October 11, 2006 CODE OF FEDERAL REGULATIONS 50 Parts 200 to 599 Revised as of October 1, 2006 Wildlife and Fisheries Containing a codification of documents of general applicability and future effect As of October 1, 2006 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 691 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 781 Chapter V—Marine Mammal Commission 841 Finding Aids: Material Approved for Incorporation by Reference 867 Table of CFR Titles and Chapters 869 Alphabetical List of Agencies Appearing in the CFR 887 List of CFR Sections Affected 897

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.

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Title 1 through Title 16

as of January 1

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as of April 1

Title 28 through Title 41

as of July 1

Title 42 through Title 50

as of October 1

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 INCORPORATION BY REFERENCE

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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 202-741-6010.

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 Raymond A. Mosley, Director, Office of the Federal Register. October 1, 2006. THIS TITLE

Title 50—Fish and Wildlife is composed of nine volumes. The parts in these volumes are arranged in the following order: Parts 1-16; part 17 (17.1 to 17.95(b)), part 17 (17.95(c) to End), part 17 (17.96 to 17.99(h)), part 17 (17.99(i) to End and 17.100 to End), parts 18-199, parts 200-599, parts 600-659 and part 660 to End. The first six volumes (parts 1-16, part 17 (17.1 to 17.95(b)), part 17 (17.95(c) to End), part 17 (17.96 to 17.99(h)), part 17 (part 17.99(i) to End and 17.100 to End), and parts 18-199) contain the current regulations issued under chapter I—United States Fish and Wildlife Service, Department of the Interior. The seventh 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 eighth and ninth volumes (parts 600-659 and part 660 to End) contain 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, 2006.

Alphabetical listings of endangered and threatened wildlife and plants appear in §§ 17.11 and 17.12.

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

For this volume, Ruth Green was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Kenneth R. Payne.

