak links, rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the Assistant Administrator.</P> <P>(B) The breaking strength of these weak links must not exceed 600 lb (272.4 kg).</P> <P>(C) Weak links must be designed such that the bitter end of the buoy line is clean and free of any knots when the link breaks. Splices are not considered to be knots for the purposes of this provision.</P> <P>(iii) All buoy lines must be comprised entirely of sinking line.</P> <P>(iv) All ground lines must be comprised entirely of sinking line.</P> <P>(d) <E T="03">Restrictions applicable to anchored gillnet gear</E>—(1) <E T="03">Universal anchored gillnet gear requirements</E>. In addition to the area-specific measures listed in (d)(2) through (d)(7) of this section, all anchored gillnet gear in regulated waters must comply with the universal gear requirements listed here <SU>2</SU> <FTREF/>. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <FTNT> <P> <SU>2</SU> Fishers are also encouraged to maintain their buoy lines to be as knot-free as possible. Splices are not considered to be an entanglement threat and are thus preferable to knots.</P> </FTNT> <P>(i) <E T="03">No line floating at the surface</E>. No person may fish with anchored gillnet gear that has any portion of the buoy line that is directly connected to the gear on the ocean bottom floating at the surface at any time. If more than one buoy is attached to a single buoy line or if a high flyer and a buoy are used together on a single buoy line, floating line may be used between these objects.</P> <P>(ii) <E T="03">No wet storage of gear</E>. Anchored gillnet gear must be hauled out of the water at least once every 30 days.</P> <P>(2) <E T="03">Cape Cod Bay Restricted Area</E>—(i) <E T="03">Area.</E> The CCB Restricted Area consists of the CCB right whale critical habitat area specified under 50 CFR 226.203(b), unless the AA changes the boundaries in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Closure during the winter restricted period</E>—(A) <E T="03">Winter restricted period.</E> The winter restricted period for this area is from January 1 through May 15 of each year, unless the AA revises the timing in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Closure</E>. During the winter restricted period, no person may fish with anchored gillnet gear in the CCB Restricted Area unless the AA specifies gear restrictions or alternative fishing practices in accordance with paragraph (g) of this section and the gear or practices comply with those specifications. The AA may waive this closure for the remaining portion of the winter restricted period in any year through a notification in the Federal Register if NMFS determines that right whales have left the critical habitat and are unlikely to return for the remainder of the season.</P> <P>(iii) <E T="03">Area-specific gear requirements for the other restricted period</E>—(A) <E T="03">Other restricted period</E>. The other restricted period for the CCB Restricted Area is from May 16 through December 31 of each year unless the AA revises that period in accordance with paragraph (g) of this section.</P> <P>(B) No person may fish with anchored gillnet gear in the CCB Restricted Area during the other restricted period unless that person's gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal anchored gillnet gear requirements specified in (d)(1) of this section, and the area-specific requirements listed in (d)(6)(ii) of this section for the Other Northeast Gillnet Waters Area. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(3) <E T="03">Great South Channel Restricted Gillnet Area</E>—(i) <E T="03">Area</E>. The GSC Restricted Gillnet Area consists of the area bounded by lines connecting the following four points: 41°02.2′ N/69°02′ W, 41°43.5′ N/69°36.3′ W, 42°10′ N/68°31′ W, and 41°38′ N/68°13′ W. This area includes most of the GSC right whale critical habitat area specified under 50 CFR 226.203(a), with the exception of the sliver along the western boundary described in (d)(4)(i) here. The AA may revise these boundaries in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Closure during the spring restricted period</E>—(A) <E T="03">Spring restricted period</E>. The <PRTPAGE P="246"/>spring restricted period for the GSC Restricted Gillnet Area is from April 1 through June 30 of each year unless the AA revises that period in accordance with paragraph (g) of this section.</P> <P>(B) <E T="03">Closure.</E> During the spring restricted period, no person may set or fish with anchored gillnet gear in the GSC Restricted Gillnet Area unless the AA specifies gear restrictions or alternative fishing practices in accordance with paragraph (g) of this section and the gear or practices comply with those specifications.</P> <P>(iii) <E T="03">Area-specific gear requirements for the other restricted period</E>—(A) <E T="03">Other restricted period.</E> The other restricted period for the GSC Restricted Gillnet Area is from July 1 though March 31 of each year unless the AA revises that period in accordance with paragraph (g) of this section.</P> <P>(B) During the other restricted period, no person may fish with anchored gillnet gear in the GSC Restricted Gillnet Area unless that person's gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal anchored gillnet gear requirements specified in (d)(1) of this section, and the area-specific requirements listed in (d)(6)(ii) of this section for the Other Northeast Gillnet Waters Area. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(4) <E T="03">Great South Channel Sliver Restricted Area</E>—(i) <E T="03">Area.</E> The GSC Sliver Restricted Area consists of the area bounded by lines connecting the following points: 41°02.2′ N/69°02′ W, 41°43.5′ N/69°36.3′ W, 41°40′ N/69°45′ W, and 41°00′ N/69°05′ W. The AA may revise these boundaries in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Area-specific gear requirements</E>. No person may fish with anchored gillnet gear in the GSC Sliver Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal anchored gillnet gear requirements specified in (d)(1) of this section, and the area-specific requirements listed in subparagraph (d)(6)(ii) of this section for the Other Northeast Gillnet Waters Area. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(5) <E T="03">Stellwagen Bank/Jeffreys Ledge Restricted Area</E>—(i) <E T="03">Area</E>. The Stellwagen Bank/Jeffreys Ledge Restricted Area includes all Federal waters of the Gulf of Maine, except those designated as right whale critical habitat under 50 CFR 226.203(b), that lie south of 43°15′ N. lat. and west of 70° W long. The AA may change these boundaries in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Area-specific gear requirements.</E> No person may fish with anchored gillnet gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal anchored gillnet gear requirements specified in (d)(1) of this section, and the area-specific requirements listed in (d)(6)(ii) of this section for the Other Northeast Gillnet Waters Area. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(6) <E T="03">Other Northeast Gillnet Waters Area</E>—(i) <E T="03">Area.</E> The Other Northeast Gillnet Waters Area consists of all U.S. waters west of the U.S./Canada border and north of a line extending due east from the Virginia/North Carolina border with the exception of the CCB Restricted Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, GSC Restricted Gillnet Area, GSC Sliver Restricted Area, Mid-Atlantic Coastal Waters Area, and exempted waters listed in (a)(2) of this section.