 <LRH>50 CFR Ch. II (10-1-06 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> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER II—NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE</HD> </TOCHD> <SUBCHAP> <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> </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>217-220</PT> <RESERVED>[Reserved]</RESERVED> <PT>221</PT> <SUBJECT>Prescriptions in FERC Hydropower Licenses</SUBJECT> <PG>88</PG> <PT>222</PT> <SUBJECT>General endangered and threatened marine species</SUBJECT> <PG>108</PG> <PT>223</PT> <SUBJECT>Threatened marine and anadromous species</SUBJECT> <PG>131</PG> <PT>224</PT> <SUBJECT>Endangered marine and anadromous species</SUBJECT> <PG>210</PG> <PT>225</PT> <RESERVED>[Reserved]</RESERVED> <PT>226</PT> <SUBJECT>Designated critical habitat</SUBJECT> <PG>214</PG> <PT>228</PT> <SUBJECT>Notice and hearing on section 103(d) regulations</SUBJECT> <PG>583</PG> <PT>229</PT> <SUBJECT>Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972</SUBJECT> <PG>589</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—WHALING</HD> </SUBCHAP> <CHAPTI> <PT>230</PT> <SUBJECT>Whaling provisions</SUBJECT> <PG>626</PG> </CHAPTI> <SUBCHAP> <RESERVED>SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—AID TO FISHERIES</HD> </SUBCHAP> <CHAPTI> <PT>253</PT> <SUBJECT>Fisheries assistance programs</SUBJECT> <PG>629</PG> <PT>259</PT> <SUBJECT>Capital construction fund</SUBJECT> <PG>638</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>650<PRTPAGE P="4"/> </PG> <PT>261</PT> <SUBJECT>United States Standards for Grades</SUBJECT> <PG>680</PG> </CHAPTI> <SUBCHAP> <RESERVED>SUBCHAPTERS H-J [RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER K—CONTINENTAL SHELF</HD> </SUBCHAP> <CHAPTI> <PT>296</PT> <SUBJECT>Fishermen's Contingency Fund</SUBJECT> <PG>683</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> <SECTNO>216.17</SECTNO> <SUBJECT>General prohibitions.</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</SECTNO> <SUBJECT>Access to marine mammal tissue, analyses, and data.</SUBJECT> <SECTNO>216.48-216.49</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>Tracking and verification program.</SUBJECT> <SECTNO>216.94</SECTNO> <SUBJECT>False statements or endorsements.</SUBJECT> <SECTNO>216.95</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.<PRTPAGE P="6"/> </SUBJECT> <SECTNO>216.102</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>216.103</SECTNO> <SUBJECT>Definitions.</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 Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, California</HD> <SECTNO>216.110</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.111</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.112</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.113</SECTNO> <SUBJECT>Prohibitions.</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>Letters of Authorization.</SUBJECT> <SECTNO>216.118</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.119</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</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> <RESERVED>Subparts L-M [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Taking of Marine Mammals Incidental to Missile Launch Operations from San Nicolas Island, CA</HD> <SECTNO>216.151</SECTNO> <SUBJECT>Specified activity, geographical region, and incidental take levels.</SUBJECT> <SECTNO>216.152</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.153</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <SECTNO>216.154</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.155</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.156</SECTNO> <SUBJECT>Letter of Authorization.</SUBJECT> <SECTNO>216.157</SECTNO> <SUBJECT>Renewal of the Letter of Authorization.</SUBJECT> <SECTNO>216.158</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subparts O -P [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart Q—Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar</HD> <SECTNO>216.180</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.181</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.182</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.183</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.184</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.185</SECTNO> <SUBJECT>Requirements for monitoring.</SUBJECT> <SECTNO>216.186</SECTNO> <SUBJECT>Requirements for reporting.</SUBJECT> <SECTNO>216.187</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <SECTNO>216.188</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <SECTNO>216.189</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.190</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <SECTNO>216.191</SECTNO> <SUBJECT>Designation of Biologically Important Marine Mammal Areas.</SUBJECT> </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> <SUBPART> <RESERVED>Subparts S-T [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart U—Taking of Marine Mammals Incidental to Rocket Launches from the Kodiak Launch Complex, Kodiak Island, AK</HD> <SECTNO>216.230</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.231</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.232</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.233</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.234</SECTNO> <SUBJECT>Mitigation, monitoring and reporting.</SUBJECT> <SECTNO>216.235</SECTNO> <SUBJECT>Letter of Authorization.</SUBJECT> <SECTNO>216.236</SECTNO> <SUBJECT>Renewal of a Letter of Authorization.<PRTPAGE P="7"/> </SUBJECT> <SECTNO>216.237</SECTNO> <SUBJECT>Modifications to a Letter of Authorization.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1361 <E T="03">et seq.,</E> unless otherwise noted.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>39 FR 1852, Jan. 15, 1974, unless otherwise noted.</P> </SOURCE> <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> <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, 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 limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and <PRTPAGE P="8"/>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 commercial passenger fishing vessel (as defined) activities, but no other sportfishing 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 attempting to give food or non-food items to marine mammals in the wild. It includes 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 company 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>, or <E T="03">FCO</E>, means NOAA Form 370, as described in § 216.24(f)(4).</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">Callorhinus 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, and whether alive or dead, and any part thereof, including but not limited to, any raw, dressed or dyed fur or skin: Cetacea (whales, dolphins, and porpoises) and 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 Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930; or Regional Administrator, Northwest Regional Office, NMFS, 7600 Sandpoint Way, N.E., Building 1, Seattle, WA 98115; or Regional Administrator, Southeast Regional Office, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702; or Regional Administrator, Southwest Regional Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802; or Regional Administrator, Pacific Islands Regional Office, NMFS, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or Regional Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK 99802.</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">South Pacific Tuna Treaty</E> means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (50 CFR part 300, subpart D).</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 unable 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.<PRTPAGE P="12"/> </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 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> <CITA>[39 FR 1852, Jan. 15, 1974]</CITA> <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> </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.<PRTPAGE P="13"/> </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 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 enforce the provisions of the MMPA and may take any actions authorized by the MMPA with respect to enforcement. In addition, 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 provisions 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 <PRTPAGE P="14"/>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 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;<PRTPAGE P="15"/> </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 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 mysticetus</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 truncatus</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 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> <P>(h) Eastern North Pacific Southern Resident stock of killer whales (Orcinus orca). The stock includes all resident killer whales in pods J, K, and L in the waters of, but not limited to, the inland waterways of southern British Columbia and Washington, including the Georgia Strait, the Strait of Juan de Fuca, and Puget Sound.</P> <P>(i) AT1 stock of killer whales (<E T="03">Orcinus orca</E>). The stock includes all killer whales belonging to the AT1 group of transient killer whales occurring primarily in waters of Prince William Sound, Resurrection Bay, and the Kenai Fjords region of Alaska.</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; 68 FR 31983, May 29, 2003; 69 FR 31324, June 3, 2004]</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> <SECTION> <SECTNO>§ 216.17</SECTNO> <SUBJECT>General prohibitions.</SUBJECT> <P>It is unlawful for any person to:<PRTPAGE P="16"/> </P> <P>(a) Assault, resist, oppose, impede, intimidate, threaten, or interfere with any authorized officer in the conduct of any search, inspection, investigation or seizure in connection with enforcement of the MMPA, DPCIA, or IDCPA.</P> <P>(b) Interfere with, delay, or prevent by any means the apprehension of another person, knowing that such person has committed any act prohibited by the MMPA.</P> <P>(c) Resist a lawful arrest for any act prohibited under the MMPA.</P> <P>(d) Make any false statement, oral or written, to an authorized officer concerning any act under the jurisdiction of the MMPA, DPCIA, IDCPA, or attempt to do any of the above.</P> <P>(e) Interfere with, obstruct, delay, or prevent by any means an investigation, search, seizure, or disposition of seized property in connection with enforcement of the MMPA, DPCIA, or IDCPA.</P> <CITA>[70 FR 19008, Apr. 12, 2005]</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:</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.<PRTPAGE P="17"/> </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.</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 <PRTPAGE P="18"/>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:</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;<PRTPAGE P="19"/> </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 leucas</E>) from Cook Inlet, as required by NMFS.</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 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 7th 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 <PRTPAGE P="20"/>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 7th Avenue; its mailing address is: NMFS, Box 43, Anchorage, AK. 99513.</P> <P>(f) <E T="03">Harvest management of Cook Inlet beluga whales</E>—(1) <E T="03">Cooperative management of subsistence harvest.</E> Subject to the provisions of 16 U.S.C. 1371(b) and any further limitations set forth in § 216.23, any taking of a Cook Inlet beluga whale by an Alaska Native must be authorized under an agreement for the co-management of subsistence uses (hereinafter in this paragraph “co-management agreement”) between the National Marine Fisheries Service and an Alaska Native organization(s).</P> <P>(2) <E T="03">Limitations.</E> (i) <E T="03">Sale of Cook Inlet beluga whale parts and products.</E> Authentic Native articles of handicraft and clothing made from nonedible by-products of beluga whales taken in accordance with the provisions of this paragraph may be sold in interstate commerce. The sale of any other part or product, including food stuffs, from Cook Inlet beluga whales is prohibited, provided that nothing herein shall be interpreted to prohibit or restrict customary and traditional subsistence practices of barter and sharing of Cook Inlet beluga parts and products.</P> <P>(ii) <E T="03">Beluga whale calves or adults with calves.</E> The taking of a calf or an adult whale accompanied by a calf is prohibited.</P> <P>(iii) <E T="03">Season.</E> All takings of beluga whales authorized under § 216.23(f) shall occur no earlier than July 1 of each year.</P> <P>(iv) <E T="03">Taking during 2001-2004.</E> The harvest of Cook Inlet beluga whales is restricted during the four-year period of 2001-2004 as follows:</P> <P>(A) <E T="03">Strike limitations.</E> Subject to the suspension provision of subparagraph (C), a total of six (6) strikes, which could result in up to six landings, are to be allocated through co-management agreement(s).</P> <P>(B) <E T="03">Strike allocations.</E> Four strikes, not to exceed one per year, are allocated to the Native Village of Tyonek. The remaining two strikes will be allocated over the 4-year period through co-management agreement with other Cook Inlet community hunters, with no more than one such strike being allocated during every other year.</P> <P>(C) <E T="03">Emergency provisions.</E> Takings of beluga whales authorized under § 216.23 will be suspended whenever unusual mortalities exceed six (6) whales in any year. “Unusual mortalities” include all documented human-caused mortality (including illegal takings and net entanglements but excluding all legally harvested whales) and all documented mortality resulting from unknown or natural causes that occur above normal levels, considered for the purposes of this provision to be twelve beluga whales per year. The level of unusual mortalities shall be calculated by documenting mortality for the calendar year and subtracting twelve. The sum of this result and the carry over of unusual mortality from any previous year from which the population has not recovered is the level of unusual mortalities for the current year. If in any year the number of unusual mortalities exceeds six whales, no strikes will be allowed in that year or in subsequent years until the population has recovered from those mortalities through foregone future harvests and natural recruitment.</P> <P>(v) <E T="03">Taking during 2005 and subsequent years.</E> [Reserved]</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004]</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 U.S. 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.<PRTPAGE P="21"/> </P> <P>(2)(i) It is unlawful for any person using a U.S. 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 U.S. purse seine fishing vessel of greater than 400 st (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 any 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 there is not a DML assigned to that vessel.</P> <P>(v) It is unlawful for any 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 with an assigned DML after a set in which the DML assigned to that vessel has been reached or exceeded.</P> <P>(vi) Alleged violations of the Agreement on the IDCP and/or these regulations identified by the International Review Panel will be considered for potential enforcement action by NMFS.</P> <P>(3) Upon written request made in advance of entering the ETP, the limitations in paragraphs (a)(2)(i) and (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 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 U.S. 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 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 will be 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 U.S. 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)(5) 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, U.S. Coast Guard officers, or designated agents of NMFS or the Inter-American Tropical Tuna Commission (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 permit <PRTPAGE P="22"/>from the Administrator, Southwest Region, allowing at least 15 days for processing. All vessel permit applications must be faxed to (562) 980-4027. An owner or managing owner requesting to have a vessel in excess of 400 st (362.8 mt) carrying capacity for which a DML was requested categorized as active on the Vessel Register under § 300.22(b)(4)(i) of this title must submit to the Administrator, Southwest Region, the vessel permit application, payment of the observer placement fee under paragraph (b)(6)(iii) of this section and payment of the vessel permit application processing fee no later than September 15 of the year prior to the year for which the DML was requested. The owner or managing owner of a vessel in excess of 400 st (362.8 mt) carrying capacity not requesting a DML must submit the vessel permit application, payment of the observer placement fee, and payment of the vessel permit application processing fee no later than November 30 of the year prior to the year for which the vessel permit was requested. An application must 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)(3) 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 and signature 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>. An applicant for an operator permit must provide the following information to the Administrator, Southwest Region, allowing at least 45 days for processing:</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;</P> <P>(iii) The name of the vessel(s) on which the applicant anticipates serving as an operator;</P> <P>(iv) The date, location, and provider of training required under paragraph (c)(5) of this section for the operator permit; and</P> <P>(v) The applicant's signature or the signature of the applicant's representative.</P> <P>(6) <E T="03">Fees</E>—(i) <E T="03">Vessel permit application fees.</E> Payment of the permit application fee is required before NMFS will issue a permit. 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. The amount of the fee will be printed on the vessel permit application form provided by the Administrator, Southwest Region.</P> <P>(ii) <E T="03">Operator permit fee</E>. There is no fee for the operator permit. The Assistant Administrator may require a fee at any time if a 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 observer placement fee supports the placement of observers on individual vessels, and maintenance of the observer program, as established by the IATTC or other approved observer program.</P> <P>(A) The owner or managing owner of a vessel for which a DML has been requested must submit the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than September 15 of the year prior to the calendar year for which the DML was requested. Payment of the observer placement fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title.</P> <P>(B) The owner or managing owner of a vessel for which a DML has not been <PRTPAGE P="23"/>requested, but that is listed on the Vessel Register, as defined in § 300.21 of this title, must submit payment of the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than November 30 of the year prior to the calendar year in which the vessel will be listed on the Vessel Register. Payment of the observer placement fee must be consistent with the vessel's status, either active or inactive, on the Vessel Register in § 300.22(b)(4) of this title.</P> <P>(C) The owner or managing owner of a purse seine vessel that is licensed under the South Pacific Tuna Treaty must submit the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, prior to obtaining an observer and entering the ETP to fish. Consistent with § 300.22(b)(1)(i) of this title, this class of purse seine vessels is not required to be listed on the Vessel Register under § 300.22(b)(4) of this title in order to purse seine for tuna in the ETP during a single fishing trip per calendar year of 90 days or less. Payment of the observer placement fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title.</P> <P>(D) The owner or managing owner of a purse seine vessel listed as inactive on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the observer placement fee associated with active status less the observer placement fee associated with inactive status that was already paid before NMFS will request the IATTC Secretariat change the status of the vessel from inactive to active.</P> <P>(E) The owner or managing owner of a purse seine vessel not listed on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the observer placement fee associated with active status before NMFS will request the IATTC Secretariat change the status of the vessel to active.</P> <P>(F) Payments received after the dates specified in paragraphs (b) (6) (iii)(A) or (B) of this section will be subject to a 10 percent surcharge. The Administrator, Southwest Region, will forward all observer placement fees described in this section to the IATTC or to the applicable 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 observer program approved by 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 <PRTPAGE P="24"/>fishing trip to allow for observer placement on every trip.</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 fishing 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 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 Dolphin Mortality Limits (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)(9) 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 live marine mammals.</E> Except as otherwise authorized by a specific permit, live 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 may 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 centimeters (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, if present, 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.<PRTPAGE P="25"/> </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 if present, 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-shaped 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-shaped 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">Facemask and snorkel, or viewbox.</E> At least two facemasks and snorkels or viewboxes 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 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)(3) 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) <E T="03">Failure to pass inspection.</E> 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 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 fishing pursuant to paragraph (c) of this section 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 crewmember must be deployed during backdown to aid in the release of dolphins. Thereafter, other <PRTPAGE P="26"/>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 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 for an experimental fishing operation waiver by submitting the following information to the Administrator, Southwest Region, no less than 90 days before the date the proposed operation is intended to begin:</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;</P> <P>(G) A statement of the qualifications of the individual or company doing the analysis of the research; and</P> <P>(H) Signature of the permitted operator or of the operator's representative.</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.<PRTPAGE P="27"/> </P> <P>(iii) The Administrator, Southwest Region, after considering the information submitted in the application identified in paragraph (c)(7)(i) of this section and the comments received, will either issue a waiver to conduct the experiment that 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, and 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) O<E T="03">perator 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 U.S. purse seine fishing vessel(s) of carrying capacity greater than 400 st (362.8 mt) 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 U.S. 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-half 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) In accordance with 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 <PRTPAGE P="28"/>dolphins is due to force majeure 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 force majeure 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 that vessel 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. 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 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)(9)(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, as mandated by the Agreement on the IDCP.</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 Secretariat 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 Agreement on 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 force majeure 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 for the remainder of the calendar year:</P> <P>(A) after 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:<PRTPAGE P="29"/> </P> <P>(A) after a set in which the vessel's DML, as adjusted, has been 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>(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 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, or aborting the set at the earliest effective opportunity; and the use of one or more rafts and facemasks or viewboxes 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 necessary 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 that has the purpose or effect of unreasonably interfering with the observer's work performance, or that 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 <PRTPAGE P="30"/>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.</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 paragraph (f)(6) 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 commerce of the nation. For other purposes, “import” is defined in § 216.3.</P> <P>(2) <E T="03">Imports requiring a Fisheries Certificate of Origin.</E> Shipments of tuna, tuna products, and certain other fish products identified by the U.S. Harmonized Tariff Schedule (HTS) numbers listed in paragraphs (f)(2)(i), (f)(2)(ii) and (f)(2)(iii) of this section may not be imported into the United States unless a properly completed Fisheries Certificate of Origin (FCO), NOAA Form 370, is filed with the U.S. Customs Service at the time of importation.</P> <P>(i) <E T="03">HTS numbers requiring a Fisheries Certificate of Origin, subject to yellowfin tuna embargo.</E> The following HTS numbers identify yellowfin tuna or yellowfin tuna products (other than fresh tuna) known to be imported into the United States. All shipments imported into the United States under these HTS numbers must be accompanied by an FCO. The scope of yellowfin tuna embargoes and procedures for attaining an affirmative finding are described under paragraphs (f)(6) and (f)(8) of this section, respectively.</P> <GPOTABLE CDEF="s30,r50" COLS="2" OPTS="L1,i1"> <ROW> <ENT I="01">(A) <E T="03">Frozen:</E> </ENT> </ROW> <ROW> <ENT I="01">0303.42.0020</ENT> <ENT>Yellowfin tuna, whole, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.42.0040</ENT> <ENT>Yellowfin tuna, eviscerated, head on, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.42.0060</ENT> <ENT>Yellowfin tuna, other, frozen</ENT> </ROW> <ROW> <ENT I="01">(B) <E T="03">Airtight Containers:</E> (products containing Yellowfin)</ENT> </ROW> <ROW> <ENT I="01">1604.14.1010</ENT> <ENT>Tuna, non-specific, in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each</ENT> </ROW> <ROW> <ENT I="01">1604.14.1090</ENT> <ENT>Tuna, non-specific, in oil, in airtight containers, other</ENT> </ROW> <ROW> <ENT I="01">1604.14.2291</ENT> <ENT>Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, under quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.2299</ENT> <ENT>Tuna, other than albacore, not in oil, in airtight containers, under quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.3091</ENT> <ENT>Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, over quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.3099</ENT> <ENT>Tuna, other than albacore, not in oil, in airtight containers, over quota</ENT> </ROW> <ROW> <ENT I="01">(C) <E T="03">Loins:</E> (Yellowfin)</ENT> </ROW> <ROW> <ENT I="01">1604.14.4000</ENT> <ENT>Tuna, not in airtight containers, not in oil, weighing with their contents over 6.8 kg</ENT> </ROW> <ROW> <ENT I="01">1604.14.5000</ENT> <ENT>Tuna, not in airtight containers, other</ENT> </ROW> <ROW> <ENT I="01">(D) <E T="03">Other:</E> (products containing Yellowfin)</ENT> </ROW> <ROW> <ENT I="01">0304.20.2066</ENT> <ENT>Other fish, fillets, skinned, in blocks weighing over 4.5 kg, frozen</ENT> </ROW> <ROW> <ENT I="01">0304.20.6096</ENT> <ENT>Other fish, fillets, frozen</ENT> </ROW> <ROW> <ENT I="01">1604.20.2500</ENT> <ENT>Balls and cakes, not in oil, in airtight containers, other</ENT> </ROW> <ROW> <ENT I="01">1604.20.3000</ENT> <ENT>Balls and cakes, other</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 yellowfin tuna identified in paragraph (f)(2)(i)) of this section, known to be imported into the United States. All <PRTPAGE P="31"/>shipments imported into the United States under these HTS numbers must be accompanied by an FCO.</P> <GPOTABLE CDEF="s30,r50" COLS="2" OPTS="L1,i1"> <ROW> <ENT I="01">(A) Frozen:</ENT> </ROW> <ROW> <ENT I="01">0303.41.0000</ENT> <ENT>Albacore or longfinned tunas, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.43.0000</ENT> <ENT>Skipjack, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.44.0000</ENT> <ENT>Bigeye, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.45.0000</ENT> <ENT>Bluefin, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.46.0000</ENT> <ENT>Bluefin Southern, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.49.0100</ENT> <ENT>Other tuna, frozen</ENT> </ROW> <ROW> <ENT I="01">(B) <E T="03">Airtight Containers:</E> (Other than Yellowfin)</ENT> </ROW> <ROW> <ENT I="01">1604.14.1010</ENT> <ENT>Tuna, non-specific, in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each</ENT> </ROW> <ROW> <ENT I="01">1604.14.1090</ENT> <ENT>Tuna, non-specific, in oil, in airtight containers, other</ENT> </ROW> <ROW> <ENT I="01">1604.14.2251</ENT> <ENT>Tuna, albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, under quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.2259</ENT> <ENT>Tuna, albacore, not in oil, in airtight containers, other, under quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.2291</ENT> <ENT>Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, under quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.2299</ENT> <ENT>Tuna, other than albacore, not in oil, in airtight containers, other, under quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.3051</ENT> <ENT>Tuna, albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, over quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.3059</ENT> <ENT>Tuna, albacore, not in oil, in airtight containers, other, over quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.3091</ENT> <ENT>Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, over quota</ENT> </ROW> <ROW> <ENT I="01">1604.14.3099</ENT> <ENT>Tuna, other than albacore, not in oil, in airtight containers, other, over quota</ENT> </ROW> <ROW> <ENT I="01">(C) <E T="03">Loins:</E> (Other than Yellowfin)</ENT> </ROW> <ROW> <ENT I="01">1604.14.4000</ENT> <ENT>Tuna, not in airtight containers, in bulk or in immediate containers weighing with their contents over 6.8 kg, in oil</ENT> </ROW> <ROW> <ENT I="01">1604.14.5000</ENT> <ENT>Tuna, not in airtight containers, other</ENT> </ROW> <ROW> <ENT I="01">(D) <E T="03">Other:</E> (only if the product contains tuna)</ENT> </ROW> <ROW> <ENT I="01">0304.20.2066</ENT> <ENT>Other fish, fillets, skinned, in blocks weighing over 4.5 kg, frozen</ENT> </ROW> <ROW> <ENT I="01">0304.20.6096</ENT> <ENT>Other fish, fillets, frozen</ENT> </ROW> <ROW> <ENT I="01">1604.20.2500</ENT> <ENT>Balls and cakes, not in oil, in airtight containers, other</ENT> </ROW> <ROW> <ENT I="01">1604.20.3000</ENT> <ENT>Balls and cakes, other</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, in addition to 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, as identified under paragraph (f)(7) of this section, 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 statement described in paragraph (f)(4)(xiii) of this section.</P> <GPOTABLE CDEF="s30,r50" COLS="2" OPTS="L1,i1"> <ROW> <ENT I="01">(A) <E T="03">Frozen:</E> </ENT> </ROW> <ROW> <ENT I="01">0303.19.0012</ENT> <ENT>Salmon, chinook, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.19.0022</ENT> <ENT>Salmon, chum, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.19.0032</ENT> <ENT>Salmon, pink, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.19.0052</ENT> <ENT>Salmon, coho, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.19.0062</ENT> <ENT>Salmon, Pacific, non-specific, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.21.0000</ENT> <ENT>Trout, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.22.0000</ENT> <ENT>Salmon, Atlantic and Danube, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.29.0000</ENT> <ENT>Salmonidae, other, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.75.0010</ENT> <ENT>Dogfish, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.75.0090</ENT> <ENT>Other sharks, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.79.2041</ENT> <ENT>Swordfish steaks, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.79.2049</ENT> <ENT>Swordfish, other, frozen</ENT> </ROW> <ROW> <ENT I="01">0303.79.4097</ENT> <ENT>Fish, other, frozen</ENT> </ROW> <ROW> <ENT I="01">0304.20.2066</ENT> <ENT>Fish, fillet, skinned, in blocks, frozen over 4.5 kg</ENT> </ROW> <ROW> <ENT I="01">0304.20.6008</ENT> <ENT>Salmonidae, salmon fillet, frozen</ENT> </ROW> <ROW> <ENT I="01">0304.20.6092</ENT> <ENT>Swordfish fillets, frozen</ENT> </ROW> <ROW> <ENT I="01">0304.20.6096</ENT> <ENT>Fish, fillet, other, frozen</ENT> </ROW> <ROW> <ENT I="01">0307.49.0010</ENT> <ENT>Squid, other, fillet, frozen</ENT> </ROW> <ROW> <ENT I="01">(B) <E T="03">Canned:</E> </ENT> </ROW> <ROW> <ENT I="01">1604.11.2020</ENT> <ENT>Salmon, pink, canned in oil, in airtight containers</ENT> </ROW> <ROW> <ENT I="01">1604.11.2030</ENT> <ENT>Salmon, sockeye, canned in oil, in airtight containers</ENT> </ROW> <ROW> <ENT I="01">1604.11.2090</ENT> <ENT>Salmon, other, canned in oil, in airtight containers</ENT> </ROW> <ROW> <ENT I="01">1604.11.4010</ENT> <ENT>Salmon, chum, canned, not in oil</ENT> </ROW> <ROW> <ENT I="01">1604.11.4020</ENT> <ENT>Salmon, pink, canned, not in oil</ENT> </ROW> <ROW> <ENT I="01">1604.11.4030</ENT> <ENT>Salmon, sockeye, canned, not in oil</ENT> </ROW> <ROW> <ENT I="01">1604.11.4040</ENT> <ENT>Salmon, other, canned, not in oil</ENT> </ROW> <ROW> <ENT I="01">1604.11.4050</ENT> <ENT>Salmon, other, canned, not in oil</ENT> </ROW> <ROW> <ENT I="01">1604.19.2000</ENT> <ENT>Fish, other, in airtight containers, not in oil</ENT> </ROW> <ROW> <ENT I="01">1604.19.3000</ENT> <ENT>Fish, other, in airtight containers, in oil</ENT> </ROW> <ROW> <ENT I="01">1605.90.6050</ENT> <ENT>Squid, loligo, prepared/preserved</ENT> </ROW> <ROW> <ENT I="01">1605.90.6055</ENT> <ENT>Squid, other, prepared/preserved</ENT> </ROW> <ROW> <ENT I="01">(C) <E T="03">Other:</E> </ENT> </ROW> <ROW> <ENT I="01">0305.30.6080</ENT> <ENT>Fish, other, fillet, dried/salted/brine</ENT> </ROW> <ROW> <ENT I="01">0305.49.4040</ENT> <ENT>Fish, other, smoked</ENT> </ROW> <ROW> <ENT I="01">0305.59.2000</ENT> <ENT>Shark fins, dried</ENT> </ROW> <ROW> <ENT I="01">0305.59.4000</ENT> <ENT>Fish, other, dried</ENT> </ROW> <ROW> <ENT I="01">0305.69.4000</ENT> <ENT>Salmon, other, salted (or in brine)</ENT> </ROW> <ROW> <ENT I="01">0305.69.5000</ENT> <ENT>Fish, other, salted (or in brine), in immediate containers, not over 6.8 kg</ENT> </ROW> <ROW> <ENT I="01">0305.69.6000</ENT> <ENT>Fish, other, salted (or in brine)</ENT> </ROW> <ROW> <ENT I="01">0307.49.0050</ENT> <ENT>Squid, other, frozen/dried/salted/brine</ENT> </ROW> <ROW> <ENT I="01">0307.49.0060</ENT> <ENT>Squid, other, & cuttle fish frozen/dried/salted/brine</ENT> </ROW> </GPOTABLE> <P>(3) <E T="03">Disposition of Fisheries Certificates of Origin.</E> The FCO described in paragraph (f)(4) of this section may be obtained from the Administrator, Southwest Region, or downloaded from the Internet at <E T="03">http://swr.nmfs.noaa.gov/noaa370.htm</E>.<PRTPAGE P="32"/> </P> <P>(i) A properly completed FCO and its attached certificates, if applicable, must accompany the required U.S. Customs entry documents that are filed at the time of import.</P> <P>(ii) FCOs and associated certifications, if any, that accompany imported shipments of tuna must be submitted by the importer of record to the Tuna Tracking and Verification Program, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States. FCOs submitted via mail should be sent to Tuna Tracking and Verification Program, Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469. Copies of the documents may be submitted electronically using a secure file transfer protocol (FTP) site. Importers of record interested in submitting FCOs and associated certifications via FTP may contact a representative of the Tuna Tracking and Verification Program at the following email address: <E T="03">SWRTuna.Track@noaa.gov</E>. The Tuna Tracking and Verification Program will facilitate secure transfer and protection of certifications by assigning a separate electronic folder for each importer. Access to the electronic folder will require a user identification and password. The Tuna Tracking and Verification Program will assign each importer a unique user identification and password. Safeguarding the confidentiality of the user identification and password is the responsibility of the importer to whom they are assigned. Copies of the documents may also be submitted via mail either on compact disc or as hard copies. All electronic submissions, whether via FTP or on compact disc, must be in either Adobe Portable Document Format (PDF) or as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or Corel WordPerfect file.</P> <P>(iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in ownership and submitted to the Administrator, Southwest Region, by the last endorser when all required endorsements are completed.</P> <P>(iv) Importers and exporters are required to retain their records, including FCOs, import or export documents, invoices, and bills of lading for 2 years, and such records must be made available within 30 days of a request by the Secretary or the Administrator, Southwest Region.</P> <P>(4) <E T="03">Contents of Fisheries Certificate of Origin.</E> An FCO, certified to be accurate by the exporter(s) 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, eastern Atlantic Ocean, western 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);</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) The name of the harvesting vessel;</P> <P>(xii) Dolphin-safe condition of the shipment, described by checking the appropriate statement on the form and attaching additional certifications if required;</P> <P>(xiii) For shipments harvested by vessels of a nation known to use large-scale driftnets, as determined by the Secretary pursuant to paragraph (f)(7) of this section, the High Seas Driftnet Certification contained on the FCO must be 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>(xiv) Each additional importer, exporter, or processor who takes custody of the shipment must sign and date the <PRTPAGE P="33"/>form to certify that the form and attached documentation accurately describes the shipment of fish that they accompany.</P> <P>(5) <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 (§ 216.90 <E T="03">et seq.</E>).</P> <P>(6) <E T="03">Scope of embargoes</E>—(i) <E T="03">ETP yellowfin tuna embargo.</E> Yellowfin tuna or products of yellowfin tuna 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 jurisdiction over 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)(8) 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) 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 fish or fish products identified by an HTS number listed in paragraph (f)(2) of this section may not be imported into the United States if it is harvested by a large-scale driftnet, or if it is 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 a government official of the large-scale driftnet nation completes, signs and dates the High Seas Driftnet section of the FCO certifying that the fish or fish products were harvested by a method other than large-scale driftnet.</P> <P>(iii) <E T="03">Pelly certification.</E> After 6 months of an embargo being in place against a nation under this section, the Secretary will certify that nation under section 8(a) of the Fishermen's Protective Act (22 U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will terminate the certification under Section 8(d) of that Act (22 U.S.C. 1978(d)).</P> <P>(iv) <E T="03">Coordination.</E> The Assistant Administrator will promptly advise the Department of State and the Department of Homeland Security of embargo decisions, actions, and finding determinations.</P> <P>(7) <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="04">Federal Register,</E> that none of that nation's vessels engage in fishing with large-scale driftnets.</P> <P>(8) <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 annual basis, whether to make an affirmative finding based upon documentary evidence provided by the government of the harvesting nation 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 <PRTPAGE P="34"/>evidence must be submitted by the harvesting nation for the first affirmative finding application. 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 yellowfin tuna and yellowfin tuna products that were harvested by vessels of the nation after March 3, 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>) In any 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>(<E T="03">iii</E>) <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)(8)(i) of this section only 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)(8)(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 that diminish the <PRTPAGE P="35"/>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>(iv) 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)(8)(i) and (f)(8)(ii) of this section, allowing at least 60 days from the submission of complete information to NMFS for processing.</P> <P>(v) The Assistant Administrator will make or renew an affirmative finding for the period from April 1 through March 31 of the following year, or portion thereof, if the harvesting nation has provided all the information and authorizations required by paragraphs (f)(8)(i) and (f)(8)(ii) of this section, and has met the requirements of paragraphs (f)(8)(i) and (f)(8)(ii) of this section.</P> <P>(vi) <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)(8)(i) and (f)(8)(ii) of this section.</P> <P>(9) <E T="03">Intermediary nation.</E> Except as authorized under this paragraph, no yellowfin tuna or yellowfin tuna products harvested by purse seine in the ETP 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.</P> <P>(i) 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.</P> <P>(ii) Shipments of yellowfin tuna that pass through any nation (e.g. on a 'through Bill of Lading') and are not entered for consumption in that nation are not considered to be imports to that nation and thus, would not cause that nation to be considered an intermediary nation under the MMPA.</P> <P>(iii) 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, the import restrictions of this paragraph shall apply.</P> <P>(iv) <E T="03">Changing the status of intermediary nation determinations.</E> Imports from an intermediary nation of yellowfin tuna and yellowfin 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 a notice of such determination 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>(v) 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 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>(10) <E T="03">Fish refused entry.</E> If fish is denied entry under paragraph (f)(2) of this section, the Port Director of Customs shall refuse to release the fish for entry into the United States.</P> <P>(11) <E T="03">Disposition of fish refused entry into the United States.</E> Fish that is denied entry under paragraph (f)(2) of this section and that is not exported under Customs supervision within 90 <PRTPAGE P="36"/>days shall be disposed of under Customs laws and regulations at the importer's expense. 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> (i) 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>(A) Dolphin-safe under subpart H of this part; or</P> <P>(B) 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 an applicant nation to become a member of the IATTC.</P> <P>(ii) It is unlawful for any exporter, transshipper, importer, processor, or wholesaler/distributor to possess, sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals unless the label or mark complies with the requirements of 16 U.S.C. 1385(d).</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. Penalties for violating these regulations may include, but are not limited to, civil monetary fines, permit suspension or revocation, and reductions in current and future DMLs. Recommended sanctions are identified in the IDCPA/DPCIA Tuna/Dolphin Civil Administrative Penalty Schedule. Procedures for the imposition of penalties under the MMPA are found at 15 CFR part 904.</P> <CITA>[69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005]</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 collected from 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 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 <PRTPAGE P="37"/>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;</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;<PRTPAGE P="38"/> </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 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 <PRTPAGE P="39"/>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 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 <PRTPAGE P="40"/>(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 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<PRTPAGE P="41"/> </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 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> <PRTPAGE P="42"/> <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 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]<PRTPAGE P="43"/> </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 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;<PRTPAGE P="44"/> </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> <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, <PRTPAGE P="45"/>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 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<PRTPAGE P="46"/> </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</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 <PRTPAGE P="47"/>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 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 <PRTPAGE P="48"/>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> (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.</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;<PRTPAGE P="49"/> </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, 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:<PRTPAGE P="50"/> </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</SECTNO> <SUBJECT>Access to marine mammal tissue, analyses, and data.</SUBJECT> <P>(a) <E T="03">Applications for the National Marine Mammal Tissue Bank samples (NMMTB)</E>. (1) A principal investigator, contributor or holder of a scientific research permit issued in accordance with the provisions of this subpart may apply for access to a tissue specimen sample in the NMMTB. Applicants for tissue specimen samples from the NMMTB must submit a signed written request with attached study plan to the Marine Mammal Health and Stranding Response Program (MMHSRP) Program Manager, Office of Protected Resources, NMFS. The written request must include:</P> <P>(i) A clear and concise statement of the proposed use of the banked tissue specimen. The applicant must demonstrate that the proposed use of the banked tissue is consistent with the goals of the NMMTB and the MMHSRP.</P> <P>(A) The goals of the MMHSRP are to facilitate the collection and dissemination of reference data on marine mammals and health trends of marine mammal populations in the wild; to correlate the health of marine mammals and marine mammal populations in the wild with available data on physical, chemical, and biological environmental parameters; and to coordinate effective responses to unusual mortality events.</P> <P>(B) The goal of the NMMTB is to maintain quality controlled marine mammal tissues that will permit retrospective analyses to determine environmental trends of contaminants and other analytes of interest and that will provide the highest quality samples for analyses using new and innovative techniques.</P> <P>(ii) A copy of the applicant's scientific research permit. The applicant must demonstrate that the proposed use of the banked tissue is authorized by the permit;</P> <P>(iii) Name of principal investigator, official title, and affiliated research or academic organization;</P> <P>(iv) Specific tissue sample and quantity desired;</P> <P>(v) Research facility where analyses will be conducted. The applicant must demonstrate that the research facility will follow the Analytical Quality Assurance (AQA) program, which was designed to ensure the accuracy, precision, level of detection, and intercompatibility of data resulting from chemical analyses of marine mammal tissues. The AQA consists of annual interlaboratory comparisons and the development of control materials and standard reference materials for marine mammal tissues;</P> <P>(vi) Verification that funding is available to conduct the research;</P> <P>(vii) Estimated date for completion of research, and schedule/date of subsequent reports;</P> <P>(viii) Agreement that all research findings based on use of the banked tissue will be reported to the NMMTB, MMHSRP Program Manager and the <PRTPAGE P="51"/>contributor; and the sequences of tissue specimen samples that are used/released for genetic analyses (DNA sequencing) will be archived in the National Center for biotechnology Information's GenBank. Sequence accessions in GenBank should document the source, citing a NIST field number that indentifies the animal; and</P> <P>(ix) Agreement that credit and acknowledgment will be given to U.S. Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National Institute of Standards and Technology (NIST), the Minerals Management Service (MMS), NMFS, the NMMTB, and the collector for use of banked tissues.</P> <P>(2) The applicant shall insert the following acknowledgment in all publications, abstracts, or presentations based on research using the banked tissue:</P> <EXTRACT> <P>The specimens used in this study were collected by [the contributor] and provided by the National Marine Mammal Tissue Bank, which is maintained in the National Biomonitoring Specimen Bank at NIST and which is operated under the direction of NMFS with the collaboration of MMS, USGS, USFWS, and NIST through the Marine Mammal Health and Stranding Response Program [and the Alaska Marine Mammal Tissue Archival Project if the samples are from Alaska].</P> </EXTRACT> <P>(3) Upon submission of a complete application, the MMHSRP Program Manager will send the request and attached study plan to the following entities which will function as the review committee:</P> <P>(i) Appropriate Federal agency (NMFS or USFWS) marine mammal management office for that particular species; and</P> <P>(ii) Representatives of the NMMTB Collaborating Agencies (NMFS, USFS, USGS Biological Resources Division, and NIST) If no member of the review committee is an expert in the field that is related to the proposed research activity, any member may request an outside review of the proposal, which may be outside of NMFS or USFWS but within the Federal Government.</P> <P>(4) The MMHSRP Program Manager will send the request and attached study plan to any contributor(s) of the tissue specimen sample. The contributor(s) of the sample may submit comments on the proposed research activity to the Director, Office of Protected Resources within 30 days of the date that the request was sent to the contributor(s).</P> <P>(5) The USFWS Representative of the NMMTB Collaborating Agencies will be chair of review committees for requests involving species managed by the DOI. The MMHSRP Program Manager will be chair of all other review committees.</P> <P>(6) Each committee chair will provide recommendations on the request and an evaluation of the study plan to the Director, Office of Protected Resources, NMFS.</P> <P>(7) The Director, Office of Protected Resources, NMFS, will make the final decision on release of the samples based on the advice provided by the review committee, comments received from any contributor(s) of the sample within the time provided in paragraph (a)(4) of this section, and determination that the proposed use of the banked tissue specimen is consistent with the goals of the MMHSRP and the NMMTB. The Director will send a written decision to the applicant and send copies to all review committee members. If the samples are released, the response will indicate whether the samples have been homogenized and, if not, the homogenization schedule.</P> <P>(8) The applicant will bear all shipping and homogenization costs related to use of any specimens from the NMMTB.</P> <P>(9) The applicant will dispose of the tissue specimen sample consistent with the provisions of the applicant's scientific research permit after the research is completed, unless the requester submits another request and receives approval pursuant to this section. The request must be submitted within three months after the original project has been completed.</P> <P>(b) [Reserved]</P> <CITA>[69 FR 41979, July 13, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§§ 216.48-216.49</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 <PRTPAGE P="52"/>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.</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:<PRTPAGE P="53"/> </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 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 cooperate 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 research purposes. In addition, Pribilovians who take fur seals for subsistence 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 <PRTPAGE P="54"/>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 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> <SECTION> <PRTPAGE P="55"/> <SECTNO>§ 216.90</SECTNO> <SUBJECT>Purposes.</SUBJECT> <P>This subpart governs the requirements for using the official mark described in § 216.95 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>[69 FR 55307, Sept. 13, 2004]</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 216.93 are met;</P> <P>(ii) No dolphins were killed or seriously injured during the sets in which the tuna were caught; and</P> <P>(iii) None of the tuna were caught on a trip using a purse seine net intentionally deployed on or to encircle dolphins, provided that this paragraph (a)(1)(iii) will not apply if the Assistant Administrator publishes a notification in the <E T="04">Federal Register</E> announcing a finding under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse seine nets on or encirclement of dolphins is not having a significant adverse impact on any depleted stock.</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 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 trip 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 trip 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 § 216.95, may not be labeled with any other label or mark that refers to dolphins, porpoises, or marine mammals.</P> <CITA>[69 FR 55307, Sept. 13, 2004]</CITA> </SECTION> <SECTION> <PRTPAGE P="56"/> <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 only if the following requirements are met:</P> <P>(1) Tuna Tracking Forms containing a complete record of all the fishing activities on the trip, certified by the vessel Captain and the observer, are submitted to the Administrator, Southwest Region, at the end of the fishing trip during which the tuna was harvested;</P> <P>(2) The tuna is delivered for processing to 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 § 216.93; and</P> <P>(3) The tuna or tuna products meet the dolphin-safe labeling standards under § 216.91.</P> <P>(b) <E T="03">Imported tuna.</E> (1) Yellowfin tuna or tuna products harvested in the ETP by vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States may be labeled dolphin-safe only if the yellowfin 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 under § 216.24(f)(8).</P> <P>(2) Tuna or tuna products, other than yellowfin tuna, 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 may be labeled dolphin-safe only if:</P> <P>(i) 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 is a Party to the Agreement on the IDCP or has applied to become a Party and is adhering to all the requirements of the Agreement on the IDCP Tuna Tracking and Verification Plan;</P> <P>(ii) The tuna or tuna products are accompanied by a properly completed FCO; and</P> <P>(iii) The tuna or tuna products are accompanied by valid documentation signed by a representative of the appropriate IDCP member nation, containing the harvesting vessel names and tuna tracking form numbers represented in the shipment, and certifying that:</P> <P>(A) There was an IDCP approved observer on board the vessel(s) during the entire trip(s); and</P> <P>(B) The tuna contained in the shipment were caught according to the dolphin-safe labeling standards of § 216.91.</P> <CITA>[69 FR 55307, Sept. 13, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.93</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 and 216.92. The tracking program includes procedures and reports for use when importing tuna into the United States and during U.S. purse seine fishing, processing, and marketing in the United States 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 Agreement on 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 a unique 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 the date, well number, weights by species composition, estimated tons loaded, and additional notes, if any. The observer and the vessel engineer initial the entry as soon as possible following 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 <PRTPAGE P="57"/>forms is accurate. TTFs are confidential official documents of the IDCP, consistent with Article XVIII of the Agreement on the IDCP, and the Agreement on the IDCP Rules of Confidentiality.</P> <P>(b) <E T="03">Dolphin-Safe Certification.</E> Upon request, the Office of the Administrator, Southwest Region, will provide written certification that tuna harvested by U.S. purse seine vessels greater than 400 st (362.8 mt) carrying capacity is dolphin-safe, but only if NMFS' review of the TTFs for the subject trip shows that the tuna for which the certification is requested is dolphin-safe under the requirements of the Agreement on the IDCP and U.S. law.</P> <P>(c) <E T="03">Tracking fishing operations.</E> (1) During ETP fishing trips by purse seine vessels greater than 400 st (362.8 mt) carrying capacity, 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. 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 is considered non-dolphin-safe tuna. The observer will change the designation of a dolphin-safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dolphin died or was seriously injured.</P> <P>(2) The captain, managing owner, or vessel agent of a U.S. purse seine vessel greater than 400 st (362.8 mt) 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>(3) 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>(4) 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>(5)(i) When ETP caught tuna is offloaded from a U.S. purse seine vessel greater than 400 st (362.8 mt) 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 seine vessel to receive the TTFs from the vessel observer and to monitor the handling of dolphin-safe and non-dolphin-safe tuna.</P> <P>(ii) If a NMFS representative does not meet the vessel in port at the time of arrival, the captain of the vessel or the vessel's managing office must assure delivery of the TTFs to the Administrator, Southwest Region, from that location within 5 working days of the end of the trip. Alternatively, if the captain approves and notifies the Administrator, Southwest Region, the captain may entrust the observer to deliver the signed TTFs to the local office of the IATTC.</P> <P>(iii) When ETP caught tuna is offloaded from a U.S. purse seine vessel greater than 400 st (362.8 mt) carrying capacity directly to a processing facility located outside the jurisdiction of the United States in a country that is a Party to the Agreement on the IDCP, the national authority in whose area of jurisdiction the tuna is to be processed will assume the responsibility for tracking and verification of the tuna <PRTPAGE P="58"/>offloaded. If a representative of the national authority meets the vessel in port, that representative will receive the original TTFs and assume the responsibility for providing copies of the TTFs to the Administrator, Southwest Region. If a representative of the national authority does not meet the vessel, the fishing vessel captain or the vessel's managing office must assure delivery of the completed TTFs in accordance with paragraphs (ii) and (v) of this section.</P> <P>(iv) When ETP caught tuna is offloaded from a U.S. purse seine vessel greater than 400 st (362.8 mt) carrying capacity in a country that is not a Party to the Agreement on the IDCP, the tuna becomes the tracking and verification responsibility of the national authority of the processing facility when it is unloaded from the fishing vessel. The captain or the vessel's managing office must assure delivery of the completed TTFs in accordance with paragraphs (ii) and (v) of this section.</P> <P>(v) TTFs are confidential documents of the IDCP. Vessel captains and managing offices may not provide copies of TTFs to any representatives of private organizations or non-member states.</P> <P>(d) <E T="03">Tracking cannery operations.</E> (1) Whenever a U.S. tuna canning company in the 50 states, Puerto Rico, or American Samoa receives a domestic or imported shipment of ETP caught tuna for processing, a NMFS representative may be present to monitor delivery and verify that dolphin-safe and non-dolphin-safe tuna are clearly identified and remain segregated. Such inspections may be scheduled or unscheduled, and canners must allow the NMFS representative access to all areas and records.</P> <P>(2) 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> dolphin-safe status, species, condition (round, loin, dressed, gilled and gutted, other), weight in short tons to the fourth decimal, ocean area of capture (ETP, 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 (d)(2)(i) of this section, a copy of the FCO for each imported receipt must be provided.</P> <P>(3) Tuna processors must report on a monthly basis the amounts of ETP-caught tuna that were immediately utilized upon receipt or removed from cold storage. This report may be submitted in conjunction with the monthly report required in paragraph (d)(2) of this section. This report must contain:</P> <P>(i) The date of removal from cold storage or disposition;</P> <P>(ii) Storage container or lot identifier number(s) and dolphin-safe or non-dolphin-safe designation of each container or lot; 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 during 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>(e) <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)(2). For tuna tracking purposes, copies of FCOs and associated certifications must be submitted by the importer of record to the Administrator, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States as required by § 216.24(f)(3)(ii).</P> <P>(f) <E T="03">Verification requirements</E>—(1) <E T="03">Record maintenance.</E> Any exporter, transshipper, importer, processor, or wholesaler/distributor of any tuna or tuna products must maintain records related to that tuna for at least 2 years. These records include, but are <PRTPAGE P="59"/>not limited to: FCOs and required certifications, any reports required in paragraphs (a), (b) and (d) 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 shipment of tuna or tuna products, any exporter, transshipper, importer, processor, wholesaler/distributor of tuna or tuna products must submit to the Administrator, Southwest Region, all corresponding FCOs and required certifications for those tuna or tuna products.</P> <P>(3) <E T="03">Audits and spot checks.</E> Upon request of the Administrator, Southwest Region, any exporter, transshipper, importer, processor, or wholesaler/distributor of tuna or tuna products must provide the Administrator, Southwest Region, timely access to all pertinent records and facilities to allow for audits and spot-checks on caught, landed, stored, and processed tuna.</P> <P>(g) <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>[69 FR 55307, Sept. 13, 2004, as amended at 70 FR 19009, Apr. 12, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.94</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> <CITA>[61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.95</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="60"/> <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 <E T="03">http://swr.ucsd.edu/dsl.htm.</E> </P> <CITA>[65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004]</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 <PRTPAGE P="61"/>marine mammal(s) and will not have 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="62"/> </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="63"/> </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="64"/> </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="65"/>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="66"/>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 Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>71 FR 40932, July 19, 2006, unless otherwise noted.</P> </SOURCE> <EFFDNOTP> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 71 FR 40932, July 19, 2006, Subpart J consisting of §§ 216.110 through 216.119 were added, effective July 4, 2006 through July 3, 2011.</P> </EFFDNOTP> <SECTION> <SECTNO>§ 216.110</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>(a) Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the MBNMS.</P> <P>(b) The incidental take, by Level B harassment only, of marine mammals under the activity identified in this section is limited to the following species: California sea lions (<E T="03">Zalophus californianus</E>) and Pacific harbor seals (<E T="03">Phoca vitulina</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.111</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from July 4, 2006, through July 3, 2011.</P> </SECTION> <SECTION> <SECTNO>§ 216.112</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 216.117, the Holder of the Letter of Authorization (i.e. the Superintendent of MBNMS) may incidentally, but not intentionally, take marine mammals by Level B harassment only, within the area described in § 216.110(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.</P> <P>(b) The activities identified in § 216.110(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.</P> <P>(c) The taking of marine mammals is authorized for the species listed in § 216.110(b) and is limited to the Level B Harassment of no more than 6,170 California sea lions and 1,065 harbor seals annually.</P> </SECTION> <SECTION> <SECTNO>§ 216.113</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings contemplated in § 216.110 and authorized by a Letter of Authorization issued under §§ 216.106 and 216.117, no person in connection with the activities described in § 216.110 may:</P> <P>(a) Take any marine mammal not specified in § 216.110(b);</P> <P>(b) Take any marine mammal specified in § 216.110(b) other than by incidental, unintentional Level B harassment;</P> <P>(c) Take a marine mammal specified in § 216.110(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 these regulations or a Letter of Authorization issued under §§ 216.106 and 216.117.</P> </SECTION> <SECTION> <SECTNO>§ 216.114</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>(a) The activity identified in § 216.110(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.110(a), all the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 216.117 must be implemented, including but not limited to:</P> <P>(1) Limiting the location of the authorized fireworks displays to the four specifically prescribed areas at Half <PRTPAGE P="67"/>Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek);</P> <P>(2) Limiting the total frequency of authorized fireworks displays to no more than 20 total displays per year and the average frequency to no more than one fireworks display every two months in each of the four conditional display areas;</P> <P>(3) Limiting the duration of authorized individual fireworks displays to no longer than 30 minutes each, with the exception of two longer shows not to exceed 1 hour;</P> <P>(4) Prohibiting fireworks displays at MBNMS between March 1 and June 30 of any year; and</P> <P>(5) Implementing the following special conditions for fireworks when authorizing fireworks displays at the MBNMS:</P> <P>(i) Delay of aerial “salute” effects until five minutes after the commencement of any fireworks display.</P> <P>(ii) Removal of all plastic labels and wrappings from pyrotechnic devices prior to use.</P> <P>(iii) Required recovery of all fireworks related debris from the launch site and affected beaches on the evening of the display and again on the morning after.</P> <P>(b) The mitigation measures that the individuals conducting the fireworks are responsible for shall be included as a requirement in any Authorization the MBNMS issues to the individuals.</P> </SECTION> <SECTION> <SECTNO>§ 216.115</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) The Holder of the Letter of Authorization issued pursuant to §§ 216.106 and 216.117 for activities described in § 216.110(a) is required to cooperate with the National Marine Fisheries Service (NMFS), and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. The Holder of the Letter of Authorization must notify the Director, Office of Protected Resources, National Marine Fisheries Service, or designee, by telephone (301-713-2289), within 48 hours if the authorized activity identified in § 216.110(a) is thought to have resulted in the mortality or injury of any marine mammals, or in any take of marine mammals not identified in § 216.110(b).</P> <P>(b) The Holder of the Letter of Authorization must conduct all monitoring and/or research required under the Letter of Authorization including, but not limited to:</P> <P>(1) A one-time comprehensive pinniped census at the City of Monterey Fourth of July Celebration in 2007;</P> <P>(2) A one-time acoustic measurement of the Monterey Fourth of July Celebration in 2007;</P> <P>(3) Counts of pinnipeds in the impact area prior to all displays at all locations; and</P> <P>(4) Reporting to NMFS of all marine mammal injury or mortality encountered during debris cleanup the morning after every fireworks display authorized by the Sanctuary.</P> <P>(c) Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must submit a draft annual monitoring report to the Director, Office of Protected Resources, NMFS, no later than 60 days after the conclusion of each calendar year. This report must contain;</P> <P>(1) An estimate of the number of marine mammals disturbed by the authorized activities,</P> <P>(2) Results of the monitoring required in § 216.115 (b) and (c) and any additional information required by the Letter of Authorization. A final annual monitoring report must be submitted to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final annual monitoring report.</P> <P>(d) A draft comprehensive monitoring report on all marine mammal monitoring and research conducted during the period of these regulations must be submitted to the Director, Office of Protected Resources, NMFS at least 120 days prior to expiration of these regulations or 120 days after the expiration of these regulations if renewal of the regulations will not be requested. A final comprehensive monitoring report must be submitted to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from <PRTPAGE P="68"/>NMFS, the draft report will be considered to be the final comprehensive monitoring report.</P> </SECTION> <SECTION> <SECTNO>§ 216.116</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>To incidentally take marine mammals pursuant to these regulations, the U.S. citizen (as defined by § 216.103) conducting the activity identified in § 216.110(a) must apply for and obtain either an initial Letter of Authorization in accordance with §§ 216.117 or a renewal under § 216.118.</P> </SECTION> <SECTION> <SECTNO>§ 216.117</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart, subject to annual renewal pursuant to the conditions in § 216.118.</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 (i.e., mitigation); and</P> <P>(3) Requirements for mitigation, monitoring and reporting.</P> <P>(c) Issuance and renewal of the Letter of Authorization will be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected species or stock of marine mammal(s).</P> <P>(d) The U.S. Citizen, i.e., the MBNMS, operating under an LOA must clearly describe in any Sanctuary Authorizations issued to the individuals conducting fireworks displays, any requirements of the LOA for which the individuals conducting fireworks are responsible.</P> </SECTION> <SECTION> <SECTNO>§ 216.118</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 and § 216.117 for the activity identified in § 216.110(a) will be renewed annually upon:</P> <P>(1) Notification to NMFS that the activity described in the application submitted under § 216.116 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;</P> <P>(2) Timely receipt of the monitoring reports required under § 216.115(b), and the Letter of Authorization issued under § 216.117, which has been reviewed and accepted by NMFS; and</P> <P>(3) A determination by the NMFS that the mitigation, monitoring and reporting measures required under § 216.114 and the Letter of Authorization issued under §§ 216.106 and 216.117, 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 216.118 indicates that a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season will occur, the NMFS will provide the public a period of 30 days for review and comment on the request. Review and comment on renewals of Letters of Authorization are restricted to:</P> <P>(1) New cited information and data indicating that the determinations made in this document are in need of reconsideration, and</P> <P>(2) Proposed changes to the mitigation and monitoring requirements contained in these regulations or in the current Letter of Authorization.</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>.</P> </SECTION> <SECTION> <SECTNO>§ 216.119</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization by NMFS, issued pursuant to §§ 216.106 and 216.117 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 § 216.118, without modification (except for the period of validity), is not considered a substantive modification.<PRTPAGE P="69"/> </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 § 216.110(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.117 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> <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>69 FR 5727, Feb. 6, 2004, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 69 FR 5727, Feb. 6, 2004, subpart K, consisting of §§ 216.120 through 216.128 were added, effective Feb. 6, 2004, through Feb. 6, 2009.</P> </EFFDNOT> <SECTION> <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 30 space and missiles vehicles each year from Vandenberg Air Force Base, for a total of up to 150 missiles and rockets over the 5-year period of these regulations,</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 period of these regulations,</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 vitulina</E>), California sea lions (<E T="03">Zalophus californianus</E>), northern elephant seals (<E T="03">Mirounga angustirostris</E>), and northern fur seals (<E T="03">Callorhinus ursinus</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.121</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from February 6, 2004, through February 6, 2009.</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>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 practicable, 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 haul-outs and rookeries (<E T="03">e.g.,</E> Point Sal, Purisima Point, Rocky Point), except in emergencies or for real-time security incidents (<E T="03">e.g.,</E> 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, holders of Letters of Authorization must avoid, whenever possible, <PRTPAGE P="70"/>launches during the harbor seal pupping season of March through June, unless constrained by factors including, but not limited to, human safety, national security, or for space vehicle launch trajectory necessary to meet mission objectives.</P> <P>(3) VAFB must avoid, whenever possible, launches which are predicted to produce a sonic boom on the Northern Channel Islands during harbor seal, elephant seal, and California sea lion pupping seasons, March through June.</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 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 uthorization.</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, approved in advance by the National Marine Fisheries Service, 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 occurring during the harbor seal pupping season (1 March through 30 June) and continue for a period of time not less than 48 hours subsequent to launching,</P> <P>(2) For launches during the harbor seal pupping season (March through June), conduct follow-up surveys within 2 weeks of the launch to ensure that there were no adverse effects on any marine mammals,</P> <P>(3) Monitor haul-out sites on the Northern Channel Islands, if it is determined by modeling that a sonic boom of greater than 1 psf could occur in those areas (this determination will be made in consultation with the National Marine Fisheries Service),</P> <P>(4) Investigate the potential for spontaneous abortion, disruption of effective female-neonate bonding, and other reproductive dysfunction,</P> <P>(5) Supplement observations on Vandenberg and on the Northern Channel Islands with video-recording of mother-pup seal responses for daylight launches during the pupping season,</P> <P>(6) Conduct acoustic measurements of those launch vehicles that have not had sound pressure level measurements made previously, and</P> <P>(7) Include multiple surveys each day that record the species, number of animals, general behavior, presence of pups, age class, gender and reaction to launch noise, sonic booms or other natural or human caused disturbances, in addition to recording environmental conditions such as tide, wind speed, air temperature, and swell.</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,<PRTPAGE P="71"/> </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 that were likely the result of launch noise or the sonic boom.</P> <P>(e) An annual report must be submitted at the time of renewal of the LOA.</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 in 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> <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 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), if determined by the Assistant Administrator to be acceptable; and</P> <P>(b) A determination that the mitigation measures required under § 216.124 and the Letter of Authorization have been undertaken.</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 a Letter of Authorization 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), a Letter of Authorization may be substantively modified without prior notice and 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> <RESERVED>Subparts L-M [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Taking of Marine Mammals Incidental to Missile Launch Operations from San Nicolas Island, CA</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>68 FR 52138, Sept. 2, 2003, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 68 FR 52138, Sept. 2, 2003, Subpart N, consisting of §§ 216.151 through 216.158 were added, effective Oct. 2, 2003, through Oct. 2, 2008.</P> </EFFDNOT> <SECTION> <PRTPAGE P="72"/> <SECTNO>§ 216.151</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 target missile launch activities at the Naval Air Warfare Center Weapons Division facilities on San Nicolas Island, California.</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: northern elephant seals (<E T="03">Mirounga angustirostris</E>), harbor seals (<E T="03">Phoca vitulina</E>), and California sea lions (<E T="03">Zalophus californianus</E>).</P> <P>(c) This Authorization is valid only for activities associated with the launching of a total of 40 Vandal (or similar sized) vehicles from Alpha Launch Complex and smaller missiles and targets from Building 807 on San Nicolas Island, California.</P> </SECTION> <SECTION> <SECTNO>§ 216.152</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from October 2, 2003 through October 2, 2008.</P> </SECTION> <SECTION> <SECTNO>§ 216.153</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 those marine mammal species specified in § 216.151(b) by Level B harassment, in the course of conducting target missile launch activities within the area described in § 216.151(a), provided all terms, conditions, and requirements of these regulations and such Letter of Authorization are complied with.</P> <P>(b) The activity specified in § 216.151 must be conducted in a manner that minimizes, to the greatest extent possible, adverse impacts on marine mammals and their habitat. When conducting these activities, the following mitigation measures must be utilized:</P> <P>(1) The holder of the Letter of Authorization must prohibit personnel from entering pinniped haul-out sites below the missile's predicted flight path for 2 hours prior to planned missile launches.</P> <P>(2) The holder of the Letter of Authorization must avoid launch activities during harbor seal pupping season (February to April), when operationally practicable.</P> <P>(3) The holder of this Authorization must limit launch activities during other pinniped pupping seasons, when operationally practicable.</P> <P>(4) The holder of the Letter of Authorization must not launch Vandal target missiles from the Alpha Complex at low elevation (less than 1,000 feet (304.8 m) on launch azimuths that pass close to pinniped haul-out sites).</P> <P>(5) The holder of the Letter of Authorization must avoid, where practicable, launching multiple target missiles in quick succession over haul-out sites, especially when young pups are present.</P> <P>(6) The holder of the Letter of Authorization must limit launch activities during nighttime hours when operationally practicable.</P> <P>(7) Aircraft and helicopter flight paths must maintain a minimum altitude of 1,000 feet (304.8 m) from pinniped haul-outs.</P> <P>(8) If injurious or lethal take is discovered during monitoring conducted under § 216.155, the holder of the Letter of Authorization must contact the Regional Administrator, Southwest Region, National Marine Fisheries Service, or his/her designee, at (562) 980-4023 within 48 hours and, in cooperation with the National Marine Fisheries Service, launch procedure, mitigation measures, and monitoring methods must be reviewed and appropriate changes made prior to the next launch.</P> <P>(9) If post-test surveys determine that an injurious or lethal take of a marine mammal has occurred, the test procedure and the monitoring methods must be reviewed and appropriate changes must be made prior to conducting the next missile launch.</P> </SECTION> <SECTION> <SECTNO>§ 216.154</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.151(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, <PRTPAGE P="73"/>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, or in a manner not authorized, in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 216.155</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.</P> <P>(b) The National Marine Fisheries Service must be notified immediately of any changes or deletions to any portions of the proposed monitoring plan submitted in accordance with the Letter of Authorization.</P> <P>(c) The holder of the Letter of Authorization must designate biologically trained, on-site observer(s), approved in advance by the National Marine Fisheries Service, to record the effects of the launch activities and the resulting noise on pinnipeds.</P> <P>(d) The holder of the Letter of Authorization must implement the following monitoring measures:</P> <P>(1) <E T="03">Visual Land-Based Monitoring.</E> (i) Prior to each missile launch, an observer(s) will place 3 autonomous digital video cameras overlooking chosen haul-out sites located varying distances from the missile launch site. Each video camera will be set to record a focal subgroup within the larger haul-out aggregation for a maximum of 4 hours or as permitted by the videotape capacity.</P> <P>(ii) Systematic visual observations, by observers described in paragraph (c) of this section, on pinniped presence and activity will be conducted and recorded in a field logbook a minimum of 2 hours prior to the estimated launch time and for at least 1 hour immediately following the launch of all launch vehicles.</P> <P>(iii) Documentation, both via autonomous video camera and human observer, will consist of:</P> <P>(A) Numbers and sexes of each age class in focal subgroups;</P> <P>(B) Description and timing of launch activities or other disruptive event(s);</P> <P>(C) Movements of pinnipeds, including number and proportion moving, direction and distance moved, and pace of movement;</P> <P>(D) Description of reactions;</P> <P>(E) Minimum distances between interacting and reacting pinnipeds;</P> <P>(F) Study location;</P> <P>(G) Local time;</P> <P>(H) Substratum type;</P> <P>(I) Substratum slope;</P> <P>(J) Weather condition;</P> <P>(K) Horizontal visibility; and</P> <P>(L) Tide state.</P> <P>(2) <E T="03">Acoustic Monitoring.</E> (i) During all target missile launches, calibrated recordings of the levels and characteristics of the received launch sounds will be obtained from 3 different locations of varying distances from the target missile's flight path. To the extent practicable, these acoustic recording locations will correspond with the haul-out sites where video and human observer monitoring is done.</P> <P>(ii) Acoustic recordings will be supplemented by the use of radar and telemetry systems to obtain the trajectory of target missiles in three dimensions.</P> <P>(iii) Acoustic equipment used to record launch sounds will be suitable for collecting a wide range of parameters, including the magnitude, characteristics, and duration of each target missile.</P> <P>(e) The holder of the Letter of Authorization must implement the following reporting requirements:</P> <P>(1) For each target missile launch, the lead contractor or lead observer for the holder of the Letter of Authorization must provide a status report on the information required under § 216.155(d)(1)(iii) to the National Marine Fisheries Service, Southwest Regional Office, unless other arrangements for monitoring are agreed in writing.</P> <P>(2) An initial report must be submitted to the Office of Protected Resources, and the Southwest Regional Office at least 60 days prior to the expiration of each annual Letter of Authorization. This report must contain the following information:</P> <P>(i) Timing and nature of launch operations;<PRTPAGE P="74"/> </P> <P>(ii) Summary of pinniped behavioral observations;</P> <P>(iii) Estimate of the amount and nature of all takes by harassment or by other means.</P> <P>(3) A draft comprehensive technical report will be submitted to the Office of Protected Resources and Southwest Regional Office, National Marine Fisheries Service, 180 days prior to the expiration of these regulations and providing full documentation of the methods, results, and interpretation of all monitoring tasks for launches to date plus preliminary information for missile launches during the first 6 months of the final Letter of Authorization.</P> <P>(4) A revised final technical report, including all monitoring results during the entire period of the Letter of Authorization, will be due 90 days after the end of the period of effectiveness of these regulations.</P> <P>(5) Both the 60-day and draft comprehensive technical reports will be subject to review and comment by the National Marine Fisheries Service. Any recommendations made by the National Marine Fisheries Service must be addressed in the final comprehensive report prior to acceptance by the National Marine Fisheries Service.</P> <P>(f) Activities related to the monitoring described in paragraph (d) of this section, or in the Letter of Authorization issued under § 216.106, may be conducted without the need for a separate scientific research permit.</P> <P>(g) In coordination and compliance with appropriate Navy regulations, at its discretion, the National Marine Fisheries Service may place an observer on San Nicolas Island for any activity involved in marine mammal monitoring either prior to, during, or after a missile launch in order to monitor the impact on marine mammals.</P> </SECTION> <SECTION> <SECTNO>§ 216.156</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 § 216.157.</P> <P>(c) A Letter of Authorization will set forth:</P> <P>(1) Permissible methods of incidental taking;</P> <P>(2) Specified 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 level of taking will be consistent with the findings made for the total taking allowable under these regulations.</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>§ 216.157</SECTNO> <SUBJECT>Renewal of a Letter of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 and § 216.156 for the activity specified in § 216.151 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 § 216.156 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 § 216.155, and acceptance by the National Marine Fisheries Service;</P> <P>(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring, and reporting measures required under §§ 216.153 and 216.155 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) A determination that the number of marine mammals taken by the activity continues to be small and that the level of taking will be consistent with the findings made for the total <PRTPAGE P="75"/>taking allowable under these regulations.</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>§ 216.158</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <P>(a) 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 § 216.151(b), the Letter of Authorization issued pursuant to § 216.106 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> </SUBPART> <SUBPART> <RESERVED>Subparts O-P [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart Q—Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 46785, July 16, 2002, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 67 FR 46785, July 16, 2002, subpart Q, consisting of §§216.180 through 216.191 were added, effective Aug. 15, 2002, through Aug. 15, 2007.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.180</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 the U.S. Navy, Department of Defense, while engaged in the operation of no more than two SURTASS LFA sonar systems conducting active sonar operations, in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§ 216.106 and 216.188, include the transmission of low frequency sounds from the SURTASS LFA sonar and the transmission of high frequency sounds from the mitigation sonar described in § 216.185 during training, testing, and routine military operations of SURTASS LFA sonar.</P> <P>(a) With the exception of those areas specified in § 216.183(d), the incidental taking by harassment may be authorized in the following areas as specified in a Letter of Authorization:</P> <P>(1) Atlantic Polar Biome:</P> <P>(i) Boreal Polar Province (1/BPLR)(i.e., LFA sonar 180-dB exclusion zone);</P> <P>(ii) Atlantic Arctic Province (2/ARCT);</P> <P>(iii) Atlantic Subarctic Province (3/SARC);</P> <P>(2) North Atlantic Coastal Biome:</P> <P>(i) Northeast Atlantic Shelves Province (11/NECS),</P> <P>(A) North/Irish Sea Subprovince,</P> <P>(B) English Channel Subprovince,</P> <P>(C) Southern Outer Shelf Subprovince,</P> <P>(D) Northern Outer Shelf Subprovince, and</P> <P>(E) Baltic Subprovince; and</P> <P>(ii) Northwest Atlantic Shelves Province (15/NWCS),</P> <P>(A) Newfoundland/Nova Scotia Shelf Subprovince,</P> <P>(B) Gulf of St. Lawrence Coastal Subprovince,</P> <P>(C) Gulf of Maine/Bay of Fundy Coastal Subprovince,</P> <P>(D) Georges Bank/New York Bight Coastal Subprovince,</P> <P>(E) Middle Atlantic Bight Coastal Subprovince,</P> <P>(F) South Atlantic Bight Coastal Subprovince;</P> <P>(3) South Atlantic Coastal Biome:</P> <P>(i) Benguela Current Coastal Province (22/BENG);</P> <P>(ii) Brazil Current Coastal Province (20/BRAZ);</P> <P>(iii) Eastern (Canary) Coastal Province (12/CNRY);</P> <P>(iv) Southwest Atlantic Shelves Province (21/FKLD);</P> <P>(v) Guianas Coastal Province (14/GUIA);<PRTPAGE P="76"/> </P> <P>(vi) Guinea Current Coastal Province (13/GUIN),</P> <P>(A) Guiana Coastal Subprovince, and</P> <P>(B) Central African Coastal Subprovince;</P> <P>(4) Atlantic Westerly Winds Biome:</P> <P>(i) Gulf Stream Province (5/GFST);</P> <P>(ii) North Atlantic Drift Province (4/NADR);</P> <P>(iii) North Atlantic Subtropical Gyral East Province (18/NASTE); and</P> <P>(iv) North Atlantic Subtropical Gyral West Province (6/NASTW);</P> <P>(5) Atlantic Trade Wind Biome:</P> <P>(i) Caribbean Province (17/CARB);</P> <P>(A) Gulf of Mexico Subprovince;</P> <P>(B) Caribbean Sea Subprovince;</P> <P>(ii) Eastern Tropical Atlantic Province (9/ETRA);</P> <P>(iii) North Atlantic Tropical Gyral Province (7/NATR);</P> <P>(iv) South Atlantic Gyral Province (10/SATL);</P> <P>(v) Western Tropical Atlantic Province (8/WTRA);</P> <P>(6) Mediterranean/Black Sea Biome:</P> <P>(i) Mediterranean Sea Province (16A/MEDI);</P> <P>(ii) Black Sea Province (16B/BLSE);</P> <P>(7) Indian Ocean Coastal Biome:</P> <P>(i) Australia/Indonesia Coastal Province (37/AUSW);</P> <P>(ii) Eastern India Coastal Province (35/INDE);</P> <P>(iii) Northwestern Arabian Upwelling Province (34/ARAB);</P> <P>(iv) Eastern Africa Coastal Province (32/EAFR);</P> <P>(v) Western India Coastal Province (36/INDW);</P> <P>(vi) Red Sea, Persian Gulf Province (33/REDS);</P> <P>(8) Indian Ocean Trade Wind Biome:</P> <P>(i) Indian South Subtropical Gyre Province (31/ISSG);</P> <P>(ii) Indian Monsoon Gyres Province (30/MONS);</P> <P>(9) North Pacific Coastal Biome:</P> <P>(i) Alaska Downwelling Coastal Province (65/ALSK),</P> <P>(A) Canadian/Alaskan Coastal Subprovince,</P> <P>(B) Aleutian Stream Coastal Subprovince,</P> <P>(ii) California Current Province (66/CALC),</P> <P>(A) Oregon-British Columbia Coastal Subprovince,</P> <P>(B) Point Conception/Cape Mendicino Coastal Subprovince,</P> <P>(C) Southern California Bight Subprovince, and</P> <P>(D) Baja California Subprovince;</P> <P>(iii) Central American Coastal Province (67/CAMR);</P> <P>(iv) China Sea Coastal Province (69/CHIN);</P> <P>(10) South Pacific Coastal Biome:</P> <P>(i) East Australian Coastal Province (71/AUSE);</P> <P>(ii) Humboldt Current Coastal Province (68/HUMB);</P> <P>(A) Chilean Coastal Subprovince and</P> <P>(B) Peruvian Coastal Subprovince;</P> <P>(iii) New Zealand Coastal Province (72/NEWZ);</P> <P>(iv) Sunda/Arafura Shelves Province (70/SUND);</P> <P>(11) Pacific Polar Biome:</P> <P>(i) North Pacific Epicontinental Sea Province (50/BERS);</P> <P>(A) Bering Sea Subprovince;</P> <P>(B) Okhotsk Sea Subprovince;</P> <P>(ii) Reserved;</P> <P>(12) Pacific Trade Wind Biome:</P> <P>(i) Archipelagic Deep Basins Province (64/ARCH);</P> <P>(ii) North Pacific Tropical Gyre West Province (56/NPTGW);</P> <P>(iii) North Pacific Tropical Gyre East Province (60/NPTGE);</P> <P>(iv) Pacific Equatorial Divergence Province (62/PEQD);</P> <P>(v) North Pacific Equatorial Countercurrent Province (61/PNEC);</P> <P>(vi) South Pacific Subtropical Gyre Province (59/SPGS);</P> <P>(vii) Western Pacific Warm Pool Province (63/WARM);</P> <P>(13) Pacific Westerly Winds Biome:</P> <P>(i) Kuroshio Current Province (53/KURO);</P> <P>(ii) North Pacific Transition Zone Province (54/NPPF);</P> <P>(iii) Pacific Subarctic Gyres (East) Province (51/PSAGE);</P> <P>(iv) Pacific Subarctic Gyres (West) Province (52/PSAGW);</P> <P>(14) Antarctic Westerly Winds Biome:</P> <P>(i) Subantarctic Water Ring Province (81/SANT),</P> <P>(A) Atlantic Subantarctic Ring Subprovince;</P> <P>(B) Indian Ocean Subantarctic Ring Subprovince;</P> <P>(C) Pacific Ocean Subantarctic Water Ring Subprovince;</P> <P>(ii) Subtropical Convergence Province (80/SSTC),<PRTPAGE P="77"/> </P> <P>(A) Atlantic South Subtropical Convergence Subprovince;</P> <P>(B) Indian Ocean South Subtropical Convergence Subprovince;</P> <P>(C) Pacific Ocean South Subtropical Convergence Subprovince;</P> <P>(iii) Tasman Sea Province (58/TASM);</P> <P>(15) Antarctic Polar Biome: (SURTASS LFA sonar exclusion zone);</P> <P>(i) Antarctic Province (82/ANTA)</P> <P>(ii) Austral Polar Province (83/APLR).</P> <P>(b) The incidental take by Level A and Level B harassment of marine mammals under the activity identified in this section is limited to the following species and species groups:</P> <P>(1) Mysticete whales—blue whale (<E T="03">Balaenoptera musculus</E>), fin whale (<E T="03">Balaenoptera physalus</E>), minke whale (<E T="03">Balaenoptera acutorostrata</E>), Bryde's whale (<E T="03">Balaenoptera edeni</E>), sei whale (<E T="03">Balaenoptera borealis</E>), humpback whale (<E T="03">Megaptera novaeangliae</E>), northern right whale (<E T="03">Eubalaena glacialis</E>), southern right whale (<E T="03">Eubalaena australis</E>), pygmy right whale (<E T="03">Capera marginata</E>), bowhead whale (<E T="03">Balaena mysticetus</E>), and gray whales (<E T="03">Eschrichtius robustus</E>).</P> <P>(2) Odontocete whales—Risso's dolphin (<E T="03">Grampus griseus</E>), rough-toothed dolphin (<E T="03">Steno bredanensis</E>), Fraser's dolphin (<E T="03">Lagenodelphis hosei</E>), right-whale dolphin (<E T="03">Lissodelphis spp.</E>), bottlenose dolphin (<E T="03">Tursiops truncatus</E>), common dolphin (<E T="03">Delphinus delphis</E>), Dall's porpoise (<E T="03">Phocoenoides dalli</E>), harbor porpoise (<E T="03">Phocoena phocoena</E>), beluga whale (<E T="03">Delphinapterus leucas</E>), <E T="03">Stenella spp. Lagenorhynchus spp</E>., <E T="03">Cephalorhynchus spp.</E> melon-headed whale (<E T="03">Peponocephala spp</E>.), beaked whales (<E T="03">Berardius spp</E>., <E T="03">Hyperoodon spp</E>., <E T="03">Mesoplodon spp</E>.), Cuvier's beaked whale (<E T="03">Ziphius cavirostris</E>), Shepard's beaked whale (<E T="03">Tasmacetus shepherdi</E>), Longman's beaked whale (<E T="03">Indopacetus pacificus</E>), killer whale (<E T="03">Orcinus orca</E>), false killer whale (<E T="03">Pseudorca crassidens</E>), pygmy killer whale (<E T="03">Feresa attenuata</E>), sperm whale (<E T="03">Physeter macrocephalus</E>), dwarf and pygmy sperm whales (<E T="03">Kogia simus</E> and <E T="03">K. breviceps</E>), and short-finned and long-finned pilot whales (<E T="03">Globicephala macrorhynchus</E> and <E T="03">G. melas</E>).</P> <P>(3) Pinnipeds—harbor seals (<E T="03">Phoca vitulina</E>), spotted seals (<E T="03">P. largha</E>), ribbon seals (<E T="03">P. fasciata</E>), gray seals (<E T="03">Halichoerus grypus</E>), hooded seal (<E T="03">Cystophora cristata</E>), elephant seals (<E T="03">Mirounga angustirostris</E> and <E T="03">M. leonina</E>). Hawaiian monk seals (<E T="03">Monachus schauinslandi</E>), Mediterranean monk seals (<E T="03">Monachus monachus</E>), northern fur seals (<E T="03">Callorhinus ursinus</E>); southern fur seals (<E T="03">Arctocephalus spp</E>.), Steller sea lions (<E T="03">Eumetopias jubatus</E>), California sea lions (<E T="03">Zalophus californianus</E>), Australian sea lions (<E T="03">Neophoca cinerea</E>), New Zealand sea lions (<E T="03">Phocarctos hookeri</E>), and South American sea lions (<E T="03">Otaria flavescens</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.181</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from August 15, 2002 through August 15, 2007.</P> </SECTION> <SECTION> <SECTNO>§ 216.182</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 216.188, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment within the areas described in § 216.180(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.</P> <P>(b) The activities identified in § 216.180 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals, their habitat, and the availability of marine mammals for subsistence uses.</P> </SECTION> <SECTION> <SECTNO>§ 216.183</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.180 and by a Letter of Authorization issued under §§ 216.106 and 216.188, no person in connection with the activities described in § 216.180 shall:</P> <P>(a) Take any marine mammal not specified in § 216.180(b);</P> <P>(b) Take any marine mammal specified in § 216.180(b) other than by incidental, unintentional Level A and Level B harassment;</P> <P>(c) Take any marine mammal by receiving a sound pressure level greater than 180 dB while operating under a <PRTPAGE P="78"/>Letter of Authorization in any geographic area for which a Letter of Authorization has not been issued;</P> <P>(d) Take a marine mammal specified in § 216.180(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or</P> <P>(e) Violate, or fail to comply with, the terms, conditions, and requirements of the regulations in this subpart or any Letter of Authorization issued under §§ 216.106 and 216.188.</P> </SECTION> <SECTION> <SECTNO>§ 216.184</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>The activity identified in § 216.180(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.180, the mitigation measures described in this section and in any Letter of Authorization issued under §§ 216.106 and 216.188 must be implemented.</P> <P>(a) Through monitoring described under § 216.185, the Holder of a Letter of Authorization will ensure, to the greatest extent practicable, that no marine mammal is subjected to a sound pressure level of 180 dB or greater.</P> <P>(b) If a marine mammal is detected within the area subjected to sound pressure levels of 180 dB or greater (safety zone) or within the 1 km (0.5 nm) (buffer) zone extending beyond the 180-dB safety zone, SURTASS LFA sonar transmissions will be immediately delayed or suspended. Transmissions will not resume earlier than 15 minutes after:</P> <P>(1) All marine mammals have left the area of the safety and buffer zones; and</P> <P>(2) There is no further detection of any marine mammal within the safety and buffer zones as determined by the visual and/or passive or active acoustic monitoring described in § 216.185.</P> <P>(c) The high-frequency marine mammal monitoring sonar (HF/M3) described in § 216.185 will be ramped-up slowly to operating levels over a period of no less than 5 minutes:</P> <P>(1) At least 30 minutes prior to any SURTASS LFA sonar transmissions;</P> <P>(2) Prior to any SURTASS LFA sonar calibrations or testings that are not part of regular SURTASS LFA sonar transmissions described in paragraph (c)(1) of this section; and</P> <P>(3) Anytime after the HF/M3 source has been powered down for more than 2 minutes.</P> <P>(d) The HF/M3 source will not increase its sound pressure level once a marine mammal is detected; ramp-up may proceed once marine mammals are no longer detected.</P> <P>(e) The Holder of a Letter of Authorization will not operate the SURTASS LFA sonar while under a Letter of Authorization, such that the SURTASS LFA sonar sound field exceeds 180 dB (re 1 µPa(rms)):</P> <P>(1) At a distance of 12 nautical miles (nm) (22 kilometers (km)) from any coastline, including offshore islands;</P> <P>(2) Within any offshore area that has been designated as biologically important for marine mammals under § 216.183(f), during the biologically important season for that particular area;</P> <P>(3) Within the offshore boundaries that extend beyond 12 nm (22 km) of the following National Marine Sanctuaries:</P> <P>(i) Monterey Bay,</P> <P>(ii) Gulf of the Farallones, and</P> <P>(iii) Cordell Bank;</P> <P>(4) Within 23 nm (37.4 km) during the months of December, January, March, and May of each year in the Olympic Coast National Marine Sanctuary.</P> <P>(f) The following areas have been designated by NMFS as offshore areas of critical biological importance for marine mammals (by season if appropriate):</P> <GPOTABLE CDEF="s75,r75,r75" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">Name of area</CHED> <CHED H="1">Location of area</CHED> <CHED H="1">Months of importance</CHED> </BOXHD> <ROW> <ENT I="01">(1) 200-m isobath North American East Coast</ENT> <ENT>From 28° N. to 50° N. west of 40° W</ENT> <ENT>Year-Round.</ENT> </ROW> <ROW> <ENT I="01">(2) Antarctic Convergence Zone</ENT> <ENT>30° E. to 80° E to 45° S. 80° E. to 150° E. to 55° S. 150° E. to 50° W. to 60° S. 50° W to 30° E. to 50° S</ENT> <ENT>October 1 through March 31.</ENT> </ROW> <ROW> <ENT I="01">(3) Costa Rica Dome</ENT> <ENT>Centered at 9° N. and 88° W</ENT> <ENT>Year-Round.</ENT> </ROW> <ROW> <ENT I="01">(4) Penguin Bank</ENT> <ENT>Centered at 21° N. and 157°30′ W</ENT> <ENT>November 1 through May 1.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <PRTPAGE P="79"/> <SECTNO>§ 216.185</SECTNO> <SUBJECT>Requirements for monitoring.</SUBJECT> <P>(a) In order to mitigate the taking of marine mammals by SURTASS LFA sonar to the greatest extent practicable, the Holder of a Letter of Authorization issued pursuant to §§ 216.106 and 216.188 must:</P> <P>(1) Conduct visual monitoring from the ship's bridge during all daylight hours;</P> <P>(2) Use low frequency passive SURTASS LFA sonar to listen for vocalizing marine mammals; and</P> <P>(3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.</P> <P>(b) Monitoring under paragraph (a) of this section must:</P> <P>(1) Commence at least 30 minutes before the first SURTASS LFA sonar transmission;</P> <P>(2) Continue between transmission pings; and</P> <P>(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise, or, if marine mammals are exhibiting unusual behavioral patterns, for a period of time until behavior patterns return to normal or conditions prevent continued observations;</P> <P>(c) Holders of Letters of Authorization for activities described in § 216.180 are required to cooperate with the National Marine Fisheries Service and any other federal agency for monitoring the impacts of the activity on marine mammals.</P> <P>(d) Holders of Letters of Authorization must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization.</P> <P>(e) Holders of Letters of Authorization must conduct all monitoring and research required under the Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.186</SECTNO> <SUBJECT>Requirements for reporting.</SUBJECT> <P>(a) The Holder of the Letter of Authorization must submit quarterly mission reports to the Director, Office of Protected Resources, NMFS, no later than 30 days after the end of each quarter beginning on the date of effectiveness of a Letter of Authorization or as specified in the appropriate Letter of Authorization. Each quarterly mission report will include all active-mode missions completed during that quarter. At a minimum, each classified mission report must contain the following information:</P> <P>(1) Dates, times, and location of the vessel during the mission;</P> <P>(2) Information on sonar transmissions as detailed in the Letter of Authorization; and</P> <P>(3) Results of the marine mammal monitoring program specified in the Letter of Authorization.</P> <P>(b) The Holder of a Letter of Authorization must submit an annual report to the Director, Office of Protected Resources, NMFS, no later than 90 days prior to expiration of a Letter of Authorization. This report must contain all the information required by the Letter of Authorization.</P> <P>(c) A final comprehensive report must be submitted to the Director, Office of Protected Resources, NMFS at least 240 days prior to expiration of these regulations. In addition to containing all the information required by any final year Letter of Authorization, this report must contain an analysis of new passive technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar.</P> </SECTION> <SECTION> <SECTNO>§ 216.187</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Navy authority conducting the activity identified in § 216.180 must apply for and obtain a Letter of Authorization in accordance with § 216.106.</P> <P>(b) The application for an initial or a renewal of a Letter of Authorization must be submitted to the Director, Office of Protected Resources, NMFS, at least 60 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar operations or the previous Letter of Authorization is scheduled to expire.</P> <P>(c) All applications for a Letter of Authorization must include the following information:<PRTPAGE P="80"/> </P> <P>(1) The date(s), duration, and the specified geographical region where the vessel's activity will occur;</P> <P>(2) The species and/or stock(s) of marine mammals likely to be found within each specified geographical region;</P> <P>(3) The type of incidental taking authorization requested (i.e., take by Level A and/or Level B harassment);</P> <P>(4) The estimated percentage of marine mammal species/stocks potentially affected in each specified geographic region for the 12-month period of effectiveness of the Letter of Authorization; and</P> <P>(5) The means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on marine mammal populations.</P> <P>(d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with § 216.104(b) and, if adequate and complete, issue a Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.188</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization, unless suspended or revoked will be valid for a period of time not to exceed one year, but may be renewed annually subject to annual renewal conditions in § 216.189.</P> <P>(b) Each Letter of Authorization will set forth:</P> <P>(1) Permissible methods of incidental taking;</P> <P>(2) Authorized geographic areas for incidental takings;</P> <P>(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, their habitat, and the availability of the species for subsistence uses; and</P> <P>(4) Requirements for monitoring and reporting incidental takes.</P> <P>(c) Issuance 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 specified in § 216.180 as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking 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 an application for 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>§ 216.189</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 and § 216.188 for the activity identified in § 216.180 will be renewed annually upon:</P> <P>(1) Notification to NMFS that the activity described in the application submitted under § 216.187 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) Notification to NMFS of the information identified in § 216.187(c), including the planned geographic area(s), and anticipated duration of each SURTASS LFA sonar operation;</P> <P>(3) Timely receipt of the monitoring reports required under § 216.185, which have been reviewed by NMFS and determined to be acceptable;</P> <P>(4) A determination by NMFS that the mitigation, monitoring and reporting measures required under §§ 216.184 and 216.185 and the Letter of Authorization were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and</P> <P>(5) A determination by NMFS that the number of marine mammals taken by the activity continues to be small, that the total number of marine mammals taken by the activity specified in § 216.180, as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.</P> <P>(b) If a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 216.188 indicates that a substantial modification to the described work, mitigation or monitoring will occur, or if NMFS proposes a substantial modification to the Letter of <PRTPAGE P="81"/>Authorization, NMFS will provide a period of 30 days for public review and comment on the proposed modification. Amending the list of areas for upcoming SURTASS LFA sonar operations is not considered a substantial modification to the Letter of Authorization.</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>§ 216.190</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, no substantial modification (including withdrawal or suspension) to a Letter of Authorization issued pursuant to §§ 216.106 and 216.188 and subject to the provisions of this subpart shall be made by NMFS 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 § 216.189, without modification, except for the period of validity and a listing of planned operating areas, or for moving the authorized SURTASS LFA sonar system from one ship to another, is not considered a substantial modification.</P> <P>(b) If the National Marine Fisheries Service determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.180(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.188 may be substantially modified without prior notice and 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> <SECTION> <SECTNO>§ 216.191</SECTNO> <SUBJECT>Designation of Biologically Important Marine Mammal Areas.</SUBJECT> <P>(a) Biologically important areas for marine mammals may be nominated under this paragraph by the National Marine Fisheries Service or by the public.</P> <P>(b) In order for the National Marine Fisheries Service to designate offshore areas of biological importance for marine mammals under this rule, proponents must petition NMFS by requesting an area be added to the list of biologically important areas in § 216.184(f) and submitting the following information:</P> <P>(1) Geographic region proposed for consideration (including geographic boundaries);</P> <P>(2) A list of marine mammals within the proposed geographic region;</P> <P>(3) Whether the proposal is for year-round designation or seasonal, and if seasonal, months of years for proposed designation;</P> <P>(4) Detailed information on the biology of marine mammals within the area, including estimated population size, distribution, density, status, and the principal biological activity during the proposed period of designation sufficient for NMFS to make a preliminary determination that the area is biologically important for marine mammals; and</P> <P>(5) Detailed information on the area with regard to its importance for either primary feeding, breeding, or migration for those species of marine mammals that have the potential to be affected by low frequency sounds;</P> <P>(c) Areas within 12 nm (22 km) of any coastline, including offshore islands, or within non-operating areas for SURTASS LFA sonar are not eligible for consideration;</P> <P>(d) If a petition is received without sufficient information for the National Marine Fisheries Service to proceed, NMFS will determine whether the nominated area warrants further study. If so, NMFS will begin a scientific review of the area.</P> <P>(e)(1) If through a petition or independently, NMFS makes a preliminary determination that an area is biologically important for marine mammals and is not located within a previously designated area, NMFS will propose to add the area to § 216.184(f) and provide a public comment period of at least 45 days from the date of publication in the <E T="04">Federal Register.</E> </P> <P>(2) The National Marine Fisheries Service will publish its final determination in the <E T="04">Federal Register</E>.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="82"/> <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>71 FR 11322, Mar. 7, 2006, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 71 FR 11322, Mar. 7, 2006, subpart R, consisting of §§ 216.200 through 216.210 were added, effective Apr. 6, 2006 through Apr. 6, 2011.