</P> <P>(ii) <E T="03">Area-specific gear requirements.</E> No person may fish with anchored gillnet gear in the Other Northeast Gillnet Waters Area unless that person's gear complies with the gear marking requirements specified in paragraph (b) of this section, the universal anchored gillnet gear requirements specified in (d)(1) of this section, and the area-specific requirements listed below. The AA may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(A) <E T="03">Buoy line weak links</E>. All buoy lines must be attached to the main buoy with a weak link meeting the following specifications:</P> <P>(<E T="03">1</E>) The weak link must be chosen from the following list of combinations approved by the NMFS gear research program: swivels, plastic weak links, <PRTPAGE P="247"/>rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the AA.</P> <P>(<E T="03">2</E>) The breaking strength of these weak links must not exceed 1100 lb (498.8 kg).</P> <P>(<E T="03">3</E>) Weak links must be designed such that the bitter end of the buoy line is clean and free of any knots when the link breaks. Splices are not considered to be knots for the purposes of this provision.</P> <P>(B) <E T="03">Net panel weak links.</E> All net panels must contain weak links meeting the following specifications:</P> <P>(<E T="03">1</E>) Weak links must be inserted in the center of the floatline (headrope) of each net panel in a net string.</P> <P>(<E T="03">2</E>) The breaking strength of these weak links must not exceed 1100 lb (498.8 kg).</P> <P>(<E T="03">C</E>) Anchoring System. All anchored gillnet strings containing 20 or fewer net panels must be securely anchored with one of the following anchoring systems:</P> <P>(<E T="03">1</E>) Anchors with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string,</P> <P>(<E T="03">2</E>) Dead weights weighing at least 50 lb (22.7 kg) at each end of the net string, or</P> <P>(<E T="03">3</E>) A lead line weighing at least 100 lb (45.4 kg) per 300 ft (91.4 m) for each net panel in the net string.</P> <P>(7) <E T="03">Mid-Atlantic Coastal Waters Area</E>—(i) <E T="03">Area.</E> The mid-Atlantic Coastal Waters Area is defined in § 229.2.</P> <P>(ii) <E T="03">Gear requirements.</E> From December 1 through March 31, no person may fish with anchored gillnets in the Mid-Atlantic Coastal Waters Area unless that person's gear complies with at least one of the characteristics of the Gillnet Take Reduction Technology List in paragraph (d)(8) of this section. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(8) <E T="03">Gillnet Take Reduction Technology List.</E> The following gear characteristics comprise the Gillnet Take Reduction Technology List:</P> <P>(i) All buoy lines are <FR>7/16</FR> inches (1.11 cm) in diameter or less.</P> <P>(ii) All buoys are attached to the buoy line with a weak link having a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may include swivels, plastic weak links, rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or other materials or devices approved in writing by the Assistant Administrator.</P> <P>(iii) Weak links with a breaking strength of up to 1100 lb (498.8 kg) are installed in the float rope between net panels.</P> <P>(iv) All buoy lines are composed entirely of sinking line.</P> <P>(e) <E T="03">Restrictions applicable to mid-Atlantic driftnet gear</E>—(1) <E T="03">Restrictions.</E> From December 1 through March 31 of the following year, no person may fish with driftnet gear at night in the mid-Atlantic coastal waters area unless that gear is tended. During that time, all driftnet gear set by that vessel in the mid-Atlantic coastal waters area must be removed from the water and stowed on board the vessel before a vessel returns to port. The Assistant Administrator may revise these requirements in accordance with paragraph (g) of this section.</P> <P>(f) <E T="03">Restrictions applicable to shark gillnet gear</E>—(1) Management areas—(i) <E T="03">Southeast U.S. restricted area.</E> The southeast U.S. restricted area consists of the area from 32°00′ N lat. (near Savannah, GA) south to 27°51′ N lat. (near Sebastian Inlet, FL), extending from the shore eastward to 80°00′ W long., unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Southeast U.S. observer area.</E> The southeast U.S. observer area consists of the southeast U.S. restricted area and an additional area along the coast south to 26°46.5′ N lat. (near West Palm Beach, FL) and extending from the shore eastward out to 80°00′ W long., unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(2) <E T="03">Gear marking requirements.</E> From November 15 through March 31 of the following year, no person may fish with gillnet gear in the southeast U.S. observer area unless that gear is marked according to the gear marking code specified under paragraph (b) of this section. All buoy lines must be marked within 2 ft (0.6 m) of the top of the buoy line and midway along the length of the buoy line. From November 15, <PRTPAGE P="248"/>1999, each net panel must be marked along both the float line and the lead line at least once every 100 yards (92.4 m).</P> <P>(3) Restrictions—(i) <E T="03">Observer requirement.</E> No person may fish with shark gillnet gear in the southeast U.S. observer area from November 15 through March 31 of the following year unless the operator of the vessel calls the SE Regional Office in St. Petersburg, FL, not less than 48 hours prior to departing on any fishing trip in order to arrange for observer coverage. If the Regional Office requests that an observer be taken on board a vessel during a fishing trip at any time from November 15 through March 31 of the following year, no person may fish with shark gillnet gear aboard that vessel in the southeast U.S. observer area unless an observer is on board that vessel during the trip.</P> <P>(ii) <E T="03">Closure.</E> Except as provided under paragraph (f)(3)(iii) of this section, no person may fish with shark gillnet gear in the southeast U.S. restricted area during the closed period. The closed period for this area is from November 15 through March 31 of the following year, unless the Assistant Administrator changes that closed period in accordance with paragraph (g) of this section.</P> <P>(iii) <E T="03">Special provision for strikenets.</E> Fishing for sharks with strikenet gear is exempt from the restriction under paragraph (f)(3)(ii) of this section if:</P> <P>(A) No nets are set at night or when visibility is less than 500 yards (460 m).</P> <P>(B) Each set is made under the observation of a spotter plane.</P> <P>(C) No net is set within 3 nautical miles of a right, humpback, fin or minke whale.</P> <P>(D) If a right, humpback, fin or minke whale moves within 3 nautical miles of the set gear, the gear is removed immediately from the water.</P> <P>(g) <E T="03">Other provisions.</E> In addition to any other emergency authority under the Marine Mammal Protection Act, the Endangered Species Act, the Magnuson-Stevens Fishery Conservation and Management Act, or other appropriate authority, the Assistant administrator may take action under this section in the following situations:</P> <P>(1) <E T="03">Entanglements in critical habitat.