</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 Level A harassment, Level B harassment or mortality of marine mammals under the activity identified in this section is limited to the following species: bowhead whale (<E T="03">Balaena mysticetus</E>), gray whale (<E T="03">Eschrichtius robustus</E>), beluga whale (<E T="03">Delphinapterus leucas</E>), ringed seal (<E T="03">Phoca hispida</E>), spotted seal (<E T="03">Phoca largha</E>) and bearded seal (<E T="03">Erignathus barbatus</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.201</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from April 6, 2006 through April 6, 2011.</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 Level A and Level B harassment and mortality within the area described in § 216.200(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations 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 contemplated in § 216.200 and authorized 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 Level A or Level B harassment 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 these regulations or a Letter of Authorization issued under § 216.106.</P> </SECTION> <SECTION> <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 practicable, 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 <PRTPAGE P="83"/>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 an annual report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than March 31 of the year following the conclusion of the previous open water monitoring season. This report must contain all information required by the Letter of Authorization.</P> <P>(e) A final annual comprehensive report must be submitted within the time period specified in the governing Letter of Authorization.</P> <P>(f) A final comprehensive report on all marine mammal monitoring and research conducted during the period of these regulations 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 these regulations, 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 §§ 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 a proposed amendment to § 216.200(a). In conjunction with amending § 216.200(a), the National Marine Fisheries Service will provide 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 <PRTPAGE P="84"/>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 or revoked, 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 and accepted by the National Marine Fisheries Service, and of 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 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 document 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) 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.<PRTPAGE P="85"/> </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> <SUBPART> <RESERVED>Subparts S-T [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart U—Taking of Marine Mammals Incidental to Rocket Launches from the Kodiak Launch Complex, Kodiak Island, AK</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>71 FR 4308, Jan. 26, 2006, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 71 FR 4308, Jan. 26, 2006, subpart U, consisting of §§ 216.230 through 216.237 were added, effective Feb. 27, 2006 through Feb. 28, 2011.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.230</SECTNO> <SUBJECT>Specified activity and specified geographical region.</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 rocket launch activities (up to nine launches per year) at the Kodiak Launch Complex on Kodiak Island, Alaska.</P> <P>(b) The incidental take of marine mammals under the activity identified in paragraph (a) of this section is limited to Steller sea lions (<E T="03">Eumetopius jubatus</E>) and Pacific harbor seals (<E T="03">Phoca vitulina richardsi</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.231</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from February 27, 2006 through February 28, 2011.</P> </SECTION> <SECTION> <SECTNO>§ 216.232</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under a Letter of Authorization issued pursuant to § 216.106, the Alaska Aerospace Development Corporation and its contractors, may incidentally, but not intentionally, take Steller sea lions by Level B harassment, take adult Pacific harbor seals by Level B harassment, and take harbor seal pups by Level B or Level A harassment or mortality, in the course of conducting missile launch activities within the area described in § 216.230(a), provided all terms, conditions, and requirements of these regulations and such Letter of Authorization are complied with.</P> <P>(b) The activities identified in § 216.230(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitat.</P> </SECTION> <SECTION> <SECTNO>§ 216.233</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>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 subpart or a Letter of Authorization issued under § 216.106.</P> <P>(c) The incidental taking of any marine mammal of a species not specified, or in a manner not authorized, in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 216.234</SECTNO> <SUBJECT>Mitigation, monitoring and reporting.</SUBJECT> <P>(a) No more than five launches may occur between May 15 and June 30 within the 5-year period, and no more than 15 launches may occur between June 15 and September 30 within the 5-year period.</P> <P>(b) The holder of the Letter of Authorization must implement the following measures for all launches occurring from June through October:</P> <P>(1) Conduct five replicate fixed-wing aerial surveys of all hauled out Steller sea lions and harbor seals at Ugak Island, each flown at low tide (weather permitting), using a minimum flight altitude of 500 feet (152 meters) above sea level, with an approach no closer than 0.25 mi (0.40 km) to the haulout, and conducted a day prior to, directly following, and for three consecutive days after a launch.</P> <P>(2) At least one biologist observer will accompany the pilot during all aerial surveys.</P> <P>(3) Data gathered during aerial surveys will be gathered visually and <PRTPAGE P="86"/>through the use of a camera with a zoom lens.</P> <P>(4) A real-time video record of Steller sea lion reactions to launch noise will be made using a video camera system placed upon the Ugak Island haulout before a scheduled launch and then retrieved after the launch.</P> <P>(5) Sound intensities and frequencies of rocket motor noise will be recorded before, during, and after a launch by a sound level monitor mounted upon the Ugak Island haulout and set to highlight sounds greater than 70 dBA. Monitors will be installed one day or more before a launch and retrieved within one day post-launch.</P> <P>(c) A trial effort to obtain real-time video records of harbor seals hauled out at the eastern end of the northern side of the island and their reactions to launch noise will be made as soon as practicable. A brief report summarizing the efficacy of this monitoring effort should be included in the standard monitoring reports for that launch and year. If valuable data may be gathered using this method, real-time video records of harbor seals reactions to launch noise will be made before launches scheduled between May 15 and June 30, and between June 30 and September 30 if the equipment is not being used to record Steller sea lions, and then retrieved after the launches.</P> <P>(d) Security flights immediately associated with rocket launches may not approach closer than 0.25 mile (0.4 km) to occupied pinniped haulout sites on Ugak Island or fly lower than 1000 ft (305 m) when the plane is closer than 0.5 miles (0.8 km) from occupied pinniped sites on Ugak Island unless indications of human presence or activity warrant closer inspection of the area to assure that national security interests are protected in accordance with the law.</P> <P>(e) When pinnipeds are present at haulouts during security overflights associated with rocket launches, and when practicable, a member of the flight crew will note and record whether pinnipeds appeared to flush as a result of the overflight and estimate a number.</P> <P>(f) 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 NMFS Alaska Assistant Regional Administrator for Protected Resources and to the NMFS Division of Permits, Conservation, and Education, Office of Protected Resources at least 2 weeks prior to commencing monitoring activities.</P> <P>(g) Activities related to the monitoring described in paragraph (a) of this section or in the Letter of Authorization may be conducted without a separate scientific research permit.</P> <P>(h) In coordination and compliance with the Alaska Aerospace Development Corporation, the National Marine Fisheries Service may place an observer on Kodiak or Ugak Islands for any marine mammal monitoring activity prior to, during, or after a missile launch to monitor impacts on marine mammals, provided observers are not within the calculated danger zone of the rocket's flight path during a launch.</P> <P>(i) The holder of the Letter of Authorization must comply with any other applicable state or federal permits, regulations, and environmental monitoring agreements set up with other agencies.</P> <P>(j) The National Marine Fisheries Service must be informed immediately of any proposed changes or deletions to any portions of the monitoring requirements.</P> <P>(k) The holder of the Letter of Authorization must implement the following reporting requirements:</P> <P>(1) If indications of injurious or lethal take are recorded, the NMFS Alaska Assistant Regional Administrator for Protected Resources and the NMFS Division of Permits, Conservation, and Education, Office of Protected Resources, or their designees, will be contacted within 48 hours. In consultation with the National Marine Fisheries Service, launch procedure, mitigation measures, and monitoring methods must be reviewed and appropriate changes made prior to the next launch.</P> <P>(2) Data from monitoring activities will be reported to the National Marine Fisheries Service within 90 days following cessation of field activities for each launch. After the trial effort to <PRTPAGE P="87"/>videotape harbor seals at the eastern end of the north side of Ugak island, a summary of the effectiveness of the videotaping will be included in the associated launch report.</P> <P>(3) An interim technical report must be submitted to the NMFS Alaska Assistant Regional Administrator for Protected Resources and to the NMFS Division of Permits, Conservation, and Education, Office of Protected Resources at least 60 days prior to the expiration of each annual Letter of Authorization. This report must contain the following information:</P> <P>(i) Timing and nature of launch operations and monitoring flights;</P> <P>(ii) A summary of marine mammal behavioral observations in relation to recorded acoustic stimuli and other known visual or audio stimuli;</P> <P>(iii) An estimate of the amount and nature of all takes.</P> <P>(iv) A copy of all videotapes containing sea lion and harbor seal footage, and selected illustrative 35 mm or digital pictures, cross-referenced to the appropriate launches and acoustic measurements.</P> <P>(4) A draft comprehensive technical report will be submitted to the NMFS Alaska Assistant Regional Administrator for Protected Resources and to the NMFS Division of Permits, Conservation, and Education, Office of Protected Resources, 180 days prior to the expiration of these regulations with full documentation of the methods, results, and interpretation of all monitoring tasks for launches during all expired Letters of Authorization, plus preliminary information for launches during the first 6 months of the final Letter of Authorization.</P> <P>(5) A revised final comprehensive technical report, including all monitoring results during the entire period of the Letter of Authorization, will be due 90 days after the end of the period of effectiveness of these regulations.</P> <P>(6) The interim and draft comprehensive technical reports will be subject to review and comment by the National Marine Fisheries Service. Any recommendations made by the National Marine Fisheries Service must be addressed in the final comprehensive technical report prior to acceptance by the National Marine Fisheries Service.</P> </SECTION> <SECTION> <SECTNO>§ 216.235</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 a Letter of Authorization may not be valid beyond the effective period of the regulations.</P> <P>(b) A Letter of Authorization will set forth:</P> <P>(1) Species of marine mammals authorized to be taken;</P> <P>(2) Permissible methods of incidental taking;</P> <P>(3) Specified geographical region;</P> <P>(4) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking and its habitat; and</P> <P>(5) Requirements for monitoring and reporting incidental takes.</P> <P>(c) 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 total taking by the activity as a whole will have no more than a negligible impact on the affected species or stocks of marine mammal(s).</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>§ 216.236</SECTNO> <SUBJECT>Renewal of a Letter of Authorization.</SUBJECT> <P>(a) A Letter of Authorization for the activity identified in § 216.230(a) will be renewed 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 § 216.235 will be undertaken and that there will not be a substantial modification to the described activity, mitigation or monitoring undertaken during the upcoming season;</P> <P>(2) Timely receipt of and acceptance by the National Marine Fisheries Service of the monitoring reports required under § 216.234;</P> <P>(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring and reporting measures required under §§ 216.232 and 216.234 and the Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity <PRTPAGE P="88"/>of a renewed Letter of Authorization; and</P> <P>(4) A determination that the number of marine mammals taken by the activity will be small and that the total taking by the activity will have no more than a negligible impact on the affected species or stocks of marine mammal(s), and that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.</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>§ 216.237</SECTNO> <SUBJECT>Modifications to a Letter of Authorization.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to a Letter of Authorization issued pursuant to the provisions of this subpart shall be made by the National Marine Fisheries Service until after notification and an opportunity for public comment has been provided. A renewal of a Letter of Authorization under § 216.236 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 § 216.230(b), a Letter of Authorization 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 of the action.</P> </SECTION> </SUBPART> </PART> <PART> <RESERVED>PARTS 217-220 [RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 221</EAR> <HD SOURCE="HED">PART 221—PRESCRIPTIONS IN FERC HYDROPOWER LICENSES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>221.1</SECTNO> <SUBJECT>What is the purpose of this part, and to what license proceedings does it apply?</SUBJECT> <SECTNO>221.2</SECTNO> <SUBJECT>What terms are used in this part?</SUBJECT> <SECTNO>221.3</SECTNO> <SUBJECT>How are time periods computed?</SUBJECT> <SECTNO>221.4</SECTNO> <SUBJECT>What deadlines apply to pending applications?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Hearing Process</HD> <SUBJGRP> <HD SOURCE="HED">Representatives</HD> <SECTNO>221.10</SECTNO> <SUBJECT>Who may represent a party, and what requirements apply to a representative?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Document Filing and Service</HD> <SECTNO>221.11</SECTNO> <SUBJECT>What are the form and content requirements for documents under this subpart?</SUBJECT> <SECTNO>221.12</SECTNO> <SUBJECT>Where and how must documents be filed?</SUBJECT> <SECTNO>221.13</SECTNO> <SUBJECT>What are the requirements for service of documents?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Initiation of Hearing Process</HD> <SECTNO>221.20</SECTNO> <SUBJECT>What supporting information must NMFS provide with its preliminary prescriptions?</SUBJECT> <SECTNO>221.21</SECTNO> <SUBJECT>How do I request a hearing?</SUBJECT> <SECTNO>221.22</SECTNO> <SUBJECT>How do I file a notice of intervention and response?</SUBJECT> <SECTNO>221.23</SECTNO> <SUBJECT>When will hearing requests be consolidated?</SUBJECT> <SECTNO>221.24</SECTNO> <SUBJECT>How will NMFS respond to any hearing requests?</SUBJECT> <SECTNO>221.25</SECTNO> <SUBJECT>What will NMFS do with any hearing requests?</SUBJECT> <SECTNO>221.26</SECTNO> <SUBJECT>What regulations apply to a case referred for a hearing?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General Provisions Related to Hearings</HD> <SECTNO>221.30</SECTNO> <SUBJECT>What will the Department of Commerce's designated ALJ office do with a case referral?</SUBJECT> <SECTNO>221.31</SECTNO> <SUBJECT>What are the powers of the ALJ?</SUBJECT> <SECTNO>221.32</SECTNO> <SUBJECT>What happens if the ALJ becomes unavailable?</SUBJECT> <SECTNO>221.33</SECTNO> <SUBJECT>Under what circumstances may the ALJ be disqualified?</SUBJECT> <SECTNO>221.34</SECTNO> <SUBJECT>What is the law governing ex parte communications?</SUBJECT> <SECTNO>221.35</SECTNO> <SUBJECT>What are the requirements for motions?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Prehearing Conferences and Discovery</HD> <SECTNO>221.40</SECTNO> <SUBJECT>What are the requirements for prehearing conferences?</SUBJECT> <SECTNO>221.41</SECTNO> <SUBJECT>How may parties obtain discovery of information needed for the case?</SUBJECT> <SECTNO>221.42</SECTNO> <SUBJECT>When must a party supplement or amend information it has previously provided?</SUBJECT> <SECTNO>221.43</SECTNO> <SUBJECT>What are the requirements for written interrogatories?</SUBJECT> <SECTNO>221.44</SECTNO> <SUBJECT>What are the requirements for depositions?</SUBJECT> <SECTNO>221.45</SECTNO> <SUBJECT>What are the requirements for requests for documents or tangible things or entry on land?</SUBJECT> <SECTNO>221.46</SECTNO> <SUBJECT>What sanctions may the ALJ impose for failure to comply with discovery?</SUBJECT> <SECTNO>221.47</SECTNO> <SUBJECT>What are the requirements for subpoenas and witness fees?</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="89"/> <HD SOURCE="HED">Hearing, Briefing, and Decision</HD> <SECTNO>221.50</SECTNO> <SUBJECT>When and where will the hearing be held?</SUBJECT> <SECTNO>221.51</SECTNO> <SUBJECT>What are the parties' rights during the hearing?</SUBJECT> <SECTNO>221.52</SECTNO> <SUBJECT>What are the requirements for presenting testimony?</SUBJECT> <SECTNO>221.53</SECTNO> <SUBJECT>How may a party use a deposition in the hearing?</SUBJECT> <SECTNO>221.54</SECTNO> <SUBJECT>What are the requirements for exhibits, official notice, and stipulations?</SUBJECT> <SECTNO>221.55</SECTNO> <SUBJECT>What evidence is admissible at the hearing?</SUBJECT> <SECTNO>221.56</SECTNO> <SUBJECT>What are the requirements for transcription of the hearing?</SUBJECT> <SECTNO>221.57</SECTNO> <SUBJECT>What is the standard of proof?</SUBJECT> <SECTNO>221.58</SECTNO> <SUBJECT>When will the hearing record close?</SUBJECT> <SECTNO>221.59</SECTNO> <SUBJECT>What are the requirements for post-hearing briefs?</SUBJECT> <SECTNO>221.60</SECTNO> <SUBJECT>What are the requirements for the ALJ's decision?</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Alternatives Process</HD> <SECTNO>221.70</SECTNO> <SUBJECT>How must documents be filed and served under this subpart?</SUBJECT> <SECTNO>221.71</SECTNO> <SUBJECT>How do I propose an alternative?</SUBJECT> <SECTNO>221.72</SECTNO> <SUBJECT>What will NMFS do with a proposed alternative?</SUBJECT> <SECTNO>221.73</SECTNO> <SUBJECT>How will NMFS analyze a proposed alternative and formulate its modified prescription?</SUBJECT> <SECTNO>221.74</SECTNO> <SUBJECT>Has OMB approved the information collection provisions of this subpart?</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 797(e), 811, 823d.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 69840, Nov. 17, 2005, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 221.1</SECTNO> <SUBJECT>What is the purpose of this part, and to what license proceedings does it apply?</SUBJECT> <P>(a) <E T="03">Hearing process.</E> (1) The regulations in subparts A and B of this part contain rules of practice and procedure applicable to hearings on disputed issues of material fact with respect to mandatory prescriptions that the Department of Commerce, acting through the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS) may develop for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission (FERC) under subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 <E T="03">et seq.</E> The authority to develop these prescriptions is granted by FPA section 18, 16 U.S.C. 811, which authorizes the Secretary of Commerce to prescribe fishways.</P> <P>(2) The hearing process under this part does not apply to recommendations that the Department of Commerce may submit to FERC under FPA section 10(a) or (j), 16 U.S.C. 803(a), (j).</P> <P>(3) The FPA also grants the Department of Agriculture and Interior the authority to develop mandatory conditions, and the Department of the Interior the authority to develop mandatory prescriptions, for inclusion in a hydropower license. Where the Department of Commerce and either or both of these other Departments develop conditions or prescriptions to be included in the same hydropower license and where the Departments agree to consolidate the hearings under § 221.23:</P> <P>(i) A hearing conducted under this part will also address disputed issues of material fact with respect to any condition or prescription developed by one of the other Departments; or</P> <P>(ii) A hearing requested under this part will be conducted by one of the other Departments, pursuant to 7 CFR 1.601 <E T="03">et seq.</E> or 43 CFR 45.1 <E T="03">et seq.</E>, as applicable.</P> <P>(4) The regulations in subparts A and B of this part will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved and the provisions of § 221.60(a).</P> <P>(b) <E T="03">Alternatives process.</E> The regulations in subparts A and C of this part contain rules of procedure applicable to the submission and consideration of alternative prescriptions under FPA section 33, 16 U.S.C. 823d. That section allows any party to the license proceeding to propose an alternative to a fishway prescribed by NMFS under section 18.</P> <P>(c) <E T="03">Reservation of authority.</E> Where NMFS notifies FERC that it is reserving its authority to develop one or more prescriptions during the term of the license, the hearing and alternatives processes under this part for such prescriptions will be available if and when NMFS exercises its reserved authority. NMFS will consult with FERC and notify the license parties regarding how to initiate the hearing process and alternatives process at that time.<PRTPAGE P="90"/> </P> <P>(d) <E T="03">Applicability.</E> (1) This part applies to any hydropower license proceeding for which the license has not been issued as of November 17, 2005 and for which one or more preliminary prescriptions or prescriptions have been or are filed with FERC.</P> <P>(2) If NMFS has already filed one or more preliminary prescriptions or prescriptions as of November 17, 2005, the special applicability provisions of § 221.4 also apply.</P> </SECTION> <SECTION> <SECTNO>§ 221.2</SECTNO> <SUBJECT>What terms are used in this part?</SUBJECT> <P>As used in this part:</P> <P> <E T="03">ALJ</E> means an administrative law judge appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process under subpart B of this part.</P> <P> <E T="03">Alternative</E> means a prescription that a license party other than NMFS or another Department develops as an alternative to a preliminary prescription from NMFS or another Department, under FPA sec. 33, 16 U.S.C. 823d.</P> <P> <E T="03">Condition</E> means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), for the adequate protection and utilization of a reservation.</P> <P> <E T="03">Day</E> means a calendar day.</P> <P> <E T="03">Department</E> means the Department of Agriculture, Department of Commerce, or Department of the Interior.</P> <P> <E T="03">Department of Commerce's designated ALJ office</E> means the ALJ office that is assigned to preside over the hearings process for NMFS.</P> <P> <E T="03">Discovery</E> means a prehearing process for obtaining facts or information to assist a party in preparing or presenting its case.</P> <P> <E T="03">Ex parte communication</E> means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate.</P> <P> <E T="03">FERC</E> means the Federal Energy Regulatory Commission.</P> <P> <E T="03">FPA</E> means the Federal Power Act, 16 U.S.C. 791 <E T="03">et seq.</E> </P> <P> <E T="03">Intervention</E> means a process by which a person who did not request a hearing under § 221.21 can participate as a party to the hearing under § 221.22.</P> <P> <E T="03">License party</E> means a party to the license proceeding, as that term is defined at 18 CFR 385.102(c).</P> <P> <E T="03">License proceeding</E> means a proceeding before FERC for issuance of a license for a hydroelectric facility under 18 CFR parts 4 or 5.</P> <P> <E T="03">Material fact</E> means a fact that, if proved, may affect a Department's decision whether to affirm, modify, or withdraw any condition or prescription.</P> <P> <E T="03">NEPA document</E> means an environmental assessment or environmental impact statement issued to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 <E T="03">et seq.</E> </P> <P> <E T="03">NMFS</E> means the National Marine Fisheries Service, a constituent agency of the Department of Commerce, acting by and through the Assistant Administrator for Fisheries or one of NMFS's six Regional Administrators, as appropriate.</P> <P> <E T="03">Office of Habitat Conservation</E> means the NMFS Office of Habitat Conservation. Address: Chief, Habitat Protection Division, Office of Habitat Conservation, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. Telephone 301-713-4300. Facsimile number 301-713-4305.</P> <P> <E T="03">Party</E> means, with respect to NMFS's hearing process under subpart B of this part:</P> <P>(1) A license party that has filed a timely request for a hearing under:</P> <P>(i) Section 221.21; or</P> <P>(ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing process consolidated under § 221.23;</P> <P>(2) A license party that has filed a timely notice of intervention and response under:</P> <P>(i) Section 221.22; or</P> <P>(ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing process consolidated under § 221.23;</P> <P>(3) NMFS, if it has filed a preliminary prescription; and</P> <P>(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under § 221.23.</P> <P> <E T="03">Person</E> means an individual; a partnership, corporation, association, or other legal entity; an unincorporated organization; and any federal, state, tribal, county, district, territorial, or local government or agency.<PRTPAGE P="91"/> </P> <P> <E T="03">Preliminary condition or prescription</E> means a preliminary condition or prescription filed by a Department with FERC under 18 CFR 4.34(b), 4.34(i), or 5.22(a) for potential inclusion in a hydropower license.</P> <P> <E T="03">Prescription</E> means a fishway prescribed under FPA sec. 18, 16 U.S.C. 811, to provide for the safe, timely, and effective passage of fish.</P> <P> <E T="03">Representative means</E> a person who:</P> <P>(1) Is authorized by a party to represent the party in a hearing process under this subpart; and</P> <P>(2) Has filed an appearance under § 221.10.</P> <P> <E T="03">Secretary</E> means the Secretary of Commerce or his or her designee.</P> <P> <E T="03">Senior Department employee</E> has the same meaning as the term “senior employee” in 5 CFR 2637.211(a).</P> <P> <E T="03">You</E> refers to a party other than a Department.</P> </SECTION> <SECTION> <SECTNO>§ 221.3</SECTNO> <SUBJECT>How are time periods computed?</SUBJECT> <P>(a) <E T="03">General.</E> Time periods are computed as follows:</P> <P>(1) The day of the act or event from which the period begins to run is not included.</P> <P>(2) The last day of the period is included.</P> <P>(i) If that day is a Saturday, Sunday, or federal holiday, the period is extended to the next business day.</P> <P>(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.</P> <P>(3) If the period is less than 7 days, any Saturday, Sunday, or federal holiday that falls within the period is not included.</P> <P>(b) <E T="03">Extensions of time.</E> (1) No extension of time can be granted to file a request for a hearing under § 221.21, a notice of intervention and response under § 221.22, an answer under § 221.24, or any document under subpart C of this part.</P> <P>(2) An extension of time to file any other document under subpart B of this part may be granted only upon a showing of good cause.</P> <P>(i) To request an extension of time, a party must file a motion under § 221.35 stating how much additional time is needed and the reasons for the request.</P> <P>(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.</P> <P>(iii) The ALJ may grant the extension only if:</P> <P>(A) It would not unduly prejudice other parties; and</P> <P>(B) It would not delay the decision under § 221.60.</P> </SECTION> <SECTION> <SECTNO>§ 221.4</SECTNO> <SUBJECT>What deadlines apply to pending applications?</SUBJECT> <P>(a) <E T="03">Applicability.</E> (1) This section applies to any case in which NMFS has filed a preliminary prescription or prescription with FERC before November 17, 2005 and FERC has not issued a license as of that date.</P> <P>(2) The deadlines in this section will apply in such a case, in lieu of any inconsistent deadline in other sections of this part.</P> <P>(b) <E T="03">Hearing process.</E> (1) Any request for a hearing under § 221.21 must be filed with the Office of Habitat Conservation by December 19, 2005.</P> <P>(2) Any notice of intervention and response under § 221.22 must be filed by January 3, 2006.</P> <P>(3) Upon receipt of a hearing request under paragraph (b)(1) of this section, NMFS must do the following by March 17, 2006:</P> <P>(i) Comply with the requirements of § 221.23;</P> <P>(ii) Determine jointly with any other Department that has received a hearing request, after consultation with FERC, a time frame for the hearing process and a corresponding deadline for NMFS to file an answer under § 221.24; and</P> <P>(iii) Issue a notice to each party specifying the time frame for the hearing process, including the deadline for NMFS to file an answer.</P> <P>(c) <E T="03">Alternatives process.</E> (1) Any alternative under § 221.71 must be filed with the Office of Habitat Conservation by December 19, 2005.</P> <P>(2) Upon receipt of an alternative under paragraph (c)(1) of this section, if no hearing request is filed under paragraph (b)(1) of this section, NMFS must do the following by February 15, 2006:</P> <P>(i) Determine jointly with any other Department that has received a related alternative, after consultation with FERC, a time frame for the filing of a <PRTPAGE P="92"/>modified prescription under § 221.72(b); and</P> <P>(ii) Issue a notice to the license party that has submitted the alternative, specifying the time frame for the filing of a modified prescription.</P> <P>(3) Upon receipt of an alternative under paragraph (c)(1) of this section, if a hearing request is also filed under paragraph (b)(1) of this section, NMFS will follow the provisions of paragraph (b)(3) of this section.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Hearing Process</HD> <SUBJGRP> <HD SOURCE="HED">Representatives</HD> <SECTION> <SECTNO>§ 221.10</SECTNO> <SUBJECT>Who may represent a party, and what requirements apply to a representative?</SUBJECT> <P>(a) <E T="03">Individuals.</E> A party who is an individual may either represent himself or herself in the hearing process under this subpart or authorize an attorney to represent him or her.</P> <P>(b) <E T="03">Organizations.</E> A party that is an organization or other entity may authorize one of the following to represent it:</P> <P>(1) An attorney;</P> <P>(2) A partner, if the entity is a partnership;</P> <P>(3) An officer or full-time employee, if the entity is a corporation, association, or unincorporated organization;</P> <P>(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or</P> <P>(5) An elected or appointed official or an employee, if the entity is a federal, state, tribal, county, district, territorial, or local government or component.</P> <P>(c) <E T="03">Appearance.</E> A representative must file a notice of appearance. The notice must:</P> <P>(1) Meet the form and content requirements for documents under § 221.11;</P> <P>(2) Include the name and address of the person on whose behalf the appearance is made;</P> <P>(3) If the representative is an attorney, include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and</P> <P>(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.</P> <P>(d) <E T="03">Disqualification.</E> The ALJ may disqualify any representative for misconduct or other good cause.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Document Filing and Service</HD> <SECTION> <SECTNO>§ 221.11</SECTNO> <SUBJECT>What are the form and content requirements for documents under this subpart?</SUBJECT> <P>(a) <E T="03">Form.</E> Each document filed in a case under this subpart must:</P> <P>(1) Measure 8<FR>1/2</FR> by 11 inches, except that a table, chart, diagram, or other attachment may be larger if folded to 8<FR>1/2</FR> by 11 inches and attached to the document;</P> <P>(2) Be printed on just one side of the page;</P> <P>(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;</P> <P>(4) Use 10 point font size or larger;</P> <P>(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;</P> <P>(6) Have margins of at least 1 inch; and</P> <P>(7) Be bound on the left side, if bound.</P> <P>(b) <E T="03">Caption.</E> Each document filed under this subpart must begin with a caption that sets forth:</P> <P>(1) The name of the case under this subpart and the docket number, if one has been assigned;</P> <P>(2) The name and docket number of the license proceeding to which the case under this subpart relates; and</P> <P>(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.</P> <P>(c) <E T="03">Signature.</E> The original of each document filed under this subpart must be signed by the representative of the person for whom the document is filed. The signature constitutes a certification by the representative that he or she has read the document; that to the best of his or her knowledge, information, and belief, the statements made in the document are true; and that the document is not being filed for the purpose of causing delay.</P> <P>(d) <E T="03">Contact information.</E> Below the representative's signature, the document must provide the representative's <PRTPAGE P="93"/>name, mailing address, street address (if different), telephone number, facsimile number (if any), and electronic mail address (if any).</P> </SECTION> <SECTION> <SECTNO>§ 221.12</SECTNO> <SUBJECT>Where and how must documents be filed?</SUBJECT> <P>(a) <E T="03">Place of filing.</E> Any documents relating to a case under this subpart must be filed with the appropriate office, as follows:</P> <P>(1) Before NMFS refers a case for docketing under § 221.25, any documents must be filed with the Office of Habitat Conservation. The Office of Habitat Conservation's address, telephone number, and facsimile number are set forth in § 221.2.</P> <P>(2) NMFS will notify the parties of the date on which it refers a case for docketing under § 221.25. After that date, any documents must be filed with:</P> <P>(i) The Department of Commerce's designated ALJ office. The name, address, telephone number, and facsimile number of the Department of Commerce's designated ALJ office will be provided in the referral notice from NMFS; or</P> <P>(ii) The hearings component of or used by another Department, if that Department will be conducting the hearing under § 221.25. The name, address, telephone number, and facsimile number of the appropriate hearings component will be provided in the referral notice from NMFS.</P> <P>(b) <E T="03">Method of filing.</E> (1) A document must be filed with the appropriate office under paragraph (a) of this section using one of the following methods:</P> <P>(i) By hand delivery of the original document;</P> <P>(ii) By sending the original document by express mail or courier service for delivery on the next business day; or</P> <P>(iii) By sending the document by facsimile if:</P> <P>(A) The document is 20 pages or less, including all attachments;</P> <P>(B) The sending facsimile machine confirms that the transmission was successful; and</P> <P>(C) The original of the document is sent by regular mail on the same day.</P> <P>(2) Parties are encouraged, but not required to supplement any original document by providing the appropriate office with an electronic copy of the document on compact disc.</P> <P>(c) <E T="03">Date of filing.</E> A document under this subpart is considered filed on the date it is received. However, any document received after 5 p.m. at the place where the filing is due is considered filed on the next regular business day.</P> <P>(d) <E T="03">Nonconforming documents.</E> If any document submitted for filing under this subpart does not comply with the requirements of this subpart or any applicable order, it may be rejected. If the defect is minor, the party may be notified of the defect and given a chance to correct it.</P> </SECTION> <SECTION> <SECTNO>§ 221.13</SECTNO> <SUBJECT>What are the requirements for service of documents?</SUBJECT> <P>(a) <E T="03">Filed documents.</E> Any document related to a case under this subpart must be served at the same time the document is delivered or sent for filing. Copies must be served as follows:</P> <P>(1) A complete copy of any request for a hearing under § 221.21 must be served on FERC and each license party, using one of the methods of service in paragraph (c) of this section.</P> <P>(2) A complete copy of any notice of intervention and response under § 221.22 must be:</P> <P>(i) Served on FERC, the license applicant, any person who has filed a request for hearing under § 221.21, and NMFS, using one of the methods of service in paragraph (c) of this section; and</P> <P>(ii) Sent to any other license party using regular mail.</P> <P>(3) A complete copy of any other filed document must be served on each party, using one of the methods of service in paragraph (c) of this section.</P> <P>(b) <E T="03">Documents issued by the ALJ.</E> A complete copy of any notice, order, decision, or other document issued by the ALJ under this subpart must be served on each party, using one of the methods of service in paragraph (c) of this section.</P> <P>(c) <E T="03">Method of service.</E> Service must be accomplished by one of the following methods:</P> <P>(1) By hand delivery of the document;</P> <P>(2) By sending the document by express mail or courier service for delivery on the next business day;<PRTPAGE P="94"/> </P> <P>(3) By sending the document by facsimile if:</P> <P>(i) The document is 20 pages or less, including all attachments;</P> <P>(ii) The sending facsimile machine confirms that the transmission was successful; and</P> <P>(iii) The document is sent by regular mail on the same day; or</P> <P>(4) By sending the document, including all attachments, by electronic mail if:</P> <P>(i) A copy of the document is sent by regular mail on the same day; and</P> <P>(ii) The party acknowledges receipt of the document by close of the next business day.</P> <P>(d) <E T="03">Acknowledgment of service.</E> Any party who receives a document under this subpart by electronic mail must promptly send a reply electronic mail message acknowledging receipt.</P> <P>(e) <E T="03">Certificate of service.</E> A certificate of service must be attached to each document filed under this subpart. The certificate must be signed by the party's representative and include the following information:</P> <P>(1) The name, address, and other contact information of each party's representative on whom the document was served;</P> <P>(2) The means of service, including information indicating compliance with paragraph (c)(3) or (c)(4) of this section, if applicable; and</P> <P>(3) The date of service.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Initiation of Hearing Process</HD> <SECTION> <SECTNO>§ 221.20</SECTNO> <SUBJECT>What supporting information must NMFS provide with its preliminary prescriptions?</SUBJECT> <P>(a) <E T="03">Supporting information.</E> (1) When NMFS files a preliminary prescription with FERC, it must include a rationale for the prescription and an index to NMFS's administrative record that identifies all documents relied upon.</P> <P>(2) If any of the documents relied upon are not already in the license proceeding record, NMFS must:</P> <P>(i) File them with FERC at the time it files the preliminary prescription; and</P> <P>(ii) Provide copies to the license applicant.</P> <P>(b) <E T="03">Service.</E> NMFS will serve a copy of its preliminary prescription on each license party.</P> </SECTION> <SECTION> <SECTNO>§ 221.21</SECTNO> <SUBJECT>How do I request a hearing?</SUBJECT> <P>(a) <E T="03">General.</E> To request a hearing on disputed issues of material fact with respect to any prescription filed by NMFS, you must:</P> <P>(1) Be a license party; and</P> <P>(2) File with the Office of Habitat Conservation a written request for a hearing within 30 days after the deadline for the Departments to file preliminary prescriptions with FERC.</P> <P>(b) <E T="03">Content.</E> Your hearing request must contain:</P> <P>(1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence; and</P> <P>(2) The following information with respect to each issue:</P> <P>(i) The specific factual statements made or relied upon by [the bureau] under § 221.20(a) that you dispute;</P> <P>(ii) The basis for your opinion that those factual statements are unfounded or erroneous;</P> <P>(iii) The basis for your opinion that any factual dispute is material; and</P> <P>(iv) With respect to any scientific studies, literature, and other documented information supporting your opinions under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the information relied upon. If any such document is not already in the license proceeding record, you must provide a copy with the request.</P> <P>(c) <E T="03">Witnesses and exhibits.</E> Your hearing request must also list the witnesses and exhibits that you intend to present at the hearing, other than solely for impeachment purposes.</P> <P>(1) For each witness listed, you must provide:</P> <P>(i) His or her name, address, telephone number, and qualifications; and</P> <P>(ii) A brief narrative summary of his or her expected testimony.</P> <P>(2) For each exhibit listed, you must specify whether it is in the license proceeding record.</P> <P>(d) <E T="03">Page limits.</E> (1) For each disputed factual issue, the information provided under paragraph (b)(2) of this section may not exceed two pages.</P> <P>(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.</P> </SECTION> <SECTION> <PRTPAGE P="95"/> <SECTNO>§ 221.22</SECTNO> <SUBJECT>How do I file a notice of intervention and response?</SUBJECT> <P>(a) <E T="03">General.</E> (1) To intervene as a party to the hearing process, you must:</P> <P>(i) Be a license party; and</P> <P>(ii) File with the Office of Habitat Conservation a notice of intervention and a written response to any request for a hearing within 15 days after the date of service of the request for a hearing.</P> <P>(2) A license party filing a notice of intervention and response may not raise issues of material fact beyond those raised in the hearing request.</P> <P>(b) <E T="03">Content.</E> In your notice of intervention and response you must explain your position with respect to the issues of material fact raised in the hearing request under § 221.21(b).</P> <P>(1) If you agree with the information provided by NMFS under § 221.20(a) or by the requester under § 221.21(b), your response may refer to NMFS's explanation or the requester's hearing request for support.</P> <P>(2) If you wish to rely on additional information or analysis, your response must provide the same level of detail with respect to the additional information or analysis as required under § 221.21(b).</P> <P>(c) <E T="03">Witnesses and exhibits.</E> Your response and notice must also list the witnesses and exhibits that you intend to present at the hearing, other than solely for impeachment purposes.</P> <P>(1) For each witness listed, you must provide:</P> <P>(i) His or her name, address, telephone number, and qualifications; and</P> <P>(ii) A brief narrative summary of his or her expected testimony; and</P> <P>(2) For each exhibit listed, you must specify whether it is in the license proceeding record.</P> <P>(d) <E T="03">Page limits.</E> (1) For each disputed factual issue, the information provided under paragraph (b) of this section may not exceed two pages.</P> <P>(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.</P> </SECTION> <SECTION> <SECTNO>§ 221.23</SECTNO> <SUBJECT>When will hearing requests be consolidated?</SUBJECT> <P>(a) <E T="03">Initial Department coordination.</E> If NMFS has received a copy of a hearing request, it must contact the other Departments within 10 days after the deadline for filing hearing requests under § 221.21 and determine:</P> <P>(1) Whether any of the other Departments has also filed a preliminary condition or prescription relating to the license with FERC; and</P> <P>(2) If so, whether the other Departments have also received a hearing request with respect to the preliminary condition or prescription.</P> <P>(b) <E T="03">Decision on consolidation.</E> Within 25 days after the deadline for filing hearing requests under § 221.21, if NMFS has received a hearing request, NMFS must:</P> <P>(1) Consult with any other Department that has also received a hearing request; and</P> <P>(2) Decide jointly with the other Department:</P> <P>(i) Whether to consolidate the cases for hearing under paragraphs (c)(3)(ii) through (c)(3)(iv) of this section; and</P> <P>(ii) If so, which Department will conduct the hearing on their behalf.</P> <P>(c) <E T="03">Criteria.</E> Cases will or may be consolidated as follows:</P> <P>(1) All hearing requests with respect to any prescriptions from NMFS will be consolidated for hearing.</P> <P>(2) Any or all of the following may be consolidated for hearing if NMFS determines that there are common issues of material fact or that consolidation is otherwise appropriate:</P> <P>(i) Two or more hearing requests with respect to prescriptions from NMFS and the Department of the Interior; or</P> <P>(ii) Two or more hearing requests with respect to any condition from another Department and any prescription from NMFS.</P> </SECTION> <SECTION> <SECTNO>§ 221.24</SECTNO> <SUBJECT>How will NMFS respond to any hearing requests?</SUBJECT> <P>(a) <E T="03">General.</E> NMFS will determine whether to file an answer to any hearing request under § 221.21.</P> <P>(b) <E T="03">Content.</E> If NMFS files an answer:</P> <P>(1) For each of the numbered factual issues listed under § 221.21(b)(1), the answer must explain NMFS's position with respect to the issues of material fact raised by the requester, including one or more of the following statements as appropriate:<PRTPAGE P="96"/> </P> <P>(i) That NMFS is willing to stipulate to the facts as alleged by the requester;</P> <P>(ii) That NMFS believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;</P> <P>(iii) That NMFS believes the issue listed by the requester is not material, explaining the basis for such belief; or</P> <P>(iv) That NMFS agrees that the issue is factual, material, and in dispute.</P> <P>(2) The answer must also indicate whether the hearing request will be consolidated with one or more other hearing requests under § 221.23 and, if so:</P> <P>(i) Identify any other hearing request that will be consolidated with this hearing request; and</P> <P>(ii) State which Department will conduct the hearing and provide contact information for the appropriate Department hearings component.</P> <P>(c) <E T="03">Witnesses and exhibits.</E> NMFS's answer must also list the witnesses and exhibits that it intends to present at the hearing, other than solely for impeachment purposes.</P> <P>(1) For each witness listed, NMFS must provide:</P> <P>(i) His or her name, address, telephone number, and qualifications; and</P> <P>(ii) A brief narrative summary of his or her expected testimony.</P> <P>(2) For each exhibit listed, NMFS must specify whether it is in the license proceeding record.</P> <P>(d) <E T="03">Page limits.</E> (1) For each disputed factual issue, the information provided under paragraph (b)(1) of this section may not exceed two pages.</P> <P>(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.</P> <P>(e) <E T="03">Notice in lieu of answer.</E> If NMFS elects not to file an answer to a hearing request:</P> <P>(1) NMFS is deemed to agree that the issues listed by the requester are factual, material, and in dispute;</P> <P>(2) NMFS may file a list of witnesses and exhibits with respect to the request only as provided in § 221.42(b); and</P> <P>(3) NMFS must file a notice containing the information required by paragraph (b)(2) of this section, if the hearing request will be consolidated with one or more other hearing requests under § 221.23.</P> </SECTION> <SECTION> <SECTNO>§ 221.25</SECTNO> <SUBJECT>What will NMFS do with any hearing requests?</SUBJECT> <P>(a) <E T="03">Case referral.</E> Within 50 days after the deadline in § 221.21(a), NMFS will refer the case for a hearing as follows:</P> <P>(1) If the hearing is to be conducted by NMFS, NMFS will refer the case to the Department of Commerce's designated ALJ office.</P> <P>(2) If the hearing is to be conducted by another Department, NMFS will refer the case to the hearings component used by that Department.</P> <P>(b) <E T="03">Content.</E> The case referral will consist of the following:</P> <P>(1) A copy of any preliminary prescription under § 221.20;</P> <P>(2) The original of any hearing request under § 221.21;</P> <P>(3) The original of any notice of intervention and response under § 221.22;</P> <P>(4) The original of any answer under § 221.24; and</P> <P>(5) An original referral notice under paragraph (c) of this section.</P> <P>(c) <E T="03">Notice.</E> At the time NMFS refers the case for a hearing, it must provide a referral notice that contains the following information:</P> <P>(1) The name, address, telephone number, and facsimile number of the Department hearings component that will conduct the hearing;</P> <P>(2) The name, address, and other contact information for the representative of each party to the hearing process;</P> <P>(3) An identification of any other hearing request that will be consolidated with this hearing request; and</P> <P>(4) The date on which NMFS is referring the case for docketing.</P> <P>(d) <E T="03">Delivery and service.</E> (1) NMFS must refer the case to the appropriate Department hearings component by one of the methods identified in § 221.12(b)(1)(i) through (b)(1)(ii).</P> <P>(2) NMFS must serve a copy of the referral notice on FERC and each party to the hearing by one of the methods identified in § 221.13(c)(1) and (c)(2).</P> </SECTION> <SECTION> <SECTNO>§ 221.26</SECTNO> <SUBJECT>What regulations apply to a case referred for a hearing?</SUBJECT> <P>(a) If NMFS refers the case to the Department of Commerce's designated ALJ office, the regulations in this subpart will continue to apply to the hearing process.<PRTPAGE P="97"/> </P> <P>(b) If NMFS refers the case to the United States Department of Agriculture's Office of Administrative Law Judges, the regulations at 7 CFR 1.601 <E T="03">et seq.</E> will apply from that point on.</P> <P>(c) If NMFS refers the case to the Department of the Interior's Office of Hearings and Appeals, the regulations at 43 CFR 45.1 <E T="03">et seq.</E> will apply from that point on.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General Provisions Related to Hearings</HD> <SECTION> <SECTNO>§ 221.30</SECTNO> <SUBJECT>What will the Department of Commerce's designated ALJ office do with a case referral?</SUBJECT> <P>Within 5 days after issuance of the referral notice under § 221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c):</P> <P>(a) The Department of Commerce's designated ALJ office must:</P> <P>(1) Docket the case;</P> <P>(2) Assign an ALJ to preside over the hearing process and issue a decision; and</P> <P>(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case; and</P> <P>(b) The ALJ must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 221.40. This notice may be combined with the docketing notice under paragraph (a)(3) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 221.31</SECTNO> <SUBJECT>What are the powers of the ALJ?</SUBJECT> <P>The ALJ will have all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process, consistent with the requirements of § 221.60(a), including the powers to:</P> <P>(a) Administer oaths and affirmations;</P> <P>(b) Issue subpoenas to the extent authorized by law;</P> <P>(c) Rule on motions;</P> <P>(d) Authorize discovery as provided for in this subpart;</P> <P>(e) Hold hearings and conferences;</P> <P>(f) Regulate the course of hearings;</P> <P>(g) Call and question witnesses;</P> <P>(h) Exclude any person from a hearing or conference for misconduct or other good cause;</P> <P>(i) Issue a decision consistent with § 221.60(b) regarding any disputed issues of material fact relating to any Department's condition or prescription that has been referred to the ALJ for hearing; and</P> <P>(j) Take any other action authorized by law.</P> </SECTION> <SECTION> <SECTNO>§ 221.32</SECTNO> <SUBJECT>What happens if the ALJ becomes unavailable?</SUBJECT> <P>(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 221.31, the Department of Commerce's designated ALJ office shall designate a successor.</P> <P>(b) If a hearing has commenced and the ALJ cannot proceed with it, a successor ALJ may do so. At the request of a party, the successor ALJ may recall any witness whose testimony is material and disputed, and who is available to testify again without undue burden. The successor ALJ may, within his or her discretion, recall any other witness.</P> </SECTION> <SECTION> <SECTNO>§ 221.33</SECTNO> <SUBJECT>Under what circumstances may the ALJ be disqualified?</SUBJECT> <P>(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.</P> <P>(b) At any time before issuance of the ALJ's decision, any party may move that the ALJ disqualify himself or herself for personal bias or other valid cause.</P> <P>(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.</P> <P>(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.</P> <P>(c) The ALJ must rule upon the motion, stating the grounds for the ruling.</P> <P>(1) If the ALJ concludes that the motion is timely and meritorious, he or she must disqualify himself or herself and withdraw from the case.</P> <P>(2) If the ALJ does not disqualify himself or herself and withdraw from the case, the ALJ must continue with the hearing process and issue a decision.</P> </SECTION> <SECTION> <SECTNO>§ 221.34</SECTNO> <SUBJECT>What is the law governing ex parte communications?</SUBJECT> <P>(a) Ex parte communications with the ALJ or his or her staff are prohibited in accordance with 5 U.S.C. 554(d).<PRTPAGE P="98"/> </P> <P>(b) This section does not prohibit ex parte inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.</P> </SECTION> <SECTION> <SECTNO>§ 221.35</SECTNO> <SUBJECT>What are the requirements for motions?</SUBJECT> <P>(a) <E T="03">General.</E> Any party may apply for an order or ruling on any matter related to the hearing process by presenting a motion to the ALJ. A motion may be presented any time after the Department of Commerce's designated ALJ office issues a docketing notice under § 221.30.</P> <P>(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be reduced to writing.</P> <P>(2) Any other motion must:</P> <P>(i) Be in writing;</P> <P>(ii) Comply with the requirements of this subpart with respect to form, content, filing, and service; and</P> <P>(iii) Not exceed 10 pages.</P> <P>(b) <E T="03">Content.</E> (1) Each motion must state clearly and concisely:</P> <P>(i) Its purpose and the relief sought;</P> <P>(ii) The facts constituting the grounds for the relief sought; and</P> <P>(iii) Any applicable statutory or regulatory authority.</P> <P>(2) A proposed order must accompany the motion.</P> <P>(c) <E T="03">Response.</E> Except as otherwise required by this part or by order of the ALJ, any other party may file a response to a written motion within 10 days after service of the motion. When a party presents a motion at a hearing, any other party may present a response orally on the record.</P> <P>(d) <E T="03">Reply.</E> Unless the ALJ orders otherwise, no reply to a response may be filed.</P> <P>(e) <E T="03">Effect of filing.</E> Unless the ALJ orders otherwise, the filing of a motion does not stay the hearing process.</P> <P>(f) <E T="03">Ruling.</E> The ALJ will rule on the motion as soon as practicable, either orally on the record or in writing. He or she may summarily deny any dilatory, repetitive, or frivolous motion.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Prehearing Conferences and Discovery</HD> <SECTION> <SECTNO>§ 221.40</SECTNO> <SUBJECT>What are the requirements for prehearing conferences?</SUBJECT> <P>(a) <E T="03">Initial prehearing conference.</E> The ALJ will conduct an initial prehearing conference with the parties at the time specified in the docketing notice under § 221.30, on or about the 20th day after issuance of the referral notice under § 221.25(c).</P> <P>(1) The initial prehearing conference will be used:</P> <P>(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;</P> <P>(ii) To consider the parties' motions for discovery under § 221.41 and to set a deadline for the completion of discovery;</P> <P>(iii) To discuss the evidence on which each party intends to rely at the hearing;</P> <P>(iv) To set the deadline for submission of written testimony under § 221.52; and</P> <P>(v) To set the date, time, and place of the hearing.</P> <P>(2) The initial prehearing conference may also be used:</P> <P>(i) To discuss limiting and grouping witnesses to avoid duplication;</P> <P>(ii) To discuss stipulations of fact and of the content and authenticity of documents;</P> <P>(iii) To consider requests that the ALJ take official notice of public records or other matters;</P> <P>(iv) To discuss the submission of written testimony, briefs, or other documents in electronic form; and</P> <P>(v) To consider any other matters that may aid in the disposition of the case.</P> <P>(b) <E T="03">Other conferences.</E> The ALJ may in his or her discretion direct the parties to attend one or more other prehearing conferences, if consistent with the need to complete the hearing process within 90 days. Any party may by motion request a conference.</P> <P>(c) <E T="03">Notice.</E> The ALJ must give the parties reasonable notice of the time <PRTPAGE P="99"/>and place of any conference. A conference will ordinarily be held by telephone, unless the ALJ orders otherwise.</P> <P>(d) <E T="03">Preparation.</E> (1) Each party's representative must be fully prepared for a discussion of all issues properly before the conference, both procedural and substantive. The representative must be authorized to commit the party that he or she represents respecting those issues.</P> <P>(2) Before the date set for the initial prehearing conference, the parties' representatives must make a good faith effort:</P> <P>(i) To meet in person, by telephone, or by other appropriate means; and</P> <P>(ii) To reach agreement on discovery and the schedule of remaining steps in the hearing process.</P> <P>(e) <E T="03">Failure to attend.</E> Unless the ALJ orders otherwise, a party that fails to attend or participate in a conference, after being served with reasonable notice of its time and place, waives all objections to any agreements reached in the conference and to any consequent orders or rulings.</P> <P>(f) <E T="03">Scope.</E> During a conference, the ALJ may dispose of any procedural matters related to the case.</P> <P>(g) <E T="03">Order.</E> Within 2 days after the conclusion of each conference, the ALJ must issue an order that recites any agreements reached at the conference and any rulings made by the ALJ during or as a result of the conference.</P> </SECTION> <SECTION> <SECTNO>§ 221.41</SECTNO> <SUBJECT>How may parties obtain discovery of information needed for the case?</SUBJECT> <P>(a) <E T="03">General.</E> By agreement of the parties or with the permission of the ALJ, a party may obtain discovery of information to assist the party in preparing or presenting its case. Available methods of discovery are:</P> <P>(1) Written interrogatories;</P> <P>(2) Depositions as provided in paragraph (h) of this section; and</P> <P>(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.</P> <P>(b) <E T="03">Criteria.</E> Discovery may occur only as agreed to by the parties or as authorized by the ALJ in a written order or during a prehearing conference. The ALJ may authorize discovery only if the party requesting discovery demonstrates:</P> <P>(1) That the discovery will not unreasonably delay the hearing process;</P> <P>(2) That the information sought:</P> <P>(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;</P> <P>(ii) Is not already in the license proceeding record or otherwise obtainable by the party;</P> <P>(iii) Is not cumulative or repetitious; and</P> <P>(iv) Is not privileged or protected from disclosure by applicable law;</P> <P>(3) That the scope of the discovery is not unduly burdensome;</P> <P>(4) That the method to be used is the least burdensome method available;</P> <P>(5) That any trade secrets or proprietary information can be adequately safeguarded; and</P> <P>(6) That the standards for discovery under paragraphs (f) through (h) of this section have been met, if applicable.</P> <P>(c) <E T="03">Motions.</E> A party may initiate discovery:</P> <P>(1) Pursuant to an agreement of the parties; or</P> <P>(2) By filing a motion that:</P> <P>(i) Briefly describes the proposed method(s), purpose, and scope of the discovery;</P> <P>(ii) Explains how the discovery meets the criteria in paragraphs (b)(1) through (b)(6) of this section; and</P> <P>(iii) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).</P> <P>(d) <E T="03">Timing of motions.</E> A party must file any discovery motion under paragraph (c)(2) of this section within 7 days after issuance of the referral notice under § 221.25(c).</P> <P>(e) <E T="03">Objections.</E> (1) A party must file any objections to a discovery motion or to specific portions of a proposed discovery request within 7 days after service of the motion.</P> <P>(2) An objection must explain how, in the objecting party's view, the discovery sought does not meet the criteria in paragraphs (b)(1) through (b)(6) of this section.<PRTPAGE P="100"/> </P> <P>(f) <E T="03">Materials prepared for hearing.</E> A party generally may not obtain discovery of documents and tangible things otherwise discoverable under paragraph (b) of this section if they were prepared in anticipation of or for the hearing by or for another party's representative (including the party's attorney, expert, or consultant).</P> <P>(1) If a party wants to discover such materials, it must show:</P> <P>(i) That it has substantial need of the materials in preparing its own case; and</P> <P>(ii) That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.</P> <P>(2) In ordering discovery of such materials when the required showing has been made, the ALJ must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney.</P> <P>(g) <E T="03">Experts.</E> Unless restricted by the ALJ, a party may discover any facts known or opinions held by an expert concerning any relevant matters that are not privileged. Such discovery will be permitted only if:</P> <P>(1) The expert is expected to be a witness at the hearing; or</P> <P>(2) The expert is relied on by another expert who is expected to be a witness at the hearing, and the party shows:</P> <P>(i) That it has a compelling need for the information; and</P> <P>(ii) That it cannot practicably obtain the information by other means.</P> <P>(h) <E T="03">Limitations on depositions.</E> (1) A party may depose a witness only if the party shows that the witness:</P> <P>(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or</P> <P>(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.</P> <P>(2) Paragraph (h)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.</P> <P>(3) A party may depose a senior Department employee only if the party shows:</P> <P>(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and</P> <P>(ii) That the deposition would not significantly interfere with the employee's ability to perform his or her government duties.</P> <P>(i) <E T="03">Completion of discovery.</E> All discovery must be completed within 25 days after the initial prehearing conference, unless the ALJ sets a different deadline.</P> </SECTION> <SECTION> <SECTNO>§ 221.42</SECTNO> <SUBJECT>When must a party supplement or amend information it has previously provided?</SUBJECT> <P>(a) <E T="03">Discovery.</E> A party must promptly supplement or amend any prior response to a discovery request if it learns that the response:</P> <P>(1) Was incomplete or incorrect when made; or</P> <P>(2) Though complete and correct when made, is now incomplete or incorrect in any material respect.</P> <P>(b) <E T="03">Witnesses and exhibits.</E> (1) Within 5 days after the date set for completion of discovery, each party must file an updated version of the list of witnesses and exhibits required under §§ 221.21(c), 221.22(c), or 221.24(c).</P> <P>(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under §§ 221.21(c), 221.22(c), or 221.24(c).</P> <P>(c) <E T="03">Failure to disclose.</E> (1) A party that fails to disclose information required under §§ 221.21(c), 221.22(c), or 221.24(c), or paragraphs (a) or (b) of this section, will not be permitted to introduce as evidence at the hearing testimony from a witness or other information that it failed to disclose.</P> <P>(2) Paragraph (c)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.</P> <P>(3) Before or during the hearing, a party may object to the admission of evidence under paragraph (c)(1) of this section.</P> <P>(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1) through (c)(3) of this section:</P> <P>(i) The prejudice to the objecting party;<PRTPAGE P="101"/> </P> <P>(ii) The ability of the objecting party to cure any prejudice;</P> <P>(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;</P> <P>(iv) The importance of the evidence; and</P> <P>(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.</P> </SECTION> <SECTION> <SECTNO>§ 221.43</SECTNO> <SUBJECT>What are the requirements for written interrogatories?</SUBJECT> <P>(a) <E T="03">Motion.</E> Except upon agreement of the parties, a party wishing to propound interrogatories must file a motion under § 221.41(c).</P> <P>(b) <E T="03">ALJ order.</E> During or promptly after the initial prehearing conference, the ALJ will issue an order under § 221.41(b) with respect to any discovery motion requesting the use of written interrogatories. The order will:</P> <P>(1) Grant the motion and approve the use of some or all of the proposed interrogatories; or</P> <P>(2) Deny the motion.</P> <P>(c) <E T="03">Answers to interrogatories.</E> Except upon agreement of the parties, the party to whom the proposed interrogatories are directed must file its answers to any interrogatories approved by the ALJ within 15 days after issuance of the order under paragraph (b) of this section.</P> <P>(1) Each approved interrogatory must be answered separately and fully in writing.</P> <P>(2) The party or its representative must sign the answers to interrogatories under oath or affirmation.</P> <P>(d) <E T="03">Access to records.</E> A party's answer to an interrogatory is sufficient when:</P> <P>(1) The information may be obtained from an examination of records, or from a compilation, abstract, or summary based on such records;</P> <P>(2) The burden of obtaining the information from the records is substantially the same for all parties;</P> <P>(3) The answering party specifically identifies the individual records from which the requesting party may obtain the information and where the records are located; and</P> <P>(4) The answering party provides the requesting party with reasonable opportunity to examine the records and make a copy, compilation, abstract, or summary.</P> </SECTION> <SECTION> <SECTNO>§ 221.44</SECTNO> <SUBJECT>What are the requirements for depositions?</SUBJECT> <P>(a) <E T="03">Motion and notice.</E> Except upon agreement of the parties, a party wishing to take a deposition must file a motion under § 221.41(c). Any notice of deposition filed with the motion must state:</P> <P>(1) The time and place that the deposition is to be taken;</P> <P>(2) The name and address of the person before whom the deposition is to be taken;</P> <P>(3) The name and address of the witness whose deposition is to be taken; and</P> <P>(4) Any documents or materials that the witness is to produce.</P> <P>(b) <E T="03">ALJ order.</E> During or promptly after the initial prehearing conference, the ALJ will issue an order under § 221.41(b) with respect to any discovery motion requesting the taking of a deposition. The order will:</P> <P>(1) Grant the motion and approve the taking of the deposition, subject to any conditions or restrictions the ALJ may impose; or</P> <P>(2) Deny the motion.</P> <P>(c) <E T="03">Arrangements.</E> If the parties agree to or the ALJ approves the taking of the deposition, the party requesting the deposition must make appropriate arrangements for necessary facilities and personnel.</P> <P>(1) The deposition will be taken at the time and place agreed to by the parties or indicated in the ALJ's order.</P> <P>(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place where the deposition is to be taken.</P> <P>(3) Any party that objects to the taking of a deposition because of the disqualification of the person before whom it is to be taken must do so:</P> <P>(i) Before the deposition begins; or</P> <P>(ii) As soon as the disqualification becomes known or could have been discovered with reasonable diligence.</P> <P>(4) A deposition may be taken by telephone conference call, if agreed to by the parties or approved in the ALJ's order.<PRTPAGE P="102"/> </P> <P>(d) <E T="03">Testimony.</E> Each witness deposed must be placed under oath or affirmation, and the other parties must be given an opportunity for cross-examination.</P> <P>(e) <E T="03">Representation of witness.</E> The witness being deposed may have counsel or another representative present during the deposition.</P> <P>(f) <E T="03">Recording and transcript.</E> Except as provided in paragraph (g) of this section, the deposition must be stenographically recorded and transcribed at the expense of the party that requested the deposition.</P> <P>(1) Any other party may obtain a copy of the transcript at its own expense.</P> <P>(2) Unless waived by the deponent, the deponent will have 3 days after receiving the transcript to read and sign it.</P> <P>(3) The person before whom the deposition was taken must certify the transcript following receipt of the signed transcript from the deponent or expiration of the 3-day review period, whichever occurs first.</P> <P>(g) <E T="03">Video recording.</E> The testimony at a deposition may be recorded on videotape, subject to any conditions or restrictions that the parties may agree to or the ALJ may impose, at the expense of the party requesting the recording.</P> <P>(1) The video recording may be in conjunction with an oral examination by telephone conference held under paragraph (c)(3) of this section.</P> <P>(2) After the deposition has been taken, the person recording the deposition must:</P> <P>(i) Provide a copy of the videotape to any party that requests it, at the requesting party's expense; and</P> <P>(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of the video recording.</P> <P>(h) <E T="03">Use of deposition.</E> A deposition may be used at the hearing as provided in § 221.53.</P> </SECTION> <SECTION> <SECTNO>§ 221.45</SECTNO> <SUBJECT>What are the requirements for requests for documents or tangible things or entry on land?</SUBJECT> <P>(a) <E T="03">Motion.</E> Except upon agreement of the parties, a party wishing to request the production of designated documents or tangible things or entry on designated land must file a motion under § 221.41(c). A request may include any of the following that are in the possession, custody, or control of another party:</P> <P>(1) The production of designated documents for inspection and copying, other than documents that are already in the license proceeding record;</P> <P>(2) The production of designated tangible things for inspection, copying, testing, or sampling; or</P> <P>(3) Entry on designated land or other property for inspection and measuring, surveying, photographing, testing, or sampling either the property or any designated object or operation on the property.</P> <P>(b) <E T="03">ALJ order.</E> During or promptly after the initial prehearing conference, the ALJ will issue an order under § 221.41(b) with respect to any discovery motion requesting the production of documents or tangible things or entry on land for inspection, copying, or other purposes. The order will:</P> <P>(1) Grant the motion and approve the use of some or all of the proposed requests; or</P> <P>(2) Deny the motion.</P> <P>(c) <E T="03">Compliance with order.</E> Except upon agreement of the parties, the party to whom any approved request for production is directed must permit the approved inspection and other activities within 15 days after issuance of the order under paragraph (a) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 221.46</SECTNO> <SUBJECT>What sanctions may the ALJ impose for failure to comply with discovery?</SUBJECT> <P>(a) Upon motion of a party, the ALJ may impose sanctions under paragraph (b) of this section if any party:</P> <P>(1) Fails to comply with an order approving discovery; or</P> <P>(2) Fails to supplement or amend a response to discovery under § 221.42(a).</P> <P>(b) The ALJ may impose one or more of the following sanctions:</P> <P>(1) Infer that the information, testimony, document, or other evidence withheld would have been adverse to the party;</P> <P>(2) Order that, for the purposes of the hearing, designated facts are established;<PRTPAGE P="103"/> </P> <P>(3) Order that the party not introduce into evidence, or otherwise rely on to support its case, any information, testimony, document, or other evidence:</P> <P>(i) That the party improperly withheld; or</P> <P>(ii) That the party obtained from another party in discovery;</P> <P>(4) Allow another party to use secondary evidence to show what the information, testimony, document, or other evidence withheld would have shown; or</P> <P>(5) Take other appropriate action to remedy the party's failure to comply.</P> </SECTION> <SECTION> <SECTNO>§ 221.47</SECTNO> <SUBJECT>What are the requirements for subpoenas and witness fees?</SUBJECT> <P>(a) <E T="03">Request for subpoena.</E> (1) Except as provided in paragraph (a)(2) of this section, any party may file a motion requesting the ALJ to issue a subpoena to the extent authorized by law for the attendance of a person, the giving of testimony, or the production of documents or other relevant evidence during discovery or for the hearing.</P> <P>(2) A party may subpoena a senior Department employee only if the party shows:</P> <P>(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and</P> <P>(ii) That the employee's attendance would not significantly interfere with the ability to perform his or her government duties.</P> <P>(b) <E T="03">Service.</E> (1) A subpoena may be served by any person who is not a party and is 18 years of age or older.</P> <P>(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.</P> <P>(3) The person serving the subpoena must:</P> <P>(i) Prepare a certificate of service setting forth:</P> <P>(A) The date, time, and manner of service; or</P> <P>(B) The reason for any failure of service; and</P> <P>(ii) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served.</P> <P>(c) <E T="03">Witness fees.</E> (1) A party who subpoenas a witness who is not a party must pay him or her the same fees and mileage expenses that are paid witnesses in the district courts of the United States.</P> <P>(2) A witness who is not a party and who attends a deposition or hearing at the request of any party without having been subpoenaed to do so is entitled to the same fees and mileage expenses as if he or she had been subpoenaed. However, this paragraph does not apply to federal employees who are called as witnesses by a Department.</P> <P>(d) <E T="03">Motion to quash.</E> (1) A person to whom a subpoena is directed may request by motion that the ALJ quash or modify the subpoena.</P> <P>(2) The motion must be filed:</P> <P>(i) Within 5 days after service of the subpoena; or</P> <P>(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.</P> <P>(3) The ALJ may quash or modify the subpoena if it:</P> <P>(i) Is unreasonable;</P> <P>(ii) Requires evidence during discovery that is not discoverable; or</P> <P>(iii) Requires evidence during a hearing that is privileged or irrelevant.</P> <P>(e) <E T="03">Enforcement.</E> For good cause shown, the ALJ may apply to the appropriate United States District Court for the issuance of an order compelling the appearance and testimony of a witness or the production of evidence as set forth in a subpoena that has been duly issued and served.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing, Briefing, and Decision</HD> <SECTION> <SECTNO>§ 221.50</SECTNO> <SUBJECT>When and where will the hearing be held?</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, the hearing will be held at the time and place set at the initial prehearing conference under § 221.40, generally within 15 days after the date set for completion of discovery.</P> <P>(b) On motion by a party or on the ALJ's initiative, the ALJ may change the date, time, or place of the hearing if he or she finds:</P> <P>(1) That there is good cause for the change; and</P> <P>(2) That the change will not unduly prejudice the parties and witnesses.</P> </SECTION> <SECTION> <PRTPAGE P="104"/> <SECTNO>§ 221.51</SECTNO> <SUBJECT>What are the parties' rights during the hearing?</SUBJECT> <P>Consistent with the provisions of this subpart, each party has the following rights during the hearing, as necessary to assure full and accurate disclosure of the facts:</P> <P>(a) To present direct and rebuttal evidence;</P> <P>(b) To make objections, motions, and arguments; and</P> <P>(c) To cross-examine witnesses and to conduct re-direct and re-cross examination as permitted by the ALJ.</P> </SECTION> <SECTION> <SECTNO>§ 221.52</SECTNO> <SUBJECT>What are the requirements for presenting testimony?</SUBJECT> <P>(a) <E T="03">Written direct testimony.</E> Unless otherwise ordered by the ALJ, all direct hearing testimony must be prepared and submitted in written form.</P> <P>(1) Prepared written testimony must:</P> <P>(i) Have line numbers inserted in the left-hand margin of each page;</P> <P>(ii) Be authenticated by an affidavit or declaration of the witness;</P> <P>(iii) Be filed within 5 days after the date set for completion of discovery, unless the ALJ sets a different deadline; and</P> <P>(iv) Be offered as an exhibit during the hearing.</P> <P>(2) Any witness submitting written testimony must be available for cross-examination at the hearing.</P> <P>(b) <E T="03">Oral testimony.</E> Oral examination of a witness in a hearing, including on cross-examination or redirect, must be conducted under oath and in the presence of the ALJ, with an opportunity for all parties to question the witness.</P> <P>(c) <E T="03">Telephonic testimony.</E> The ALJ may by order allow a witness to testify by telephonic conference call.</P> <P>(1) The arrangements for the call must let each party listen to and speak to the witness and each other within the hearing of the ALJ.</P> <P>(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.</P> <P>(3) The ALJ may issue a subpoena under § 221.47 directing a witness to testify by telephonic conference call.</P> </SECTION> <SECTION> <SECTNO>§ 221.53</SECTNO> <SUBJECT>How may a party use a deposition in the hearing?</SUBJECT> <P>(a) <E T="03">In general.</E> Subject to the provisions of this section, a party may use in the hearing any part or all of a deposition taken under § 221.44 against any party who:</P> <P>(1) Was present or represented at the taking of the deposition; or</P> <P>(2) Had reasonable notice of the taking of the deposition.</P> <P>(b) <E T="03">Admissibility.</E> (1) No part of a deposition will be included in the hearing record, unless received in evidence by the ALJ.</P> <P>(2) The ALJ will exclude from evidence any question and response to which an objection:</P> <P>(i) Was noted at the taking of the deposition; and</P> <P>(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.</P> <P>(3) If a party offers only part of a deposition in evidence:</P> <P>(i) An adverse party may require the party to introduce any other part that ought in fairness to be considered with the part introduced; and</P> <P>(ii) Any other party may introduce any other parts.</P> <P>(c) <E T="03">Videotaped deposition.</E> If the deposition was recorded on videotape and is admitted into evidence, relevant portions will be played during the hearing and transcribed into the record by the reporter.</P> </SECTION> <SECTION> <SECTNO>§ 221.54</SECTNO> <SUBJECT>What are the requirements for exhibits, official notice, and stipulations?</SUBJECT> <P>(a) <E T="03">General.</E> (1) Except as provided in paragraphs (b) through (e) of this section, any material offered in evidence, other than oral testimony, must be offered in the form of an exhibit.</P> <P>(2) Each exhibit offered by a party must be marked for identification.</P> <P>(3) Any party who seeks to have an exhibit admitted into evidence must provide:</P> <P>(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and</P> <P>(ii) A copy of the exhibit to the ALJ.</P> <P>(b) <E T="03">Material not offered.</E> If a document offered as an exhibit contains material not offered as evidence:</P> <P>(1) The party offering the exhibit must:</P> <P>(i) Designate the matter offered as evidence;<PRTPAGE P="105"/> </P> <P>(ii) Segregate and exclude the material not offered in evidence, to the extent practicable; and</P> <P>(iii) Provide copies of the entire document to the other parties appearing at the hearing.</P> <P>(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence any other portions of the document.</P> <P>(c) <E T="03">Official notice.</E> (1) At the request of any party at the hearing, the ALJ may take official notice of any matter of which the courts of the United States may take judicial notice, including the public records of NMFS and any other Department party.</P> <P>(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.</P> <P>(3) Any party requesting official notice of a fact after the conclusion of the hearing must show good cause for its failure to request official notice during the hearing.</P> <P>(d) <E T="03">Stipulations.</E> (1) The parties may stipulate to any relevant facts or to the authenticity of any relevant documents.</P> <P>(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.</P> <P>(3) A stipulation may be written or made orally at the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 221.55</SECTNO> <SUBJECT>What evidence is admissible at the hearing?</SUBJECT> <P>(a) <E T="03">General.</E> (1) Subject to the provisions of § 221.42(b), the ALJ may admit any written, oral, documentary, or demonstrative evidence that is:</P> <P>(i) Relevant, reliable, and probative; and</P> <P>(ii) Not privileged or unduly repetitious or cumulative.</P> <P>(2) The ALJ may exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or delay.</P> <P>(3) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.</P> <P>(4) The Federal Rules of Evidence do not directly apply to the hearing, but may be used as guidance by the ALJ and the parties in interpreting and applying the provisions of this section.</P> <P>(b) <E T="03">Objections.</E> Any party objecting to the admission or exclusion of evidence shall concisely state the grounds. A ruling on every objection must appear in the record.</P> </SECTION> <SECTION> <SECTNO>§ 221.56</SECTNO> <SUBJECT>What are the requirements for transcription of the hearing?</SUBJECT> <P>(a) <E T="03">Transcript and reporter's fees.</E> The hearing will be transcribed verbatim.</P> <P>(1) The Department of Commerce's designated ALJ office will secure the services of a reporter and pay the reporter's fees to provide an original transcript to the Department of Commerce's designated ALJ office on an expedited basis.</P> <P>(2) Each party must pay the reporter for any copies of the transcript obtained by that party.</P> <P>(b) <E T="03">Transcript Corrections.</E> (1) Any party may file a motion proposing corrections to the transcript. The motion must be filed within 5 days after receipt of the transcript, unless the ALJ sets a different deadline.</P> <P>(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to be correct and complete, except for obvious typographical errors.</P> <P>(3) As soon as practicable after the close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.</P> </SECTION> <SECTION> <SECTNO>§ 221.57</SECTNO> <SUBJECT>What is the standard of proof?</SUBJECT> <P>The standard of proof is a preponderance of the evidence.</P> </SECTION> <SECTION> <SECTNO>§ 221.58</SECTNO> <SUBJECT>When will the hearing record close?</SUBJECT> <P>(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.</P> <P>(b) Evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 221.56(b).</P> </SECTION> <SECTION> <SECTNO>§ 221.59</SECTNO> <SUBJECT>What are the requirements for post-hearing briefs?</SUBJECT> <P>(a) <E T="03">General.</E> (1) Each party may file a post-hearing brief within 10 days after the close of the hearing, unless the ALJ sets a different deadline.<PRTPAGE P="106"/> </P> <P>(2) A party may file a reply brief only if requested by the ALJ. The deadline for filing a reply brief, if any, will be set by the ALJ.</P> <P>(3) The ALJ may limit the length of the briefs to be filed under this section.</P> <P>(b) <E T="03">Content.</E> (1) An initial brief must include:</P> <P>(i) A concise statement of the case;</P> <P>(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;</P> <P>(iii) Arguments in support of the party's position; and</P> <P>(iv) Any other matter required by the ALJ.</P> <P>(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.</P> <P>(c) Form. (1) An exhibit admitted in evidence or marked for identification in the record may not be reproduced in the brief.</P> <P>(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.</P> <P>(ii) Any pertinent analysis of an exhibit may be included in a brief.</P> <P>(2) If a brief exceeds 20 pages, it must contain:</P> <P>(i) A table of contents and of points made, with page references; and</P> <P>(ii) An alphabetical list of citations to legal authority, with page references.</P> </SECTION> <SECTION> <SECTNO>§ 221.60</SECTNO> <SUBJECT>What are the requirements for the ALJ's decision?</SUBJECT> <P>(a) <E T="03">Timing.</E> The ALJ must issue a decision within the shorter of the following time periods:</P> <P>(1) 30 days after the close of the hearing under § 221.58; or</P> <P>(2) 90 days after issuance of the referral notice under § 221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c).</P> <P>(b) <E T="03">Content.</E> (1) The decision must contain:</P> <P>(i) Findings of fact on all disputed issues of material fact;</P> <P>(ii) Conclusions of law necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and</P> <P>(iii) Reasons for the findings and conclusions.</P> <P>(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.</P> <P>(3) The decision will not contain conclusions as to whether any preliminary condition or prescription should be adopted, modified, or rejected, or whether any proposed alternative should be adopted or rejected.</P> <P>(c) <E T="03">Service.</E> Promptly after issuing his or her decision, the ALJ must:</P> <P>(1) Serve the decision on each party to the hearing; and</P> <P>(2) Forward a copy of the decision to FERC, along with the complete hearing record, for inclusion in the license proceeding record.</P> <P>(d) <E T="03">Finality.</E> The ALJ's decision under this section will be final, with respect to the disputed issues of material fact, for NMFS and any other Department involved in the hearing. To the extent the ALJ's decision forms the basis for any condition or prescription subsequently included in the license, it may be subject to judicial review under 16 U.S.C. 825<E T="03">l</E>(b).</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Alternatives Process</HD> <SECTION> <SECTNO>§ 221.70</SECTNO> <SUBJECT>How must documents be filed and served under this subpart?</SUBJECT> <P>(a) <E T="03">Filing.</E> (1) A document under this subpart must be filed using one of the methods set forth in § 221.12(b).</P> <P>(2) A document is considered filed on the date it is received. However, any document received after 5 p.m. at the place where the filing is due is considered filed on the next regular business day.</P> <P>(b) <E T="03">Service.</E> (1) Any document filed under this subpart must be served at the same time the document is delivered or sent for filing. A complete copy of the document must be served on each license party and FERC, using:</P> <P>(i) One of the methods of service in § 221.13(c); or</P> <P>(ii) Regular mail.</P> <P>(2) The provisions of § 221.13(d) and (e) regarding acknowledgment and certificate of service apply to service under this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 221.71</SECTNO> <SUBJECT>How do I propose an alternative?</SUBJECT> <P>(a) <E T="03">General.</E> To propose an alternative, you must:<PRTPAGE P="107"/> </P> <P>(1) Be a license party; and</P> <P>(2) File a written proposal with the Office of Habitat Conservation within 30 days after the deadline for NMFS to file preliminary prescriptions with FERC.</P> <P>(b) <E T="03">Content.</E> Your proposal must include:</P> <P>(1) A description of the alternative, in an equivalent level of detail to NMFS's preliminary prescription;</P> <P>(2) An explanation of how the alternative will be no less protective than the fishway prescribed by NMFS;</P> <P>(3) An explanation of how the alternative, as compared to the preliminary prescription, will:</P> <P>(i) Cost significantly less to implement; or</P> <P>(ii) Result in improved operation of the project works for electricity production;</P> <P>(4) An explanation of how the alternative will affect:</P> <P>(i) Energy supply, distribution, cost, and use;</P> <P>(ii) Flood control;</P> <P>(iii) Navigation;</P> <P>(iv) Water supply;</P> <P>(v) Air quality; and</P> <P>(vi) Other aspects of environmental quality; and</P> <P>(5) Specific citations to any scientific studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (<E T="03">e.g.</E>, regarding the cost of energy or the rate of inflation). If any such document is not already in the license proceeding record, you must provide a copy with the proposal.</P> </SECTION> <SECTION> <SECTNO>§ 221.72</SECTNO> <SUBJECT>What will NMFS do with a proposed alternative?</SUBJECT> <P>If any license party proposes an alternative to a preliminary prescription under § 221.71(a)(1), NMFS must do the following within 60 days after the deadline for filing comments to FERC's NEPA document under 18 CFR 5.25(c):</P> <P>(a) Analyze the alternative under § 221.73; and</P> <P>(b) File with FERC:</P> <P>(1) Any prescription that NMFS adopts as its modified prescription; and</P> <P>(2) Its analysis of the modified prescription and any proposed alternatives under § 221.73(c).</P> </SECTION> <SECTION> <SECTNO>§ 221.73</SECTNO> <SUBJECT>How will NMFS analyze a proposed alternative and formulate its modified prescription?</SUBJECT> <P>(a) In deciding whether to adopt a proposed alternative, NMFS must consider evidence and supporting material provided by any license party or otherwise available to NMFS including:</P> <P>(1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;</P> <P>(2) Any comments received on NMFS's preliminary prescription;</P> <P>(3) Any ALJ decision on disputed issues of material fact issued under § 221.60 with respect to the preliminary prescription;</P> <P>(4) Comments received on any draft or final NEPA documents; and</P> <P>(5) The license party's proposal under § 221.71.</P> <P>(b) NMFS must adopt a proposed alternative if NMFS determines, based on substantial evidence provided by any license party or otherwise available to NMFS, that the alternative will be no less protective than NMFS's preliminary prescription and will, as compared to NMFS's preliminary prescription:</P> <P>(1) Cost significantly less to implement; or</P> <P>(2) Result in improved operation of the project works for electricity production.</P> <P>(c) When NMFS files with FERC the prescription that NMFS adopts as its modified prescription under §§ 221.72(b), it must also file:</P> <P>(1) A written statement explaining:</P> <P>(i) The basis for the adopted prescription; and</P> <P>(ii) If NMFS is not adopting any alternative, its reasons for not doing so; and</P> <P>(2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.</P> <P>(d) The written statement under paragraph (c)(1) of this section must demonstrate that NMFS gave equal consideration to the effects of the prescription adopted and any alternative prescription not adopted on:</P> <P>(1) Energy supply, distribution, cost, and use;</P> <P>(2) Flood control;<PRTPAGE P="108"/> </P> <P>(3) Navigation;</P> <P>(4) Water supply;</P> <P>(5) Air quality; and</P> <P>(6) Preservation of other aspects of environmental quality.</P> </SECTION> <SECTION> <SECTNO>§ 221.74</SECTNO> <SUBJECT>Has OMB approved the information collection provisions of this subpart?</SUBJECT> <P>Yes. This rule contains provisions that would collect information from the public. It therefore requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 <E T="03">et seq.</E> (PRA). According to the PRA, a Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number that indicates OMB approval. OMB has reviewed the information collection in this rule and approved it under OMB control number 1094-0001.</P> </SECTION> </SUBPART> </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> <SECTNO>222.310</SECTNO> <SUBJECT>Permit authority for designated agents and employees of specified Federal and state agencies.</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 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 <PRTPAGE P="109"/>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 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<PRTPAGE P="110"/> </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">Chain mat</E> means a device designed to be installed in a scallop dredge forward of the sweep, as described in 50 CFR 223.206, for the purpose of excluding sea turtles from the dredge.</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">Dredge or dredge gear</E>, with respect to the fishery operating under the Atlantic Sea Scallop Fishery Management Plan, means gear consisting of a mouth frame attached to a holding bag constructed of metal rings, or any other modification to this design, that can be or is used in the harvest of sea scallops.</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 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 <PRTPAGE P="111"/>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">Gillnet</E> means a panel of netting, suspended vertically in the water by floats along the top and weights along the bottom, to entangle fish that attempt to pass through it.</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">Modified pound net leader</E> means a pound net leader that is affixed to or resting on the sea floor and made of a lower portion of mesh and an upper portion of only vertical lines such that: The mesh size is equal to or less than 8 inches (20.3 cm) stretched mesh; at any particular point along the leader the height of the mesh from the seafloor to the top of the mesh must be no more than one-third the depth of the water at mean lower low water directly above that particular point; the mesh is held in place by vertical lines that extend from the top of the mesh up to a top line, which is a line that forms the uppermost part of the pound net leader; the vertical lines are equal to or greater than <FR>5/16</FR> inch (0.8 cm) in diameter and strung vertically at a minimum of every 2 feet (61 cm); and the vertical lines are hard lay lines with a level of stiffness equivalent to the stiffness of a <FR>5/16</FR> inch (0.8 cm) diameter line composed of polyester wrapped around a blend of polypropylene and polyethylene and containing approximately 42 visible twists of strands per foot of line.</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 <PRTPAGE P="112"/>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.</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">Pound net leader</E> means a long straight net that directs the fish offshore towards the pound, an enclosure that captures the fish. Some pound net leaders are all mesh, while others have stringers and mesh. Stringers are vertical lines in a pound net leader that are spaced a certain distance apart and are not crossed by horizontal lines to form mesh. An offshore pound net leader refers to a leader with the inland end set greater than 10 horizontal feet (3 m) from the mean low water line. A nearshore pound net leader refers to a leader with the inland end set 10 horizontal feet (3 m) or less from the mean low water line.</P> <P> <E T="03">Pound Net Regulated Area I</E> means Virginia waters of the mainstem Chesapeake Bay, south of 37°19.0′ N. lat. and west of 76°13.0′ W. long., and all waters south of 37°13.0′ N. lat. to the Chesapeake Bay Bridge Tunnel (extending from approximately 37°05′ N. lat., 75°59′ W. long. to 36°55′ N. lat., 76°08′ W. long.) at the mouth of the Chesapeake Bay, and the portion of the James River downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 36°59.55′ N. lat., 76°18.64′ W. long.) and the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37°14.55′ N. lat, 76°30.40′ W. long.)</P> <P> <E T="03">Pound Net Regulated Area II</E> means Virginia waters of the Chesapeake Bay outside of Pound Net Regulated Area I defined above, extending to the Maryland-Virginia State line (approximately 37°55′ N. lat., 75°55′ W. long.), the Great Wicomico River downstream of the Jessie Dupont Memorial Highway Bridge (Route 200; approximately 37°50.84′ N. lat, 76°22.09′ W. long.), the Rappahannock River downstream of the Robert Opie Norris Jr. Bridge <PRTPAGE P="113"/>(Route 3; approximately 37°37.44′ N. lat, 76°25.40′ W. long.), and the Piankatank River downstream of the Route 3 Bridge (approximately 37°30.62′ N. lat, 76°25.19′ W. long.) to the COLREGS line at the mouth of the Chesapeake Bay.</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 § 224.103(c), 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 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.<PRTPAGE P="114"/> </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.</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.<PRTPAGE P="115"/> </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; 67 FR 13101, Mar. 21, 2002; 67 FR 41203, June 17, 2002; 67 FR 71899, Dec. 3, 2002; 68 FR 8467, Feb. 21, 2003; 68 FR 17562, Apr. 10, 2003; 69 FR 25011, May 5, 2004; 70 FR 1832, Jan. 11, 2005; 71 FR 36032, June 23, 2006; 71 FR 50372, Aug. 25, 2006]</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.</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, <PRTPAGE P="116"/>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.</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 <PRTPAGE P="117"/>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 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.<PRTPAGE P="118"/> </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, 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.<PRTPAGE P="119"/> </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.</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 (2), which contain information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.</P> </EFFDNOT> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="120"/> <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, 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 <PRTPAGE P="121"/>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 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 <PRTPAGE P="122"/>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 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 <PRTPAGE P="123"/>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) Except as otherwise provided in this section, 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 business 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 paragraphs (a)(2) and (a)(3) 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>(3) Incidental take permits issued under § 222.307, and enhancement permits issued under § 222.308, as part of a Safe Harbor Agreement with Assurances or Candidate Conservation Agreement with Assurances, may be transferred in whole or in part through a joint submission by the permittee and the proposed transferee, or in the case of a deceased permittee, the deceased permittee's legal representative and the proposed transferee, provided NMFS determines in writing that:</P> <P>(i) The proposed transferee meets all of the qualifications under parts 222, 223, or 224 (as applicable) for holding a permit;</P> <P>(ii) The proposed transferee has provided adequate written assurances that it will provide sufficient funding for the conservation plan or other agreement or plan associated with the permit and will implement the relevant terms and conditions of the permit, including any outstanding minimization and mitigation requirements; and</P> <P>(iii) The proposed transferee has provided such other information as NMFS determines is relevant to process the transfer.</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> <CITA>[64 FR 14054, Mar. 23, 1999, as amended at 67 FR 57973, Sept. 13, 2002]</CITA> <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 and recordkeeping requirements and will not become 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 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 <PRTPAGE P="124"/>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;</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 <PRTPAGE P="125"/>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 fund and implement applicable measures of the conservation plan.</P> <P>(2) To issue a Certificate of Inclusion, the Assistant Administrator must find that:<PRTPAGE P="126"/> </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 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> <PRTPAGE P="127"/> <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 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 <PRTPAGE P="128"/>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;</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;<PRTPAGE P="129"/> </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 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> <PRTPAGE P="130"/> <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> <SECTION> <SECTNO>§ 222.310</SECTNO> <SUBJECT>Permit authority for designated agents and employees of specified Federal and state agencies.</SUBJECT> <P>(a) This section constitutes a programmatic permit, pursuant to 16 U.S.C. 1539(a)(1)(A), that authorizes activities by agents and employees of Federal and state agencies, as described in paragraph (b) of this section, to aid stranded endangered sea turtles, and to salvage, collect data from, and dispose of, dead carcasses of endangered sea turtles in the marine environment. For purposes of this section, 'stranded' means endangered sea turtles, in the marine environment, that are alive but sick, injured, or entangled.</P> <P>(b) If any member of any endangered species of sea turtle is found stranded or dead in the marine environment, 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 endangered sea turtles if such taking is necessary to aid a stranded sea turtle, or dispose of or salvage a dead sea turtle, or collect data from a dead sea turtle which may be useful for scientific and educational purposes. Live turtles will be handled as described in § 223.206(d)(1). Whenever possible, live sea turtles shall be returned to their aquatic environment as soon as possible. The following data collection activities for live turtles while they are in the marine environment are allowed:</P> <P>(1) Turtles may be flipper and passive integrated transponder (PIT) tagged, prior to release. Flipper tags would be applied to the trailing edge of either the front or rear flippers with standard tagging applicators after the tagging area has been cleaned with alcohol or iodine solution. PIT tags would be inserted according to best practice, approved scientific protocols, after cleaning the insertion site with alcohol or iodine solution. Before application of flipper tags or insertion of PIT tags, all flippers and the neck/shoulder area will <PRTPAGE P="131"/>be examined and scanned for the presence of any pre-existing flipper or PIT tags.</P> <P>(2) Turtles may also be weighed, measured, and photographed prior to release.</P> <P>(3) When handling turtles exhibiting fibropapilloma, all equipment (tagging equipment, tape measures, etc.) that comes in contact with the turtle shall be cleaned with a mild bleach solution.</P> <P>(c) Every action shall be reported in writing to the Assistant Administrator, or authorized representative, via the agency or institution designated by the state to record such events. Reports shall contain the following information:</P> <P>(1) Name and position of the official or employee involved;</P> <P>(2) Description of the sea turtle(s) involved including species and condition of the animal;</P> <P>(3) When applicable, description of entangling gear, its location on the turtle, and the amount of gear left on the turtle at release;</P> <P>(4) Method, date and location of disposal of the sea turtle(s), including, if applicable, where the sea turtle(s) has been retained in captivity; and</P> <P>(5) Such other information as the Assistant Administrator, or authorized representative, may require.</P> <CITA>[70 FR 42509, July 25, 2005]</CITA> </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>Tribal plans.</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>[Reserved]</SUBJECT> <APP>Figures 1-2 to Part 223 [Reserved]</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 <E T="01">7-9b</E> to Part 223 [Reserved]</APP> <APP>Figure 10 to Part 223—Flounder TED</APP> <APP>Figure 11 to Part 223 [Reserved]</APP> <APP>Figure 12 to Part 223—Escape Opening & Cover Dimensions for 71-inch TED</APP> <APP>Figure 13 to Part 223—Single Grid Hard TED Escape Opening</APP> <APP>Figure <E T="01">14a</E> to Part 223—Maximum Angle of Deflector Bars With Straight Bars Attached to the Bottom of the Frame</APP> <APP>Figure <E T="01">14b</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—Weedless TED Brace Bar Description</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, § 223.201-202 also issued under 16 U.S.C. 1361 <E T="03">et seq.</E>; 16 U.S.C. 5503(d) for § 223.206(d)(9).</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> <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 Act of 1969 <PRTPAGE P="132"/>by the Secretary of the Interior and currently under the jurisdiction of the Secretary of Commerce, are listed in the table below. The table lists the common and scientific names of threatened species, the locations where they are listed, and the <E T="04">Federal Register</E> citations for the listings and critical habitat designations.</P> <GPOTABLE CDEF="s27,xl27L,xl40L,xl28L,r28L" COLS="5" OPTS="L2"> <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">Citation(s) for Listing<LI>Determination(s)</LI> </CHED> <CHED H="1">Citation for Critical<LI>Habitat Designation</LI> </CHED> </BOXHD> <ROW> <ENT I="22">(a) <E T="03">Marine Mammals</E> </ENT> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(1) Guadalupe fur seal</ENT> <ENT> <E T="03">Arctocephalus townsendi</E> </ENT> <ENT>Wherever found U.S.A. (Farallon Islands of CA) south to Mexico (Islas Revillagigedo)</ENT> <ENT>50 FR 51252; Dec 16, 1985</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(2) Steller sea lion</ENT> <ENT> <E T="03">Eumetopias jubatus</E> </ENT> <ENT>Eastern population, which consists of all Steller sea lions from breeding colonies located east of 144° W. longitude</ENT> <ENT>55 FR 13488; Apr 10, 1990<LI>55 FR 50006; Dec 4, 1990</LI> <LI>62 FR 30772; Jun 5, 1997</LI> </ENT> <ENT>58 FR 45278; Aug 27, 1993<LI>64 FR 14067; Mar 23, 1999</LI> </ENT> </ROW> <ROW> <ENT I="22">(b) <E T="03">Sea Turtles</E> </ENT> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(1) Green turtle <SU>2</SU> </ENT> <ENT> <E T="03">Chelonia mydas</E> </ENT> <ENT>Wherever found, except where listed as endangered under § 224.101(c); circumglobal in tropical and temperate seas and oceans</ENT> <ENT>43 FR 32808; Jul 28, 1978</ENT> <ENT>63 FR 46701; Sep 2, 1998<LI>64 FR 14067; Mar 23, 1999</LI> </ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(2) Loggerhead turtle <SU>2</SU> </ENT> <ENT> <E T="03">Caretta caretta</E> </ENT> <ENT>Wherever found; circumglobal in tropical and temperate seas and oceans</ENT> <ENT>43 FR 32808; Jul 28, 1978</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(3) Olive ridley turtle <SU>2</SU> </ENT> <ENT> <E T="03">Lepidochelys olivacea</E> </ENT> <ENT>Wherever found, except where listed as endangered under § 224.101(c); circumglobal in tropical and temperate seas.</ENT> <ENT>43 FR 32808; Jul 28, 1978</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="22">(c) <E T="03">Fishes</E> </ENT> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(1) Green sturgeon - southern DPS</ENT> <ENT> <E T="03">Acipenser medirostris</E> </ENT> <ENT>U.S.A., CA. The southern DPS includes all spawning populations of green sturgeon south of the Eel River (exclusive), principally including the Sacramento River green sturgeon spawning population.</ENT> <ENT>71 FR 17757; April 7, 2006;<LI>71 FR 19241; April 13, 2006</LI> </ENT> <ENT/> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(2) Gulf sturgeon</ENT> <ENT> <E T="03">Acipenser oxyrinchus desotoi</E> </ENT> <ENT>Wherever found.</ENT> <ENT>56 FR 49653; Sep 30, 1991</ENT> <ENT>68 FR 13370; Mar 19, 2003</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(3) Ozette Lake sockeye</ENT> <ENT> <E T="03">Oncorhynchus nerka</E> </ENT> <ENT>U.S.A.- WA, including all naturally spawned populations of sockeye salmon in Ozette Lake and streams and tributaries flowing into Ozette Lake, Washington, as well as two artificial propagation programs: the Umbrella Creek and Big River sockeye hatchery programs.</ENT> <ENT>64 FR 14528; Mar 25, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(4) Central Valley spring-run Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.- CA, including all naturally spawned populations of spring-run Chinook salmon in the Sacramento River and its tributaries in California, including the Feather River, as well as the Feather River Hatchery spring-run Chinook program.</ENT> <ENT>64 FR 50394; Sep 16, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52488; Sep 2, 2005</ENT> </ROW> <ROW> <PRTPAGE P="133"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(5) California Coastal Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.-CA, including all naturally spawned populations of Chinook salmon from rivers and streams south of the Klamath River to the Russian River, California, as well as seven artificial propagation programs: the Humboldt Fish Action Council (Freshwater Creek), Yager Creek, Redwood Creek, Hollow Tree, Van Arsdale Fish Station, Mattole Salmon Group, and Mad River Hatchery fall-run Chinook hatchery programs.</ENT> <ENT>64 FR 50394; Sep 16, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52488; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(6) Upper Willamette River Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.- OR, including 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, as well as seven artificial propagation programs: the McKenzie River Hatchery (Oregon Department of Fish and Wildlife (ODFW) stock #24), Marion Forks/North Fork Santiam River (ODFW stock #21), South Santiam Hatchery (ODFW stock #23) in the South Fork Santiam River, South Santiam Hatchery in the Calapooia River, South Santiam Hatchery in the Mollala River, Willamette Hatchery (ODFW stock # 22), and Clackamas hatchery (ODFW stock #19) spring-run Chinook hatchery programs.</ENT> <ENT>64 FR 14308; Mar. 24 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <PRTPAGE P="134"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(7) Lower Columbia River Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.- OR, WA, including 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, as well as seventeen artificial propagation programs: the Sea Resources Tule Chinook Program, Big Creek Tule Chinook Program, Astoria High School (STEP) Tule Chinook Program, Warrenton High School (STEP) Tule Chinook Program, Elochoman River Tule Chinook Program, Cowlitz Tule Chinook Program, North Fork Toutle Tule Chinook Program, Kalama Tule Chinook Program, Washougal River Tule Chinook Program, Spring Creek NFH Tule Chinook Program, Cowlitz spring Chinook Program in the Upper Cowlitz River and the Cispus River, Friends of the Cowlitz spring Chinook Program, Kalama River spring Chinook Program, Lewis River spring Chinook Program, Fish First spring Chinook Program, and the Sandy River Hatchery (ODFW stock #11) Chinook hatchery programs.</ENT> <ENT>64 FR 14308; Mar. 24, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <PRTPAGE P="135"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(8) Puget Sound Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.- WA, including 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, as well as twenty-six artificial propagation programs: the Kendal Creek Hatchery, Marblemount Hatchery (fall, spring yearlings, spring subyearlings, and summer run), Harvey Creek Hatchery, Whitehorse Springs Pond, Wallace River Hatchery (yearlings and subyearlings), Tulalip Bay, Issaquah Hatchery, Soos Creek Hatchery, Icy Creek Hatchery, Keta Creek Hatchery, White River Hatchery, White Acclimation Pond, Hupp Springs Hatchery, Voights Creek Hatchery, Diru Creek, Clear Creek, Kalama Creek, George Adams Hatchery, Rick's Pond Hatchery, Hamma Hamma Hatchery, Dungeness/Hurd Creek Hatchery, Elwha Channel Hatchery Chinook hatchery programs.</ENT> <ENT>64 FR 14308; Mar. 24, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(9) Snake River fall-run Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.- OR, WA, ID, including all naturally spawned populations of fall-run Chinook salmon in the mainstem Snake River below Hells Canyon Dam, and in the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River, as well as four artificial propagation programs: the Lyons Ferry Hatchery, Fall Chinook Acclimation Ponds Program, Nez Perce Tribal Hatchery, and Oxbow Hatchery fall-run Chinook hatchery programs.</ENT> <ENT>57 FR 14653; Apr 22, 1992<LI>57 FR 23458; Jun 3, 1992</LI> <LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>58 FR 68543; Dec 28, 1993</ENT> </ROW> <ROW> <PRTPAGE P="136"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(10) Snake River spring/summer-run Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A.- OR, WA, ID, including all naturally spawned populations of spring/summer-run Chinook salmon in the mainstem Snake River and the Tucannon River, Grande Ronde River, Imnaha River, and Salmon River subbasins, as well as fifteen artificial propagation programs: the Tucannon River conventional Hatchery, Tucannon River Captive Broodstock Program, Lostine River, Catherine Creek, Lookingglass Hatchery, Upper Grande Ronde, Imnaha River, Big Sheep Creek, McCall Hatchery, Johnson Creek Artificial Propagation Enhancement, Lemhi River Captive Rearing Experiment, Pahsimeroi Hatchery, East Fork Captive Rearing Experiment, West Fork Yankee Fork Captive Rearing Experiment, and the Sawtooth Hatchery spring/summer-run Chinook hatchery programs.</ENT> <ENT>57 FR 14653; Apr 22, 1992<LI>57 FR 23458; Jun 3, 1992</LI> <LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>58 FR 68543; Dec 28, 1993<LI>64 FR 57399; Oct 25, 1999</LI> </ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(11) Southern Oregon/Northern California Coast coho</ENT> <ENT> <E T="03">Oncorhynchus kisutch</E> </ENT> <ENT>U.S.A.