</E> If a serious injury or mortality of a right whale occurs in the Cape Cod Bay critical habitat from January 1 through May 15, in the GreatSouth Channel Restricted Area from April 1 through June 30, or in the Southeast U.S. Restricted Area from November 15 through March 31 as a result of an entanglement by lobster or gillnet gear allowed to be used in those areas and times, the Assistant Administrator shall close that area to that gear type for the rest of that time period and for that same time period in each subsequent year, unless the Assistant Administrator revises the restricted period in accordance with paragraph (g)(2) of this section or unless other measures are implemented under paragraph (g)(2).</P> <P>(2) <E T="03">Other special measures.</E> The Assistant Administrator may revise the requirements of this section through a publication in the <E T="04">Federal Register</E> if:</P> <P>(i) NMFS verifies that certain gear characteristics are both operationally effective and reduce serious injuries and mortalities of endangered whales;</P> <P>(ii) New gear technology is developed and determined to be appropriate;</P> <P>(iii) Revised breaking strengths are determined to be appropriate;</P> <P>(iv) New marking systems are developed and determined to be appropriate;</P> <P>(v) NMFS determines that right whales are remaining longer than expected in a closed area or have left earlier than expected;</P> <P>(vi) NMFS determines that the boundaries of a closed area are not appropriate;</P> <P>(vii) Gear testing operations are considered appropriate; or</P> <P>(viii) Similar situations occur.</P> <CITA>[64 FR 7552, Feb. 16, 1999, as amended at 65 FR 70317, Nov. 22, 2000; 65 FR 80377, Dec. 21, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.33</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan Implementing Regulations—Gulf of Maine.</SUBJECT> <P>(a) <E T="03">Restrictions</E>—(1) <E T="03">Northeast Closure Area.</E> From August 15 through September 13 of each fishing year, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies, from Northeast Closure <PRTPAGE P="249"/>Area. This prohibition does not apply to a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title). The Northeast Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Northeast Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">NE1 </ENT> <ENT>(<SU>1</SU>) </ENT> <ENT>68°55.0′</ENT> </ROW> <ROW> <ENT I="01">NE2 </ENT> <ENT>43°29.6′ </ENT> <ENT>68°55.0′</ENT> </ROW> <ROW> <ENT I="01">NE3 </ENT> <ENT>44°04.4′ </ENT> <ENT>67°48.7′</ENT> </ROW> <ROW> <ENT I="01">NE4 </ENT> <ENT>44°06.9′ </ENT> <ENT>67°52.8′</ENT> </ROW> <ROW> <ENT I="01">NE5 </ENT> <ENT>44°31.2′ </ENT> <ENT>67°02.7′</ENT> </ROW> <ROW> <ENT I="01">NE6 </ENT> <ENT>(<SU>1</SU>) </ENT> <ENT>67°02.7′</ENT> </ROW> <TNOTE> <SU>1</SU> Maine shoreline.</TNOTE> </GPOTABLE> <P>(2) <E T="03">Mid-coast Closure Area.</E> From September 15 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies. This prohibition does not apply to a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title). The Mid-Coast Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Mid-Coast Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">MC1 </ENT> <ENT>42°30′ </ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="01">MC2 </ENT> <ENT>42°30′ </ENT> <ENT>70°15′</ENT> </ROW> <ROW> <ENT I="01">MC3 </ENT> <ENT>42°40′ </ENT> <ENT>70°15′</ENT> </ROW> <ROW> <ENT I="01">MC4 </ENT> <ENT>42°40′ </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MC5 </ENT> <ENT>43°00′ </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MC6 </ENT> <ENT>43°00′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">MC7 </ENT> <ENT>43°30′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">MC8 </ENT> <ENT>43°30′ </ENT> <ENT>69°00′</ENT> </ROW> <ROW> <ENT I="01">MC9 </ENT> <ENT>(<SU>2</SU>) </ENT> <ENT>69°00′</ENT> </ROW> <TNOTE> <SU>1</SU> Massachusetts shoreline.</TNOTE> <TNOTE> <SU>2</SU> Maine shoreline.</TNOTE> </GPOTABLE> <P>(3) <E T="03">Massachusetts Bay Closure Area.</E> From December 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Massachusetts Bay Closure Area, except with the use of pingers as provided in paragraph (d)(2) of this section. This prohibition does not apply to a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title). The Massachusetts Bay Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Massachusetts Bay Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">MB1 </ENT> <ENT>42°30′ </ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="01">MB2 </ENT> <ENT>42°30′ </ENT> <ENT>70°30′</ENT> </ROW> <ROW> <ENT I="01">MB3 </ENT> <ENT>42°12′ </ENT> <ENT>70°30′</ENT> </ROW> <ROW> <ENT I="01">MB4 </ENT> <ENT>42°12′ </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MB5 </ENT> <ENT>(<SU>2</SU>) </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MB6 </ENT> <ENT>42°00′ </ENT> <ENT>(<SU>2</SU>)</ENT> </ROW> <ROW> <ENT I="01">MC7 </ENT> <ENT>42°00′ </ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <TNOTE> <SU>1</SU> Massachusetts shoreline.</TNOTE> <TNOTE> <SU>2</SU> Cape Cod shoreline.</TNOTE> </GPOTABLE> <P>(4) <E T="03">Cape Cod South Closure Area.</E> From December 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from Cape Cod South Closure Area, except with the use of pingers as provided in paragraph (d)(3) of this section. This prohibition does not apply to a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title). The Cape Cod South Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Cape Cod South Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">CCS1 </ENT> <ENT>(<SU>1</SU>) </ENT> <ENT>71°45′</ENT> </ROW> <ROW> <ENT I="01">CCS2 </ENT> <ENT>40°40′ </ENT> <ENT>71°45′</ENT> </ROW> <ROW> <ENT I="01">CCS3 </ENT> <ENT>40°40′ </ENT> <ENT>70°30′</ENT> </ROW> <ROW> <ENT I="01">CCS4 </ENT> <ENT>(<SU>2</SU>) </ENT> <ENT>70°30′</ENT> </ROW> <TNOTE> <SU>1</SU> Rhode Island shoreline.</TNOTE> <TNOTE> <SU>2</SU> Massachusetts shoreline.</TNOTE> </GPOTABLE> <P>(5) <E T="03">Offshore Closure Area.</E> From November 1 through May 31, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from Offshore Closure Area, except for the use of pingers as provided in § 229.33(d)(4). This prohibition does not apply to a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title). The Offshore Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Offshore Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">OFS1 </ENT> <ENT>42°50′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">OFS2 </ENT> <ENT>43°10′ </ENT> <ENT>69°10′</ENT> </ROW> <ROW> <ENT I="01">OFS3 </ENT> <ENT>43°10′ </ENT> <ENT>67°40′</ENT> </ROW> <ROW> <ENT I="01">OFS4 </ENT> <ENT>42°10′ </ENT> <ENT>67°40′</ENT> </ROW> <ROW> <ENT I="01">OFS5 </ENT> <ENT>42°10′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <PRTPAGE P="250"/> <ENT I="01">OFS6 </ENT> <ENT>42°50′ </ENT> <ENT>69°30′</ENT> </ROW> </GPOTABLE> <P>(6) <E T="03">Cashes Ledge Closure Area.</E> For the month of February of each fishing year, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove sink gillnet gear or gillnet gear capable of catching multispecies from the Cashes Ledge Closure Area. This prohibition does not apply to a single pelagic gillnet (as described in § 648.81(f)(2)(ii) of this title). The Cashes Ledge Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Cashes Ledge Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">CL1 </ENT> <ENT>42°30′ </ENT> <ENT>69°00′</ENT> </ROW> <ROW> <ENT I="01">CL2 </ENT> <ENT>42°30′ </ENT> <ENT>68°30′</ENT> </ROW> <ROW> <ENT I="01">CL3 </ENT> <ENT>43°00′ </ENT> <ENT>68°30′</ENT> </ROW> <ROW> <ENT I="01">CL4 </ENT> <ENT>43°00′ </ENT> <ENT>69°00′</ENT> </ROW> <ROW> <ENT I="01">CL5 </ENT> <ENT>42°30′ </ENT> <ENT>69°00′</ENT> </ROW> </GPOTABLE> <P>(b) Pingers—(1) <E T="03">Pinger specifications.