- CA, OR, including all naturally spawned populations of coho salmon in coastal streams between Cape Blanco, Oregon, and Punta Gorda, California, as well three artificial propagation programs: the Cole Rivers Hatchery (ODFW stock # 52), Trinity River Hatchery, and Iron Gate Hatchery coho hatchery programs.</ENT> <ENT>62 FR 24588; May 6, 1997<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>64 FR 24049; May 5, 1999</ENT> </ROW> <ROW> <PRTPAGE P="137"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(12) Lower Columbia River coho</ENT> <ENT> <E T="03">Oncorhynchus kisutch</E> </ENT> <ENT>U.S.A.- OR, WA, including all naturally spawned populations of coho salmon in the Columbia River and its tributaries in Washington and Oregon, from the mouth of the Columbia up to and including the Big White Salmon and Hood Rivers, and includes the Willamette River to Willamette Falls, Oregon, as well as twenty-five artificial propagation programs: the Grays River, Sea Resources Hatchery, Peterson Coho Project, Big Creek Hatchery, Astoria High School (STEP) Coho Program, Warrenton High School (STEP) Coho Program, Elochoman Type-S Coho Program, Elochoman Type-N Coho Program, Cathlamet High School FFA Type-N Coho Program, Cowlitz Type-N Coho Program in the Upper and Lower Cowlitz Rivers, Cowlitz Game and Anglers Coho Program, Friends of the Cowlitz Coho Program, North Fork Toutle River Hatchery, Kalama River Type-N Coho Program, Kalama River Type-S Coho Program, Lewis River Type-N Coho Program, Lewis River Type-S Coho Program, Fish First Wild Coho Program, Fish First Type-N Coho Program, Syverson Project Type-N Coho Program, Eagle Creek National Fish Hatchery, Sandy Hatchery, and the Bonneville/Cascade/Oxbow complex coho hatchery programs.</ENT> <ENT>70 FR 37160; Jun 28, 2005</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(13) Columbia River chum</ENT> <ENT> <E T="03">Oncorhynchus keta</E> </ENT> <ENT>U.S.A.- OR, WA, including all naturally spawned populations of chum salmon in the Columbia River and its tributaries in Washington and Oregon, as well as three artificial propagation programs: the Chinook River (Sea Resources Hatchery), Grays River, and Washougal River/Duncan Creek chum hatchery programs.</ENT> <ENT>64 FR 14508; Mar. 25, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <PRTPAGE P="138"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(14) Hood Canal summer-run chum</ENT> <ENT> <E T="03">Oncorhynchus keta</E> </ENT> <ENT>U.S.A.- WA, including 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, as well as eight artificial propagation programs: the Quilcene NFH, Hamma Hamma Fish Hatchery, Lilliwaup Creek Fish Hatchery, Union River/Tahuya, Big Beef Creek Fish Hatchery, Salmon Creek Fish Hatchery, Chimacum Creek Fish Hatchery, and the Jimmycomelately Creek Fish Hatchery summer-run chum hatchery programs.</ENT> <ENT>64 FR 14508; Mar. 25, 1999<LI>70 FR 37160; Jun 28, 2005</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(15) South-Central California Coast Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- CA, including 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.</ENT> <ENT>62 FR 43937; Aug 18, 1997<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52488; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(16) Central California Coast Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- CA, including all naturally spawned populations of steelhead (and their progeny) in streams from the Russian River to Aptos Creek, Santa Cruz County, Californian (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.</ENT> <ENT>62 FR 43937; Aug 18, 1997<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52488; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(17) California Central Valley Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- CA, including all naturally spawned populations of steelhead (and their progeny) in the Sacramento and San Joaquin Rivers and their tributaries, excluding steelhead from San Francisco and San Pablo Bays and their tributaries.</ENT> <ENT>63 FR 13347; Mar. 19, 1998<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52488; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(18) Northern California Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- CA, including all naturally spawned populations of steelhead (and their progeny) in California coastal river basins from Redwood Creek in Humboldt County, California, to the Gualala River, inclusive, in Mendocino County, California.</ENT> <ENT>65 FR 36074; June 7, 2000<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52488; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(19) Upper Willamette River Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- OR, including 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.</ENT> <ENT>62 FR 43937; Aug 18, 1997<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <PRTPAGE P="139"/> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(20) Lower Columbia River Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- OR, WA, including 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, Oregon, and from the Little and Big White Salmon Rivers, Washington.</ENT> <ENT>63 FR 13347; Mar 19, 1998<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(21) Middle Columbia River Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- OR, WA, including 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.</ENT> <ENT>57 FR 14517; Mar 25, 1999<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(22) Snake River Basin Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A.- OR, WA, ID, including all naturally spawned populations of steelhead (and their progeny) in streams in the Snake River Basin of southeast Washington, northeast Oregon, and Idaho.</ENT> <ENT>62 FR 43937; Aug 18, 1997<LI>71 FR 834; January 5, 2006</LI> </ENT> <ENT>70 FR 52630; Sep 2, 2005</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(d) <E T="03">Marine Invertebrates</E> </ENT> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(1) Elkhorn coral</ENT> <ENT> <E T="03">Acropora palmata</E> </ENT> <ENT>Wherever found. Includes United States Florida, Puerto Rico, U.S. Virgin Islands, Navassa; and wider Caribbean Belize, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama, Venezuela and all the islands of the West Indies.</ENT> <ENT>71 FR 26852, May 9, 2006</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(2) Staghorn coral</ENT> <ENT> <E T="03">Acropora cervicornis</E> </ENT> <ENT>Wherever found. Includes United States Florida, Puerto Rico, U.S. Virgin Islands, Navassa; and wider Caribbean Belize, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama, Venezuela and all the islands of the West Indies.</ENT> <ENT>71 FR 26852, May 9, 2006</ENT> <ENT>NA</ENT> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(e) <E T="03">Marine Plants</E> </ENT> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="25"/> <ENT/> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="22">(1) Johnson's seagrass</ENT> <ENT> <E T="03">Halophila johnsonii</E> </ENT> <ENT>Wherever found. U.S.A. - Southeastern FL between Sebastian Inlet and north Biscayne Bay.</ENT> <ENT>63 FR 49035; Sep 14, 1998</ENT> <ENT>65 FR 17786; Apr 5, 2000</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> <TNOTE> <SU>2</SU> 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.</TNOTE> </GPOTABLE> <CITA>[71 FR 26861, May 9, 2006, as amended at 71 FR 31965, June 2, 2006; 71 FR 38270, July 6, 2006]</CITA> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="140"/> <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"> <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="141"/> <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°18.0 N</ENT> <ENT>165°32.5 W</ENT> <ENT>54°18.0 N</ENT> <ENT>165°31.5 W</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°10.0 N</ENT> <ENT>175°31.5 W</ENT> <ENT>52°10.5 N</ENT> <ENT>175°29.0 W</ENT> <ENT>16480</ENT> <ENT>N half of island.</ENT> </ROW> <ROW> <ENT I="01">21. Adak I.</ENT> <ENT>51°36.5 N</ENT> <ENT>176°59.0 W</ENT> <ENT>51°38.0 N</ENT> <ENT>176°59.5 W</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°22.5 N</ENT> <ENT>179°28.0 E</ENT> <ENT>51°21.5 N</ENT> <ENT>179°25.0 E</ENT> <ENT>16440</ENT> <ENT>East Cape.</ENT> </ROW> <ROW> <ENT I="01">27. Amchitka I.</ENT> <ENT>51°32.5 N</ENT> <ENT>178°49.5 E</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°54.5 N</ENT> <ENT>172°28.5 E</ENT> <ENT>52°57.5 N</ENT> <ENT>172°31.5 E</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="142"/> <GID>EC01JY91.016</GID> </GPH> <GPH DEEP="436" SPAN="2"> <PRTPAGE P="143"/> <GID>EC01JY91.017</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="144"/> <GID>EC01JY91.018</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="145"/> <GID>EC01JY91.019</GID> </GPH> <GPH DEEP="443" SPAN="2"> <PRTPAGE P="146"/> <GID>EC01JY91.020</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="147"/> <GID>EC01JY91.021</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="148"/> <GID>EC01JY91.022</GID> </GPH> <GPH DEEP="446" SPAN="2"> <PRTPAGE P="149"/> <GID>EC01JY91.023</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="150"/> <GID>EC01JY91.024</GID> </GPH> <GPH DEEP="442" SPAN="2"> <PRTPAGE P="151"/> <GID>EC01JY91.025</GID> </GPH> <GPH DEEP="439" SPAN="2"> <PRTPAGE P="152"/> <GID>EC01JY91.026</GID> </GPH> <GPH DEEP="441" SPAN="2"> <PRTPAGE P="153"/> <GID>EC01JY91.027</GID> </GPH> <GPH DEEP="446" SPAN="2"> <PRTPAGE P="154"/> <GID>EC01JY91.028</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="155"/> <GID>EC01JY91.029</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="156"/> <GID>EC01JY91.030</GID> </GPH> <GPH DEEP="433" SPAN="2"> <PRTPAGE P="157"/> <GID>EC01JY91.031</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="158"/> <GID>EC01JY91.032</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="159"/> <GID>EC01JY91.033</GID> </GPH> <GPH DEEP="437" SPAN="2"> <PRTPAGE P="160"/> <GID>EC01JY91.034</GID> </GPH> <GPH DEEP="432" SPAN="2"> <PRTPAGE P="161"/> <GID>EC01JY91.035</GID> </GPH> <GPH DEEP="439" SPAN="2"> <PRTPAGE P="162"/> <GID>EC01JY91.036</GID> </GPH> <GPH DEEP="435" SPAN="2"> <PRTPAGE P="163"/> <GID>EC01JY91.037</GID> </GPH> <GPH DEEP="432" SPAN="2"> <PRTPAGE P="164"/> <GID>EC01JY91.038</GID> </GPH> <GPH DEEP="435" SPAN="2"> <PRTPAGE P="165"/> <GID>EC01JY91.039</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="166"/> <GID>EC01JY91.040</GID> </GPH> <GPH DEEP="423" SPAN="2"> <PRTPAGE P="167"/> <GID>EC01JY91.041</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="168"/> <GID>EC01JY91.042</GID> </GPH> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="169"/> <GID>EC01JY91.043</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="170"/> <GID>EC01JY91.044</GID> </GPH> <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.<PRTPAGE P="171"/> </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 is safe 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>Available guidance documents cited in the regulatory text are listed in Appendix A to this section.</P> <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 anadromous fish with an intact adipose fin that are part of the threatened species of salmonids listed in § 223.102(a).</P> <P>(b) <E T="03">Limits on the prohibitions.</E> The limits to the prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a) are described in the following paragraphs (b)(1) through (b)(13):</P> <P>(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 implementing such exceptions, also apply to the threatened species of salmonids listed in § 223.102(a).</P> <P>(2) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a) do not apply to activities specified in an application for ESA 4(d) authorization for scientific purposes or <PRTPAGE P="172"/>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 April 3, 2006. The prohibitions of this section apply to these activities upon the AA's rejection of the application as insufficient, upon issuance or denial of authorization, or March 1, 2007, 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) 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) 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 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 <PRTPAGE P="173"/>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 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 (<E T="03">www.nwr.noaa.gov</E>).<PRTPAGE P="174"/> </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) 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 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 <PRTPAGE P="175"/>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 (<E T="03">www.nwr.noaa.gov</E>).</P> <P>(6) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a) 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.</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 <PRTPAGE P="176"/>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) 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) 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.</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 <PRTPAGE P="177"/>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) 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) 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 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 <PRTPAGE P="178"/>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) 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.</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 <PRTPAGE P="179"/>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) 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 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 <PRTPAGE P="180"/>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 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) 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 <PRTPAGE P="181"/>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), any person claiming the benefit of any limit listed in paragraph (b) of this section or § 223.204(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 9(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> <EXTRACT> <PRTPAGE P="182"/> <HD SOURCE="HD1">Appendix A to § 223.203—List of Guidance Documents</HD> <P>The following is a list of documents cited in the regulatory text. Copies of these documents may be obtained upon request from the Northwest or Southwest Regional Administrators (see Table 1 in § 600.502 of this title).</P> <P>1. Oregon Department of Transportation (ODOT) Maintenance Management System Water Quality and Habitat Guide (July, 1999).</P> <P>2. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act.</P> <P>3. Fish Screening Criteria for Anadromous Salmonids, National Marine Fisheries Service, Southwest Region, 1997.</P> <P>4. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (June 2000).</P> </EXTRACT> <CITA>[65 FR 42475, July 10, 2000, as amended at 67 FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12, 2002; 70 FR 37202, 37203, June 28, 2005; 71 FR 5180, Feb. 1, 2006]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.204</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 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. Redesignated at 70 FR 37203, June 28, 2005]</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;<PRTPAGE P="183"/> </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 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;</P> <P>(15) Fail to comply with the restrictions set forth in § 223.206(d)(10) regarding pound net leaders;</P> <P>(16) Fail to comply with the restrictions set forth in § 223.206(d)(11) regarding sea scallop dredges; or</P> <P>(17) 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, as amended at 67 FR 41203, June 17, 2002; 69 FR 25012, May 5, 2004; 71 FR 50372, Aug. 25, 2006]</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 <PRTPAGE P="184"/>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 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) Exception for incidental taking. 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 towards 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)(11) 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 actively moving or determined to be dead as described in paragraph (d)(1)(i)(C) of this section must be released over the stern of the boat. In addition, they must be released only when fishing or scientific collection gear is 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, as determined in paragraph (d)(1) of this section, by:</P> <P>(<E T="03">1</E>) Placing the turtle on its bottom shell (plastron) so that the turtle is right side up and elevating its hindquarters at least 6 inches (15.2 cm) for a period of 4 up to 24 hours. The amount of the elevation depends on the size of the turtle; greater elevations are needed for larger turtles. Periodically, rock the turtle gently left to right and right to left by holding the outer edge of the shell (carapace) and lifting one side about 3 inches (7.6 cm) then alternate to the other side. Gently touch the eye and pinch the tail (reflex test) periodically to see if there is a response.</P> <P>(<E T="03">2</E>) Sea turtles being resuscitated must be shaded and kept damp or moist but under no circumstance be <PRTPAGE P="185"/>placed into a container holding water. A water-soaked towel placed over the head, carapace, and flippers is the most effective method in keeping a turtle moist.</P> <P>(<E T="03">3</E>) Sea turtles that revive and become active must be released over the stern of the boat only when fishing or scientific collection gear is 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. Sea turtles that fail to respond to the reflex test or fail to move within 4 hours (up to 24, if possible) must be returned to the water in the same manner as that for actively moving turtles.</P> <P>(C) A turtle is determined to be dead if the muscles are stiff (rigor mortis) and/or the flesh has begun to rot; otherwise the turtle is determined to be comatose or inactive and resuscitation attempts are necessary.</P> <P>(ii) In addition to the provisions of paragraph (d)(1)(i) of this section, a person aboard a vessel in the Atlantic, including the Caribbean Sea and the Gulf of Mexico, that has pelagic longline gear on board and that has been issued, or is required to have, a limited access permit for highly migratory species under 50 CFR 635.4, must comply with the handling and release requirements specified in 50 CFR 635.21.</P> <P>(iii) 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 for trawlers</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 with a circulating seawater system, if it does not possess more than 32 lb. (14.5 kg) of dead shrimp on board, if it has a valid original state bait-shrimp license, and if the state license allows the licensed vessel to participate in the bait shrimp fishery exclusively;</P> <P>(<E T="03">3</E>) Has only a pusher-head trawl, skimmer trawl, or wing net rigged for fishing;</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; or</P> <P>(<E T="03">5</E>) Is using 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 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, in which case the exemption under this paragraph (d)(2)(ii)(A) applies to the test net.</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 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">2</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 <PRTPAGE P="186"/>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.</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 <PRTPAGE P="187"/>substitute for, the TED requirements. The notification will specify the effective dates, the geographic area where 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 <PRTPAGE P="188"/>time during which particular tow-time requirements apply, requirements to 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)-(6) [Reserved]</P> <P>(7) Restrictions applicable to gillnet fisheries in North Carolina. No person may fish with gillnet fishing gear which has a stretched mesh size larger than 4<FR>1/4</FR> inches (10.8 cm), annually from September 1 through December 15, in the inshore waters of Pamlico Sound, North Carolina, and all contiguous tidal waters, bounded on the north by 35°46.3′ N. lat., on the south by 35°00′ N. lat., and on the west by 76°30′ W. long.</P> <P>(8) <E T="03">Restrictions applicable to large mesh gillnet fisheries in the mid-Atlantic region.</E> No person may fish with or possess on board a boat, any gillnet with a stretched mesh size 7-inches (17.8 cm) or larger, unless such gillnets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck or the rail, and all buoys larger than 6-inches (15.2 cm) in diameter, high flyers, and anchors are disconnected. This restriction applies in the Atlantic Exclusive Economic Zone (as defined in 50 CFR 600.10) during the following time periods and in the following area:</P> <P>(i) Waters north of 33° 51.0′ N. (North Carolina/South Carolina border at the coast) and south of 35° 46.0′ N. (Oregon Inlet) at any time;</P> <P>(ii) Waters north of 35° 46.0′ N. (Oregon Inlet) and south of 3° 22.5′ N. (Currituck Beach Light, NC) from March 16 through January 14;</P> <P>(iii) Waters north of 36° 22.5′ N. (Currituck Beach Light, NC) and south of 37° 34.6′ N. (Wachapreague Inlet, VA) from April 1 through January 14; and</P> <P>(iv) Waters north of 37° 34.6′ N. (Wachapreague Inlet, VA) and south of 37° 56.0′ N. (Chincoteague, VA) from April 16 through January 14.</P> <P>(9) <E T="03">Restrictions applicable to Pacific pelagic longline vessels.</E> In addition to the general prohibitions specified in § 600.725 of Chapter VI, it is unlawful for any person who is not operating under a western Pacific longline permit under § 660.21 to do any of the following on the high seas of the Pacific Ocean east of 150° W. long. and north of the equator (0° N. lat.):</P> <P>(i) Direct fishing effort toward the harvest of swordfish (<E T="03">Xiphias gladius</E>) using longline gear.</P> <P>(ii) Possess a light stick on board a longline vessel. A light stick as used in this paragraph is any type of light emitting device, including any fluorescent <E T="03">glow bead,</E> chemical, or electrically powered light that is affixed underwater to the longline gear.</P> <P>(iii) An operator of a longline vessel subject to this section may land or possess no more than 10 swordfish from a fishing trip where any part of the trip included fishing east of 150° W. long. and north of the equator (0° N. lat.).</P> <P>(iv) Fail to employ basket-style longline gear such that the mainline is deployed slack when fishing.</P> <P>(v) When a conventional monofilament longline is deployed by a vessel, no fewer than 15 branch lines may be set between any two floats. Vessel operators using basket-style longline gear must set a minimum of 10 branch lines between any 2 floats.</P> <P>(vi) Longline gear must be deployed such that the deepest point of the main longline between any two floats, i.e., the deepest point in each sag of the main line, is at a depth greater than 100 m (328.1 ft or 54.6 fm) below the sea surface.<PRTPAGE P="189"/> </P> <P>(10) <E T="03">Restrictions applicable to pound nets in Virginia</E>—(i) <E T="03">Offshore pound net leaders in Pound Net Regulated Area I.</E> During the time period of May 6 through July 15 each year, any offshore pound net leader in Pound Net Regulated Area I must meet the definition of a modified pound net leader. Any offshore pound net leader in Pound Net Regulated Area I that does not meet the definition of a modified pound net leader must be removed from the water prior to May 6 and may not be reset until July 16.</P> <P>(ii) <E T="03">Nearshore pound net leaders in Pound Net Regulated Area I and all pound net leaders in Pound Net Regulated Area II.</E> During the time period of May 6 to July 15 each year, any nearshore pound net leader in Pound Net Regulated Area I and any pound net leader in Pound Net Regulated Area II must have only mesh size less than 12 inches (30.5 cm) stretched mesh and may not employ stringers. Any nearshore pound net leader in Pound Net Regulated Area I or any pound net leader in Pound Net Regulated Area II with stretched mesh measuring 12 inches (30.5 cm) or greater, or with stringers, must be removed from the water prior to May 6 and may not be reset until July 16. A pound net leader is exempt from these measures only if it meets the definition of a modified pound net leader.</P> <P>(iii) <E T="03">Protocol for measuring mesh size.</E> This protocol applies to measuring mesh size in leaders described in 50 CFR 223.206(d)(10)(i) and 223.206(d)(10)(ii). Mesh sizes are measured by a wedge-shaped gauge having a taper of 0.79 in. (2 cm) in 3.15 in. (8 cm) and a thickness of 0.09 in. (2.3 mm) inserted into the meshes under a pressure or pull of 11.02 lb. (5 kg). The mesh size is the average of the measurement of any series of 20 consecutive meshes. The mesh in the leader is measured at or near the horizontal and vertical center of a leader panel.</P> <P>(iv) <E T="03">Reporting requirement.</E> At any time during the year, if a sea turtle is taken live and uninjured in a pound net operation, the operator of the vessel must report the incident to the NMFS Northeast Regional Office, (978) 281-9328 or fax (978) 281-9394, within 24 hours of returning from the trip in which the incidental take was discovered. The report shall include a description of the sea turtles condition at the time of release and the measures taken as required in paragraph (d)(1) of this section. At any time during the year, if a sea turtle is taken in a pound net operation, and is determined to be injured, or if a turtle is captured dead, the operator of the vessel shall immediately notify NMFS Northeast Regional Office and the appropriate rehabilitation or stranding network, as determined by NMFS Northeast Regional Office.</P> <P>(v) <E T="03">Monitoring.</E> Owners or operators of pound net fishing operations must allow access to the pound net gear so it may be observed by a NMFS-approved observer if requested by the Northeast Regional Administrator. 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 law enforcement purposes.</P> <P>(vi) <E T="03">Expedited modification of restrictions and effective dates.</E> From May 6 to July 15 of each year, if NMFS receives information that one sea turtle is entangled alive or that one sea turtle is entangled dead, and NMFS determines that the entanglement contributed to its death, in pound net leaders that are in compliance with the restrictions described in paragraph (d)(10)(ii) of this section, NMFS may issue a final rule modifying the restrictions on pound net leaders as necessary to protect threatened sea turtles. Such modifications may include, but are not limited to, reducing the maximum allowable mesh size of pound net leaders and prohibiting the use of pound net leaders regardless of mesh size. In addition, if information indicates that a significant level of sea turtle entanglements, impingements or strandings will likely continue beyond July 15, NMFS may issue a final rule extending the effective date of the restrictions, including any additional restrictions imposed under this paragraph (d)(10)(vi), for an additional 15 days, but not beyond July 30, to protect threatened sea turtles.</P> <P>(11) Restrictions applicable to sea scallop dredges in the mid-Atlantic—(i) Gear Modification. During the time period of May 1 through November 30, <PRTPAGE P="190"/>any vessel with a sea scallop dredge and required to have a Federal Atlantic sea scallop fishery permit, regardless of dredge size or vessel permit category, present in waters south of 41° 9.0′ N. lat., from the shoreline to the outer boundary of the Exclusive Economic Zone must have on each dredge a chain mat described as follows. The chain mat must be composed of “tickler” (horizontal) chains and “vertical” chains that are evenly spaced and configured in the following manner dependent on the dredge width: Dredges with a frame width of greater than 13 ft (3.96 m) must use 11 vertical and 6 tickler chains; dredges with a frame width of 11 ft to 13 ft (3.35-3.96 m) must use 9 vertical and 5 tickler chains; dredges with a frame width of 10 ft (3.05 m) to less than 11 ft (3.35 m) must use 7 vertical and 4 tickler chains; dredges with a frame width of less than 10 ft (3.05 m) must use 5 vertical and 3 tickler chains. The tickler and vertical chains must be connected to each other with a shackle or link at the intersection point. If a vessel elects to use a different configuration, the length of each side of the square or rectangle formed by the intersecting chains must be less than or equal to 14 inches (35.5 cm). The chains must be connected to each other with a shackle or link at each intersection point. The measurement must be taken along the chain, with the chain held taut, and include one shackle or link at the intersection point and all links in the chain up to, but excluding, the shackle or link at the other intersection point.</P> <P>(ii) Any vessel that harvests sea scallops in or from the waters described in (d)(11)(i) and that is required to have a Federal Atlantic sea scallop fishery permit must have the chain mat configuration installed on all dredges for the duration of the trip.</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; 66 FR 50354, Oct. 3, 2001; 66 FR 52362, Oct. 15, 2001; 66 FR 67496, Dec. 31, 2001; 67 FR 13101, Mar. 21, 2002; 67 FR 41203, June 17, 2002; 67 FR 56934, Sept. 6, 2002; 67 FR 71899, Dec. 3, 2002; 67 FR 78392, Dec. 24, 2002; 68 FR 8467, Feb. 21, 2003; 68 FR 41945, July 16, 2003; 68 FR 69967, Dec. 16, 2003; 69 FR 11545, Mar. 11, 2004; 69 FR 25012, May 5, 2004; 69 FR 18453, Apr. 7, 2004; 69 FR 40753, July 6, 2004; 71 FR 24796, Apr. 26, 2006; 71 FR 36033, June 23, 2006; 71 FR 50372, Aug. 25, 2006]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Notes:</HD> <P>1. At 64 FR 14070, Mar. 23, 1999, newly redesignated § 223.206 was revised. Paragraph (d)(5) contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.</P> <P>2. At 67 FR 41203, June 17, 2002, § 223.206 was amended by adding paragraph (d)(2)(v). Paragraph (d)(2)(v)(C) contains information collection and recordkeeping 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” and “single-grid hard TEDs” such as the Matagorda and Georgia TED (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>—(i) <E T="03">Single-grid and inshore hooped hard TED.</E> A single-grid hard TED or an inshore hooped hard TED must be constructed of one or a combination of the following materials, with minimum dimensions as follows:</P> <P>(A) Solid steel rod with a minimum outside diameter of 1/4 inch (0.64 cm);</P> <P>(B) Fiberglass or aluminum rod with a minimum outside diameter of 1/2 inch (1.27 cm); or</P> <P>(C) Steel or aluminum tubing with a minimum outside diameter of 1/2 inch <PRTPAGE P="191"/>(1.27 cm) and a minimum wall thickness of 1/8 inch (0.32 cm) (also known as schedule 40 tubing).</P> <P>(ii) <E T="03">Offshore hooped hard TED.</E> An offshore hooped hard TED must be constructed of aluminum, with minimum dimensions as follows:</P> <P>(A) Solid rod with a minimum outside diameter of 5/8 inch (1.59 cm); or</P> <P>(B) Tubing with a minimum outside diameter of 1 inch (2.54 cm) and a minimum wall thickness of 1/8 inch (0.32 cm).</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 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>(4) <E T="03">Space between bars.</E> The space between deflector bars and the deflector bars and the TED 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. The deflector bars must be permanently attached to the TED frame or to the horizontal bars, if used, at both ends.</P> <P>(6) <E T="03">Position of the escape opening.</E> The escape opening must be made by removing a rectangular section of webbing from the trawl, except for a TED with an escape opening size described at paragraph (a)(7)(ii)(A) for which the escape opening may alternatively be made by making a horizontal cut along the same plane as the TED. The escape opening must be centered on and immediately forward of the frame at either the top or bottom of the net when the net is in the 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. The passage from the mouth of the trawl through the escape opening must be completely clear of any obstruction or modification, other than those specified in paragraph (d) of this section.</P> <P>(7) <E T="03">Size of escape opening</E>—(i) <E T="03">Hooped hard TEDs</E>—(A) <E T="03">Escape opening for inshore hooped hard TED.</E> The inshore hooped hard TED escape opening must have a horizontal measurement of no less than 35 inches (89 cm) wide and a forward measurement of no less than 27 inches (69 cm). A hinged door frame may be used to partially cover the escape opening as provided in paragraph (d)(7) of this section. Alternatively, a webbing flap may be used as provided in paragraph (d)(3)(i) of this section. The resultant opening with a webbing flap must be a minimum width of 35 inches (89 cm) and a minimum height of 20 inches (51 cm), with each measurement taken simultaneously. This opening may only be used in inshore waters, except it may not be used in the inshore waters of Georgia and South Carolina.</P> <P>(B) <E T="03">Escape opening for offshore hooped hard TED.</E> The offshore hooped hard TED escape opening must have a horizontal measurement of no less than 40 inches (102 cm) wide and a forward measurement of no less than 35 inches (89 cm). A hinged door frame may be used to partially cover the escape opening as provided in paragraph (d)(7) of this section. Alternatively, a webbing flap may be used as provided in paragraph (d)(3)(ii) of this section. The resultant escape opening with a webbing flap must have a stretched mesh circumference of no less than 142 inches (361 cm).</P> <P>(ii) <E T="03">Single-grid hard TEDs.</E> On a single-grid hard TED, the horizontal cut(s) for the escape opening may not be narrower than the outside width of the TED frame minus 4 inches (10.2 cm) on both sides of the grid, when measured as a straight line width. Fore-and-aft <PRTPAGE P="192"/>cuts to remove a rectangular piece of webbing must be made from the ends of the horizontal cuts along a single row of meshes along each side. The overall size of the escape opening must match one of the following specifications:</P> <P>(A) <E T="03">44-inch inshore opening.</E> The escape opening must have a minimum width of 44 inches (112 cm) and a minimum height of 20 inches (51 cm) with each measurement taken separately. A webbing flap, as described in paragraph (d)(3)(i) of this section, may be used with this escape hole, so long as this minimum opening size is achieved. This opening may only be used in inshore waters, except it may not be used in the inshore waters of Georgia and South Carolina.</P> <P>(B) <E T="03">The 71-inch offshore opening</E>: The two forward cuts of the escape opening must not be less than 26 inches (66 cm) long from the points of the cut immediately forward of the TED frame. The resultant length of the leading edge of the escape opening cut must be no less than 71 inches (181 cm) with a resultant circumference of the opening being 142 inches (361 cm) (Figure 12 to this part). A webbing flap, as described in paragraph (d)(3)(ii) of this section, may be used with this escape hole, so long as this minimum opening size is achieved. Either this opening or the one described in paragraph (a)(7)(ii)(C) of this section must be used in all offshore waters and in all inshore waters in Georgia and South Carolina, but may also be used in other inshore waters.</P> <P>(C) <E T="03">Double cover offshore opening.</E> The two forward cuts of the escape opening must not be less than 20 inches (51 cm) long from the points of the cut immediately forward of the TED frame. The resultant length of the leading edge of the escape opening cut must be no less than 56 inches (142 cm)(Figure 16 to this part illustrates the dimensions of these cuts). A webbing flap, as described in paragraph (d)(3)(iii) of this section, may be used with this escape hole. Either this opening or the one described in paragraph (a)(7)(ii)(B) of this section must be used in all offshore waters but also in all inshore waters in Georgia and South Carolina, and may be used in other inshore waters.</P> <P>(8) <E T="03">Size of hoop or grid</E>—(i) <E T="03">Hooped hard TED</E>—(A) <E T="03">Inshore hooped hard TED.</E> The front hoop on an inshore hooped hard TED must have an inside horizontal measurement of at least 35 inches (89 cm) and an inside vertical measurement of at least 30 inches (76 cm). The minimum clearance between the deflector bars and the forward edge of the escape opening must be at least 20 inches (51 cm).</P> <P>(B) <E T="03">Offshore hooped hard TED.</E> The front hoop on an offshore hooped hard TED must have an inside horizontal measurement of at least 40 inches (102 cm) and an inside vertical measurement of at least 30 inches (76 cm). The minimum clearance between the deflector bars and the forward edge of the escape opening must be at least 23 1/4 inches (59 cm).</P> <P>(ii) <E T="03">Single-grid hard TED.</E> A single-grid hard TED must have a minimum outside horizontal and vertical measurement of 32 inches (81 cm). The required outside 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 <PRTPAGE P="193"/>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 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 1/4 inch (3.2 cm) outside diameter aluminum or steel pipe with a wall thickness of at least 1/8 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 <PRTPAGE P="194"/>inches (25.4 cm) and a maximum width of 14 1/2 inches (36.8 cm). This TED must comply with paragraph (a)(2) of this section. The angle of the deflector bars must be between 30 and 55 from the normal, horizontal flow through the interior of the trawl. The entire width of the escape opening from the trawl must be centered on and immediately forward of the frame at the top of the net when the net is in its deployed position. The escape opening must be at the top of the net and the slope of the deflector bars from forward to aft is upward. 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. 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. The resulting escape opening in the net webbing must measure at least 35 inches (88.9 cm) in horizontal taut length and, simultaneously, 12 inches (30.5 cm) in vertical taut height. The vertical measurement must be taken at the midpoint of the horizontal measurement. 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">Weedless TED.</E> The weedless TED must meet all the requirements of paragraph (a) of this section for single-grid hard TEDs, with the exception of paragraphs (a)(1) and (a)(5) of this section. The weedless TED must be constructed of at least 1-1/4 inch (3.2 cm) outside diameter aluminum with a wall thickness of at least 1/8 inch (0.3 cm). The deflector bars must run from top to bottom of the TED, as the TED is positioned in the net. The ends of the deflectors bars on the side of the frame opposite to the escape opening must be permanently attached to the frame. The ends of the deflector bars nearest the escape opening are not attached to the frame and must lie entirely forward of the leading edge of the outer frame. The ends of the unattached deflector bars must be no more than 4 inches (10.2 cm) from the frame and may not extend past the frame. A horizontal brace bar to reinforce the deflector bars, constructed of the same size or larger pipe as the deflector bars, must be permanently attached to the frame and the rear face of each of the deflector bars at a position anywhere between the vertical mid-point of the frame and the unattached ends of the deflector bars. The horizontal brace bar may be offset behind the deflector bars, using spacer bars, not to exceed 5 inches (12.7 cm) in length and constructed of the same size or larger pipe as the deflector bars. See Figure 15.</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 <PRTPAGE P="195"/>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 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">Inshore opening.</E> This opening is the minimum size opening that may be used in inshore waters, except it may not be used in the inshore waters of Georgia and South Carolina, in which a larger minimum opening is required. 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 <PRTPAGE P="196"/>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">Offshore 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 paragraph meets the requirements of § 223.206(d)(2)(iv)(B). This opening or one that is larger must be used in all offshore waters and in the inshore waters of Georgia and South Carolina. It also may be used in other inshore waters.</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 of not greater than 1 5/8 inches (4 cm), 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 one-third of the circumference of the funnel is attached, and if the inside horizontal opening as described above in maintained. In a bottom opening TED only the top one-third of the circumference of the funnel may be attached to the TED. In a top opening TED only the bottom one-third of the circumference of the funnel may be attached to the TED.</P> <P>(i) In inshore waters, other than the inshore waters of Georgia and South Carolina in which a larger opening is required, the inside horizontal opening of the accelerator funnel must be at least 44 inches (112 cm).</P> <P>(ii) In offshore waters and the inshore waters of Georgia and South Carolina, the inside horizontal opening of the accelerator funnel must be at least 71 inches (180 cm).</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 1-5/8 inches (4 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 cm) behind the posterior edge of the grid; the sides of the flap are sewn on the same row of meshes fore and aft; and the flap does not overlap the escape hole cut by more than 5 inches (13 cm) on either side.</P> <P>(i) <E T="03">44-inch inshore TED flap.</E> This flap may not extend more than 24 inches (61 cm) beyond the posterior edge of the grid.</P> <P>(ii) <E T="03">71-inch offshore TED Flap.</E> The flap must be a 133-inch (338-cm) by 52-inch (132-cm) piece of webbing. The 133-<PRTPAGE P="197"/>inch (338-cm) edge of the flap is attached to the forward edge of the opening (71-inch (180-cm) edge). The flap may extend no more than 24 inches (61 cm) behind the posterior edge of the grid (Figure 12 to this part illustrates this flap).</P> <P>(iii) <E T="03">Double cover flap offshore TED flap.</E> This flap must be composed of two equal size rectangular panels of webbing. Each panel must be no less than 58 inches (147 cm) wide and may overlap each other no more than 15 inches (38 cm). The panels may only be sewn together along the leading edge of the cut. The trailing edge of each panel must not extend more than 24 inches (61 cm) past the posterior edge of the grid (Figure 16 to this part). Each panel may be sewn down the entire length of the outside edge of each panel. Chafing webbing described in paragraph (d)(4) of this section may not be used with this type of flap.</P> <P>(A) <E T="03">Edge lines.</E> Optional edge lines can be used in conjunction with this flap. The line must be made of polyethylene with a maximum diameter of 3/8 inches (.95 cm). A single length of line must be used for each flap panel. The line must be sewn evenly to the unattached, inside edges and trailing edges, of each flap panel. When edge lines are installed, the outside edge of each flap panel must be attached along the entire length of the flap panel.</P> <P>(B) [Reserved]</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 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>(6) <E T="03">Water deflector fin for hooped hard TEDs.</E> On a hooped hard TED, a water deflector fin may be welded to the forward edge of the escape opening. The fin must be constructed of a flat aluminum bar, up to 3/8 inch (0.95 cm) thick and up to 4 inches (10.2 cm) deep. The fin may be as wide as the width of the escape opening, minus 1 inch (2.5 cm). The fin must project aft into the TED with an angle between 5° and 45° from the normal, horizontal plane of the trawl. On an inshore hooped hard TED, the clearance between the deflector bars and the posterior edge of the deflector fin must be at least 20 inches (51 cm). On an offshore hooped hard <PRTPAGE P="198"/>TED, the clearance between the deflector bars and the posterior edge of the deflector fin must be at least 23-1/4 inches (59 cm).</P> <P>(7) <E T="03">Hinged door frame for hooped hard TEDs.</E> A hinged door frame may be attached to the forward edge of the escape opening on a hooped hard TED. The door frame must be constructed of materials specified at paragraphs (a)(1)(i) or (a)(1)(ii) of this section for inshore and offshore hooped hard TEDs, respectively. The door frame may be covered with a single panel of mesh webbing that is taut and securely attached with twine to the perimeter of the door frame, with a mesh size not greater than that used for the TED extension webbing. The door frame must be at least as wide as the TED escape opening. The door frame may be a maximum of 24 inches (61 cm) long. The door frame must be connected to the forward edge of the escape opening by a hinge device that allows the door to open outwards freely. The posterior edge of the door frame, in the closed position, must lie at least 12 inches (30 cm) forward of the posterior edge of the escape opening. A water deflector fin may be welded to the posterior edge of the hinged door frame. The fin must be constructed of a flat aluminum bar, up to 3/8 inch (0.95 cm) thick and up to four inches (10.2 cm) deep. The fin may be as wide as the width of the escape opening, minus one inch (2.5 cm). The fin must project aft into the TED with an angle between 5° and 45° from the normal, horizontal plane of the trawl, when the door is in the closed position. The clearance between the posterior edge of the escape opening and the posterior edge of the door frame or the posterior edge of the water deflector fin, if installed, must be no less than 12 inches (30 cm), when the door is in the closed position. Two stopper ropes or a hinge limiter may be used to limit the maximum opening height of the hinged door frame, as long as they do not obstruct the escape opening in any way or restrict the free movement of the door to its fully open position. When the door is in its fully open position, the minimum clearance between any part of the deflector bars and any part of the door, including a water deflector fin if installed, must be at least 20 inches (51 cm) for an inshore hooped hard TED and at least 23 1/4 inches (59 cm) for an offshore hooped hard TED. The hinged door frame may not be used in combination with a webbing flap specified at paragraph (d)(3) of this section or with a water deflection fin specified at paragraph (d)(6) of this section.</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 <PRTPAGE P="199"/>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; 68 FR 8467, Feb. 21, 2003; 68 FR 51514, Aug. 27, 2003; 68 FR 54934, Sept. 19, 2003; 69 FR 31037, June 2, 2004]</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 and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 223.209</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <APPENDIX> <RESERVED>Figures 1-2 to Part 223 [Reserved]</RESERVED> </APPENDIX> <APPENDIX> <PRTPAGE P="200"/> <EAR>Pt. 223, Fig. 3</EAR> <HD SOURCE="HED">Figure 3 to Part 223—Matagorda TED</HD> <GPH DEEP="203" SPAN="2"> <GID>EC01JY91.047</GID> </GPH> <CITA>[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="201"/> <EAR>Pt. 223, Fig. 4</EAR> <HD SOURCE="HED">Figure 4 to Part 223—Georgia TED</HD> <GPH DEEP="212" SPAN="2"> <GID>EC01JY91.048</GID> </GPH> <CITA>[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="202"/> <EAR>Pt. 223, Fig. 5</EAR> <HD SOURCE="HED">Figure 5 to Part 223—Net Diagram for the Excluder Panel of the Parker Soft TED</HD> <GPH DEEP="460" SPAN="2"> <GID>ER13AP98.001</GID> </GPH> <CITA>[63 FR 17958, Apr. 13, 1998]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="203"/> <EAR>Pt. 223, Fig. 6</EAR> <HD SOURCE="HED">Figure 6 to Part 223—TED Extension in Summer Flounder Trawl</HD> <GPH DEEP="394" SPAN="2"> <GID>ER15OC99.001</GID> </GPH> <CITA>[64 FR 55864, Oct. 15, 1999]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="204"/> <RESERVED>Figures <E T="01">7-9b</E> to Part 223 [Reserved]</RESERVED> </APPENDIX> <APPENDIX> <EAR>Pt. 223, Fig. 10</EAR> <HD SOURCE="HED">Figure 10 to Part 223—Flounder TED</HD> <GPH DEEP="378" SPAN="2"> <GID>EC01JY91.056</GID> </GPH> <CITA>[58 FR 54069, Oct. 20, 1993]</CITA> </APPENDIX> <APPENDIX> <RESERVED>Figure 11 to Part 223 [Reserved]</RESERVED> </APPENDIX> <APPENDIX> <PRTPAGE P="205"/> <EAR>Pt. 223, Fig. 12</EAR> <HD SOURCE="HED">Figure 12 to Part 223—Escape Opening & Cover Dimensions for 71-inch TED</HD> <GPH DEEP="431" SPAN="2"> <GID>ER21FE03.002</GID> </GPH> <CITA>[68 FR 8469, Feb. 21, 2003]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="206"/> <EAR>Pt. 223, Fig. 13</EAR> <HD SOURCE="HED">Figure 13 to Part 223—Single Grid Hard TED Escape Opening</HD> <GPH DEEP="375" SPAN="2"> <GID>EC01JY91.060</GID> </GPH> <CITA>[60 FR 15520, Mar. 24, 1995]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="207"/> <EAR>Pt. 223, Figs. 14a and 14b</EAR> <HD SOURCE="HED">Figures <E T="01">14a</E> and <E T="01">14b</E> to Part 223—Maximum Angle of Deflector Bars With Straight Bars Attached to the Bottom of the Frame and Maximum Angle of Deflector Bars With Bent Bars Attached to the Bottom of the Frame</HD> <GPH DEEP="413" SPAN="2"> <GID>ER19DE96.002</GID> </GPH> <CITA>[61 FR 66946, Dec. 19, 1996]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="208"/> <EAR>Pt. 223, Fig. 15</EAR> <HD SOURCE="HED">Figure 15 to Part 223—Weedless TED Brace Bar Description</HD> <GPH DEEP="404" SPAN="2"> <GID>ER21FE03.003</GID> </GPH> <CITA>[68 FR 8469, Feb. 21, 2003]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="209"/> <EAR>Pt. 223, Fig. 16</EAR> <HD SOURCE="HED">Figure 16 to Part 223—Escape Opening and Flap Dimensions for the Double Cover Flap TED</HD> <GPH DEEP="456" SPAN="2"> <GID>ER02JN04.003</GID> </GPH> <CITA>[69 FR 31037, June 2, 2004]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <PRTPAGE P="210"/> <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="211"/> </P> <GPOTABLE CDEF="xs50,xs50,r100,xs45,xls45" COLS="5" OPTS="L2"> <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">Citation(s) for listing determination(s)</CHED> <CHED H="1">Citation for critical habitat designation</CHED> </BOXHD> <ROW> <ENT I="01">Shortnose sturgeon</ENT> <ENT> <E T="03">Acipenser brevirostrum</E> </ENT> <ENT>Everywhere</ENT> <ENT>32 FR 4001, Mar. 11, 1967</ENT> <ENT>NA.</ENT> </ROW> <ROW> <ENT I="01">Smalltooth sawfish</ENT> <ENT> <E T="03">Pristis pectinata</E> </ENT> <ENT>U.S.A.</ENT> <ENT>68 FR 15674, Apr. 1, 2003</ENT> <ENT>NA.</ENT> </ROW> <ROW> <ENT I="01">Totoaba</ENT> <ENT> <E T="03">Cynoscion macdonaldi</E> </ENT> <ENT>Everywhere</ENT> <ENT>44 FR 29480, May 21, 1979</ENT> <ENT>NA.</ENT> </ROW> <ROW> <ENT I="01">Atlantic salmon</ENT> <ENT> <E T="03">Salmon salar</E> </ENT> <ENT>U.S.A., ME, Gulf of Maine population, which includes all naturally reproducing populations and those river-specific hatchery populations cultured from them</ENT> <ENT>65 FR 69459, Nov. 17, 2000</ENT> <ENT>NA.</ENT> </ROW> <ROW> <ENT I="01">Snake River sockeye</ENT> <ENT> <E T="03">Oncorhynchus nerka</E> </ENT> <ENT>U.S.A., ID, including all anadromous and residual sockeye salmon from the Snake River Basin, Idaho, as well as artificially propagated sockeye salmon from the Redfish Lake captive propagation program</ENT> <ENT>56 FR 58619, Nov. 20, 1991<LI O="xl">June 28, 2005.</LI> </ENT> <ENT>58 FR 68543, Dec. 28, 1993.</ENT> </ROW> <ROW> <ENT I="01">Sacramento River winter-run Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A., CA, including all naturally spawned populations of winter-run Chinook salmon in the Sacramento River and its tributaries in California, as well as two artificial propagation programs: winter-run Chinook from the Livingston Stone National Fish Hatchery (NFH), and winter run Chinook in a captive broodstock program maintained at Livingston Stone NFH and the University of California Bodega Marine Laboratory</ENT> <ENT>52 FR 6041; Feb. 27, 1987, 55 FR 49623; Nov. 30, 1990. 59 FR 440; Jan. 1, 1994<LI O="xl">June 28, 2005.</LI> </ENT> <ENT>58 FR 33212, June 16, 1993.</ENT> </ROW> <ROW> <ENT I="01">Upper Columbia spring-run Chinook</ENT> <ENT> <E T="03">Oncorhynchus tshawytscha</E> </ENT> <ENT>U.S.A., WA, including all naturally spawned populations of Chinook salmon in all river reaches accessible to 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, as well as six artificial propagation programs: the Twisp River, Chewuch River, Methow Composite, Winthrop NFH, Chiwawa River, and White River spring-run Chinook hatchery programs</ENT> <ENT>64 FR 14308, Mar. 24, 1999<LI O="xl">June 28, 2005.</LI> </ENT> <ENT>NA.<LI O="xl">[vacated 9/29/03; 68 FR 55900].</LI> </ENT> </ROW> <ROW> <PRTPAGE P="212"/> <ENT I="01">Central California Coast coho</ENT> <ENT> <E T="03">Oncorhynchus kisutch</E> </ENT> <ENT>U.S.A., CA, including all naturally spawned populations of coho salmon from Punta Gorda in northern California south to and including the San Lorenzo River in central California, as well as populations in tributaries to San Francisco Bay, excluding the Sacramento-San Joaquin River system, as well four artificial propagation programs: the Don Clausen Fish Hatchery Captive Broodstock Program, Scott Creek/King Fisher Flats Conservation Program, Scott Creek Captive Broodstock Program, and the Noyo River Fish Station egg-take Program coho hatchery programs</ENT> <ENT>61 FR 56138, Oct. 31, 1996<LI O="xl">June 28, 2005.</LI> </ENT> <ENT>64 FR 24049,<LI>May 5, 1999.</LI> </ENT> </ROW> <ROW> <ENT I="01">Southern California Steelhead</ENT> <ENT> <E T="03">Oncorhynchus mykiss</E> </ENT> <ENT>U.S.A., CA, Distinct Population Segment including all naturally spawned anadromous <E T="03">O. mykiss</E> (steelhead) populations below natural and manmade impassable barriers in streams from the Santa Maria River, San Luis Obispo County, California, (inclusive) to the U.S.-Mexico Border</ENT> <ENT>62 FR 43937, Aug. 18, 1997<LI O="xl">Jan. 5, 2006</LI> </ENT> <ENT>70 FR 52488,<LI>Sept. 2, 2005.</LI> </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> <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>); Killer whale (<E T="03">Orcinus orca</E>), Southern Resident distinct population segment, which consists of whales from J, K and L pods, wherever they are found in the wild, and not including Southern Resident killer whales placed in captivity prior to listing or their captive born progeny; 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 § <E T="01">224.101(c)</E>:</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; 67 FR 21598, May 1, 2002; 68 FR 15680, Apr. 1, 2003; 70 FR 37203, June 28, 2005; 70 FR 69912, Nov. 18, 2005; 71 FR 861, Jan. 5, 2006]</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, <PRTPAGE P="213"/>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;</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 <PRTPAGE P="214"/>avoiding collisions with humpback whales.</P> <P>(c) <E T="03">Approaching right whales</E>—(1) <E T="03">Prohibitions.</E> Except as provided under paragraph (c)(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 (c)(2) of this section.</P> <P>(2) <E T="03">Right whale avoidance measures.</E> Except as provided under paragraph (c)(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 (c)(1) and (c)(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 (c)(1) and (c)(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 (c)(1) and (c)(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 is received from the National Marine Fisheries Service or designee prior to the approach.</P> <P>(iv) Paragraphs (c)(1) and (c)(2) of this section do not apply to an aircraft unless the aircraft is conducting whale watch activities.</P> <P>(v) Paragraph (c)(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 (c)(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; 69 FR 69537, Nov. 30, 2004; 70 FR 1832, Jan. 11, 2005]</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 sea turtles are provided at § 223.206 (d)(2)(iv).</P> <CITA>[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 44552, Aug. 24, 2001; 66 FR 67496, Dec. 31, 2001; 68 FR 8471, Feb. 21, 2003; 69 FR 18453, Apr. 7, 2004]</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.<PRTPAGE P="215"/> </SUBJECT> <SECTNO>226.203</SECTNO> <SUBJECT>Critical habitat for Northern right whale (<E T="7462">Eubalaena glacialis</E>).</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 (<E T="03">Oncorhynchus kisutch</E>), Southern Oregon/Northern California Coasts Coho Salmon (<E T="03">Oncorhynchus kisutch</E>).</SUBJECT> <SECTNO>226.211</SECTNO> <SUBJECT>Critical habitat for Seven Evolutionarily Significant Units (ESUs) of Salmon (<E T="03">Oncorhynchus spp.</E>) in California.</SUBJECT> <SECTNO>226.212</SECTNO> <SUBJECT>Critical habitat for 12 Evolutionarily Significant Units (ESUs) of salmon and steelhead (<E T="03">Oncorhynchus spp.</E>) in Washington, Oregon and Idaho.</SUBJECT> <SECTNO>226.213</SECTNO> <SUBJECT>Critical habitat for Johnson's seagrass.</SUBJECT> <SECTNO>226.214</SECTNO> <SUBJECT>Critical habitat for Gulf sturgeon.</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> </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°24′ N, 178°20′ W)</FP> <FP SOURCE="FP-1">Midway Islands, except Sand Island and its harbor (28°14′ N, 177°22′ W)</FP> <FP SOURCE="FP-1">Pearl and Hermes Reef (27°55′ N, 175° W)</FP> <FP SOURCE="FP-1">Lisianski Island (26°46′ N, 173°58′ W)</FP> <FP SOURCE="FP-1">Laysan Island (25°46′ N, 171°44′ W)</FP> <FP SOURCE="FP-1">Maro Reef (25°25′ N, 170°35′ W)</FP> <FP SOURCE="FP-1">Gardner Pinnacles (25°00′ N, 168°00′ W)</FP> <FP SOURCE="FP-1">French Frigate Shoals (23°45′ N, 166°00′ W)</FP> <FP SOURCE="FP-1">Necker Island (23°34′ N, 164°42′ W)</FP> <FP SOURCE="FP-1">Nihoa Island (23°03.5′ N, 161°55.5′ W).</FP> </EXTRACT> <GPH DEEP="428" SPAN="2"> <PRTPAGE P="216"/> <GID>EC01JY91.000</GID> </GPH> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="217"/> <GID>EC01JY91.001</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="218"/> <GID>EC01JY91.002</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="219"/> <GID>EC01JY91.003</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="220"/> <GID>EC01JY91.004</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="221"/> <GID>EC01JY91.005</GID> </GPH> <GPH DEEP="407" SPAN="2"> <PRTPAGE P="222"/> <GID>EC01JY91.006</GID> </GPH> <GPH DEEP="444" SPAN="2"> <PRTPAGE P="223"/> <GID>EC01JY91.007</GID> </GPH> <CITA>[53 FR 18990, May 26, 1988. Redesignated at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="224"/> <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 whale (<E T="7462">Eubalaena glacialis</E>).</SUBJECT> <P>Critical habitat is designated in the North Atlantic Ocean, Bering Sea, and the Gulf of Alaska for the northern right whale as described in paragraphs (a) and (b) of this section. The textual descriptions of critical habitat are the definitive source for determining the critical habitat boundaries. General location maps are provided for critical habitat in the North Pacific Ocean for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.</P> <P>(a) <E T="03">North Atlantic Ocean.</E> (1) <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>(2) <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 <PRTPAGE P="225"/>the interior shore line of Cape Cod, Massachusetts.</P> <P>(3) <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 30°15′ N and 28°00′ N from the coast out 5 nautical miles (Figure 8 to part 226).</P> <P>(b) <E T="03">North Pacific Ocean</E>—(1) <E T="03">Primary Constituent Elements.</E> The primary constituent elements essential for conservation of the northern right whale are the copepods <E T="03">Calanus marshallae</E>, <E T="03">Neocalanus cristatus</E>, and <E T="03">N. plumchris</E>, and the euphausiid <E T="03">Thysanoëssa raschii</E>, in areas of the North Pacific Ocean in which northern right whales are known or believed to feed, as described in paragraphs (b)(2) and (3) of this section.</P> <P>(2) <E T="03">Bering Sea.</E> An area described by a series of straight lines connecting the following coordinates in the order listed:</P> <P>58°00′ N/168°00′ W</P> <P>58°00′ N/163°00′ W</P> <P>56°30′ N/161°45′ W</P> <P>55°00′ N/166°00′ W</P> <P>56°00′ N/168°00′ W</P> <P>58°00′ N/168°00′ W.</P> <P>(3) <E T="03">Gulf of Alaska.</E> An area described by a series of straight lines connecting the following coordinates in the order listed:</P> <P>57°03′ N/153°00′ W</P> <P>57°18′ N/151°30′ W</P> <P>57°00′ N/151° 30′ W</P> <P>56°45′ N/153°00′ W</P> <P>57°03′ N/153°00′ W.</P> <P>(4) Maps of critical habitat for the northern right whale in the North Pacific Ocean follow:</P> <GPH DEEP="452" SPAN="2"> <PRTPAGE P="226"/> <GID>ER06JY06.008</GID> </GPH> <GPH DEEP="452" SPAN="2"> <PRTPAGE P="227"/> <GID>ER06JY06.009</GID> </GPH> <CITA>[59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, Mar. 23, 1999; 68 FR 17562, Apr. 10, 2003; 70 FR 1832, Jan. 11, 2005; 71 FR 38293, July 6, 2006]</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 <PRTPAGE P="228"/>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 National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: <E T="03">http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.</E> </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, 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 <PRTPAGE P="229"/>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; 69 FR 18803, Apr. 9, 2004]</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 (<E T="03">dermochelys coriacea</E>)</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 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 Geniquí, Isla Culebrita, Arrecife <PRTPAGE P="230"/>Culebrita, Cayo de Luis Peña, 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 (<E T="7462">Oncorhynchus kisutch</E>), Southern Oregon/Northern California Coasts Coho Salmon (<E T="7462">Oncorhynchus kisutch</E>).</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 National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: <E T="03">http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.</E> </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 above longstanding, naturally impassable barriers (i.e., natural waterfalls in <PRTPAGE P="231"/>existence for at least several hundred years).</P> <CITA>[64 FR 24061, May 5, 1999, as amended at 69 FR 18803, Apr. 9, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.211</SECTNO> <SUBJECT>Critical habitat for Seven Evolutionarily Significant Units (ESUs) of Salmon (<E T="7462">Oncorhynchus spp.</E>) in California.</SUBJECT> <P>Critical habitat is designated in the following California counties for the following ESUs as described in paragraph (a) of this section, and as further described in paragraphs (b) through (e) of this section. The textual descriptions of critical habitat for each ESU are included in paragraphs (f) through (l) of this section, and these descriptions are the definitive source for determining the critical habitat boundaries. General location maps are provided at the end of each ESU description (paragraphs (f) through (l) of this section) and are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.</P> <P>(a) Critical habitat is designated for the following ESUs in the following California counties:</P> <GPOTABLE CDEF="s100,r100" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">ESU</CHED> <CHED H="1">State—counties</CHED> </BOXHD> <ROW> <ENT I="01">(1) California Coastal Chinook</ENT> <ENT> <E T="03">CA</E>—Humboldt, Trinity, Mendocino, Sonoma, Lake, Napa, Glenn, Colusa, and Tehama.</ENT> </ROW> <ROW> <ENT I="01">(2) Northern California Steelhead</ENT> <ENT> <E T="03">CA</E>—Humboldt, Trinity, Mendocino, Sonoma, Lake, Glenn, Colusa, and Tehama.</ENT> </ROW> <ROW> <ENT I="01">(3) Central California Coast Steelhead</ENT> <ENT> <E T="03">CA</E>—Lake, Mendocino, Sonoma, Napa, Marin, San Francisco, San Mateo, Santa Clara, Santa Cruz, Alameda, Contra Costa, and San Joaquin.</ENT> </ROW> <ROW> <ENT I="01">(4) South-Central Coast Steelhead</ENT> <ENT> <E T="03">CA</E>—Monterey, San Benito, Santa Clara, Santa Cruz, San Luis Obispo.</ENT> </ROW> <ROW> <ENT I="01">(5) Southern California Steelhead</ENT> <ENT> <E T="03">CA</E>—San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange and San Diego.</ENT> </ROW> <ROW> <ENT I="01">(6) Central Valley spring-run Chinook</ENT> <ENT> <E T="03">CA</E>—Tehama, Butte, Glenn, Shasta, Yolo, Sacramento, Solano, Colusa, Yuba, Sutter, Trinity, Alameda, San Joaquin, and Contra Costa.</ENT> </ROW> <ROW> <ENT I="01">(7) Central Valley Steelhead</ENT> <ENT> <E T="03">CA</E>—Tehama, Butte, Glenn, Shasta, Yolo, Sacramento, Solona, Yuba, Sutter, Placer, Calaveras, San Joaquin, Stanislaus, Tuolumne, Merced, Alameda, Contra Costa.</ENT> </ROW> </GPOTABLE> <P>(b) <E T="03">Critical habitat boundaries.</E> Critical habitat includes the stream channels within the designated stream reaches, and includes a lateral extent as defined by the ordinary high-water line (33 CFR 329.11). In areas where the ordinary high-water line has not been defined, the lateral extent will be defined by the bankfull elevation. Bankfull elevation is the level at which water begins to leave the channel and move into the floodplain and is reached at a discharge which generally has a recurrence interval of 1 to 2 years on the annual flood series. Critical habitat in estuaries (<E T="03">e.g.</E> San Francisco-San Pablo-Suisun Bay, Humboldt Bay, and Morro Bay) is defined by the perimeter of the water body as displayed on standard 1:24,000 scale topographic maps or the elevation of extreme high water, whichever is greater.</P> <P>(c) <E T="03">Primary constituent elements.</E> Within these areas, the primary constituent elements essential for the conservation of these ESUs are those sites and habitat components that support one or more life stages, including:</P> <P>(1) Freshwater spawning sites with water quantity and quality conditions and substrate supporting spawning, incubation and larval development;</P> <P>(2) Freshwater rearing sites with:</P> <P>(i) Water quantity and floodplain connectivity to form and maintain physical habitat conditions and support juvenile growth and mobility;</P> <P>(ii) Water quality and forage supporting juvenile development; and</P> <P>(iii) Natural cover such as shade, submerged and overhanging large wood, log jams and beaver dams, aquatic vegetation, large rocks and boulders, side channels, and undercut banks.</P> <P>(3) Freshwater migration corridors free of obstruction and excessive predation with water quantity and quality conditions and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks <PRTPAGE P="232"/>and boulders, side channels, and undercut banks supporting juvenile and adult mobility and survival.</P> <P>(4) Estuarine areas free of obstruction and excessive predation with:</P> <P>(i) Water quality, water quantity, and salinity conditions supporting juvenile and adult physiological transitions between fresh- and saltwater;</P> <P>(ii) Natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, side channels; and</P> <P>(iii) Juvenile and adult forage, including aquatic invertebrates and fishes, supporting growth and maturation.</P> <P>(d) <E T="03">Exclusion of Indian lands.</E> Critical habitat does not include occupied habitat areas on Indian lands. The Indian lands specifically excluded from critical habitat are those defined in the Secretarial Order, including:</P> <P>(1) Lands held in trust by the United States for the benefit of any Indian tribe;</P> <P>(2) Land held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation;</P> <P>(3) Fee lands, either within or outside the reservation boundaries, owned by the tribal government; and</P> <P>(4) Fee lands within the reservation boundaries owned by individual Indians.</P> <P>(e) <E T="03">Land owned or controlled by the Department of Defense.</E> Additionally, critical habitat does not include the following areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a):</P> <P>(1) Camp Pendleton Marine Corps Base;</P> <P>(2) Vandenberg Air Force Base;</P> <P>(3) Camp San Luis Obispo;</P> <P>(4) Camp Roberts; and</P> <P>(5) Mare Island Army Reserve Center.</P> <P>(f) <E T="03">California Coastal Chinook Salmon (Oncorhynchus tshawytscha).</E> Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic units:</P> <P>(1) Redwood Creek Hydrologic Unit 1107—(i) <E T="03">Orick Hydrologic Sub-area 110710.</E> Outlet(s) = Redwood Creek (Lat -41.2923, Long -124.0917) upstream to endpoint(s) in: Boyes Creek (41.3639, -123.9845); Bridge Creek (41.137, -124.0012); Brown Creek (41.3986, -124.0012); Emerald (Harry Weir) (41.2142, -123.9812); Godwood Creek (41.3889, -124.0312); Larry Dam Creek (41.3359, -124.003); Little Lost Man Creek (41.2944, -124.0014); Lost Man Creek (41.3133, -123.9854); May Creek (41.3547, -123.999); McArthur Creek (41.2705, -124.041); North Fork Lost Man Creek (41.3374, -123.9935); Prairie Creek (41.4239, -124.0367); Tom McDonald (41.1628, -124.0419).</P> <P>(ii) <E T="03">Beaver Hydrologic Sub-area 110720.</E> Outlet(s) = Redwood Creek (Lat 41.1367, Long -123.9309) upstream to endpoint(s): Lacks Creek (41.0334, -123.8124); Minor Creek (40.9706, -123.7899).</P> <P>(iii) <E T="03">Lake Prairie Hydrologic Sub-area 110730.</E> Outlet(s) = Redwood Creek (Lat 40.9070, Long -123.8170) upstream to endpoint(s) in: Redwood Creek (40.7432, -123.7206).</P> <P>(2) Trinidad Hydrologic Unit 1108—(i) <E T="03">Big Lagoon Hydrologic Sub-area 110810.</E> Outlet(s) = Maple Creek (Lat 41.1555, Long -124.1380) upstream to endpoint(s) in: North Fork Maple Creek (41.1317, -124.0824); Maple Creek (41.1239, -124.1041).</P> <P>(ii) <E T="03">Little River Hydrologic Sub-area 110820.</E> Outlet(s) = Little River (41.0277, -124.1112) upstream to endpoint(s) in: South Fork Little River (40.9908, -124.0412); Little River (41.0529, -123.9727); Railroad Creek (41.0464, -124.0475); Lower South Fork Little River (41.0077, -124.0078); Upper South Fork Little River (41.0131, -123.9853).</P> <P>(3) Mad River Hydrologic Unit 1109—(i) <E T="03">Blue Lake Hydrologic Sub-area 110910.</E> Outlet(s) = Mad River (Lat 40.9139, Long -124.0642) upstream to endpoint(s) in: Lindsay Creek (40.983, -124.0326); Mill Creek (40.9008, -124.0086); North Fork Mad River (40.8687, -123.9649); Squaw Creek (40.9426, -124.0202); Warren Creek (40.8901, -124.0402).</P> <P>(ii) <E T="03">North Fork Mad River 110920.</E> Outlet(s) = North Fork Mad River (Lat 40.8687, Long -123.9649) upstream to endpoint(s) in: Sullivan Gulch (40.8646, -123.9553); North Fork Mad River (40.8837, -123.9436).</P> <P>(iii) <E T="03">Butler Valley 110930.</E> Outlet(s) = Mad River (Lat 40.8449, Long -123.9807) <PRTPAGE P="233"/>upstream to endpoint(s) in: Black Creek (40.7547, -123.9016); Black Dog Creek (40.8334, -123.9805); Canon Creek (40.8362, -123.9028); Dry Creek (40.8218, -123.9751); Mad River (40.7007, -123.8642); Maple Creek (40.7928, -123.8742); Unnamed (40.8186, -123.9769).</P> <P>(4) Eureka Plain Hydrologic Unit 1110—(i) <E T="03">Eureka Plain Hydrologic Sub-area 111000.</E> Outlet(s) = Mad River (Lat 40.9560, Long -124.1278); Jacoby Creek (40.8436, -124.0834); Freshwater Creek (40.8088, -124.1442); Elk River (40.7568, -124.1948); Salmon Creek (40.6868, -124.2194) upstream to endpoint(s) in: Bridge Creek (40.6958, -124.0795); Dunlap Gulch (40.7101, -124.1155); Freshwater Creek (40.7389, -123.9944); Gannon Slough (40.8628, -124.0818); Jacoby Creek (40.7944, -124.0093); Little Freshwater Creek (40.7485, -124.0652); North Branch of the North Fork Elk River (40.6878, -124.0131); North Fork Elk River (40.6756, -124.0153); Ryan Creek (40.7835, -124.1198); Salmon Creek (40.6438, -124.1319); South Branch of the North Fork Elk River (40.6691, -124.0244); South Fork Elk River (40.6626, -124.061); South Fork Freshwater Creek (40.7097, -124.0277).</P> <P>(ii) [Reserved]</P> <P>(5) Eel River Hydrologic Unit 1111—(i) <E T="03">Ferndale Hydrologic Sub-area 111111.</E> Outlet(s) = Eel River (Lat 40.6282, Long -124.2838) upstream to endpoint(s) in: Atwell Creek (40.472, -124.1449); Howe Creek (40.4748, -124.1827); Price Creek (40.5028, -124.2035); Strongs Creek (40.5986, -124.1222); Van Duzen River (40.5337, -124.1262).</P> <P>(ii) <E T="03">Scotia Hydrologic Sub-area 111112.</E> Outlet(s) = Eel River (Lat 40.4918, Long -124.0998) upstream to endpoint(s) in: Bear Creek (40.391, -124.0156); Chadd Creek (40.3921, -123.9542); Jordan Creek (40.4324, -124.0428); Monument Creek (40.4676, -124.1133).</P> <P>(iii) <E T="03">Larabee Creek Hydrologic Sub-area 111113.</E> Outlet(s) = Larabee Creek (40.4090, Long -123.9334) upstream to endpoint(s) in: Carson Creek (40.4189, -123.8881); Larabee Creek (40.3950, -123.8138).</P> <P>(iv) <E T="03">Hydesville Hydrologic Sub-area 111121.</E> Outlet(s) = Van Duzen River (Lat 40.5337, Long -124.1262) upstream to endpoint(s) in: Cummings Creek (40.5258, -123.9896); Fielder Creek (40.5289, -124.0201); Hely Creek (40.5042, -123.9703); Yager Creek (40.5583, -124.0577).</P> <P>(v) <E T="03">Yager Creek Hydrologic Sub-area 111123.</E> Outlet(s) = Yager Creek (Lat 40.5583, Long -124.0577) upstream to endpoint(s) in: Corner Creek (40.6189, -123.9994); Fish Creek (40.6392, -124.0032); Lawrence Creek (40.6394, -123.9935); Middle Fork Yager Creek (40.5799, -123.9015); North Fork Yager Creek (40.6044, -123.9084); Owl Creek (40.5557, -123.9362); Shaw Creek (40.6245, -123.9518); Yager Creek (40.5673, -123.9403).</P> <P>(vi) <E T="03">Weott Hydrologic Sub-area 111131.</E> Outlet(s) = South Fork Eel River (Lat 40.3500, Long -213.9305) upstream to endpoint(s) in: Bridge Creek (40.2929, -123.8569); Bull Creek (40.3148, -124.0343); Canoe Creek (40.2909, -123.922); Cow Creek (40.3583, -123.9626); Cuneo Creek (40.3377, -124.0385); Elk Creek (40.2837, -123.8365); Fish Creek (40.2316, -123.7915); Harper Creek (40.354, -123.9895); Mill Creek (40.3509, -124.0236); Salmon Creek (40.2214, -123.9059); South Fork Salmon River (40.1769, -123.8929); Squaw Creek (40.3401, -123.9997); Tostin Creek (40.1722, -123.8796).</P> <P>(vii) <E T="03">Benbow Hydrologic Sub-area 111132.</E> Outlet(s) = South Fork Eel River (Lat 40.1932, Long -123.7692) upstream to endpoint(s) in: Anderson Creek (39.9337, -123.8933); Bear Pen Creek (39.9125, -123.8108); Bear Wallow Creek (39.7296, -123.7172); Bond Creek (39.7856, -123.6937); Butler Creek (39.7439, -123.692); China Creek (40.1035, -123.9493); Connick Creek (40.0911, -123.8187); Cox Creek (40.0288, -123.8542); Cummings Creek (39.8431, -123.5752); Dean Creek (40.1383, -123.7625); Dinner Creek (40.0915, -123.937); East Branch South Fork Eel River (39.9433, -123.6278); Elk Creek (39.7986, -123.5981); Fish Creek (40.0565, -123.7768); Foster Creek (39.8455, -123.6185); Grapewine Creek (39.7991, -123.5186); Hartsook Creek (40.012, -123.7888); Hollow Tree Creek (39.7316, -123.6918); Huckleberry Creek (39.7315, -123.7253); Indian Creek (39.9464, -123.8993); Jones Creek (39.9977, -123.8378); Leggett Creek (40.1374, -123.8312); Little Sproul Creel (40.0897, -123.8585); Low Gap Creek (39.993, -123.767); McCoy Creek (39.9598, -123.7542); Michael's Creek (39.7642, -123.7175); Miller Creek (40.1215, -123.916); Moody Creek (39.9531, <PRTPAGE P="234"/>-123.8819); Mud Creek (39.8232, -123.6107); Piercy Creek (39.9706, -123.8189); Pollock Creek (40.0822, -123.9184); Rattlesnake Creek (39.7974, -123.5426); Redwood Creek (39.7721, -123.7651); Redwood Creek (40.0974, -123.9104); Seely Creek (40.1494, -123.8825); Somerville Creek (40.0896, -123.8913); South Fork Redwood Creek (39.7663, -123.7579); Spoul Creek (40.0125, -123.8585); Standley Creek (39.9479, -123.8083); Tom Long Creek (40.0315, -123.6891); Twin Rocks Creek (39.8269, -123.5543); Warden Creek (40.0625, -123.8546); West Fork Sproul Creek (40.0386, -123.9015); Wildcat Creek (39.9049, -123.7739); Wilson Creek (39.841, -123.6452); Unnamed Tributary (40.1136, -123.9359).</P> <P>(viii) <E T="03">Laytonville Hydrologic Sub-area 111133.</E> Outlet(s) = South Fork Eel River (Lat 39.7665, Long -123.6484) ) upstream to endpoint(s) in: Bear Creek (39.6413, -123.5797); Cahto Creek (39.6624, -123.5453); Dutch Charlie Creek (39.6892, -123.6818); Grub Creek (39.7777, -123.5809); Jack of Hearts Creek (39.7244, -123.6802); Kenny Creek (39.6733, -123.6082); Mud Creek (39.6561, -123.592); Redwood Creek (39.6738, -123.6631); Rock Creek (39.6931, -123.6204); South Fork Eel River (39.6271, -123.5389); Streeter Creek (39.7328, -123.5542); Ten Mile Creek (39.6651, -123.451).</P> <P>(ix) <E T="03">Sequoia Hydrologic Sub-area 111141.</E> Outlet(s) = Eel River (Lat 40.3557, Long -123.9191); South Fork Eel River (40.3558, -123.9194) upstream to endpoint(s) in: Brock Creek (40.2411, -123.7248); Dobbyn Creek (40.2216, -123.6029); Hoover Creek (40.2312, -123.5792); Line Gulch (40.1655, -123.4831); North Fork Dobbyn Creek (40.2669, -123.5467); South Fork Dobbyn Creek (40.1723, -123.5112); South Fork Eel River (40.35, -123.9305); Unnamed Tributary (40.3137, -123.8333); Unnamed Tributary (40.2715, -123.549).</P> <P>(x) <E T="03">Spy Rock Hydrologic Sub-area 111142.</E> Outlet(s) = Eel River (Lat 40.1736, Long -123.6043) upstream to endpoint(s) in: Bell Springs Creek (39.9399, -123.5144); Burger Creek (39.6943, -123.413); Chamise Creek (40.0563, -123.5479); Jewett Creek (40.1195, -123.6027); Kekawaka Creek (40.0686, -123.4087); Woodman Creek (39.7639, -123.4338).</P> <P>(xi) <E T="03">North Fork Eel River Hydrologic Sub-area 111150.</E> Outlet(s) = North Fork Eel River (Lat 39.9567, Long -123.4375) upstream to endpoint(s) in: North Fork Eel River (39.9370, -123.3758).</P> <P>(xii) <E T="03">Outlet Creek Hydrologic Sub-area 111161.</E> Outlet(s) = Outlet Creek (Lat 39.6263, Long -123.3453) upstream to endpoint(s) in: Baechtel Creek (39.3688, -123.4028); Berry Creek (39.4272, -123.2951); Bloody Run (39.5864, -123.3545); Broaddus Creek (39.3907, -123.4163); Davis Creek (39.3701, -123.3007); Dutch Henry Creek (39.5788, -123.4543); Haehl Creek (39.3795, -123.3393); Long Valley Creek (39.6091, -123.4577); Ryan Creek (39.4803, -123.3642); Upp Creek (39.4276, -123.3578); Upp Creek (39.4276, -123.3578); Willits Creek (39.4315, -123.3794).</P> <P>(xiii) <E T="03">Tomki Creek Hydrologic Sub-area 111162.</E> Outlet(s) = Eel River (Lat 39.7138, Long -123.3531) upstream to endpoint(s) in: Cave Creek (39.3925, -123.2318); Long Branch Creek (39.4074, -123.1897); Rocktree Creek (39.4533, -123.3079); Salmon Creek (39.4461, -123.2104); Scott Creek (39.456, -123.2297); String Creek (39.4855, -123.2891); Tomki Creek (39.549, -123.3613); Wheelbarrow Creek (39.5029, -123.3287).</P> <P>(xiv) <E T="03">Lake Pillsbury Hydrologic Sub-area 111163.</E> Outlet(s) = Eel River (Lat 39.3860, Long -123.1163) upstream to endpoint(s) in: Eel River (39.4078, -122.958).</P> <P>(xv) <E T="03">Eden Valley Hydrologic Sub-area 111171.</E> Outlet(s) = Middle Fork Eel River (Lat 39.8146, Long -123.1332) upstream to endpoint(s) in: Middle Fork Eel River (39.8145, -123.1333).</P> <P>(xvi) <E T="03">Round Valley Hydrologic Sub-area 111172.</E> Outlet(s) = Mill Creek (Lat 39.7396, Long -123.1420); Williams Creek (39.8145, -123.1333) upstream to endpoint(s) in: Mill Creek (39.8456, -123.2822); Murphy Creek (39.8804, -123.1636); Poor Mans Creek (39.8179, -123.1833); Short Creek (39.8645, -123.2242); Turner Creek (39.7238, -123.2191); Williams Creek (39.8596, -123.1341).</P> <P>(6) <E T="03">Cape Mendocino Hydrologic Unit 1112—(i) Capetown Hydrologic Sub-area 111220.</E> Outlet(s) = Bear River (Lat 40.4744, Long -124.3881) upstream to endpoint(s) in: Bear River (40.3591, -124.0536); South Fork Bear River (40.4271, -124.2873).</P> <P>(ii) <E T="03">Mattole River Hydrologic Sub-area 111230.</E> Outlet(s) = Mattole River (Lat <PRTPAGE P="235"/>40.2942, Long -124.3536) upstream to endpoint(s) in: Bear Creek (40.1262, -124.0631); Blue Slide Creek (40.1286, -123.9579); Bridge Creek (40.0503, -123.9885); Conklin Creek (40.3169, -124.229); Dry Creek (40.2389, -124.0621); East Fork Honeydew Creek (40.1633, -124.0916); East Fork of the North Fork Mattole River (40.3489, -124.2244); Eubanks Creek (40.0893, -123.9743); Gilham Creek (40.2162, -124.0309); Grindstone Creek (40.1875, -124.0041); Honeydew Creek (40.1942, -124.1363); Mattole Canyon (40.1833, -123.9666); Mattole River (39.9735, -123.9548); McGinnis Creek (40.3013, -124.2146); McKee Creek (40.0674, -123.9608); Mill Creek (40.0169, -123.9656); North Fork Mattole River (40.3729, -124.2461); North Fork Bear Creek (40.1422, -124.0945); Oil Creek (40.3008, -124.1253); Rattlesnake Creek (40.2919, -124.1051); South Fork Bear Creek (40.0334, -124.0232); Squaw Creek (40.219, -124.1921); Thompson Creek (39.9969, -123.9638); Unnamed (40.1522, -124.0989); Upper North Fork Mattole River (40.2907, -124.1115); Westlund Creek (40.2333, -124.0336); Woods creek (40.2235, -124.1574); Yew Creek (40.0019, -123.9743).</P> <P>(7) Mendocino Coast Hydrologic Unit 1113—(i) <E T="03">Wages Creek Hydrologic Sub-area 111312.</E> Outlet(s) = Wages Creek (Lat 39.6513, Long -123.7851) upstream to endpoint(s) in: Wages Creek (39.6393, -123.7146).</P> <P>(ii) <E T="03">Ten Mile River Hydrologic Sub-area 111313.</E> Outlet(s) = Ten Mile River (Lat 39.5529, Long -123.7658) upstream to endpoint(s) in: Middle Fork Ten Mile River (39.5397, -123.5523); Little North Fork Ten Mile River (39.6188, -123.7258); Ten Mile River (39.5721, -123.7098); South Fork Ten Mile River (39.4927, -123.6067); North Fork Ten Mile River (39.5804, -123.5735).</P> <P>(iii) Noyo River Hydrologic Sub-area 111320. Outlet(s) = Noyo River (Lat 39.4274, Long -123.8096) upstream to endpoint(s) in: North Fork Noyo River (39.4541, -123.5331); Noyo River (39.431, 123.494); South Fork Noyo River (39.3549, -123.6136).</P> <P>(iv) <E T="03">Big River Hydrologic Sub-area 111330.</E> Outlet(s) = Big River (Lat 39.3030, Long -123.7957) upstream to endpoint(s) in: Big River (39.3095, -123.4454).</P> <P>(v) <E T="03">Albion River Hydrologic Sub-area 111340.</E> Outlet(s) = Albion River (Lat 39.2253, Long -123.7679) upstream to endpoint(s) in: Albion River (39.2644, -123.6072).</P> <P>(vi) <E T="03">Garcia River Hydrologic Sub-area 111370.</E> Outlet(s) = Garcia River (Lat 38.9455, Long -123.7257) upstream to endpoint(s) in: Garcia River (38.9160, -123.4900).</P> <P>(8) Russian River Hydrologic Unit 1114—(i) <E T="03">Guerneville Hydrologic Sub-area 111411.</E> Outlet(s) = Russian River (Lat 38.4507, Long -123.1289) upstream to endpoint(s) in: Austin Creek (38.5099, -123.0681); Mark West Creek (38.4961, -122.8489).</P> <P>(ii) <E T="03">Austin Creek Hydrologic Sub-area 111412.</E> Outlet(s) = Austin Creek (Lat 38.5099, Long -123.0681) upstream to endpoint(s) in: Austin Creek (38.5326, -123.0844).</P> <P>(iii) <E T="03">Warm Springs Hydrologic Sub-area 111424.</E> Outlet(s) = Dry Creek (Lat 38.5861, Long -122.8573) upstream to endpoint(s) in: Dry Creek (38.7179, -123.0075).</P> <P>(iv) <E T="03">Geyserville Hydrologic Sub-area 111425.</E> Outlet(s) = Russian River (Lat 38.6132, Long -122.8321) upstream.</P> <P>(v) <E T="03">Ukiah Hydrologic Sub-area 111431.</E> Outlet(s) = Russian River (Lat 38.8828, Long -123.0557) upstream to endpoint(s) in: Feliz Creek (38.9941, -123.1779).</P> <P>(vi) <E T="03">Forsythe Creek Hydrologic Sub-area 111433.</E> Outlet(s) = Russian River (Lat 39.2257, Long -123.2012) upstream to endpoint(s) in: Forsythe Creek (39.2780, -123.2608); Russian River (39.3599, -123.2326).</P> <P>(9) Maps of critical habitat for the California Coast chinook salmon ESU follow:</P> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="236"/> <GID>ER02SE05.000</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="237"/> <GID>ER02SE05.001</GID> </GPH> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="238"/> <GID>ER02SE05.002</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="239"/> <GID>ER02SE05.003</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="240"/> <GID>ER02SE05.004</GID> </GPH> <GPH DEEP="448" SPAN="2"> <PRTPAGE P="241"/> <GID>ER02SE05.005</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="242"/> <GID>ER02SE05.006</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="243"/> <GID>ER02SE05.007</GID> </GPH> <P>(g) <E T="03">Northern California Steelhead (O. mykiss).</E> Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic units:</P> <P>(1) Redwood Creek Hydrologic Unit 1107—(i) <E T="03">Orick Hydrologic Sub-area 110710.</E> Outlet(s) = Boat Creek (Lat 41.4059, Long -124.0675); Home Creek (41.4027, -124.0683); Redwood Creek (41.2923, -124.0917); Squashan Creek (41.3889, -124.0703) upstream to endpoint(s) in: Boat Creek (41.4110, <PRTPAGE P="244"/>-124.0583); Bond Creek (41.2326, -124.0262); Boyes Creek (41.3701, -124.9891); Bridge Creek (41.1694, -123.9964); Brown Creek (41.3986, -124.0012); Cloquet Creek (41.2466, -123.9884); Cole Creek (41.2209, -123.9931); Copper Creek (41.1516, -123.9258); Dolason Creek (41.1969, -123.9667); Elam Creek (41.2613, -124.0321); Emerald Creek (41.2164, -123.9808); Forty Four Creek (41.2187, -124.0195); Gans South Creek (41.2678, -124.0071); Godwood Creek (41.3787, -124.0354); Hayes Creek (41.2890, -124.0164); Home Creek (41.3951, -124.0386); Larry Dam Creek (41.3441, -123.9966); Little Lost Man Creek (41.3078, -124.0084); Lost Man Creek (41.3187, -123.9892); May Creek (41.3521, -124.0164); McArthur Creek (41.2702, -124.0427); Miller Creek (41.2305, -124.0046); North Fork Lost Man Creek (41.3405, -123.9859); Oscar Larson Creek (41.2559, -123.9943); Prairie Creek (41.4440, -124.0411); Skunk Cabbage Creek (41.3211, -124.0802); Slide Creek (41.1736, -123.9450); Squashan Creek (41.3739, -124.0440); Streelow Creek (41.3622, -124.0472); Tom McDonald Creek (41.1933, -124.0164); Unnamed Tributary (41.3619, -123.9967); Unnamed Tributary (41.3424, -124.0572).</P> <P>(ii) <E T="03">Beaver Hydrologic Sub-area 110720.</E> Outlet(s) = Redwood Creek (Lat 41.1367, Long -123.9309) upstream to endpoint(s) in: Beaver Creek (41.0208, -123.8608); Captain Creek (40.9199, -123.7944); Cashmere Creek (41.0132, -123.8862); Coyote Creek (41.1251, -123.8926); Devils Creek (41.1224, -123.9384); Garcia Creek (41.0180, -123.8923); Garrett Creek (41.0904, -123.8712); Karen Court Creek (41.0368, -123.8953); Lacks Creek (41.0306, -123.8096); Loin Creek (40.9465, -123.8454); Lupton Creek (40.9058, -123.8286); Mill Creek (41.0045, -123.8525); Minor Creek (40.9706, -123.7899); Molasses Creek (40.9986, -123.8490); Moon Creek (40.9807, -123.8368); Panther Creek (41.0732, -123.9275); Pilchuck Creek (41.9986, -123.8710); Roaring Gulch (41.0319, -123.8674); Santa Fe Creek (40.9368, -123.8397); Sweathouse Creek (40.9332, -123.8131); Toss-Up Creek (40.9845, -123.8656); Unnamed Tributary (41.1270, -123.8967); Wiregrass Creek (40.9652, -123.8553).</P> <P>(iii) <E T="03">Lake Prairie Hydrologic Sub-area 110730.</E> Outlet(s) = Redwood Creek (Lat 40.9070, Long -123.8170) upstream to endpoint(s) in: Bradford Creek (40.7812, -123.7215); Cut-Off Meander (40.8507, -123.7729); Emmy Lou Creek (40.8655, -123.7771); Gunrack Creek (40.8391, -123.7650); High Prairie Creek (40.8191, -123.7723); Jena Creek (40.8742, -123.8065); Lake Prairie Creek (40.7984, -123.7558); Lupton Creek (40.9058, -123.8286); Minon Creek (40.8140, -123.7372); Noisy Creek (40.8613, -123.8044); Pardee Creek (40.7779, -123.7416); Redwood Creek (40.7432, -123.7206); Simion Creek (40.8241, -123.7560); Six Rivers Creek (40.8352, -123.7842); Smokehouse Creek (40.7405, -123.7278); Snowcamp Creek (40.7415, -123.7296); Squirrel Trail Creek (40.8692, -123.7844); Twin Lakes Creek (40.7369, -123.7214); Panther Creek (40.8019, -123.7094); Windy Creek (40.8866, -123.7956).</P> <P>(2) Trinidad Hydrologic Unit 1108—(i) <E T="03">Big Lagoon Hydrologic Sub-area 110810.</E> Outlet(s) = Maple Creek (Lat 41.1555, Long -124.1380); McDonald Creek (41.2521, -124.0919) upstream to endpoint(s) in: Beach Creek (41.0716, -124.0239); Clear Creek (41.1031, -124.0030); Diamond Creek (41.1571, -124.0926); Maple Creek (41.0836, -123.9790); McDonald Creek (41.1850, -124.0773); M-Line Creek (41.0752, -124.0787); North Fork Maple Creek (41.1254, -124.0539); North Fork McDonald Creek (41.2107, -124.0664); Pitcher Creek (41.1518, -124.0874); South Fork Maple Creek (41.1003, -124.1119); Tom Creek (41.1773, -124.0966); Unnamed Tributary (41.1004, -124.0155); Unnamed Tributary (41.0780, -124.0676); Unnamed Tributary (41.1168, -124.0886); Unnamed Tributary (41.0864, -124.0899); Unnamed Tributary (41.1132, -124.0827); Unnamed Tributary (41.0749, -124.0889); Unnamed Tributary (41.1052, -124.0675); Unnamed Tributary (41.0714, -124.0611); Unnamed Tributary (41.0948, -124.0016).</P> <P>(ii) <E T="03">Little River Hydrologic Sub-area 110820.</E> Outlet(s) = Little River (Lat 41.0277, Long -124.1112) upstream to endpoint(s) in: Freeman Creek (41.0242, -124.0582); Little River (40.9999, -123.9232); Lower South Fork Little River (41.0077, -124.0079); Railroad Creek (41.0468, -124.0466); South Fork Little River (40.9899, -124.0394); Unnamed Tributary (41.0356, -123.9958); Unnamed Tributary (41.0407, -124.0598); Unnamed Tributary (41.0068, -123.9830); <PRTPAGE P="245"/>Unnamed Tributary (41.0402, -124.0111); Unnamed Tributary (41.0402, -124.0189); Unnamed Tributary (41.0303, -124.0366); Unnamed Tributary (41.0575, -123.9710); Unnamed Tributary (41.0068, -123.9830); Upper South Fork Little River (41.0146, -123.9826).</P> <P>(3) Mad River Hydrologic Unit 1109—(i) <E T="03">Blue Lake Hydrologic Sub-area 110910.</E> Outlet(s) = Mad River (Lat 40.9139, Long -124.0642); Strawberry Creek (40.9964, -124.1155); Widow White Creek (40.9635, -124.1253) upstream to endpoint(s) in: Boundary Creek (40.8395, -123.9920); Grassy Creek (40.9314, -124.0188); Hall Creek (40.9162, -124.0141); Kelly Creek (40.8656, -124.0260); Leggit Creek (40.8808, -124.0269); Lindsay Creek (40.9838, -124.0283); Mather Creek (40.9796, -124.0526); Mill Creek (40.9296, -124.1037); Mill Creek (40.9162, -124.0141); Mill Creek (40.8521, -123.9617); North Fork Mad River (40.8687, -123.9649); Norton Creek (40.9572, -124.1003); Palmer Creek (40.8633, -124.0193); Puter Creek (40.8474, -123.9966); Quarry Creek (40.8526, -124.0098); Squaw Creek (40.9426, -124.0202); Strawberry Creek (40.9761, -124.0630); Unnamed Tributary (40.9624, -124.0179); Unnamed Tributary (40.9549, -124.0554); Unnamed Tributary (40.9672, -124.0218); Warren Creek (40.8860, -124.0351); Widow White Creek (40.9522, -124.0784).</P> <P>(ii) <E T="03">North Fork Mad River Hydrologic Sub-area 110920.</E> Outlet(s) = North Fork Mad River (Lat 40.8687, Long -123.9649) upstream to endpoint(s) in: Bald Mountain Creek (40.8922, -123.9097); Canyon Creek (40.9598, -123.9269); Denman Creek (40.9293, -123.9429); East Fork North Fork (40.9702, -123.9449); Gosinta Creek (40.9169, -123.9420); Hutchery Creek (40.8730, -123.9503); Jackson Creek (40.9388, -123.9462); Krueger Creek (40.9487, -123.9571); Long Prairie Creek (40.9294, -123.8842); Mule Creek (40.9416, -123.9309); North Fork Mad River (40.9918, -123.9610); Pine Creek (40.9274, -123.9096); Pollock Creek (40.9081, -123.9071); Sullivan Gulch (40.8646, -123.9553); Tyson Creek (40.9559, -123.9738); Unnamed Tributary (40.9645, -123.9338); Unnamed Tributary (40.9879, -123.9511); Unnamed Tributary (40.9906, -123.9540); Unnamed Tributary (40.9866, -123.9788); Unnamed Tributary (40.9927, -123.9736).</P> <P>(iii) <E T="03">Butler Valley Hydrologic Sub-area 110930.</E> Outlet(s) = Mad River (Lat 40.8449, Long -123.9807) upstream to endpoint(s) in: Bear Creek (40.5468, -123.6728); Black Creek (40.7521, -123.9080); Black Dog Creek (40.8334, -123.9805); Blue Slide Creek (40.7333, -123.9225); Boulder Creek (40.7634, -123.8667); Bug Creek (40.6587, -123.7356); Cannon Creek (40.8535, -123.8850); Coyote Creek (40.6147, -123.6488); Devil Creek (40.8032, -123.9175); Dry Creek (40.8218, -123.9751); East Creek (40.5403, -123.5579); Maple Creek (40.7933, -123.8353); Pilot Creek (40.5950, -123.5888); Simpson Creek (40.8138, -123.9156); Unnamed Tributary (40.7306, -123.9019); Unnamed Tributary (40.7739, -123.9255); Unnamed Tributary (40.7744, -123.9137); Unnamed Tributary (40.8029, -123.8716); Unnamed Tributary (40.8038, -123.8691); Unnamed Tributary (40.8363, -123.9025).</P> <P>(4) Eureka Plain Hydrologic Unit 1110—(i) <E T="03">Eureka Plain Hydrologic Sub-area 111000.</E> Outlet(s) = Elk River (Lat 40.7568, Long -124.1948); Freshwater Creek (40.8088, -124.1442); Jacoby Creek (40.8436, -124.0834); Mad River (40.9560, -124.1278); Rocky Gulch (40.8309, -124.0813); Salmon Creek (40.6868, -124.2194); Washington Gulch (40.8317, -124.0805) upstream to endpoint(s) in: Bridge Creek (40.6958, -124.0805); Browns Gulch (40.7038, -124.1074); Clapp Gulch (40.6967, -124.1684); Cloney Gulch (40.7826, -124.0347); Doe Creek (40.6964, -124.0201); Dunlap Gulch (40.7076, -124.1182); Falls Gulch (40.7655, -124.0261); Fay Slough (40.8033, -124.0574); Freshwater Creek (40.7385, -124.0035); Golf Course Creek (40.8406, -124.0402); Graham Gulch (40.7540, -124.0228); Guptil Gulch (40.7530, -124.1202); Henderson Gulch (40.7357, -124.1394); Jacoby Creek (40.7949, -124.0096); Lake Creek (40.6848, -124.0831); Line Creek (40.6578, -124.0460); Little Freshwater Creek (40.7371, -124.0649); Little North Fork Elk River (40.6972, -124.0100); Little South Fork Elk River (40.6555, -124.0877); Martin Slough (40.7679, -124.1578); McCready Gulch (40.7824, -124.0441); McWinney Creek (40.6968, -124.0616); Morrison Gulch (40.8169, -124.0430); North Branch of the North Fork Elk River (40.6879, -124.0130); North Fork Elk River (40.6794-123.9834); Railroad Gulch <PRTPAGE P="246"/>(40.6955, -124.1545); Rocky Gulch (40.8170, -124.0613); Ryan Creek (40.7352, -124.0996); Salmon Creek (40.6399, -124.1128); South Branch of the North Fork Elk River (40.6700, -124.0251); South Fork Elk River (40.6437, -124.0388); South Fork Freshwater Creek (40.7110, -124.0367); Swain Slough (40.7524, -124.1825); Tom Gulch (40.6794, -124.1452); Unnamed Tributary (40.7850, -124.0561); Unnamed Tributary (40.7496, -124.1651); Unnamed Tributary (40.7785,—124.1081); Unnamed Tributary (40.7667, -124.1054); Unnamed Tributary (40.7559, -124.0870); Unnamed Tributary (40.7952, -124.0568); Unnamed Tributary (40.7408, -124.1118); Unnamed Tributary (40.7186, -124.1385); Unnamed Tributary (40.7224, -124.1038); Unnamed Tributary (40.8210, -124.0111); Unnamed Tributary (40.8106, -124.0083); Unnamed Tributary (40.7554, -124.1379); Unnamed Tributary (40.7457, -124.1138); Washington Gulch (40.8205, -124.0549).</P> <P>(ii) [Reserved]</P> <P>(5) Eel River Hydrologic Unit 1111—(i) <E T="03">Ferndale Hydrologic Sub-area 111111.</E> Outlet(s) = Eel River (Lat 40.6275, Long -124.2520) upstream to endpoint(s) in: Atwell Creek (40.4824, -124.1498); Dean Creek (40.4847, -124.1217); Horse Creek (40.5198, -124.1702); Howe Creek (40.4654, -124.1916); Nanning Creek (40.4914, -124.0652); North Fork Strongs Creek (40.6077, -124.1047); Price Creek (40.5101, -124.2731); Rohner Creek (40.6151, -124.1408); Strongs Creek (40.5999, -124.0985); Sweet Creek (40.4900, -124.2007); Van Duzen River (40.5337, -124.1262).</P> <P>(ii) Scotia Hydrologic Sub-area 111112. Outlet(s) = Eel River (Lat 40.4918, Long -124.0998) upstream to endpoint(s) in: Bear Creek (40.3942, -124.0262); Bridge Creek (40.4278, -123.9317); Chadd Creek (40.3919, -123.9540); Darnell Creek (40.4533, -123.9808); Dinner Creek (40.4406, -124.0855); Greenlow Creek (40.4315, -124.0231); Jordan Creek (40.4171, -124.0517); Kiler Creek (40.4465, -124.0952); Monument Creek (40.4371, -124.1165); Shively Creek (40.4454, -123.9539); South Fork Bear Creek (40.3856, -124.0182); Stitz Creek (40.4649, -124.0531); Twin Creek (40.4419, -124.0714); Unnamed Tributary (40.3933, -123.9984); Weber Creek (40.3767, -123.9094).</P> <P>(iii) <E T="03">Larabee Creek Hydrologic Sub-area 111113.</E> Outlet(s) = Larabee Creek (Lat 40.4090, Long -123.9334) upstream to endpoint(s) in: Arnold Creek (40.4006, -123.8583); Balcom Creek (40.4030, -123.8986); Bosworth Creek (40.3584, -123.7089); Boulder Flat Creek (40.3530, -123.6381); Burr Creek (40.4250, -123.7767); Carson Creek (40.4181, -123.8879); Chris Creek (40.4146, -123.9235); Cooper Creek (40.3123, -123.6463); Dauphiny Creek (40.4049, -123.8893); Frost Creek (40.3765, -123.7357); Hayfield Creek (40.3350, -123.6535); Knack Creek (40.3788, -123.7385); Larabee Creek (40.2807, -123.6445); Martin Creek (40.3730, -123.7060); Maxwell Creek (40.3959, -123.8049); McMahon Creek (40.3269, -123.6363); Mill Creek (40.3849, -123.7440); Mountain Creek (40.2955, -123.6378); Scott Creek (40.4020, -123.8738); Smith Creek (40.4194, -123.8568); Thurman Creek (40.3506, -123.6669); Unnamed Tributary (40.3842, -123.8062); Unnamed Tributary (40.3982, -123.7862); Unnamed Tributary (40.3806, -123.7564); Unnamed Tributary (40.3661, -123.7398); Unnamed Tributary (40.3524, -123.7330).</P> <P>(iv) <E T="03">Hydesville Hydrologic Sub-area 111121.</E> Outlet(s) = Van Duzen River (Lat 40.5337, Long -124.1262) upstream to endpoint(s) in: Cuddeback Creek (40.5421, -124.0263); Cummings Creek (40.5282, -123.9770); Fiedler Creek (40.5351, -124.0106); Hely Creek (40.5165, -123.9531); Yager Creek (40.5583, -124.0577); Unnamed Tributary (40.5718, -124.0946).</P> <P>(v) <E T="03">Bridgeville Hydrologic Sub-area 111122.</E> Outlet(s) = Van Duzen River (Lat 40.4942, Long -123.9720) upstream to endpoint(s) in: Bear Creek (40.3455, -123.5763); Blanket Creek (40.3635, -123.5710); Browns Creek (40.4958, -123.8103); Butte Creek (40.4119, -123.7047); Dairy Creek (40.4174, -123.5981); Fish Creek (40.4525, -123.8434); Grizzly Creek (40.5193, -123.8470); Little Larabee Creek (40.4708, -123.7395); Little Van Duzen River (40.3021, -123.5540); North Fork Van Duzen (40.4881, -123.6411); Panther Creek (40.3921, -123.5866); Root Creek (40.4490, -123.9018); Stevens Creek (40.5062, -123.9073); Thompson Creek (40.4222, -123.6084); Van Duzen River (40.4820, -123.6629); Unnamed Tributary (40.3074, -123.5834).<PRTPAGE P="247"/> </P> <P>(vi) <E T="03">Yager Creek Hydrologic Sub-area 111123.</E> Outlet(s) = Yager Creek (Lat 40.5583, Long -124.0577) upstream to endpoint(s) in: Bell Creek (40.6809, -123.9685); Blanten Creek (40.5839, -124.0165); Booths Run (40.6584, -123.9428); Corner Creek (40.6179, -124.0010); Fish Creek (40.6390, -124.0024); Lawrence Creek (40.6986, -123.9314); Middle Fork Yager Creek (40.5782, -123.9243); North Fork Yager Creek (40.6056, -123.9080); Shaw Creek (40.6231, -123.9509); South Fork Yager Creek (40.5451, -123.9409); Unnamed Tributary (40.5892, -123.9663); Yager Creek (40.5673, -123.9403).</P> <P>(vii) <E T="03">Weott Hydrologic Sub-area 111131.</E> Outlet(s) = South Fork Eel River (Lat 40.3500, Long -123.9305) upstream to endpoint(s) in: Albee Creek (40.3592, -124.0088); Bull Creek (40.3587, -123.9624); Burns Creek (40.3194, -124.0420); Butte Creek (40.1982, -123.8387); Canoe Creek (40.2669, -123.9556); Coon Creek (40.2702, -123.9013); Cow Creek (40.2664, -123.9838); Cuneo Creek (40.3401, -124.0494); Decker Creek (40.3312, -123.9501); Elk Creek (40.2609, -123.7957); Fish Creek (40.2459, -123.7729); Harper Creek (40.3591, -123.9930); Mill Creek (40.3568, -124.0333); Mowry Creek (40.2937, -123.8895); North Fork Cuneo Creek (40.3443, -124.0488); Ohman Creek (40.1924, -123.7648); Panther Creek (40.2775, -124.0289); Preacher Gulch (40.2944, -124.0047); Salmon Creek (40.2145, -123.8926); Slide Creek (40.3011, -124.0390); South Fork Salmon Creek (40.1769, -123.8929); Squaw Creek (40.3167, -123.9988); Unnamed Tributary (40.3065, -124.0074); Unnamed Tributary (40.2831, -124.0359).</P> <P>(viii) <E T="03">Benbow Hydrologic Sub-area 111132.</E> Outlet(s) = South Fork Eel River (Lat 40.1929, Long -123.7692) upstream to endpoint(s) in: Anderson Creek (39.9325, -123.8928); Bear Creek (39.7885, -123.7620); Bear Pen Creek (39.9201, -123.7986); Bear Wallow Creek (39.7270, -123.7140); Big Dan Creek (39.8430, -123.6992); Bond Creek (39.7778, -123.7060); Bridges Creek (39.9087, -123.7142); Buck Mountain Creek (40.0944, -123.7423); Butler Creek (39.7423, -123.6987); Cedar Creek (39.8834, -123.6216); China Creek (40.1035, -123.9493); Connick Creek (40.0912, -123.8154); Cox Creek (40.0310, -123.8398); Cruso Cabin Creek (39.9281, -123.5842); Durphy Creek (40.0205, -123.8271); East Branch South Fork Eel River (39.9359, -123.6204); Elkhorn Creek (39.9272, -123.6279); Fish Creek (40.0390, -123.7630); Hartsook Creek (40.0081, -123.8113); Hollow Tree Creek (39.7250, -123.6924); Huckleberry Creek (39.7292, -123.7275); Indian Creek (39.9556, -123.9172); Islam John Creek (39.8062, -123.7363); Jones Creek (39.9958, -123.8374); Leggett Creek (40.1470, -123.8375); Little Sproul Creek (40.0890, -123.8577); Lost Man Creek (39.7983, -123.7287); Low Gap Creek (39.8029, -123.6803); Low Gap Creek (39.9933, -123.7601); McCoy Creek (39.9572, -123.7369); Michael's Creek (39.7665, -123.7035); Middle Creek (39.8052, -123.7691); Milk Ranch Creek (40.0102, -123.7514); Mill Creek (39.8673, -123.7605); Miller Creek (40.1319, -123.9302); Moody Creek (39.9471, -123.8827); Mule Creek (39.8169, -123.7745); North Fork Cedar Creek (39.8864, -123.6363); North Fork McCoy Creek (39.9723, -123.7496); Piercy Creek (39.9597, -123.8442); Pollock Creek (40.0802, -123.9341); Red Mountain Creek (39.9363, -123.7203); Redwood Creek (39.7723, -123.7648); Redwood Creek (40.0974, -123.9104); Rock Creek (39.8962, -123.7065); Sebbas Creek (39.9934, -123.8903); Somerville Creek (40.1006, -123.8884); South Fork Mule Creek (39.8174, -123.7788); South Fork Redwood Creek (39.7662, -123.7579); Sproul Creek (40.0226, -123.8649); Squaw Creek (40.0760, -123.7257); Standly Creek (39.9327, -123.8309); Tom Long Creek (40.0175, -123.6551); Waldron Creek (39.7469, -123.7465); Walter's Creek (39.7921, -123.7250); Warden Creek (40.0629, -123.8551); West Fork Sproul Creek (40.0587, -123.9170); Wildcat Creek (39.8956, -123.7820); Unnamed Tributary (39.9927, -123.8807).</P> <P>(ix) <E T="03">Laytonville Hydrologic Sub-area 111133.</E> Outlet(s) = South Fork Eel River (Lat 39.7665, Long -123.6484) upstream to endpoint(s) in: Bear Creek (39.6418, -123.5853); Big Rick Creek (39.7117, -123.5512); Cahto Creek (39.6527, -123.5579); Dark Canyon Creek (39.7333, -123.6614); Dutch Charlie Creek (39.6843, -123.7023); Elder Creek (39.7234, -123.6192); Fox Creek (39.7441, -123.6142); Grub Creek (39.7777, -123.5809); Jack of Hearts Creek (39.7136, -123.6896); Kenny Creek (39.6838, -123.5929); Little Case Creek (39.6892, -123.5441); Mill Creek (39.6839, -123.5118); Mud Creek (39.6713, <PRTPAGE P="248"/>-123.5741); Mud Springs Creek (39.6929, -123.5629); Redwood Creek (39.6545, -123.6753); Rock Creek (39.6922, -123.6090); Section Four Creek (39.6137, -123.5297); South Fork Eel River (39.6242, -123.5468); Streeter Creek (39.7340, -123.5606); Ten Mile Creek (39.6652, -123.4486); Unnamed Tributary (39.7004, -123.5678).</P> <P>(x) <E T="03">Sequoia Hydrologic Sub-area 111141.</E> Outlet(s) = Eel River (Lat 40.3557, Long -123.9191) upstream to endpoint(s) in: Beatty Creek (40.3198, -123.7500); Brock Creek (40.2410, -123.7246); Cameron Creek (40.3313, -123.7707); Dobbyn Creek (40.2216, -123.6029); Kapple Creek (40.3531, -123.8585); Line Gulch Creek (40.1640, -123.4783); Mud Creek (40.2078, -123.5143); North Fork Dobbyn Creek (40.2669, -123.5467); Sonoma Creek (40.2974, -123.7953); South Fork Dobbyn Creek (40.1723, -123.5112); South Fork Eel River (40.3500, -123.9305); South Fork Thompson Creek (40.3447, -123.8334); Thompson Creek (40.3552, -123.8417); Unnamed Tributary (40.2745, -123.5487).</P> <P>(xi) <E T="03">Spy Rock Hydrologic Sub-area 111142.</E> Outlet(s) = Eel River (Lat 40.1736, Long -123.6043) upstream to endpoint(s) in: Bear Pen Canyon (39.6943, -123.4359); Bell Springs Creek (39.9457, -123.5313); Blue Rock Creek (39.8937, -123.5018); Burger Creek (39.6693, -123.4034); Chamise Creek (40.0035, -123.5945); Gill Creek (39.7879, -123.3465); Iron Creek (39.7993, -123.4747); Jewett Creek (40.1122, -123.6171); Kekawaka Creek (40.0686, -123.4087); Rock Creek (39.9347, -123.5187); Shell Rock Creek (39.8414, -123.4614); Unnamed Tributary (39.7579, -123.4709); White Rock Creek (39.7646, -123.4684); Woodman Creek (39.7612, -123.4364).</P> <P>(xii) <E T="03">Outlet Creek Hydrologic Sub-area 111161.</E> Outlet(s) = Outlet Creek (Lat 39.6265, Long -123.3449) upstream to endpoint(s) in: Baechtel Creek (39.3623, -123.4143); Berry Creek (39.4271, -123.2777); Bloody Run Creek (39.5864, -123.3545); Broaddus Creek (39.3869, -123.4282); Cherry Creek (39.6043, -123.4073); Conklin Creek (39.3756, -123.2570); Davis Creek (39.3354, -123.2945); Haehl Creek (39.3735, -123.3172); Long Valley Creek (39.6246, -123.4651); Mill Creek (39.4196, -123.3919); Outlet Creek (39.4526, -123.3338); Ryan Creek (39.4804, -123.3644); Unnamed Tributary (39.4956, -123.3591); Unnamed Tributary (39.4322, -123.3848); Unnamed Tributary (39.5793, -123.4546); Unnamed Tributary (39.3703, -123.3419); Upp Creek (39.4479, -123.3825); Willts Creek (39.4686, -123.4299).</P> <P>(xiii) <E T="03">Tomki Creek Hydrologic Sub-area 111162.</E> Outlet(s) = Eel River (Lat 39.7138, Long -123.3532) upstream to endpoint(s) in: Cave Creek (39.3842, -123.2148); Dean Creek (39.6924, -123.3727); Garcia Creek (39.5153, -123.1512); Little Cave Creek (39.3915, -123.2462); Little Creek (39.4146, -123.2595); Long Branch Creek (39.4074, -123.1897); Rocktree Creek (39.4534, -123.3053); Salmon Creek (39.4367, -123.1939); Scott Creek (39.4492, -123.2286); String Creek (39.4658, -123.3206); Tarter Creek (39.4715, -123.2976); Thomas Creek (39.4768, -123.1230); Tomki Creek (39.5483, -123.3687); Whitney Creek (39.4399, -123.1084); Wheelbarrow Creek (39.5012, -123.3304).</P> <P>(xiv) <E T="03">Eden Valley Hydrologic Sub-area 111171.</E> Outlet(s) = Middle Fork Eel River (Lat 39.7138, Long -123.3532) upstream to endpoint(s) in: Crocker Creek (39.5559, -123.0409); Eden Creek (39.5992, -123.1746); Elk Creek (39.5371, -123.0101); Hayshed Creek (39.7082, -123.0967); Salt Creek (39.6765, -123.2740); Sportsmans Creek (39.5373, -123.0247); Sulper Springs (39.5536, -123.0365); Thatcher Creek (39.6686, -123.0639).</P> <P>(xv) <E T="03">Round Valley Hydrologic Sub-area 111172.</E> Outlet(s) = Mill Creek (Lat 39.7396, Long -123.1420); Williams Creek (39.8145, -123.1333) upstream to endpoint(s) in: Cold Creek (39.8714, -123.2991); Grist Creek (39.7640, -123.2883); Mill Creek (39.8481, -123.2896); Murphy Creek (39.8885, -123.1612); Short Creek (39.8703, -123.2352); Town Creek (39.7991, -123.2889); Turner Creek (39.7218, -123.2175); Williams Creek (39.8903, -123.1212); Unnamed Tributary (39.7428, -123.2757); Unnamed Tributary (39.7493, -123.2584).</P> <P>(xvi) <E T="03">Black Butte River Hydrologic Sub-area 111173.</E> Outlet(s) = Black Butte River (Lat 39.8239, Long -123.0880) upstream to endpoint(s) in: Black Butte River (39.5946, -122.8579); Buckhorn Creek (39.6563, -122.9225); Cold Creek (39.6960, -122.9063); Estell Creek (39.5966, -122.8224); Spanish Creek (39.6287, -122.8331).<PRTPAGE P="249"/> </P> <P>(xvii) <E T="03">Wilderness Hydrologic Sub-area 111174.</E> Outlet(s) = Middle Fork Eel River (Lat 39.8240, Long -123.0877) upstream to endpoint(s) in: Beaver Creek (39.9352, -122.9943); Fossil Creek (39.9447, -123.0403); Middle Fork Eel River (40.0780, -123.0442); North Fork Middle Fork Eel River (40.0727, -123.1364); Palm of Gileade Creek (40.0229, -123.0647); Pothole Creek (39.9347, -123.0440).</P> <P>(6) Cape Mendocino Hydrologic Unit 1112—(i) <E T="03">Oil Creek Hydrologic Sub-area 111210.</E> Outlet(s) = Guthrie Creek (Lat 40.5407, Long -124.3626); Oil Creek (40.5195, -124.3767) upstream to endpoint(s) in: Guthrie Creek (40.5320, -124.3128); Oil Creek (40.5061, -124.2875); Unnamed Tributary (40.4946, -124.3091); Unnamed Tributary (40.4982, -124.3549); Unnamed Tributary (40.5141, -124.3573); Unnamed Tributary (40.4992, -124.3070).</P> <P>(ii) <E T="03">Capetown Hydrologic Sub-area 111220.</E> Outlet(s) = Bear River (Lat 40.4744, Long -124.3881); Davis Creek (40.3850, -124.3691); Singley Creek (40.4311, -124.4034) upstream to endpoint(s) in: Antone Creek (40.4281, -124.2114); Bear River (40.3591, -124.0536); Beer Bottle Gulch (40.3949, -124.1410); Bonanza Gulch (40.4777, -124.2966); Brushy Creek (40.4102, -124.1050); Davis Creek (40.3945, -124.2912); Harmonica Creek (40.3775, -124.0735); Hollister Creek (40.4109, -124.2891); Nelson Creek (40.3536, -124.1154); Peaked Creek (40.4123, -124.1897); Pullen Creek (40.4057, -124.0814); Singley Creek (40.4177, -124.3305); South Fork Bear River (40.4047, -124.2631); Unnamed Tributary (40.4271, -124.3107); Unnamed Tributary (40.4814, -124.2741); Unnamed Tributary (40.3633, -124.0651); Unnamed Tributary (40.3785, -124.0599); Unnamed Tributary (40.4179, -124.2391); Unnamed Tributary (40.4040, -124.0923); Unnamed Tributary (40.3996, -124.3175); Unnamed Tributary (40.4045, -124.0745); Unnamed Tributary (40.4668, -124.2364); Unnamed Tributary (40.4389, -124.2350); Unnamed Tributary (40.4516, -124.2238); Unnamed Tributary (40.4136, -124.1594); Unnamed Tributary (40.4350, -124.1504); Unnamed Tributary (40.4394, -124.3745); West Side Creek (40.4751, -124.2432).</P> <P>(iii) <E T="03">Mattole River Hydrologic Sub-area 111230.</E> Outlet(s) = Big Creek (Lat 40.1567, Long -124.2114); Big Flat Creek (40.1275, -124.1764); Buck Creek (40.1086, -124.1218); Cooskie Creek (40.2192, -124.3105); Fourmile Creek (40.2561, -124.3578); Gitchell Creek (40.0938, -124.1023); Horse Mountain Creek (40.0685, -124.0822); Kinsey Creek (40.1717, -124.2310); Mattole River (40.2942, -124.3536); McNutt Gulch (40.3541, -124.3619); Oat Creek (40.1785, -124.2445); Randall Creek (40.2004, -124.2831); Shipman Creek (40.1175, -124.1449); Spanish Creek (40.1835, -124.2569); Telegraph Creek (40.0473, -124.0798); Whale Gulch (39.9623, -123.9785) upstream to endpoint(s) in: Anderson Creek (40.0329, -123.9674); Baker Creek (40.0143, -123.9048); Bear Creek (40.1262, -124.0631); Bear Creek (40.2819, -124.3336); Bear Trap Creek (40.2157, -124.1422); Big Creek (40.1742, -124.1924); Big Finley Creek (40.0910, -124.0179); Big Flat Creek (40.1444, -124.1636); Blue Slide Creek (40.1562, -123.9283); Box Canyon Creek (40.1078, -123.9854); Bridge Creek (40.0447, -124.0118); Buck Creek (40.1166, -124.1142); Conklin Creek (40.3197, -124.2055); Cooskie Creek (40.2286, -124.2986); Devils Creek (40.3432, -124.1365); Dry Creek (40.2646, -124.0660); East Branch North Fork Mattole River (40.3333, -124.1490); East Fork Honeydew Creek (40.1625, -124.0929); Eubank Creek (40.0997, -123.9661); Fire Creek (40.1533, -123.9509); Fourmile Creek (40.2604, -124.3079); Fourmile Creek (40.1767, -124.0759); French Creek (40.1384, -124.0072); Gibson Creek (40.0304, -123.9279); Gilham Creek (40.2078, -124.0085); Gitchell Creek (40.1086, -124.0947); Green Ridge Creek (40.3254, -124.1258); Grindstone Creek (40.2019, -123.9890); Harris Creek (40.0381, -123.9304); Harrow Creek (40.1612, -124.0292); Helen Barnum Creek (40.0036, -123.9101); Honeydew Creek (40.1747, -124.1410); Horse Mountain Creek (40.0769, -124.0729); Indian Creek (40.2772, -124.2759); Jewett Creek (40.1465, -124.0414); Kinsey Creek (40.1765, -124.2220); Lost Man Creek (39.9754, -123.9179); Mattole Canyon (40.2021, -123.9570); Mattole River (39.9714, -123.9623); McGinnis Creek (40.3186, -124.1801); McKee Creek (40.0864, -123.9480); McNutt Gulch (40.3458, -124.3418); Middle Creek (40.2591, -124.0366); Mill Creek (40.0158, -123.9693); Mill Creek (40.3305, -124.2598); Mill Creek (40.2839, -124.2946); Nooning Creek (40.0616, -124.0050); North Fork <PRTPAGE P="250"/>Mattole River (40.3866, -124.1867); North Fork Bear Creek (40.1494, -124.1060); North Fork Fourmile Creek (40.2019, -124.0722); Oat Creek (40.1884, -124.2296); Oil Creek (40.3214, -124.1601); Painter Creek (40.0844, -123.9639); Prichett Creek (40.2892, -124.1704); Randall Creek (40.2092, -124.2668); Rattlesnake Creek (40.3250, -124.0981); Shipman Creek (40.1250, -124.1384); Sholes Creek (40.1603, -124.0619); South Branch West Fork Bridge Creek (40.0326, -123.9853); South Fork Bear Creek (40.0176, -124.0016); Spanish Creek (40.1965, -124.2429); Squaw Creek (40.1934, -124.2002); Stanley Creek (40.0273, -123.9166); Sulphur Creek (40.3647, -124.1586); Telegraph Creek (40.0439, -124.0640); Thompson Creek (39.9913, -123.9707); Unnamed Tributary (40.3475, -124.1606); Unnamed Tributary (40.3522, -124.1533); Unnamed Tributary (40.0891, -123.9839); Unnamed Tributary (40.2223, -124.0172); Unnamed Tributary (40.1733, -123.9515); Unnamed Tributary (40.2899, -124.0955); Unnamed Tributary (40.2853, -124.3227); Unnamed Tributary (39.9969, -123.9071); Upper East Fork Honeydew Creek (40.1759, -124.1182); Upper North Fork Mattole River (40.2907, -124.1115); Vanauken Creek (40.0674, -123.9422); West Fork Bridge Creek (40.0343, -123.9990); West Fork Honeydew Creek (40.1870, -124.1614); Westlund Creek (40.2440, -124.0036); Whale Gulch (39.9747, -123.9812); Woods Creek (40.2119, -124.1611); Yew Creek (40.0018, -123.9762).</P> <P>(7) Mendocino Coast Hydrologic Unit 1113—(i) <E T="03">Usal Creek Hydrologic Sub-area 111311</E>. Outlet(s) = Jackass Creek (Lat 39.8806, Long -123.9155); Usal Creek (39.8316, -123.8507) upstream to endpoint(s) in: Bear Creek (39.8898, -123.8344); Jackass Creek (39.8901, -123.8928); Julias Creek (39.8542, -123.7937); Little Bear Creek (39.8629, -123.8400); North Fork Jackass Creek (39.9095, -123.9101); North Fork Julias Creek (39.8581, -123.8045); Soldier Creek (39.8679, -123.8162); South Fork Usal Creek (39.8356, -123.7865); Unnamed Tributary (39.8890, -123.8480); Usal Creek (39.8957, -123.8797); Waterfall Gulch (39.8787, -123.8680).</P> <P>(ii) <E T="03">Wages Creek Hydrologic Sub-area 111312</E>. Outlet(s) = Cottaneva Creek (Lat 39.7360, Long -123.8293); DeHaven Creek (39.6592, -123.7863); Hardy Creek (39.7107, -123.8082); Howard Creek (39.6778, -123.7915); Juan Creek (39.7028, -123.8042); Wages Creek (39.6513, -123.7851) upstream to endpoint(s) in: Cottaneva Creek (39.7825, -123.8210); DeHaven Creek (39.6687, -123.7060); Dunn Creek (39.8103, -123.8320); Hardy Creek (39.7221, -123.7822); Howard Creek (39.6808, -123.7463); Juan Creek (39.7107, -123.7472); Kimball Gulch (39.7559, -123.7828); Little Juan Creek (39.7003, -123.7609); Middle Fork Cottaneva Creek (39.7738, -123.8058); North Fork Cottaneva Creek (39.8011, -123.8047); North Fork Dehaven Creek (39.6660, -123.7382); North Fork Wages Creek (39.6457, -123.7066); Rider Gulch (39.6348, -123.7621); Rockport Creek (39.7346, -123.8021); Slaughterhouse Gulch (39.7594, -123.7914); South Fork Cottaneva Creek (39.7447, -123.7773); South Fork Wages Creek (39.6297, -123.6862); Wages Creek (39.6297, -123.6862).</P> <P>(iii) <E T="03">Ten Mile River Hydrologic Sub-area 111313</E>. Outlet(s) = Abalobadiah Creek (Lat 39.5654, Long -123.7672); Chadbourne Gulch (39.6133, -123.7822); Ten Mile River (39.5529, -123.7658); Seaside Creek (39.5592, -123.7655) upstream to endpoint(s) in: Abalobadiah Creek (39.5878, -123.7503); Bald Hill Creek (39.6278, -123.6461); Barlow Gulch (39.6046, -123.7384); Bear Pen Creek (39.5824, -123.6402); Booth Gulch (39.5567, -123.5918); Buckhorn Creek (39.6093, -123.6980); Campbell Creek (39.5053, -123.6610); Cavanough Gulch (39.6107, -123.6776); Chadbourne Gulch (39.6190, -123.7682); Clark Fork (39.5280, -123.5134); Curchman Creek (39.4789, -123.6398); Gulch 11 (39.4687, -123.5816); Gulch 19 (39.5939, -123.5781); Little Bear Haven Creek (39.5655, -123.6147); Little North Fork (39.6264, -123.7350); Mill Creek (39.5392, -123.7068); North Fork Ten Mile River (39.5870, -123.5480); O'Conner Gulch (39.6042, -123.6632); Patsy Creek (39.5714, -123.5669); Redwood Creek (39.5142, -123.5620); Seaside Creek (39.5612, -123.7501); Smith Creek (39.5251, -123.6499); South Fork Bear Haven Creek (39.5688, -123.6527); South Fork Ten Mile River (39.5083, -123.5395); Ten Mile River (39.5721, -123.7098); Unnamed Tributary (39.5180, -123.5948); Unnamed Tributary (39.5146, -123.6183); Unnamed Tributary (39.5898, -123.7657); Unnamed Tributary (39.5813, -123.7526); Unnamed Tributary (39.5936, -123.6034).