</E> For the purposes of this subpart, a pinger is an acoustic deterrent device which, when immersed in water, broadcasts a 10 kHz (<E T="61">±</E>2 kHz) sound at 132 dB (<E T="61">±</E>4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (<E T="61">±</E>15 milliseconds), and repeating every 4 seconds (<E T="61">±</E>.2 seconds).</P> <P>(2) <E T="03">Pinger attachment.</E> An operating and functional pinger must be attached at the end of each string of the gillnets and at the bridle of every net within a string of nets.</P> <P>(c) <E T="03">Pinger training and certification.</E> Beginning on January 1, 1999, the operator of a vessel may not fish with, set or haul back sink gillnets or gillnet gear, or allow such gear to be in closed areas where pingers are required as specified under paragraph (b) of this section, unless the operator has satisfactorily completed the pinger certification training program and possesses on board the vessel a valid pinger training certificate issued by NMFS. Notice will be given announcing the times and locations of pinger certification training programs.</P> <P>(d) <E T="03">Use of pingers in closed areas</E>—(1) Vessels, subject to the restrictions and regulations specified in paragraph (a)(2) of this section, may fish in the Mid-coast Closure Area from September 15 through May 31 of each fishing year, provided that pingers are used in accordance with the requirements of paragraphs (b) (1) and (2) of this section.</P> <P>(2) Vessels, subject to the restrictions and regulations specified in paragraph (a)(3) of this section, may fish in the Massachusetts Bay Closure Area from December 1 through the last day of February and from April 1 through May 31 of each fishing year, provided that pingers are used in accordance with the requirements of paragraphs (b) (1) and (2) of this section.</P> <P>(3) Vessels, subject to the restrictions and regulations specified in paragraph (a)(4) of this section, may fish in the Cape Cod South Closure Area from December 1 through the last day of February and from April 1 through May 31 of each fishing year, provided that pingers are used in accordance with the requirements of paragraphs (b) (1) and (2) of this section.</P> <P>(4) Vessels, subject to the restrictions and regulations specified in paragraph (a)(5) of this section, may fish in the Offshore Closure Area from November 1 through May 31 of each fishing year, with the exception of the Cashes Ledge Closure Area. From February 1 through the end of February, the area within the Offshore Closure Area defined as “Cashes Ledge” is closed to all fishing with sink gillnets. Vessels subject to the restrictions and regulation specified in paragraph (a)(5) of this section may fish in the Offshore Closure Area outside the Cashes Ledge Area from February 1 through the end of February provided that pingers are used in accordance with the requirements of paragraphs (b) (1) and (2) of this section.</P> <P>(e) <E T="03">Other special measures.</E> The Assistant Administrator may revise the requirements of this section through notification published in the <E T="04">Federal Register</E> if:</P> <P>(1) After plan implementation, NMFS determines that pinger operating effectiveness in the commercial fishery is inadequate to reduce bycatch to the PBR level with the current plan.<PRTPAGE P="251"/> </P> <P>(2) NMFS determines that the boundary or timing of a closed area is inappropriate, or that gear modifications (including pingers) are not reducing bycatch to below the PBR level.</P> <CITA>[63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.34</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan—Mid-Atlantic.</SUBJECT> <P>(a)(1) <E T="03">Regulated waters.</E> The regulations in this section apply to all waters in the Mid-Atlantic bounded on the east by 72°30′ W. longitude and on the south by the North Carolina/South Carolina border (33°51′ N. latitude), except for the areas exempted in paragraph (a)(2) of this section.</P> <P>(2) <E T="03">Exempted waters.</E> All waters landward of the first bridge over any embayment, harbor, or inlet will be exempted. The regulations in this section do not apply to waters landward of the following lines:</P> <EXTRACT> <HD SOURCE="HD3">New York</HD> <FP SOURCE="FP-1">40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ W (Moriches Bay Inlet)</FP> <FP SOURCE="FP-1">40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ W (Fire Island Inlet)</FP> <FP SOURCE="FP-1">40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ W (Jones Inlet)</FP> <HD SOURCE="HD3">New Jersey/Delaware</HD> <FP SOURCE="FP-1">39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ W (Barnegat Inlet)</FP> <FP SOURCE="FP-1">39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ W (Beach Haven to Brigantine Inlet)</FP> <FP SOURCE="FP-1">38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ W (Cape May Inlet)</FP> <P>All marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80. (Delaware Bay)</P> <HD SOURCE="HD3">Maryland/Virginia</HD> <FP SOURCE="FP-1">38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ W (Ocean City Inlet)</FP> <FP SOURCE="FP-1">37° 52.′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ W (Chincoteague to Ship Shoal Inlet)</FP> <FP SOURCE="FP-1">37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ W (Little Inlet)</FP> <FP SOURCE="FP-1">37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.′ W (Smith Island Inlet)</FP> <HD SOURCE="HD3">North Carolina</HD> <P>All marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea, 1972), as depicted or noted on nautical charts published by NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80.</P> </EXTRACT> <P>(b) <E T="03">Closures</E>—(1) <E T="03">New Jersey waters.</E> From April 1 through April 20, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any large mesh gillnet gear from the waters off New Jersey.</P> <P>(2) <E T="03">Mudhole.</E> From February 15 through March 15, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any large mesh or small mesh gillnet gear from the waters off New Jersey known as the Mudhole.</P> <P>(3) <E T="03">Southern Mid-Atlantic waters.</E> From February 15 through March 15, it is prohibited to fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any large mesh gillnet gear from the southern Mid-Atlantic waters.</P> <P>(c) Gear requirements and limitations—(1) <E T="03">Waters off New Jersey—large mesh gear requirements and limitations.</E> From January 1 through April 30 of each year, no person may fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any large mesh gillnet gear in waters off New Jersey, unless the gear complies with the specified gear characteristics. During this period, no person who owns or operates the vessel may allow the vessel to enter or remain in waters off New Jersey with large mesh gillnet gear on board, unless the gear complies with the specified gear characteristics or unless the gear is stowed. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is no longer than 4,800 ft (1,463.0 m), and, if the gear is used in the Mudhole, the floatline is no longer than 3,900 ft (1,188.7 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.04 inches (0.090 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.44 m, or 50 fathoms), in length.</P> <P>(iv) <E T="03">Number of nets.</E> The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 80.</P> <P>(v) <E T="03">Tie-down system.</E> The gillnet is equipped with tie-downs spaced not more than 15 ft (4.6 m) apart along the <PRTPAGE P="252"/>floatline, and each tie-down is not more than 48 inches (18.90 cm) in length from the point where it connects to the floatline to the point where it connects to the lead line.</P> <P>(vi) <E T="03">Tagging requirements.</E> Beginning January 1, 2000, the gillnet is equipped with one tag per net, with one tag secured to each bridle of every net within a string of nets.</P> <P>(2) <E T="03">Waters off New Jersey—small mesh gillnet gear requirements and limitations.</E> From January 1 through April 30 of each year, no person may fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any small mesh gillnet gear in waters off New Jersey, unless the gear complies with the specified gear characteristics. During this period, no person who owns or operates the vessel may allow the vessel to enter or remain in waters off New Jersey with small mesh gillnet gear on board, unless the gear complies with the specified gear characteristics or unless the gear is stowed. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is less than 3,000 ft (914.4 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.031 inches (0.081 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.</P> <P>(iv) <E T="03">Number of nets.</E> The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 45.</P> <P>(v) <E T="03">Tie-down system.</E> Tie-downs are prohibited.</P> <P>(vi) <E T="03">Tagging requirements.</E> Beginning January 1, 2000, the gillnet is equipped with one tag per net, with one tag secured to each bridle of every net within a string of nets.</P> <P>(3) <E T="03">Southern Mid-Atlantic waters—large mesh gear requirements and limitations.</E> From February 1 through April 30 of each year, no person may fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any large mesh gillnet gear in Southern Mid-Atlantic waters, unless the gear complies with the specified gear characteristics. During this period, no person who owns or operates the vessel may allow the vessel to enter or remain in Southern Mid-Atlantic waters with large mesh sink gillnet gear on board, unless the gear complies with the specified gear characteristics or unless the gear is stowed. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is no longer than 3,900 ft (1,188.7 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.04 inches (0.090 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.</P> <P>(iv) <E T="03">Number of nets.</E> The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 80.</P> <P>(v) <E T="03">Tie-down system.</E> The gillnet is equipped with tie-downs spaced not more than 15 ft (4.6 m) apart along the floatline, and each tie-down is not more than 48 inches (18.90 cm) in length from the point where it connects to the floatline to the point where it connects to the lead line.</P> <P>(vi) <E T="03">Tagging requirements.</E> Beginning January 1, 2000, the gillnet is equipped with one tag per net, with one tag secured to each bridle of every net within a string of nets.</P> <P>(4) <E T="03">Southern Mid-Atlantic waters—small mesh gillnet gear requirements and limitations.</E> From February 1 through April 30 of each year, no person may fish with, set, haul back, possess on board a vessel unless stowed, or fail to remove any small mesh gillnet gear in waters off New Jersey, unless the gear complies with the specified gear characteristics. During this period, no person who owns or operates the vessel may allow the vessel to enter or remain in Southern Mid-Atlantic waters with small mesh gillnet gear on board, unless the gear complies with the specified gear characteristics or unless the gear is stowed. In order to comply with these specified gear characteristics, the gear must have all the following characteristics:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is no longer than 2118 ft (645.6 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.03 inches (0.080 cm) in diameter.<PRTPAGE P="253"/> </P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.</P> <P>(iv) <E T="03">Number of nets.</E> The total number of individual nets or net panels for a vessel, including all nets on board the vessel, hauled by the vessel or deployed by the vessel, does not exceed 45.</P> <P>(v) <E T="03">Tie-down system.</E> Tie-downs are prohibited.</P> <P>(vi) <E T="03">Tagging requirements.</E> Beginning January 1, 2000, the gillnet is equipped with one tag per net, with one tag secured to each bridle of every net within a string of nets.</P> <P>(d) <E T="03">Other special measures.</E> The Assistant Administrator may revise the requirements of this section through notification published in the <E T="04">Federal Register</E> if:</P> <P>(1) After plan implementation, NMFS determines that pinger operating effectiveness in the commercial fishery is inadequate to reduce bycatch to the PBR level with the current plan.</P> <P>(2) NMFS determines that the boundary or timing of a closed area is inappropriate, or that gear modifications (including pingers) are not reducing bycatch to below the PBR level.</P> <CITA>[63 FR 66489, Dec. 2, 1998, as amended at 66 FR 2338, Jan. 11, 2001]<PRTPAGE P="254"/> </CITA> <EAR>Pt. 229, Fig. 1</EAR> <GPH DEEP="425" SPAN="2"> <GID>ER22JA99.001</GID> </GPH> <CITA TYPE="W">[64 FR 3434, Jan. 22, 1999]</CITA> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="255"/> <HD SOURCE="HED">SUBCHAPTER D—WHALING</HD> <PART> <EAR>Pt. 230</EAR> <HD SOURCE="HED">PART 230—WHALING PROVISIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>230.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>230.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>230.3</SECTNO> <SUBJECT>General prohibitions.</SUBJECT> <SECTNO>230.4</SECTNO> <SUBJECT>Aboriginal subsistence whaling.</SUBJECT> <SECTNO>230.5</SECTNO> <SUBJECT>Licenses for aboriginal subsistence whaling.</SUBJECT> <SECTNO>230.6</SECTNO> <SUBJECT>Quotas and other restrictions.</SUBJECT> <SECTNO>230.7</SECTNO> <SUBJECT>Salvage of stinkers.</SUBJECT> <SECTNO>230.8</SECTNO> <SUBJECT>Reporting by whaling captains.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 916 <E T="03">et</E> <E T="03">seq</E>.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 29631, June 11, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 230.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>The purpose of the regulations in this part is to implement the Whaling Convention Act (16 U.S.C. 916 <E T="03">et</E> <E T="03">seq</E>.) by prohibiting whaling except for aboriginal subsistence whaling allowed by the International Whaling Commission. Provisions of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 <E T="03">et</E> <E T="03">seq</E>.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 <E T="03">et</E> <E T="03">seq</E>.) also pertain to human interactions with whales. Rules elsewhere in this chapter govern such topics as scientific research permits, and incidental take and harassment of marine mammals.</P> </SECTION> <SECTION> <SECTNO>§ 230.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Aboriginal subsistence whaling</E> means whaling authorized by paragraph 13 of the Schedule annexed to and constituting a part of the Convention.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration.</P> <P> <E T="03">Authorized officer</E> means:</P> <P>(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard;</P> <P>(2) Any special agent or enforcement officer of the National Marine Fisheries Service;</P> <P>(3) Any officer designated by the head of a Federal or state agency that has entered into an agreement with the Secretary of Commerce or the Commandant of the Coast Guard to enforce the provisions of the Whaling Convention Act; or</P> <P>(4) Any Coast Guard personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.</P> <P> <E T="03">Calf</E> means any whale less than 1 year old or having milk in its stomach.</P> <P> <E T="03">Commission</E> means the International Whaling Commission established by article III of the Convention.</P> <P> <E T="03">Convention</E> means the International Convention for the Regulation of Whaling signed at Washington on December 2, 1946.</P> <P> <E T="03">Cooperative agreement</E> means a written agreement between the National Oceanic and Atmospheric Administration and a Native American whaling organization for the cooperative management of aboriginal subsistence whaling operations.</P> <P> <E T="03">Landing</E> means bringing a whale or any parts thereof onto the ice or land in the course of whaling operations.</P> <P> <E T="03">Native American whaling organization</E> means an entity recognized by the National Oceanic and Atmospheric Administration as representing and governing Native American whalers for the purposes of cooperative management of aboriginal subsistence whaling.</P> <P> <E T="03">Regulations of the Commission</E> means the regulations in the Schedule annexed to and constituting a part of the Convention, as modified, revised, or amended by the Commission from time to time.</P> <P> <E T="03">Stinker</E> means a dead, unclaimed whale found upon a beach, stranded in shallow water, or floating at sea.</P> <P> <E T="03">Strike</E> means hitting a whale with a harpoon, lance, or explosive device.</P> <P> <E T="03">Wasteful manner</E> means a method of whaling that is not likely to result in the landing of a struck whale or that does not include all reasonable efforts to retrieve the whale.</P> <P> <E T="03">Whale products</E> means any unprocessed part of a whale and blubber, meat, bones, whale oil, sperm oil, spermaceti, meal, and baleen.</P> <P> <E T="03">Whaling</E> means the scouting for, hunting, striking, killing, flensing, or landing of a whale, and the processing of whales or whale products.<PRTPAGE P="256"/> </P> <P> <E T="03">Whaling captain</E> or <E T="03">captain</E> means any Native American who is authorized by a Native American whaling organization to be in charge of a vessel and whaling crew.</P> <P> <E T="03">Whaling crew</E> means those Native Americans under the control of a captain.</P> <P> <E T="03">Whaling village</E> means any U.S. village recognized by the Commission as having a cultural and/or subsistence need for whaling.</P> </SECTION> <SECTION> <SECTNO>§ 230.3</SECTNO> <SUBJECT>General prohibitions.</SUBJECT> <P>(a) No person shall engage in whaling in a manner that violates the Convention, any regulation of the Commission, or this part.</P> <P>(b) No person shall engage in whaling without first having obtained a license or scientific research permit issued by the Assistant Administrator.</P> <P>(c) No person shall ship, transport, purchase, sell, offer for sale, import, export, or possess any whale or whale products taken or processed in violation of the Convention, any regulation of the Commission, or this part, except as specified in § 230.4(f).</P> <P>(d) No person shall fail to make, keep, submit, or furnish any record or report required of him/her by the Convention, any regulation of the Commission, or this part.</P> <P>(e) No person shall refuse to permit any authorized officer to enforce the Convention, any regulation of the Commission, or this part.</P> </SECTION> <SECTION> <SECTNO>§ 230.4</SECTNO> <SUBJECT>Aboriginal subsistence whaling.</SUBJECT> <P>(a) No person shall engage in aboriginal subsistence whaling, except a whaling captain licensed pursuant to § 230.5 or a member of a whaling crew under the control of a licensed captain.</P> <P>(b) No whaling captain shall engage in whaling that is not in accordance with the regulations of the Commission, this part, and the relevant cooperative agreement.</P> <P>(c) No whaling captain shall engage in whaling for any calf or any whale accompanied by a calf.</P> <P>(d) No whaling captain shall engage in whaling without an adequate crew or without adequate supplies and equipment.</P> <P>(e) No person may receive money for participation in aboriginal subsistence whaling.</P> <P>(f) No person may sell or offer for sale whale products from whales taken in an aboriginal subsistence hunt, except that authentic articles of Native handicrafts may be sold or offered for sale.</P> <P>(g) No whaling captain shall continue to whale after:</P> <P>(1) The quota set for his/her village by the relevant Native American whaling organization is reached;</P> <P>(2) The license under which he/she is whaling is suspended as provided in § 230.5(b); or</P> <P>(3) The whaling season for that species has been closed pursuant to § 230.6.</P> <P>(h) No whaling captain shall claim domicile in more than one whaling village.</P> <P>(i) No person may salvage a stinker without complying with the provisions of § 230.7.</P> <P>(j) No whaling captain shall engage in whaling with a harpoon, lance, or explosive dart that does not bear a permanent distinctive mark identifying the captain as the owner thereof.</P> <P>(k) No whaling captain shall engage in whaling in a wasteful manner.</P> </SECTION> <SECTION> <SECTNO>§ 230.5</SECTNO> <SUBJECT>Licenses for aboriginal subsistence whaling.</SUBJECT> <P>(a) A license is hereby issued to whaling captains identified by the relevant Native American whaling organization.</P> <P>(b) The Assistant Administrator may suspend the license of any whaling captain who fails to comply with the regulations in this part.</P> </SECTION> <SECTION> <SECTNO>§ 230.6</SECTNO> <SUBJECT>Quotas and other restrictions.</SUBJECT> <P>(a) Quotas for aboriginal subsistence whaling shall be set in accordance with the regulations of the Commission. Quotas shall be allocated to each whaling village or captain by the appropriate Native American whaling organization. The Assistant Administrator shall publish in the <E T="04">Federal Register</E>, at least annually, aboriginal subsistence whaling quotas and any other limitations on aboriginal subsistence whaling deriving from regulations of the Commission. These quotas and restrictions shall also be incorporated in the relevant cooperative agreements.<PRTPAGE P="257"/> </P> <P>(b) The relevant Native American whaling organization shall monitor the whale hunt and keep tally of the number of whales landed and struck. When a quota is reached, the organization shall declare the whaling season closed, and there shall be no further whaling under that quota during the calendar year. If the organization fails to close the whaling season after the quota has been reached, the Assistant Administrator may close it by filing notification in the <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 230.7</SECTNO> <SUBJECT>Salvage of stinkers.</SUBJECT> <P>(a) Any person salvaging a stinker shall submit to the Assistant Administrator or his/her representative an oral or written report describing the circumstances of the salvage within 12 hours of such salvage. He/she shall provide promptly to the Assistant Administrator or his/her representative each harpoon, lance, or explosive dart found in or attached to the stinker. The device shall be returned to the owner thereof promptly, unless it is retained as evidence of a possible violation.</P> <P>(b) There shall be a rebuttable presumption that a stinker has been struck by the captain whose mark appears on the harpoon, lance, or explosive dart found in or attached thereto, and, if no strike has been reported by such captain, such strike shall be deemed to have occurred at the time of recovery of the device.</P> </SECTION> <SECTION> <SECTNO>§ 230.8</SECTNO> <SUBJECT>Reporting by whaling captains.</SUBJECT> <P>(a) The relevant Native American whaling organization shall require each whaling captain licensed pursuant to § 230.5 to provide a written statement of his/her name and village of domicile and a description of the distinctive marking to be placed on each harpoon, lance, and explosive dart.</P> <P>(b) Each whaling captain shall provide to the relevant Native American whaling organization an oral or written report of whaling activities including but not limited to the striking, attempted striking, or landing of a whale and, where possible, specimens from landed whales. The Assistant Administrator is authorized to provide technological assistance to facilitate prompt reporting and collection of specimens from landed whales, including but not limited to ovaries, ear plugs, and baleen plates. The report shall include at least the following information:</P> <P>(1) The number, dates, and locations of each strike, attempted strike, or landing.</P> <P>(2) The length (taken as the straight-line measurement from the tip of the upper jaw to the notch between the tail flukes) and the sex of the whales landed.</P> <P>(3) The length and sex of a fetus, if present in a landed whale.</P> <P>(4) An explanation of circumstances associated with the striking or attempted striking of any whale not landed.</P> <P>(c) If the relevant Native American whaling organization fails to provide the National Marine Fisheries Service the required reports, the Assistant Administrator may require the reports to be submitted by the whaling captains directly to the National Marine Fisheries Service.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="258"/> <RESERVED>SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE[RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—AID TO FISHERIES</HD> <PART> <EAR>Pt. 253</EAR> <HD SOURCE="HED">PART 253—FISHERIES ASSISTANCE PROGRAMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>253.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Fisheries Obligation Guarantee Program</HD> <SECTNO>253.10</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>253.11</SECTNO> <SUBJECT>Guarantee policy.</SUBJECT> <SECTNO>253.12</SECTNO> <SUBJECT>Guaranteed note, U.S. note, and security documents.</SUBJECT> <SECTNO>253.13</SECTNO> <SUBJECT>Ability and experience requirements.</SUBJECT> <SECTNO>253.14</SECTNO> <SUBJECT>Economic and financial requirements.</SUBJECT> <SECTNO>253.15</SECTNO> <SUBJECT>Miscellaneous.</SUBJECT> <SECTNO>253.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>253.17</SECTNO> <SUBJECT>Demand and payment.</SUBJECT> <SECTNO>253.18</SECTNO> <SUBJECT>Program operating guidelines.</SUBJECT> <SECTNO>253.19</SECTNO> <SUBJECT>Default and liquidation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Interjurisdictional Fisheries</HD> <SECTNO>253.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>253.21</SECTNO> <SUBJECT>Apportionment.</SUBJECT> <SECTNO>253.22</SECTNO> <SUBJECT>State projects.</SUBJECT> <SECTNO>253.23</SECTNO> <SUBJECT>Other funds.</SUBJECT> <SECTNO>253.24</SECTNO> <SUBJECT>Administrative requirements.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>46 U.S.C. 1271-1279 and 16 U.S.C. 4101 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 19172, May 1, 1996, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 253.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(a) The regulations in this part pertain to fisheries assistance programs. Subpart B of these rules governs the Fisheries Obligation Guarantee Program, which guarantees the repayment of certain long-term fisheries and aquacultural debts. This allows those debts to be placed in the same private investment market that buys U.S. Treasury securities, where interest rates are lower and maturities are longer. The Program does all credit work and holds and services all credit collateral. The Program's guarantee fee makes it self-supporting.</P> <P>(b) Subpart C implements Title III of Public Law 99-659 (16 U.S.C. 4100 <E T="03">et seq.</E>), which has two objectives:</P> <P>(1) To promote and encourage State activities in support of the management of interjurisdictional fishery resources identified in interstate or Federal fishery management plans; and</P> <P>(2) To promote and encourage management of interjurisdictional fishery resources throughout their range.</P> <P>(3) The scope of this part includes guidance on making financial assistance awards to States or Interstate Commissions to undertake projects in support of management of interjurisdictional fishery resources in both the exclusive economic zone (EEZ) and State waters, and to encourage States to enter into enforcement agreements with either the Department of Commerce or the Department of the Interior.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Fisheries Obligation Guarantee Program</HD> <SECTION> <SECTNO>§ 253.10</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The terms used in this subpart have the following meanings:</P> <P> <E T="03">Act</E> means Title XI of the Merchant Marine Act, 1936, as amended.</P> <P> <E T="03">Actual cost</E> means project cost (less a 10-percent salvage value), depreciated (excluding land) on a straightline basis at 1-year intervals over the project property's useful life including architectural, engineering, inspection, delivery, outfitting, and interest costs, as well as the cost of any consulting contract the Division requires.</P> <P> <E T="03">Applicant</E> means the one applying for a guarantee (the prospective notemaker).</P> <P> <E T="03">Application</E> means an application for a guarantee.</P> <P> <E T="03">Application fee</E> means 0.5 percent of the dollar amount of an application.</P> <P> <E T="03">Aquacultural facility</E> means land, land structures, water structures, water craft built in the U.S., and equipment for hatching, caring for, or growing fish under controlled circumstances <PRTPAGE P="259"/>and for its unloading, receiving, holding, processing, or distribution for commercial purposes.</P> <P> <E T="03">CCF</E> means Capital Construction Fund.</P> <P> <E T="03">Citizen</E> means a citizen or national of the U.S. who is otherwise also a citizen for the purpose of documenting a vessel in the coastwise trade under section 2 of the Shipping Act, 1916, as amended.</P> <P> <E T="03">Contributory project</E> means any project that contributes to developing the U.S. fishing industry by: Causing any vessel to catch less overutilized species than before; applying new technology; improving safety or fuel efficiency; making project property more efficient, productive, or competitive; potentially increasing fisheries exports; helping develop an underutilized fishery; or enhancing financial stability, financial performance, growth, productivity, or any other business attribute.</P> <P> <E T="03">Demand</E> means a noteholder's request that the guarantor pay a guaranteed note's full principal and interest balance.</P> <P> <E T="03">Division</E> means the Financial Services Division, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.</P> <P> <E T="03">Dual Use CCF</E> means a CCF agreement whose qualified vessel is project property and whose deposits are pledged to repayment of the U.S. note.</P> <P> <E T="03">Facility</E> means a fisheries facility or aquacultural facility.</P> <P> <E T="03">Financing</E> means the first permanent debt placed on project property for financing its project cost.</P> <P> <E T="03">Fish</E> means all forms of aquatic animal and plant life, except marine mammals and birds.</P> <P> <E T="03">Fishery facility</E> means land, land structures, water craft that do not fish, and equipment used for transporting, unloading, receiving, holding, processing, or distributing fish for commercial purposes (including any fishery facility for passenger fishing).</P> <P> <E T="03">Fishing</E> means catching wild fish for commercial purposes (including passenger fishing).</P> <P> <E T="03">Guarantee</E> means the guarantor's contractual promise, backed by the full faith and credit of the United States, to repay a guaranteed note if a notemaker fails to repay it as agreed.</P> <P> <E T="03">Guarantee fee</E> means 1 percent of a guaranteed note's average annual unpaid principal balance.</P> <P> <E T="03">Guaranteed note</E> means a promissory note from a notemaker to a noteholder whose repayment the guarantor guarantees.</P> <P> <E T="03">Guarantor</E> means the U.S., acting, under the Act, by and through the Secretary of Commerce.</P> <P> <E T="03">Industry</E> means the fisheries and/or aquacultural industry.</P> <P> <E T="03">Noteholder</E> means a guaranteed note payee.</P> <P> <E T="03">Notemaker</E> means a guaranteed note payor.</P> <P> <E T="03">Passenger fishing</E> means carrying in vessels for commercial purposes passengers who catch fish.</P> <P> <E T="03">Program</E> means the Fisheries Obligation Guarantee Program.</P> <P> <E T="03">Project</E> means the construction of new project property or the refurbishing or purchase of used project property including architectural, engineering, inspection, delivery, outfitting, and interest costs, as well as the cost of any consulting contract the Division requires.</P> <P> <E T="03">Project property</E> means the vessel or facility involved in a project whose actual cost is eligible under the Act for guarantee and controls the dollar amount of a guaranteed note.</P> <P> <E T="03">Property</E> means the project property and all other property pledged as security for a U.S. note.</P> <P> <E T="03">Qualified</E> means acceptable, in the Division's credit risk judgment, and otherwise meeting the Division's requirements for guarantee.</P> <P> <E T="03">Refinancing</E> means newer debt that either replaces older debt or reimburses applicants for previous expenditures.</P> <P> <E T="03">Refinancing/assumption fee</E> means 0.25 percent of the principal amount of a guaranteed note to be refinanced or assumed.</P> <P> <E T="03">Refurbishing</E> means any reconstruction, reconditioning, or other improvement of used project property involving more than routine repair or maintenance.</P> <P> <E T="03">Security documents</E> mean all collateral securing the U.S. note's repayment and all other assurances, undertakings, and <PRTPAGE P="260"/>contractual arrangements associated with the U.S. note.</P> <P> <E T="03">Underutilized fishery</E> means:</P> <P>(1) For a vessel, any fish species harvested below its sustainable yield.</P> <P>(2) For a fisheries facility, any facility using that species or any for which aggregate facilities are inadequate to best use harvests of that or any other species.</P> <P> <E T="03">U.S.</E> means the United States of America and, for citizenship purposes, includes the Commonwealth of Puerto Rico; American Samoa; the U.S. Virgin Islands; Guam; the Republic of the Marshal Islands; the Federated States of Micronesia; the Commonwealth of the Northern Mariana Islands; any other commonwealth, territory, or possession of the United States; or any political subdivision of any of them.</P> <P> <E T="03">U.S. note</E> means a promissory note payable by the notemaker to the guarantor.</P> <P> <E T="03">Useful life</E> means the period during which project property will, as determined by the Division, remain economically productive.</P> <P> <E T="03">Vessel</E> means any vessel documented under U.S. law and used for fishing.</P> <P> <E T="03">Wise use</E> means the wise use of fisheries resources and their development, advancement, management, conservation, and protection.</P> </SECTION> <SECTION> <SECTNO>§ 253.11</SECTNO> <SUBJECT>Guarantee policy.</SUBJECT> <P>(a) A guarantee financing or refinancing up to 80 percent of a project's actual cost shall be available to any qualified citizen otherwise eligible under the Act and these rules, except:</P> <P>(1) <E T="03">Vessel construction.</E> The Program will not finance this project cost. The Program will only refinance this project cost for an existing vessel whose previous construction cost has already been financed (or otherwise paid). Refinancing this project cost for a vessel that already exists is not inconsistent with wise use, but financing it may be.</P> <P>(2) <E T="03">Vessel refurbishing that materially increases an existing vessel's harvesting capacity.</E> The Program will not finance this project cost. The Program will only refinance this project cost for a vessel whose previous refurbishing cost has already been financed (or otherwise paid). Refinancing this project cost is not inconsistent with wise use, but financing it may be.</P> <P>(3) <E T="03">Purchasing a used vessel or used fishery facility.</E> The Program will neither finance nor refinance this project cost (except for a used vessel or fishery facility that the Program purchased and is reselling), unless the used vessel or fishery facility will be refurbished in the United States and will be a contributory project or it will be used in an underutilized fishery.</P> <P>(b) Every project, other than those specified in paragraphs (a) (1) and (2) of this section, is consistent with wise use and every project, other than those specifically precluded in paragraphs (a) (1) and (2) of this section, may be financed, as well as refinanced.</P> </SECTION> <SECTION> <SECTNO>§ 253.12</SECTNO> <SUBJECT>Guaranteed note, U.S. note, and security documents.</SUBJECT> <P>(a) <E T="03">Guaranteed note—</E>(1) <E T="03">Principal.</E> This may not exceed 80 percent of actual cost, but may, in the Division's credit judgment, be less.</P> <P>(2) <E T="03">Maturity.</E> This may not exceed 25 years, but shall not exceed the project property's useful life and may, in the Division's credit judgment, be less.</P> <P>(3) <E T="03">Interest rate.</E> This may not exceed the amount the Division deems reasonable.</P> <P>(4) <E T="03">Prepayment penalty.</E> The Division will allow a reasonable prepayment penalty, but the guarantor will not guarantee a notemaker's payment of it.</P> <P>(5) <E T="03">Form.</E> This will be the simple promissory note (with the guarantee attached) the Division prescribes, promising only to pay principal, interest, and prepayment penalty.</P> <P>(6) <E T="03">Sole security.</E> The guaranteed note and the guarantee will be the noteholder's sole security.</P> <P>(b) <E T="03">U.S. note and security documents—</E>(1) <E T="03">Form.</E> The U.S. note and security documents will be in the form the Division prescribes.</P> <P>(2) <E T="03">U.S. note.</E> This exists to evidence the notemaker's actual and contingent liability to the guarantor (contingent if the guarantor does not pay the guaranteed note (including any portion of it), on the notemaker's behalf or if the guarantor does not advance any other amounts or incur any other expenses on the notemaker's behalf to protect <PRTPAGE P="261"/>the U.S. or accommodate the notemaker; actual if, and to the same monetary extent that, the guarantor does). Payment of the guaranteed note by anyone