<PRTPAGE P="251"/> </P> <P>(iv) <E T="03">Noyo River Hydrologic Sub-area 111320</E>. Outlet(s) = Digger Creek (Lat 39.4088, Long -123.8164); Hare Creek (39.4171, -123.8128); Jug Handle Creek (39.3767, -123.8176); Mill Creek (39.4894, -123.7967); Mitchell Creek (39.3923, -123.8165); Noyo River (39.4274, -123.8096); Pudding Creek (39.4588, -123.8089); Virgin Creek (39.4714, -123.8045) upstream to endpoint(s) in: Bear Gulch (39.3881, -123.6614); Brandon Gulch (39.4191, -123.6645); Bunker Gulch (39.3969, -123.7153); Burbeck Creek (39.4354, -123.4235); Covington Gulch (39.4099, -123.7546); Dewarren Creek (39.4974, -123.5535); Digger Creek (39.3932, -123.7820); Duffy Gulch (39.4469, -123.6023); Gulch Creek (39.4441, -123.4684); Gulch Seven (39.4523, -123.5183); Hare Creek (39.3781, -123.6922); Hayworth Creek (39.4857, -123.4769); Hayshed Creek (39.4200, -123.7391); Jug Handle Creek (39.3647, -123.7523); Kass Creek (39.4262, -123.6807); Little North Fork (39.4532, -123.6636); Little Valley Creek (39.5026, -123.7277); Marble Gulch (39.4423, -123.5479); McMullen Creek (39.4383, -123.4488); Middle Fork North Fork (39.4924, -123.5231); Mill Creek (39.4813, -123.7600); Mitchell Creek (39.3813, -123.7734); North Fork Hayworth Creek (39.4891, -123.5026); North Fork Noyo River (39.4765, -123.5535); North Fork Noyo (39.4765, -123.5535); North Fork South Fork Noyo River (39.3971, -123.6108); Noyo River (39.4242, -123.4356); Olds Creek (39.3964, -123.4448); Parlin Creek (39.3700, -123.6111); Pudding Creek (39.4591, -123.6516); Redwood Creek (39.4660, -123.4571); South Fork Hare Creek (39.3785, -123.7384); South Fork Noyo River (39.3620, -123.6188); Unnamed Tributary (39.4113, -123.5621); Unnamed Tributary (39.3918, -123.6425); Unnamed Tributary (39.4168, -123.4578); Unnamed Tributary (39.4656, -123.7467); Unnamed Tributary (39.4931, -123.7371); Unnamed Tributary (39.4922, -123.7381); Unnamed Tributary (39.4939, -123.7184); Unnamed Tributary (39.4158, -123.6428); Unnamed Tributary (39.4002, -123.7347); Unnamed Tributary (39.3831, -123.6177); Unnamed Tributary (39.4926, -123.4764); Virgin Creek (39.4621, -123.7855); Unnamed Tributary (39.4650, -123.7463).</P> <P>(v) <E T="03">Big River Hydrologic Sub-area 111330</E>. Outlet(s) = Big River (Lat 39.3030, Long -123.7957); Casper Creek (39.3617, -123.8169); Doyle Creek (39.3603, -123.8187); Jack Peters Creek (39.3193, -123.8006); Russian Gulch (39.3288, -123.8050) upstream to endpoint(s) in: Berry Gulch (39.3585, -123.6930); Big River (39.3166, -123.3733); Casper Creek (39.3462, -123.7556); Chamberlain Creek (39.4007, -123.5317); Daugherty Creek (39.1700, -123.3699); Doyle Creek (39.3517, -123.8007); East Branch Little North Fork Big River (39.3372, -123.6410); East Branch North Fork Big River (39.3354, -123.4652); Gates Creek (39.2083, -123.3944); Jack Peters Gulch (39.3225, -123.7850); James Creek (39.3922, -123.4747); Johnson Creek (39.1963, -123.3927); Johnson Creek (39.2556, -123.4485); Laguna Creek (39.2910, -123.6334); Little North Fork Big River (39.3497, -123.6242); Marten Creek (39.3290, -123.4279); Mettick Creek (39.2591, -123.5193); Middle Fork North Fork Casper Creek (39.3575, -123.7170); North Fork Big River (39.3762, -123.4591); North Fork Casper Creek (39.3610, -123.7356); North Fork James Creek (39.3980, -123.4939); North Fork Ramone Creek (39.2760, -123.4846); Pig Pen Gulch (39.3226, -123.4609); Pruitt Creek (39.2592, -123.3812); Ramone Creek (39.2714, -123.4415); Rice Creek (39.2809, -123.3963); Russell Brook (39.2863, -123.4461); Russian Gulch (39.3237, -123.7650); Snuffins Creek (39.1836, -123.3854); Soda Creek (39.2230, -123.4239); South Fork Big River (39.2317, -123.3687); South Fork Casper Creek (39.3493, -123.7216); Two Log Creek (39.3484, -123.5781); Unnamed Tributary (39.3897, -123.5556); Unnamed Tributary (39.3637, -123.5464); Unnamed Tributary (39.3776, -123.5274); Unnamed Tributary (39.4029, -123.5771); Valentine Creek (39.2694, -123.3957); Water Gulch (39.3607, -123.5891).</P> <P>(vi) <E T="03">Albion River Hydrologic Sub-area 111340</E>. Outlet(s) = Albion River (Lat 39.2253, Long -123.7679); Big Salmon Creek (39.2150, -123.7660); Buckhorn Creek (39.2593, -123.7839); Dark Gulch (39.2397, -123.7740); Little Salmon Creek (39.2150, -123.7660); Little River (39.2734, -123.7914) upstream to endpoint(s) in: Albion River (39.2613, -123.5766); Big Salmon Creek (39.2070, -123.6514); Buckhorn Creek (39.2513, -123.7595); Dark Gulch (39.2379, -123.7592); Duck Pond Gulch (39.2456, -123.6960); East Railroad Gulch (39.2604, -123.6381); <PRTPAGE P="252"/>Hazel Gulch (39.2141, -123.6418); Kaison Gulch (39.2733, -123.6803); Little North Fork South Fork Albion River (39.2350, -123.6431); Little River (39.2683, -123.7190); Little Salmon Creek (39.2168, -123.7515); Marsh Creek (39.2325, -123.5596); Nordon Gulch (39.2489, -123.6503); North Fork Albion River (39.2854, -123.5752); Pleasant Valley Gulch (39.2379, -123.6965); Railroad Gulch (39.2182, -123.6932); Soda Springs Creek (39.2943, -123.5944); South Fork Albion River (39.2474, -123.6107); Tom Bell Creek (39.2805, -123.6519); Unnamed Tributary (39.2279, -123.6972); Unnamed Tributary (39.2194, -123.7100); Unnamed Tributary (39.2744, -123.5889); Unnamed Tributary (39.2254, -123.6733).</P> <P>(vii) <E T="03">Navarro River Hydrologic Sub-area 111350</E>. Outlet(s) = Navarro River (Lat 39.1921, Long -123.7611) upstream to endpoint(s) in: Alder Creek (38.9830, -123.3946); Anderson Creek (38.9644, -123.2907); Bailey Creek (39.1733, -123.4804); Barton Gulch (39.1804, -123.6783); Bear Creek (39.1425, -123.4326); Bear Wallow Creek (39.0053, -123.4075); Beasley Creek (38.9366, -123.3265); Bottom Creek (39.2117, -123.4607); Camp 16 Gulch (39.1937, -123.6095); Camp Creek (38.9310, -123.3527); Cold Spring Creek (39.0376, -123.5027); Con Creek (39.0374, -123.3816); Cook Creek (39.1879, -123.5109); Cune Creek (39.1622, -123.6014); Dago Creek (39.0731, -123.5068); Dead Horse Gulch (39.1576, -123.6124); Dutch Henry Creek (39.2112, -123.5794); Floodgate Creek (39.1291, -123.5365); Fluem Gulch (39.1615, -123.6695); Flynn Creek (39.2099, -123.6032); German Creek (38.9452, -123.4269); Gut Creek (39.0803, -123.3312); Ham Canyon (39.0164, -123.4265); Horse Creek (39.0144, -123.4960); Hungry Hollow Creek (39.1327, -123.4488); Indian Creek (39.0708, -123.3301); Jimmy Creek (39.0117, -123.2888); John Smith Creek (39.2275, -123.5366); Little North Fork Navarro River (39.1941, -123.4553); Low Gap Creek (39.1590, -123.3783); Navarro River (39.0537, -123.4409); Marsh Gulch (39.1692, -123.7049); McCarvey Creek (39.1589, -123.4048); Mill Creek (39.1270, -123.4315); Minnie Creek (38.9751, -123.4529); Murray Gulch (39.1755, -123.6966); Mustard Gulch (39.1673, -123.6393); North Branch (39.2069, -123.5361); North Fork Indian Creek (39.1213, -123.3345); North Fork Navarro River (39.1708, -123.5606); Parkinson Gulch (39.0768, -123.4070); Perry Gulch (39.1342, -123.5707); Rancheria Creek (38.8626, -123.2417); Ray Gulch (39.1792, -123.6494); Robinson Creek (38.9845, -123.3513); Rose Creek (39.1358, -123.3672); Shingle Mill Creek (39.1671, -123.4223); Soda Creek (39.0238, -123.3149); Soda Creek (39.1531, -123.3734); South Branch (39.1409, -123.3196); Spooner Creek (39.2221, -123.4811); Tramway Gulch (39.1481, -123.5958); Yale Creek (38.8882, -123.2785).</P> <P>(viii) <E T="03">Greenwood Creek Hydrologic Sub-area 111361</E>. Outlet(s) = Greenwood Creek (Lat 39.1262, Long -123.7181) upstream to endpoint(s) in: Greenwood Creek (39.0894, -123.5924).</P> <P>(ix) <E T="03">Elk Creek Hydrologic Sub-area 111362</E>. Outlet(s) = Elk Creek (Lat 39.1024, Long -123.7080) upstream to endpoint(s) in: Elk Creek (39.0657, -123.6245).</P> <P>(x) <E T="03">Alder Creek Hydrologic Sub-area 111363</E>. Outlet(s) = Alder Creek (Lat 39.0044, Long -123.6969); Mallo Pass Creek (39.0341, -123.6896) upstream to endpoint(s) in: Alder Creek (38.9961, -123.6471); Mallo Pass Creek (39.0287, -123.6373).</P> <P>(xi) <E T="03">Brush Creek Hydrologic Sub-area 111364</E>. Outlet(s) = Brush Creek (Lat 38.9760, Long -123.7120) upstream to endpoint(s) in: Brush Creek (38.9730, -123.5563); Mill Creek (38.9678, -123.6515); Unnamed Tributary (38.9724, -123.6571).</P> <P>(xii) <E T="03">Garcia River Hydrologic Sub-area 111370</E>. Outlet(s) = Garcia River (Lat 38.9550, Long -123.7338); Point Arena Creek (38.9141, -123.7103); Schooner Gulch (38.8667, -123.6550) upstream to endpoint(s) in: Blue Water Hole Creek (38.9378, -123.5023); Flemming Creek (38.8384, -123.5361); Garcia River (38.8965, -123.3681); Hathaway Creek (38.9287, -123.7011); Inman Creek (38.8804, -123.4370); Larmour Creek (38.9419, -123.4469); Mill Creek (38.9078, -123.3143); North Fork Garcia River (38.9233, -123.5339); North Fork Schooner Gulch (38.8758, -123.6281); Pardaloe Creek (38.8895, -123.3423); Point Arena Creek (38.9069, -123.6838); Redwood Creek (38.9241, -123.3343); Rolling Brook (38.8965, -123.5716); Schooner Gulch (38.8677, -123.6198); South Fork Garcia River (38.8450, -123.5420); Stansburry Creek (38.9422, -123.4720); Signal Creek (38.8639, -123.4414); Unnamed Tributary <PRTPAGE P="253"/>(38.8758, -123.5692); Unnamed Tributary (38.8818, -123.5723); Whitlow Creek (38.9141, -123.4624).</P> <P>(xiii) <E T="03">North Fork Gualala River Hydrologic Sub-area 111381</E>. Outlet(s) = North Fork Gualala River (Lat 38.7784, Long -123.4992) upstream to endpoint(s) in: Bear Creek (38.8347, -123.3842); Billings Creek (38.8652, -123.3496); Doty Creek (38.8495, -123.5131); Dry Creek (38.8416, -123.4455); Little North Fork Gualala River (38.8295, -123.5570); McGann Gulch (38.8026, -123.4458); North Fork Gualala River (38.8479, -123.4113); Robinson Creek (38.8416, -123.3725); Robinson Creek (38.8386, -123.4991); Stewart Creek (38.8109, -123.4157); Unnamed Tributary (38.8487, -123.3820).</P> <P>(xiv) <E T="03">Rockpile Creek Hydrologic Sub-area 111382</E>. Outlet(s) = Rockpile Creek (Lat 38.7507, Long -123.4706) upstream to endpoint(s) in: Rockpile Creek (38.7966, -123.3872).</P> <P>(xv) <E T="03">Buckeye Creek Hydrologic Sub-area 111383</E>. Outlet(s) = Buckeye Creek (Lat 38.7403, Long -123.4580) upstream to endpoint(s) in: Buckeye Creek (38.7400, -123.2697); Flat Ridge Creek (38.7616, -123.2400); Franchini Creek (38.7500, -123.3708); North Fork Buckeye (38.7991, -123.3166).</P> <P>(xvi) <E T="03">Wheatfield Fork Hydrologic Sub-area 111384</E>. Outlet(s) = Wheatfield Fork Gualala River (Lat 38.7018, Long -123.4168) upstream to endpoint(s) in: Danfield Creek (38.6369, -123.1431); Fuller Creek (38.7109, -123.3256); Haupt Creek (38.6220, -123.2551); House Creek (38.6545, -123.1184); North Fork Fuller Creek (38.7252, -123.2968); Pepperwood Creek (38.6205, -123.1665); South Fork Fuller Creek (38.6973, -123.2860); Tombs Creek (38.6989, -123.1616); Unnamed Tributary (38.7175, -123.2744); Wheatfield Fork Gualala River (38.7497, -123.2215).</P> <P>(xvii) <E T="03">Gualala Hydrologic Sub-area 111385.</E> Outlet(s) = Fort Ross Creek (Lat 38.5119, Long -123.2436); Gualala River (38.7687, -123.5334); Kolmer Gulch (38.5238, -123.2646) upstream to endpoint(s) in: Big Pepperwood Creek (38.7951, -123.4638); Carson Creek (38.5653, -123.1906); Fort Ross Creek (38.5174, -123.2363); Groshong Gulch (38.7814, -123.4904); Gualala River (38.7780, -123.4991); Kolmer Gulch (38.5369, -123.2247); Little Pepperwood (38.7738, -123.4427); Marshall Creek (38.5647, -123.2058); McKenzie Creek (38.5895, -123.1730); Palmer Canyon Creek (38.6002, -123.2167); South Fork Gualala River (38.5646, -123.1689); Sproule Creek (38.6122, -123.2739); Turner Canyon (38.5294, -123.1672); Unknown Tributary (38.5634, -123.2003).</P> <P>(xviii) <E T="03">Russian Gulch Hydrologic Sub-area 111390.</E> Outlet(s) = Russian Gulch Creek (Lat 38.4669, Long -123.1569) upstream to endpoint(s) in: Russian Gulch Creek (38.4956, -123.1535); West Branch Russian Gulch Creek (38.4968, -123.1631).</P> <P>(8) Maps of critical habitat for the Northern California Steelhead ESU follow:</P> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="254"/> <GID>ER02SE05.008</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="255"/> <GID>ER02SE05.009</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="256"/> <GID>ER02SE05.010</GID> </GPH> <GPH DEEP="448" SPAN="2"> <PRTPAGE P="257"/> <GID>ER02SE05.011</GID> </GPH> <GPH DEEP="448" SPAN="2"> <PRTPAGE P="258"/> <GID>ER02SE05.012</GID> </GPH> <GPH DEEP="445" SPAN="2"> <PRTPAGE P="259"/> <GID>ER02SE05.013</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="260"/> <GID>ER02SE05.014</GID> </GPH> <P>(h) <E T="03">Central California Coast Steelhead (O. mykiss)</E>. Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic Units:</P> <P>(1) Russian River Hydrologic Unit 1114—(i) <E T="03">Guerneville Hydrologic Sub-area 111411.</E> Outlet(s) = Russian River (Lat 38.4507, Long -123.1289) upstream to endpoint(s) in: Atascadero Creek (38.3473, -122.8626); Austin Creek <PRTPAGE P="261"/>(38.5098, -123.0680); Baumert Springs (38.4195, -122.9658); Dutch Bill Creek (38.4132, -122.9508); Duvoul Creek (38.4527, -122.9525); Fife Creek (38.5584, -122.9922); Freezeout Creek (38.4405, -123.0360); Green Valley Creek, (38.4445, -122.9185); Grub Creek (38.4411, -122.9636); Hobson Creek (38.5334, -122.9401); Hulbert Creek (38.5548, -123.0362); Jenner Gulch (38.4869, -123.0996); Kidd Creek (38.5029, -123.0935); Lancel Creek (38.4247, -122.9322); Mark West Creek (38.4961, -122.8489); Mays Canyon (38.4800, -122.9715); North Fork Lancel Creek (38.4447, -122.9444); Pocket Canyon (38.4650, -122.9267); Porter Creek (38.5435, -122.9332); Purrington Creek (38.4083, -122.9307); Sheep House Creek (38.4820, -123.0921); Smith Creek (38.4622, -122.9585); Unnamed Tributary (38.4560, -123.0246); Unnamed Tributary (38.3976, -122.8994); Unnamed Tributary (38.3772, -122.8938); Willow Creek (38.4249, -123.0022).</P> <P>(ii) <E T="03">Austin Creek Hydrologic Sub-area 111412.</E> Outlet(s) = Austin Creek (Lat 38.5098, Long -123.0680) upstream to endpoint(s) in: Austin Creek (38.6262, -123.1347); Bear Pen Creek (38.5939, -123.1644); Big Oat Creek (38.5615, -123.1299); Black Rock Creek (38.5586, -123.0730); Blue Jay Creek (38.5618, -123.1399); Conshea Creek (38.5830, -123.0824); Devil Creek (38.6163, -123.0425); East Austin Creek (38.6349, -123.1238); Gilliam Creek (38.5803, -123.0152); Gray Creek (38.6132, -123.0107); Thompson Creek (38.5747, -123.0300); Pole Mountain Creek (38.5122, -123.1168); Red Slide Creek (38.6039, -123.1141); Saint Elmo Creek (38.5130, -123.1125); Schoolhouse Creek (38.5595, -123.0175); Spring Creek (38.5041, -123.1364); Sulphur Creek (38.6187, -123.0553); Ward Creek (38.5720, -123.1547).</P> <P>(iii) <E T="03">Mark West Hydrologic Sub-area 111423.</E> Outlet(s) = Mark West Creek (Lat 38.4962, Long -122.8492) upstream to endpoint(s) in: Humbug Creek (38.5412, -122.6249); Laguna de Santa Rosa (38.4526, -122.8347); Mark West Creek (38.5187, -122.5995); Pool Creek (38.5486, -122.7641); Pruit Creek (38.5313, -122.7615); Windsor Creek (38.5484, -122.8101).</P> <P>(iv) <E T="03">Warm Springs Hydrologic Sub-area 111424.</E> Outlet(s) = Dry Creek (Lat 38.5862, Long -122.8577) upstream to endpoint(s) in: Angel Creek (38.6101, -122.9833); Crane Creek (38.6434, -122.9451); Dry Creek (38.7181, -123.0091); Dutcher Creek (38.7223, -122.9770); Felta Creek (38.5679, -122.9379); Foss Creek (38.6244, -122.8754); Grape Creek (38.6593, -122.9707); Mill Creek (38.5976, -122.9914); North Slough Creek (38.6392, -122.8888); Palmer Creek (38.5770, -122.9904); Pena Creek (38.6384, -123.0743); Redwood Log Creek (38.6705, -123.0725); Salt Creek (38.5543, -122.9133); Wallace Creek (38.6260, -122.9651); Wine Creek (38.6662, -122.9682); Woods Creek (38.6069, -123.0272).</P> <P>(v) <E T="03">Geyserville Hydrologic Sub-area 111425.</E> Outlet(s) = Russian River (Lat 38.6132, Long -122.8321) upstream to endpoint(s) in: Ash Creek (38.8556, -123.0082); Bear Creek (38.7253, -122.7038); Bidwell Creek (38.6229, -122.6320); Big Sulphur Creek (38.8279, -122.9914); Bluegum Creek (38.6988, -122.7596); Briggs Creek (38.6845, -122.6811); Coon Creek (38.7105, -122.6957); Crocker Creek (38.7771, -122.9595); Edwards Creek (38.8592, -123.0758); Foote Creek (38.6433, -122.6797); Foss Creek (38.6373, -122.8753); Franz Creek (38.5726, -122.6343); Gill Creek (38.7552, -122.8840); Gird Creek (38.7055, -122.8311); Ingalls Creek (38.7344, -122.7192); Kellog Creek (38.6753, -122.6422); Little Briggs Creek (38.7082, -122.7014); Maacama Creek (38.6743, -122.7431); McDonnell Creek (38.7354, -122.7338); Mill Creek (38.7009, -122.6490); Miller Creek (38.7211, -122.8608); Oat Valley Creek (38.8461, -123.0712); Redwood Creek (38.6342, -122.6720); Sausal Creek (38.6924, -122.7930); South Fork Gill Creek (38.7420, -122.8760); Unnamed Tributary (38.7329, -122.8601); Yellowjacket Creek (38.6666, -122.6308).</P> <P>(vi) <E T="03">Sulphur Creek Hydrologic Sub-area 111426.</E> Outlet(s) = Big Sulphur Creek (Lat 38.8279, Long -122.9914) upstream to endpoint(s) in: Alder Creek (38.8503, -122.8953); Anna Belcher Creek (38.7537, -122.7586); Big Sulphur Creek (38.8243, -122.8774); Frasier Creek (38.8439, -122.9341); Humming Bird Creek (38.8460, -122.8596); Little Sulphur Creek (38.7469, -122.7425); Lovers Gulch (38.7396, -122.8275); North Branch Little Sulphur Creek (38.7783, -122.8119); Squaw Creek (38.8199, -122.7945).<PRTPAGE P="262"/> </P> <P>(vii) <E T="03">Ukiah Hydrologic Sub-area 111431.</E> Outlet(s) = Russian River (Lat 38.8828, Long -123.0557) upstream to endpoint(s) in: Pieta Creek (38.8622, -122.9329).</P> <P>(viii) <E T="03">Forsythe Creek Hydrologic Sub-area 111433.</E> Outlet(s) = West Branch Russian River (Lat 39.2257, Long -123.2012) upstream to endpoint(s) in: Bakers Creek (39.2859, -123.2432); Eldridge Creek (39.2250, -123.3309); Forsythe Creek (39.2976, -123.2963); Jack Smith Creek (39.2754, -123.3421); Mariposa Creek (39.3472, -123.2625); Mill Creek (39.2969, -123.3360); Salt Hollow Creek (39.2585, -123.1881); Seward Creek (39.2606, -123.2646); West Branch Russian River (39.3642, -123.2334).</P> <P>(2) Bodega Hydrologic Unit 1115—(i) <E T="03">Salmon Creek Hydrologic Sub-area 111510.</E> Outlet(s) = Salmon Creek (Lat 38.3554, Long -123.0675) upstream to endpoint(s) in: Coleman Valley Creek (38.3956, -123.0097); Faye Creek (38.3749, -123.0000); Finley Creek (38.3707, -123.0258); Salmon Creek (38.3877, -122.9318); Tannery Creek (38.3660, -122.9808).</P> <P>(ii) <E T="03">Estero Americano Hydrologic Sub-area 111530.</E> Outlet(s) = Estero Americano (Lat 38.2939, Long -123.0011) upstream to endpoint(s) in: Estero Americano (38.3117, -122.9748); Ebabias Creek (38.3345, -122.9759).</P> <P>(3) Marin Coastal Hydrologic Unit 2201—(i) <E T="03">Walker Creek Hydrologic Sub-area 220112.</E> Outlet(s) = Walker Creek (Lat 38.2213, Long -122.9228); Millerton Gulch (38.1055, -122.8416) upstream to endpoint(s) in: Chileno Creek (38.2145, -122.8579); Frink Canyon (38.1761, -122.8405); Millerton Gulch (38.1376, -122.8052); Verde Canyon (38.1630, -122.8116); Unnamed Tributary (38.1224, -122.8095); Walker Creek (38.1617, -122.7815).</P> <P>(ii) <E T="03">Lagunitas Creek Hydrologic Sub-area 220113.</E> Outlet(s) = Lagunitas Creek (Lat 38.0827, Long -122.8274) upstream to endpoint(s) in: Cheda Creek (38.0483, -122.7329); Devil's Gulch (38.0393, -122.7128); Giacomini Creek (38.0075, -122.7386); Horse Camp Gulch (38.0078, -122.7624); Lagunitas Creek (37.9974, -122.7045); Olema Creek (37.9719, -122.7125); Quarry Gulch (38.0345, -122.7639); San Geronimo Creek (38.0131, -122.6499); Unnamed Tributary (37.9893, -122.7328); Unnamed Tributary (37.9976, -122.7553).</P> <P>(iii) <E T="03">Point Reyes Hydrologic Sub-area 220120.</E> Outlet(s) = Creamery Bay Creek (Lat 38.0779, Long -122.9572); East Schooner Creek (38.0913, -122.9293); Home Ranch (38.0705, -122.9119); Laguna Creek (38.0235, -122.8732); Muddy Hollow Creek (38.0329, -122.8842) upstream to endpoint(s) in: Creamery Bay Creek (38.0809, -122.9561); East Schooner Creek (38.0928, -122.9159); Home Ranch Creek (38.0784, -122.9038); Laguna Creek (38.0436, -122.8559); Muddy Hollow Creek (38.0549, -122.8666).</P> <P>(iv) <E T="03">Bolinas Hydrologic Sub-area 220130.</E> Outlet(s) = Easkoot Creek (Lat 37.9026, Long -122.6474); McKinnon Gulch (37.9126, -122.6639); Morse Gulch (37.9189, -122.6710); Pine Gulch Creek (37.9218, -122.6882); Redwood Creek (37.8595, -122.5787); Stinson Gulch (37.9068, -122.6517); Wilkins Creek (37.9343, -122.6967) upstream to endpoint(s) in: Easkoot Creek (37.8987, -122.6370); Kent Canyon (37.8866, -122.5800); McKinnon Gulch (37.9197, -122.6564); Morse Gulch (37.9240, -122.6618); Pine Gulch Creek (37.9557, -122.7197); Redwood Creek (37.9006, -122.5787); Stinson Gulch (37.9141, -122.6426); Wilkins Creek (37.9450, -122.6910).</P> <P>(4) San Mateo Hydrologic Unit 2202—(i) <E T="03">San Mateo Coastal Hydrologic Sub-area 220221.</E> Outlet(s) = Denniston Creek (37.5033, -122.4869); Frenchmans Creek (37.4804, -122.4518); San Pedro Creek (37.5964, -122.5057) upstream to endpoint(s) in: Denniston Creek (37.5184, -122.4896); Frenchmans Creek (37.5170, -122.4332); Middle Fork San Pedro Creek (37.5758, -122.4591); North Fork San Pedro Creek (37.5996, -122.4635).</P> <P>(ii) <E T="03">Half Moon Bay Hydrologic Sub-area 220222.</E> Outlet(s) = Pilarcitos Creek (Lat 37.4758, Long -122.4493) upstream to endpoint(s) in: Apanolio Creek (37.5202, -122.4158); Arroyo Leon Creek (37.4560, -122.3442); Mills Creek (37.4629, -122.3721); Pilarcitos Creek (37.5259, -122.3980); Unnamed Tributary (37.4705, -122.3616).</P> <P>(iii) <E T="03">Tunitas Creek Hydrologic Sub-area 220223.</E> Outlet(s) = Lobitos Creek (Lat 37.3762, Long -122.4093); Tunitas Creek (37.3567, -122.3999) upstream to endpoint(s) in: East Fork Tunitas Creek (37.3981, -122.3404); Lobitos Creek (37.4246, -122.3586); Tunitas Creek (37.4086, -122.3502).<PRTPAGE P="263"/> </P> <P>(iv) <E T="03">San Gregorio Creek Hydrologic Sub-area 220230.</E> Outlet(s) = San Gregorio Creek (Lat 37.3215, Long -122.4030) upstream to endpoint(s) in: Alpine Creek (37.3062, -122.2003); Bogess Creek (37.3740, -122.3010); El Corte Madera Creek (37.3650, -122.3307); Harrington Creek (37.3811, -122.2936); La Honda Creek (37.3680, -122.2655); Langley Creek (37.3302, -122.2420); Mindego Creek (37.3204, -122.2239); San Gregorio Creek (37.3099, -122.2779); Woodruff Creek (37.3415, -122.2495).</P> <P>(v) <E T="03">Pescadero Creek Hydrologic Sub-area 220240.</E> Outlet(s) = Pescadero Creek (Lat 37.2669, Long -122.4122); Pomponio Creek (37.2979, -122.4061) upstream to endpoint(s) in: Bradley Creek (37.2819, -122.3802); Butano Creek (37.2419, -122.3165); Evans Creek (37.2659, -122.2163); Honsinger Creek (37.2828, -122.3316); Little Boulder Creek (37.2145, -122.1964); Little Butano Creek (37.2040, -122.3492); Oil Creek (37.2572, -122.1325); Pescadero Creek (37.2320, -122.1553); Lambert Creek (37.3014, -122.1789); Peters Creek (37.2883, -122.1694); Pomponio Creek (37.3030, -122.3805); Slate Creek (37.2530, -122.1935); Tarwater Creek (37.2731, -122.2387); Waterman Creek (37.2455, -122.1568).</P> <P>(5) Bay Bridge Hydrologic UnitT 2203—(i) <E T="03">San Rafael Hydrologic Sub-area 220320.</E> Outlet(s) = Arroyo Corte Madera del Presidio (Lat 37.8917, Long -122.5254); Corte Madera Creek (37.9425, -122.5059) upstream to endpoint(s) in: Arroyo Corte Madera del Presidio (37.9298, -122.5723); Cascade Creek (37.9867, -122.6287); Cascade Creek (37.9157, -122.5655); Larkspur Creek (37.9305, -122.5514); Old Mill Creek (37.9176, -122.5746); Ross Creek (37.9558, -122.5752); San Anselmo Creek (37.9825, -122.6420); Sleepy Hollow Creek (38.0074, -122.5794); Tamalpais Creek (37.9481, -122.5674).</P> <P>(ii) [Reserved]</P> <P>(6) Santa Clara Hydrologic Unit 2205—(i) <E T="03">Coyote Creek Hydrologic Sub-area 220530.</E> Outlet(s) = Coyote Creek (Lat 37.4629, Long -121.9894; 37.2275, -121.7514) upstream to endpoint(s) in: Arroyo Aguague (37.3907, -121.7836); Coyote Creek (37.2778, -121.8033; 37.1677, -121.6301); Upper Penitencia Creek (37.3969, -121.7577).</P> <P>(ii) <E T="03">Guadalupe River—San Jose Hydrologic Sub-area 220540.</E> Outlet(s) = Coyote Creek (Lat 37.2778, Long -121.8033) upstream to endpoint(s) in: Coyote Creek (37.2275, -121.7514).</P> <P>(iii) <E T="03">Palo Alto Hydrologic Sub-area 220550.</E> Outlet(s) = Guadalupe River (Lat 37.4614, Long -122.0240); San Francisquito Creek (37.4658, -122.1152); Stevens Creek (37.4456, -122.0641) upstream to endpoint(s) in: Bear Creek (37.4164, -122.2690); Corte Madera Creek (37.4073, -122.2378); Guadalupe River (37.3499, -.121.9094); Los Trancos (37.3293, -122.1786); McGarvey Gulch (37.4416, -122.2955); Squealer Gulch (37.4335, -122.2880); Stevens Creek (37.2990, -122.0778); West Union Creek (37.4528, -122.3020).</P> <P>(7) San Pablo Hydrologic Unit 2206—(i) <E T="03">Petaluma River Hydrologic Sub-area 220630.</E> Outlet(s) = Petaluma River (Lat 38.1111, Long -122.4944) upstream to endpoint(s) in: Adobe Creek (38.2940, -122.5834); Lichau Creek (38.2848, -122.6654); Lynch Creek (38.2748, -122.6194); Petaluma River (38.3010, -122.7149); Schultz Slough (38.1892, -122.5953); San Antonio Creek (38.2049, -122.7408); Unnamed Tributary (38.3105, -122.6146); Willow Brook (38.3165, -122.6113).</P> <P>(ii) <E T="03">Sonoma Creek Hydrologic Sub-area 220640.</E> Outlet(s) = Sonoma Creek (Lat 38.1525, Long -122.4050) upstream to endpoint(s) in: Agua Caliente Creek (38.3368, -122.4518); Asbury Creek (38.3401, -122.5590); Bear Creek (38.4656, -122.5253); Calabazas Creek (38.4033, -122.4803); Carriger Creek (38.3031, -122.5336); Graham Creek (38.3474, -122.5607); Hooker Creek (38.3809, -122.4562); Mill Creek (38.3395, -122.5454); Nathanson Creek (38.3350, -122.4290); Rodgers Creek (38.2924, -122.5543); Schell Creek (38.2554, -122.4510); Sonoma Creek (38.4507, -122.4819); Stuart Creek (38.3936, -122.4708); Yulupa Creek (38.3986, -122.5934).</P> <P>(iii) <E T="03">Napa River Hydrologic Sub-area 220650.</E> Outlet(s) = Napa River (Lat 38.0786, Long -122.2468) upstream to endpoint(s) in: Bale Slough (38.4806, -122.4578); Bear Canyon Creek (38.4512, -122.4415); Bell Canyon Creek (38.5551, -122.4827); Brown's Valley Creek (38.3251, -122.3686); Canon Creek (38.5368, -122.4854); Carneros Creek (38.3108, -122.3914); Conn Creek (38.4843, -122.3824); Cyrus Creek (38.5776, -122.6032); Diamond Mountain Creek <PRTPAGE P="264"/>(38.5645, -122.5903); Dry Creek (38.4334, -122.4791); Dutch Henery Creek (38.6080, -122.5253); Garnett Creek (38.6236, -122.5860); Huichica Creek (38.2811, -122.3936); Jericho Canyon Creek (38.6219, -122.5933); Miliken Creek (38.3773, -122.2280); Mill Creek (38.5299, -122.5513); Murphy Creek (38.3155, -122.2111); Napa Creek (38.3047, -122.3134); Napa River (38.6638, -122.6201); Pickle Canyon Creek (38.3672, -122.4071); Rector Creek (38.4410, -122.3451); Redwood Creek (38.3765, -122.4466); Ritchie Creek (38.5369, -122.5652); Sarco Creek (38.3567, -122.2071); Soda Creek (38.4156, -122.2953); Spencer Creek (38.2729, -122.1909); Sulphur Creek (38.4895, -122.5088); Suscol Creek (38.2522, -122.2157); Tulucay Creek (38.2929, -122.2389); Unnamed Tributary (38.4248, -122.4935); Unnamed Tributary (38.4839, -122.5161); York Creek (38.5128, -122.5023).</P> <P>(8) Big Basin Hydrologic Unit 3304—(i) <E T="03">Davenport Hydrologic Sub-area 330411.</E> Outlet(s) = Baldwin Creek (Lat 36.9669, -122.1232); Davenport Landing Creek (37.0231, -122.2153); Laguna Creek (36.9824, -122.1560); Liddell Creek (37.0001, -122.1816); Majors Creek (36.9762, -122.1423); Molino Creek (37.0368, -122.2292); San Vicente Creek (37.0093, -122.1940); Scott Creek (37.0404, -122.2307); Waddell Creek (37.0935, -122.2762); Wilder Creek (36.9535, -122.0775) upstream to endpoint(s) in: Baldwin Creek (37.0126, -122.1006); Bettencourt Creek (37.1081, -122.2386); Big Creek (37.0832, -122.2175); Davenport Landing Creek (37.0475, -122.1920); East Branch Waddell Creek (37.1482, -122.2531); East Fork Liddell Creek (37.0204, -122.1521); Henry Creek (37.1695, -122.2751); Laguna Creek (37.0185, -122.1287); Little Creek (37.0688, -122.2097); Majors Creek (36.9815, -122.1374); Middle Fork East Fork Liddell Creek (37.0194, -122.1608); Mill Creek (37.1034, -122.2218); Mill Creek (37.0235, -122.2218); Molino Creek (37.0384, -122.2125); Peasley Gulch (36.9824, -122.0861); Queseria Creek (37.0521, -122.2042); San Vicente Creek (37.0417, -122.1741); Scott Creek (37.1338, -122.2306); West Branch Waddell Creek (37.1697, -122.2642); West Fork Liddell Creek (37.0117, -122.1763); Unnamed Tributary (37.0103, -122.0701); Wilder Creek (37.0107, -122.0770).</P> <P>(ii) <E T="03">San Lorenzo Hydrologic Sub-area 330412.</E> Outlet(s) = Arana Gulch Creek (Lat 36.9676, Long -122.0028); San Lorenzo River (36.9641, -122.0125) upstream to endpoint(s) in: Arana Gulch Creek (37.0270, -121.9739); Bean Creek (37.0956, -122.0022); Bear Creek (37.1711, -122.0750); Boulder Creek (37.1952, -122.1892); Bracken Brae Creek (37.1441, -122.1459); Branciforte Creek (37.0701, -121.9749); Crystal Creek (37.0333, -121.9825); Carbonera Creek (37.0286, -122.0202); Central Branch Arana Gulch Creek (37.0170, -121.9874); Deer Creek (37.2215, -122.0799); Fall Creek (37.0705, -122.1063); Gold Gulch Creek (37.0427, -122.1018); Granite Creek (37.0490, -121.9979); Hare Creek (37.1544, -122.1690); Jameson Creek (37.1485, -122.1904); Kings Creek (37.2262, -122.1059); Lompico Creek (37.1250, -122.0496); Mackenzie Creek (37.0866, -122.0176); Mountain Charlie Creek (37.1385, -121.9914); Newell Creek (37.1019, -122.0724); San Lorenzo River (37.2276, -122.1384); Two Bar Creek (37.1833, -122.0929); Unnamed Tributary (37.2106, -122.0952); Unnamed Tributary (37.2032, -122.0699); Zayante Creek (37.1062, -122.0224).</P> <P>(iii) <E T="03">Aptos-Soquel Hydrologic Sub-area 330413.</E> Outlet(s) = Aptos Creek (Lat 36.9692, Long -121.9065); Soquel Creek (36.9720, -121.9526) upstream to endpoint(s) in: Amaya Creek (37.0930, -121.9297); Aptos Creek (37.0545, -121.8568); Bates Creek (37.0099, -121.9353); Bridge Creek (37.0464, -121.8969); East Branch Soquel Creek (37.0690, -121.8297); Hester Creek (37.0967, -121.9458); Hinckley Creek (37.0671, -121.9069); Moores Gulch (37.0573, -121.9579); Valencia Creek (37.0323, -121.8493); West Branch Soquel Creek (37.1095, -121.9606).</P> <P>(iv) <E T="03">Ano Nuevo Hydrologic Sub-area 330420.</E> Outlet(s) = Ano Nuevo Creek (Lat 37.1163, Long -122.3060); Gazos Creek (37.1646, -122.3625); Whitehouse Creek (37.1457, -122.3469) upstream to endpoint(s) in: Ano Nuevo Creek (37.1269, -122.3039); Bear Gulch (37.1965, -122.2773); Gazos Creek (37.2088, -122.2868); Old Womans Creek (37.1829, -122.3033); Whitehouse Creek (37.1775, -122.2900).<PRTPAGE P="265"/> </P> <P>(9) Maps of critical habitat for the Central California Coast Steelhead ESU follow:</P> <GPH DEEP="446" SPAN="2"> <GID>ER02SE05.015</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="266"/> <GID>ER02SE05.016</GID> </GPH> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="267"/> <GID>ER02SE05.017</GID> </GPH> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="268"/> <GID>ER02SE05.018</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="269"/> <GID>ER02SE05.019</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="270"/> <GID>ER02SE05.020</GID> </GPH> <GPH DEEP="448" SPAN="2"> <PRTPAGE P="271"/> <GID>ER02SE05.021</GID> </GPH> <GPH DEEP="448" SPAN="2"> <PRTPAGE P="272"/> <GID>ER02SE05.022</GID> </GPH> <P>(i) <E T="03">South-Central California Coast Steelhead (O. mykiss).</E> Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic Units:</P> <P>(1) Pajaro River Hydrologic Unit 3305—(i) <E T="03">Watsonville Hydrologic Sub-area 330510.</E> Outlet(s) = Pajaro River (Lat 36.8506, Long -121.8101) upstream to endpoint(s) in: Banks Canyon Creek (36.9958, -121.7264); Browns Creek <PRTPAGE P="273"/>(37.0255, -121.7754); Casserly Creek (36.9902, -121.7359); Corralitos Creek (37.0666, -121.8359); Gaffey Creek (36.9905, -121.7132); Gamecock Canyon (37.0362, -121.7587); Green Valley Creek (37.0073, -121.7256); Ramsey Gulch (37.0447, -121.7755); Redwood Canyon (37.0342, -121.7975); Salsipuedes Creek (36.9350, -121.7426); Shingle Mill Gulch (37.0446, -121.7971).</P> <P>(ii) <E T="03">Santa Cruz Mountains Hydrologic Sub-area 330520.</E> Outlet(s) = Pajaro River (Lat 36.9010, Long -121.5861); Bodfish Creek (37.0041, -121.6667); Pescadero Creek (36.9125, -121.5882); Tar Creek (36.9304, -121.5520); Uvas Creek (37.0146, -121.6314) upstream to endpoint(s) in: Blackhawk Canyon (37.0168, -121.6912); Bodfish Creek (36.9985, -121.6859); Little Arthur Creek (37.0299, -121.6874); Pescadero Creek (36.9826, -121.6274); Tar Creek (36.9558, -121.6009); Uvas Creek (37.0660, -121.6912).</P> <P>(iii) <E T="03">South Santa Clara Valley Hydrologic Sub-area 330530.</E> Outlet(s) = San Benito River (Lat 36.8961, Long -121.5625); Pajaro River (36.9222, -121.5388) upstream to endpoint(s) in: Arroyo Dos Picachos (36.8866, -121.3184); Bodfish Creek (37.0080, -121.6652); Bodfish Creek (37.0041, -121.6667); Carnadero Creek (36.9603, -121.5328); Llagas Creek (37.1159, -121.6938); Miller Canal (36.9698, -121.4814); Pacheco Creek (37.0055, -121.3598); San Felipe Lake (36.9835, -121.4604); Tar Creek (36.9304, -121.5520); Tequisquita Slough (36.9170, -121.3887); Uvas Creek (37.0146, -121.6314).</P> <P>(iv) <E T="03">Pacheco-Santa Ana Creek Hydrologic Sub-area 330540.</E> Outlet(s) = Arroyo Dos Picachos (Lat 36.8866, Long -121.3184); Pacheco Creek (37.0055, -121.3598) upstream to endpoint(s) in: Arroyo Dos Picachos (36.8912, -121.2305); Cedar Creek (37.0922, -121.3641); North Fork Pacheco Creek (37.0514, -121.2911); Pacheco Creek (37.0445, -121.2662); South Fork Pacheco Creek (37.0227, -121.2603).</P> <P>(v) <E T="03">San Benito River Hyddrologic Sub-area 330550.</E> Outlet(s) = San Benito River (Lat 36.7838, Long -121.3731) upstream to endpoint(s) in: Bird Creek (36.7604, -121.4506); Pescadero Creek (36.7202, -121.4187); San Benito River (36.3324, -120.6316); Sawmill Creek (36.3593, -120.6284).</P> <P>(2) Carmel River Hydrologic Unit 3307—(i) <E T="03">Carmel River Hydrologic Sub-area 330700.</E> Outlet(s) = Carmel River (Lat 36.5362, Long -121.9285) upstream to endpoint(s) in: Aqua Mojo Creek (36.4711, -121.5407); Big Creek (36.3935, -121.5419); Blue Creek (36.2796, -121.6530); Boronda Creek (36.3542, -121.6091); Bruce Fork (36.3221, -121.6385); Cachagua Creek (36.3909 , -121.5950); Carmel River (36.2837, -121.6203); Danish Creek (36.3730, -121.7590); Hitchcock Canyon Creek (36.4470, -121.7597); James Creek (36.3235, -121.5804); Las Garzas Creek (36.4607, -121.7944); Millers Fork (36.2961, -121.5697); Pinch Creek (36.3236, -121.5574); Pine Creek (36.3827, -121.7727); Potrero Creek (36.4801, -121.8258); Rana Creek (36.4877, -121.5840); Rattlesnake Creek (36.3442, -121.7080); Robertson Canyon Creek (36.4776, -121.8048); Robertson Creek (36.3658, -121.5165); San Clemente Creek (36.4227, -121.8115); Tularcitos Creek (36.4369, -121.5163); Ventana Mesa Creek (36.2977, -121.7116).</P> <P>(ii) [Reserved]</P> <P>(3) Santa Lucia Hydrologic Unit 3308-(i) <E T="03">Santa Lucia Hydrologic Sub-area 330800.</E> Outlet(s) = Alder Creek (Lat 35.8578, Long -121.4165); Big Creek (36.0696, -121.6005); Big Sur River (36.2815, -121.8593); Bixby Creek (36.3713, -121.9029); Garrapata Creek (36.4176, -121.9157); Limekiln Creek (36.0084, -121.5196); Little Sur River (36.3350, -121.8934); Malpaso Creek (36.4814, -121.9384); Mill Creek (35.9825, -121.4917); Partington Creek (36.1753, -121.6973); Plaskett Creek (35.9195, -121.4717); Prewitt Creek (35.9353, -121.4760); Rocky Creek (36.3798, -121.9028); Salmon Creek (35.3558, -121.3634); San Jose Creek (36.5259, -121.9253); Vicente Creek (36.0442, -121.5855); Villa Creek (35.8495, -121.4087); Willow Creek (35.8935, -121.4619) upstream to endpoint(s) in: Alder Creek (35.8685, -121.3974); Big Creek (36.0830, -121.5884); Big Sur River (36.2490, -121.7269); Bixby Creek (36.3715, -121.8440); Devil's Canyon Creek (36.0773, -121.5695); Garrapata Creek (36.4042, -121.8594); Joshua Creek (36.4182, -121.9000); Limekiln Creek (36.0154, -121.5146); Little Sur River (36.3312, -121.7557); Malpaso Creek (36.4681, -121.8800); Mill Creek (35.9907, -121.4632); North Fork Big Sur River (36.2178, -121.5948); Partington Creek (36.1929, -121.6825); Plaskett Creek <PRTPAGE P="274"/>(35.9228, -121.4493); Prewitt Creek (35.9419, -121.4598); Redwood Creek (36.2825, -121.6745); Rocky Creek (36.3805, -121.8440); San Jose Creek (36.4662, -121.8118); South Fork Little Sur River (36.3026, -121.8093); Vicente Creek (36.0463, -121.5780); Villa Creek (35.8525, -121.3973); Wildcat Canyon Creek (36.4124, -121.8680); Williams Canyon Creek (36.4466, -121.8526); Willow Creek (35.9050, -121.3851).</P> <P>(ii) [Reserved]</P> <P>(4) Salinas River Hydrologic Unit 3309-(i) <E T="03">Neponset Hydrologic Sub-area 330911.</E> Outlet(s) = Salinas River (Lat 36.7498, Long -121.8055); upstream to endpoint(s) in: Gabilan Creek (36.6923, -121.6300); Old Salinas River (36.7728, -121.7884); Tembladero Slough (36.6865, -121.6409).</P> <P>(ii) <E T="03">Chualar Hydrologic Sub-area 330920.</E> Outlet(s) = Gabilan Creek (Lat 36.6923, Long -121.6300) upstream.</P> <P>(iii) <E T="03">Soledad Hydrologic Sub-area 330930.</E> Outlet(s) = Salinas River (Lat 36.4878, Long -121.4688) upstream to endpoint(s) in: Arroyo Seco River (36.2644, -121.3812); Reliz Creek (36.2438, -121.2881).</P> <P>(iv) <E T="03">Upper Salinas Valley Hydrologic Sub-area 330940.</E> Outlet(s) = Salinas River (Lat 36.3183, Long -121.1837) upstream.</P> <P>(v) <E T="03">Arroyo Seco Hydrologic Sub-area 330960.</E> Outlet(s) = Arroyo Seco River (Lat 36.2644, Long -121.3812); Reliz Creek ( 36.2438, -121.2881); Vasqueros Creek (36.2648, -121.3368) upstream to endpoint(s) in: Arroyo Seco River (36.2041, -121.5002); Calaboose Creek (36.2942, -121.5082); Church Creek (36.2762, -121.5877); Horse Creek (36.2046, -121.3931); Paloma Creek (36.3195, -121.4894); Piney Creek (36.3023, -121.5629); Reliz Creek (36.1935, -121.2777); Rocky Creek (36.2676, -121.5225); Santa Lucia Creek (36.1999, -121.4785); Tassajara Creek (36.2679, -121.6149); Vaqueros Creek (36.2479, -121.3369); Willow Creek (36.2059, -121.5642).</P> <P>(vi) <E T="03">Gabilan Range Hydrologic Sub-area 330970.</E> Outlet(s) = Gabilan Creek (Lat 36.7800, -121.5836) upstream to endpoint(s) in: Gabilan Creek (36.7335, -121.4939).</P> <P>(vii) <E T="03">Paso Robles Hydrologic Sub-area 330981.</E> Outlet(s) = Salinas River (Lat 35.9241, Long -120.8650) upstream to endpoint(s) in:</P> <P>Atascadero Creek (35.4468, -120.7010); Graves Creek (35.4838, -120.7631); Jack Creek (35.5815, -120.8560); Nacimiento River (35.7610, -120.8853); Paso Robles Creek (35.5636, -120.8455); Salinas River (35.3886, -120.5582); San Antonio River (35.7991, -120.8849); San Marcos Creek (35.6734, -120.8140); Santa Margarita Creek (35.3923, -120.6619); Santa Rita Creek (35.5262, -120.8396); Sheepcamp Creek (35.6145, -120.7795); Summit Creek (35.6441, -120.8046); Tassajera Creek (35.3895, -120.6926); Trout Creek (35.3394, -120.5881); Willow Creek (35.6107, -120.7720).</P> <P>(5) Estero Bay Hydrologic Unit 3310—(i) <E T="03">San Carpoforo Hydrologic Sub-area 331011.</E> Outlet(s) = San Carpoforo Creek (Lat 35.7646, Long -121.3247) upstream to endpoint(s) in: Dutra Creek (35.8197, -121.3273); Estrada Creek (35.7710, -121.2661); San Carpoforo Creek (35.8202, -121.2745); Unnamed Tributary (35.7503, -121.2703); Wagner Creek (35.8166, -121.2387).</P> <P>(ii) <E T="03">Arroyo De La Cruz Hydrologic Sub-area 331012.</E> Outlet(s) = Arroyo De La Cruz (Lat 35.7097, Long -121.3080) upstream to endpoint(s) in: Arroyo De La Cruz (35.6986, -121.1722); Burnett Creek (35.7520, -121.1920); Green Canyon Creek (35.7375 , -121.2314); Marmolejo Creek (35.6774, -121.1082); Spanish Cabin Creek (35.7234, -121.1497); Unnamed Tributary (35.7291, -121.1977); West Fork Burnett Creek (35.7516, -121.2075).</P> <P>(iii) <E T="03">San Simeon Hydrologic Sub-area 331013.</E> Outlet(s) = Arroyo del Corral (Lat 35.6838, Long -121.2875); Arroyo del Puerto (35.6432, -121.1889); Little Pico Creek (35.6336, -121.1639); Oak Knoll Creek (35.6512, -121.2197); Pico Creek (35.6155, -121.1495); San Simeon Creek (35.5950, -121.1272) upstream to endpoint(s) in: Arroyo Laguna (35.6895, -121.2337); Arroyo del Corral (35.6885, -121.2537); Arroyo del Puerto (35.6773, -121.1713); Little Pico Creek (35.6890, -121.1375); Oak Knoll Creek (35.6718, -121.2010); North Fork Pico Creek (35.6886, -121.0861); San Simeon Creek (35.6228, -121.0561); South Fork Pico Creek (35.6640, -121.0685); Steiner Creek (35.6032, -121.0640); Unnamed Tributary (35.6482, -121.1067); Unnamed Tributary (35.6616, -121.0639); Unnamed Tributary (35.6741, -121.0981); Unnamed Tributary <PRTPAGE P="275"/>(35.6777, -121.1503); Unnamed Tributary (35.6604, -121.1571); Unnamed Tributary (35.6579, -121.1356); Unnamed Tributary (35.6744, -121.1187); Unnamed Tributary (35.6460, -121.1373); Unnamed Tributary (35.6839, -121.0955); Unnamed Tributary (35.6431, -121.0795); Unnamed Tributary (35.6820, -121.2130); Unnamed Tributary (35.6977, -121.2613); Unnamed Tributary (35.6702, -121.1884); Unnamed Tributary (35.6817, -121.0885); Van Gordon Creek (35.6286, -121.0942).</P> <P>(iv) <E T="03">Santa Rosa Hydrologic Sub-area 331014.</E> Outlet(s) = Santa Rosa Creek (Lat 35.5685, Long -121.1113) upstream to endpoint(s) in: Green Valley Creek (35.5511, -120.9471); Perry Creek (35.5323-121.0491); Santa Rosa Creek (35.5525, -120.9278); Unnamed Tributary (35.5965, -120.9413); Unnamed Tributary (35.5684, -120.9211); Unnamed Tributary (35.5746, -120.9746).</P> <P>(v) <E T="03">Villa Hydrologic Sub-area 331015.</E> Outlet(s) = Villa Creek (Lat 35.4601, Long -120.9704) upstream to endpoint(s) in: Unnamed Tributary (35.4798, -120.9630); Unnamed Tributary (35.5080, -121.0171); Unnamed Tributary (35.5348, -120.8878); Unnamed Tributary (35.5510, -120.9406); Unnamed Tributary (35.5151, -120.9497); Unnamed Tributary (35.4917, -120.9584); Unnamed Tributary (35.5173, -120.9516); Villa Creek (35.5352, -120.8942).</P> <P>(vi) <E T="03">Cayucos Hydrologic Sub-area 331016.</E> Outlet(s) = Cayucos Creek (Lat 35.4491, Long -120.9079) upstream to endpoint(s) in: Cayucos Creek (35.5257, -120.9271); Unnamed Tributary (35.5157, -120.9005); Unnamed Tributary (35.4943, -120.9513); Unnamed Tributary (35.4887, -120.8968).</P> <P>(vii) <E T="03">Old Hydrologic Sub-area 331017.</E> Outlet(s) = Old Creek (Lat 35.4345, Long -120.8868) upstream to endpoint(s) in: Old Creek (35.4480, -120.8871)</P> <P>(viii) <E T="03">Toro Hydrologic Sub-area 331018.</E> Outlet(s) = Toro Creek (Lat 35.4126, Long -120.8739) upstream to endpoint(s) in: Toro Creek (35.4945, -120.7934); Unnamed Tributary (35.4917, -120.7983).</P> <P>(ix) <E T="03">Morro Hydrologic Sub-area 331021.</E> Outlet(s) = Morro Creek (Lat 35.3762, Long -120.8642) upstream to endpoint(s) in: East Fork Morro Creek (35.4218, -120.7282); Little Morro Creek (35.4155, -120.7532); Morro Creek (35.4291, -120.7515); Unnamed Tributary (35.4292, -120.8122); Unnamed Tributary (35.4458, -120.7906); Unnamed Tributary (35.4122, -120.8335); Unnamed Tributary (35.4420, -120.7796).</P> <P>(x) <E T="03">Chorro Hydrologic Sub-area 331022.</E> Outlet(s) = Chorro Creek (Lat 35.3413, Long -120.8388) upstream to endpoint(s) in: Chorro Creek (35.3340, -120.6897); Dairy Creek (35.3699, -120.6911); Pennington Creek (35.3655, -120.7144); San Bernardo Creek (35.3935, -120.7638); San Luisito (35.3755, -120.7100); Unnamed Tributary (35.3821, -120.7217); Unnamed Tributary (35.3815, -120.7350).</P> <P>(xi) <E T="03">Los Osos Hydrologic Sub-area 331023.</E> Outlet(s) = Los Osos Creek (Lat 35.3379, Long -120.8273) upstream to endpoint(s) in: Los Osos Creek (35.2718, -120.7627).</P> <P>(xii) <E T="03">San Luis Obispo Creek Hydrologic Sub-area 331024.</E> Outlet(s) = San Luis Obispo Creek (Lat 35.1822, Long -120.7303) upstream to endpoint(s) in: Brizziolari Creek (35.3236, -120.6411); Froom Creek (35.2525, -120.7144); Prefumo Creek (35.2615, -120.7081); San Luis Obispo Creek (35.3393, -120.6301); See Canyon Creek (35.2306, -120.7675); Stenner Creek (35.3447, -120.6584); Unnamed Tributary (35.2443, -120.7655).</P> <P>(xiii) <E T="03">Point San Luis Hydrologic Sub-area 331025.</E> Outlet(s) = Coon Creek (Lat 35.2590, Long -120.8951); Islay Creek (35.2753, -120.8884) upstream to endpoint(s) in: Coon Creek (35.2493, -120.7774); Islay Creek (35.2574, -120.7810); Unnamed Tributary (35.2753, -120.8146); Unnamed Tributary (35.2809, -120.8147); Unnamed Tributary (35.2648, -120.7936).</P> <P>(xiv) <E T="03">Pismo Hydrologic Sub-area 331026.</E> Outlet(s) = Pismo Creek (Lat 35.1336, Long -120.6408) upstream to endpoint(s) in: East Corral de Piedra Creek (35.2343, -120.5571); Pismo Creek (35.1969, -120.6107); Unnamed Tributary (35.2462, -120.5856).</P> <P>(xv) <E T="03">Oceano Hydrologic Sub-area 331031.</E> Outlet(s) = Arroyo Grande Creek (Lat 35.1011, Long -120.6308) upstream to endpoint(s) in: Arroyo Grande Creek (35.1868, -120.4881); Los Berros Creek (35.0791, -120.4423).</P> <P>(6) Maps of critical habitat for the South-Central Coast Steelhead ESU follow:</P> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="276"/> <GID>ER02SE05.023</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="277"/> <GID>ER02SE05.024</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="278"/> <GID>ER02SE05.025</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="279"/> <GID>ER02SE05.026</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="280"/> <GID>ER02SE05.027</GID> </GPH> <P>(j) <E T="03">Southern California Steelhead (O. mykiss).</E> Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic Units:</P> <P>(1) Santa Maria River Hydrologic Unit 3312—(i) <E T="03">Santa Maria Hydrologic Sub-area 331210.</E> Outlet(s) = Santa Maria River (Lat 34.9710, Long -120.6504) upstream to endpoint(s) in: <PRTPAGE P="281"/>Cuyama River (34.9058, -120.3026); Santa Maria River (34.9042, -120.3077); Sisquoc River (34.8941, -120.3063).</P> <P>(ii) <E T="03">Sisquoc Hydrologic Sub-area 331220.</E> Outlet(s) = Sisquoc River (Lat 34.8941, Long -120.3063) upstream to endpoint(s) in: Abel Canyon (34.8662, -119.8354); Davey Brown Creek (34.7541, -119.9650); Fish Creek (34.7531, -119.9100); Foresters Leap (34.8112, -119.7545); La Brea Creek (34.8804, -120.1316); Horse Creek (34.8372, -120.0171); Judell Creek (34.7613, -119.6496); Manzana Creek (34.7082, -119.8324); North Fork La Brea Creek (34.9681, -120.0112); Sisquoc River (34.7087, -119.6409); South Fork La Brea Creek (34.9543, -119.9793); South Fork Sisquoc River (34.7300, -119.7877); Unnamed Tributary (34.9342, -120.0589); Unnamed Tributary (34.9510, -120.0140); Unnamed Tributary (34.9687, -120.1419); Unnamed Tributary (34.9626, -120.1500); Unnamed Tributary (34.9672, -120.1194); Unnamed Tributary (34.9682, -120.0990); Unnamed Tributary (34.9973, -120.0662); Unnamed Tributary (34.9922, -120.0294); Unnamed Tributary (35.0158, -120.0337); Unnamed Tributary (34.9464, -120.0309); Unnamed Tributary (34.7544, -119.9476); Unnamed Tributary (34.7466, -119.9047); Unnamed Tributary (34.7646, -119.8673); Unnamed Tributary (34.8726, -119.9525); Unnamed Tributary (34.8884, -119.9325); Unnamed Tributary (34.8659, -119.8982); Unnamed Tributary (34.8677, -119.8513); Unnamed Tributary (34.8608, -119.8541); Unnamed Tributary (34.8784, -119.8458); Unnamed Tributary (34.8615, -119.8159); Unnamed Tributary (34.8694, -119.8229); Unnamed Tributary (34.7931, -119.8485); Unnamed Tributary (34.7846, -119.8337); Unnamed Tributary (34.7872, -119.7684); Unnamed Tributary (34.7866, -119.7552); Unnamed Tributary (34.8129, -119.7714); Unnamed Tributary (34.7760, -119.7448); Unnamed Tributary (34.7579, -119.7999); Unnamed Tributary (34.7510, -119.7921); Unnamed Tributary (34.7769, -119.7149); Unnamed Tributary (34.7617, -119.6878); Unnamed Tributary (34.7680, -119.6503); Unnamed Tributary (34.7738, -119.6493); Unnamed Tributary (34.7332, -119.6286); Unnamed Tributary (34.7519, -119.6209); Unnamed Tributary (34.7188, -119.6673); Water Canyon (34.8754, -119.9324).</P> <P>(2) Santa Ynex Hydrologic Unit 3314—(i) <E T="03">Mouth of Santa Ynez Hydrologic Sub-area 331410.</E> Outlet(s) = Santa Ynez River (Lat 34.6930, Long -120.6033) upstream to endpoint(s) in: San Miguelito Creek (34.6309, -120.4631).</P> <P>(ii) <E T="03">Santa Ynez, Salsipuedes Hydrologic Sub-area 331420.</E> Outlet(s) = Santa Ynez River (Lat 34.6335, Long -120.4126) upstream to endpoint(s) in: El Callejon Creek (34.5475, -120.2701); El Jaro Creek (34.5327, -120.2861); Llanito Creek (34.5499, -120.2762); Salsipuedes Creek (34.5711, -120.4076).</P> <P>(iii) <E T="03">Santa Ynez, Zaca Hydrologic Sub-area 331430.</E> Outlet(s) = Santa Ynez River (Lat 34.6172, Long -120.2352) upstream.</P> <P>(iv) <E T="03">Santa Ynez to Bradbury Hydrologic Sub-area 331440.</E> Outlet(s) = Santa Ynez River (Lat 34.5847, Long -120.1445) upstream to endpoint(s) in: Alisal Creek (34.5465, -120.1358); Hilton Creek (34.5839, -119.9855); Quiota Creek (34.5370, -120.0321); San Lucas Creek (34.5558, -120.0119); Santa Ynez River (34.5829, -119.9805); Unnamed Tributary (34.5646, -120.0043).</P> <P>(3) South Coast Hydrologic Unit 3315—(i) <E T="03">Arroyo Hondo Hydrologic Sub-area 331510.</E> Outlet(s) = Alegria Creek (Lat 34.4688, Long -120.2720); Arroyo Hondo Creek (34.4735, -120.1415); Cojo Creek (34.4531, -120.4165); Dos Pueblos Creek (34.4407, -119.9646); El Capitan Creek (34.4577, -120.0225); Gato Creek (34.4497, -119.9885); Gaviota Creek (34.4706, -120.2267); Jalama Creek (34.5119, -120.5023); Refugio Creek (34.4627, -120.0696); Sacate Creek (34.4708, -120.2942); San Augustine Creek (34.4588, -120.3542); San Onofre Creek (34.4699, -120.1872); Santa Anita Creek (34.4669, -120.3066); Tecolote Creek (34.4306, -119.9173) upstream to endpoint(s) in: Alegria Creek (34.4713, -120.2714); Arroyo Hondo Creek (34.5112, -120.1704); Cojo Creek (34.4840, -120.4106); Dos Pueblos Creek (34.5230, -119.9249); El Capitan Creek (34.5238, -119.9806); Escondido Creek (34.5663, -120.4643); Gato Creek (34.5203, -119.9758); Gaviota Creek (34.5176, -120.2179); Jalama Creek (34.5031, -120.3615); La Olla (34.4836, -120.4071); Refugio Creek (34.5109, -120.0508); Sacate Creek (34.4984, -120.2993); San Augustine Creek (34.4598, -120.3561); San Onofre Creek (34.4853, -120.1890); Santa Anita Creek (34.4742, -120.3085); Tecolote Creek (34.5133, -119.9058); Unnamed Tributary (34.5527, -120.4548); Unnamed Tributary (34.4972, -120.3026).<PRTPAGE P="282"/> </P> <P>(ii) <E T="03">UCSB Slough Hydrologic Sub-area 331531.</E> Outlet(s) = San Pedro Creek (Lat 34.4179, Long -119.8295); Tecolito Creek (34.4179, -119.8295) upstream to endpoint(s) in: Atascadero Creek (34.4345, -119.7755); Carneros Creek (34.4674, -119.8584); Cieneguitas Creek (34.4690, -119.7565); Glen Annie Creek (34.4985, -119.8666); Maria Ygnacio Creek (34.4900, -119.7830); San Antonio Creek (34.4553, -119.7826); San Pedro Creek (34.4774, -119.8359); San Jose Creek (34.4919, -119.8032); Tecolito Creek (34.4478, -119.8763); Unnamed Tributary (34.4774, -119.8846).</P> <P>(iii) <E T="03">Mission Hydrologic Sub-area 331532.</E> Outlet(s) = Arroyo Burro Creek (Lat 34.4023, Long -119.7430); Mission Creek (34.4124, -119.6876); Sycamore Creek (34.4166, -119.6668) upstream to endpoint(s) in: Arroyo Burro Creek (34.4620, -119.7461); Mission Creek (34.4482, -119.7089); Rattlesnake Creek (34.4633, -119.6902); San Roque Creek (34.4530, -119.7323); Sycamore Creek (34.4609, -119.6841).</P> <P>(iv) <E T="03">San Ysidro Hydrologic Sub-area 331533.</E> Outlet(s) = Montecito Creek (Lat 34.4167, Long -119.6344); Romero Creek (34.4186, -119.6208); San Ysidro Creek (34.4191, -119.6254); upstream to endpoint(s) in: Cold Springs Creek (34.4794, -119.6604); Montecito Creek (34.4594, -119.6542); Romero Creek (34.4452, -119.5924); San Ysidro Creek (34.4686, -119.6229); Unnamed Tributary (34.4753, -119.6437).</P> <P>(v) <E T="03">Carpinteria Hydrologic Sub-area 331534.</E> Outlet(s) = Arroyo Paredon (Lat 34.4146, Long -119.5561); Carpenteria Lagoon (Carpenteria Creek) (34.3904, -119.5204); Rincon Lagoon (Rincon Creek) (34.3733, -119.4769) upstream to endpoint(s) in: Arroyo Paredon (34.4371, -119.5481); Carpinteria Creek (34.4429, -119.4964); El Dorado Creek (34.4682, -119.4809); Gobernador Creek (34.4249, -119.4746); Rincon Lagoon (Rincon Creek) (34.3757, -119.4777); Steer Creek (34.4687, -119.4596); Unnamed Tributary (34.4481, -119.5112).</P> <P>(4) Ventura River Hydrologic Unit 4402—(i) <E T="03">Ventura Hydrologic Sub-area 440210.</E> Outlet(s) = Ventura Estuary (Ventura River) (Lat 34.2742, Long -119.3077) upstream to endpoint(s) in: Canada Larga (34.3675, -119.2377); Hammond Canyon (34.3903, -119.2230); Sulphur Canyon (34.3727, -119.2362); Unnamed Tributary (34.3344, -119.2426); Unnamed Tributary (34.3901, -119.2747).</P> <P>(ii) <E T="03">Ventura Hydrologic Sub-area 440220.</E> Outlet(s) = Ventura River (Lat 34.3517, Long -119.3069) upstream to endpoint(s) in: Coyote Creek (34.3735, -119.3337); Matilija Creek (34.4846, -119.3086); North Fork Matilija Creek (34.5129, -119.2737); San Antonio Creek (34.4224, -119.2644); Ventura River (34.4852, -119.3001).</P> <P>(iii) <E T="03">Lions Hydrologic Sub-area 440231.</E> Outlet(s) = Lion Creek (Lat 34.4222, Long -119.2644) upstream to endpoint(s) in: Lion Creek (34.4331, -119.2004).</P> <P>(iv) <E T="03">Thatcher Hydrologic Sub-area 440232.</E> Outlet(s) = San Antonio Creek (Lat 34.4224, Long -119.2644) upstream to endpoint(s) in: San Antonio Creek (34.4370, -119.2417).</P> <P>(5) Santa Clara Calleguas Hydrologic Unit 4403—(i) <E T="03">Mouth of Santa Clara Hydrologic Sub-area 440310.</E> Outlet(s) = Santa Clara River (Lat 34.2348, Long -119.2568) upstream.</P> <P>(ii) <E T="03">Santa Clara, Santa Paula Hydrologic Sub-area 440321.</E> Outlet(s) = Santa Clara River (Lat 34.2731, Long -119.1474) upstream to endpoint(s) in: Santa Paula Creek (34.4500, -119.0563).</P> <P>(iii) <E T="03">Sisar Hydrologic Sub-area 440322.</E> Outlet(s) = Sisar Creek (Lat 34.4271, Long -119.0908) upstream to endpoint(s) in: Sisar Creek (34.4615, -119.1312).</P> <P>(iv) <E T="03">Sespe, Santa Clara Hydrologic Sub-area 440331.</E> Outlet(s) = Santa Clara River (Lat 34.3513, Long -119.0397) upstream to endpoint(s) in: Sespe Creek (34.4509, -118.9258).</P> <P>(v) <E T="03">Sespe Hydrologic Sub-area 440332.</E> Outlet(s) = Sespe Creek (Lat 34.4509, Long -118.9258) upstream to endpoint(s) in: Abadi Creek (34.6099, -119.4223); Alder Creek (34.5691, -118.9528); Bear Creek (34.5314, -119.1041); Chorro Grande Creek (34.6285, -119.3245); Fourfork Creek (34.4735, -118.8893); Howard Creek (34.5459, -119.2154); Lady Bug Creek (34.5724, -119.3173); Lion Creek (34.5047, -119.1101); Little Sespe Creek (34.4598, -118.8938); Munson Creek (34.6152, -119.2963); Park Creek (34.5537, -119.0028); Piedra Blanca Creek (34.6109, -119.1838); Pine Canyon Creek (34.4488, -118.9661); Portrero John Creek (34.6010, -119.2695); Red Reef Creek (34.5344, -119.0441); Rose Valley Creek (34.5195, -119.1756); Sespe Creek (34.6295, -119.4412); Timber Creek (34.5184, <PRTPAGE P="283"/>-119.0698); Trout Creek (34.5869, -119.1360); Tule Creek (34.5614, -119.2986); Unnamed Tributary (34.5125, -118.9311); Unnamed Tributary (34.5537, -119.0088); Unnamed Tributary (34.5537, -119.0048); Unnamed Tributary (34.5757, -119.3051); Unnamed Tributary (34.5988, -119.2736); Unnamed Tributary (34.5691, -119.3428); West Fork Sespe Creek (34.5106, -119.0502).</P> <P>(vi) <E T="03">Santa Clara, Hopper Canyon, Piru Hydrologic Sub-area 440341.</E> Outlet(s) = Santa Clara River (Lat 34.3860, Long -118.8711) upstream to endpoint(s) in: Hopper Creek (34.4263, -118.8309); Piru Creek (34.4613, -118.7537); Santa Clara River (34.3996, -118.7837).</P> <P>(6) Santa Monica Bay Hydrologic Unit 4404—(i) <E T="03">Topanga Hydrologic Sub-area 440411.</E> Outlet(s) = Topanga Creek (Lat 34.0397, Long -118.5831) upstream to endpoint(s) in: Topanga Creek (34.0838, -118.5980).</P> <P>(ii) <E T="03">Malibu Hydrologic Sub-area 440421.</E> Outlet(s) = Malibu Creek (Lat 34.0322, Long -118.6796) upstream to endpoint(s) in: Malibu Creek (34.0648, -118.6987).</P> <P>(iii) <E T="03">Arroyo Sequit Hydrologic Sub-area 440444.</E> Outlet(s) = Arroyo Sequit (Lat 34.0445, Long -118.9338) upstream to endpoint(s) in: Arroyo Sequit (34.0839, -118.9186); West Fork Arroyo Sequit (34.0909, -118.9235).</P> <P>(7) Calleguas Hydrologic Unit 4408—(i) <E T="03">Calleguas Estuary Hydrologic Sub-area 440813.</E> Outlet(s) = Mugu Lagoon (Calleguas Creek) (Lat 34.1093, Long -119.0917) upstream to endpoint(s) in: Mugu Lagoon (Calleguas Creek) (Lat 34.1125, Long -119.0816).</P> <P>(ii) [Reserved]</P> <P>(8) San Juan Hydrologic Unit 4901—(i) <E T="03">Middle Trabuco Hydrologic Sub-area 490123.</E> Outlet(s) = Trabuco Creek (Lat 33.5165, Long -117.6727) upstream to endpoint(s) in: Trabuco Creek (33.5264, -117.6700).</P> <P>(ii) <E T="03">Lower San Juan Hydrologic Sub-area 490127.</E> Outlet(s) = San Juan Creek (Lat 33.4621, Long -117.6842) upstream to endpoint(s) in: San Juan Creek (33.4929, -117.6610); Trabuco Creek (33.5165, -117.6727).</P> <P>(iii) <E T="03">San Mateo Hydrologic Sub-area 490140.</E> Outlet(s) = San Mateo Creek (Lat 33.3851, Long -117.5933) upstream to endpoint(s) in: San Mateo Creek (33.4779, -117.4386); San Mateo Canyon (33.4957, -117.4522).</P> <P>(9) Maps of critical habitat for the Southern California Steelhead ESU follow:</P> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="284"/> <GID>ER02SE05.028</GID> </GPH> <GPH DEEP="452" SPAN="2"> <PRTPAGE P="285"/> <GID>ER02SE05.029</GID> </GPH> <GPH DEEP="437" SPAN="2"> <PRTPAGE P="286"/> <GID>ER02SE05.030</GID> </GPH> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="287"/> <GID>ER02SE05.031</GID> </GPH> <GPH DEEP="452" SPAN="2"> <PRTPAGE P="288"/> <GID>ER02SE05.032</GID> </GPH> <GPH DEEP="452" SPAN="2"> <PRTPAGE P="289"/> <GID>ER02SE05.033</GID> </GPH> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="290"/> <GID>ER02SE05.034</GID> </GPH> <GPH DEEP="451" SPAN="2"> <PRTPAGE P="291"/> <GID>ER02SE05.035</GID> </GPH> <P>(k) <E T="03">Central Valley Spring Run Chinook Salmon (O. tshawytscha).</E> Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic Units:</P> <P>(1) Tehama Hydrologic Unit 5504—(i) <E T="03">Lower Stony Creek Hydrologic Sub-area 550410.</E> Outlet(s) = Glenn-Colusa Canal (Lat 39.6762, Long -122.0151); Stony Creek (39.7122, -122.0072) upstream to endpoint(s) in: Glenn-Colusa Canal <PRTPAGE P="292"/>(39.7122, -122.0072); Stony Creek (39.8178, -122.3253).</P> <P>(ii) <E T="03">Red Bluff Hydrologic Sub-area 550420.</E> Outlet(s) = Sacramento River (Lat 39.6998, Long -121.9419) upstream to endpoint(s) in: Antelope Creek (40.2023, -122.1275); Big Chico Creek (39.7757, -121.7525); Blue Tent Creek (40.2284, -122.2551); Burch Creek (39.8526, -122.1502); Butler Slough (40.1579, -122.1320); Coyote Creek (40.0929, -122.1621); Craig Creek (40.1617, -122.1350); Deer Creek (40.0144, -121.9481); Dibble Creek (40.2003, -122.2420); Dye Creek (40.0904, -122.0767); Elder Creek (40.0526, -122.1717); Jewet Creek (39.8913, -122.1005); Kusal Slough (39.7577, -121.9699); Lindo Channel (39.7623, -121.7923); McClure Creek (40.0074, -122.1729); Mill Creek (40.0550, -122.0317); Mud Creek (39.7931, -121.8865); New Creek (40.1873, -122.1350); Oat Creek (40.0847, -122.1658); Pine Creek (39.8760, -121.9777); Red Bank Creek (40.1391, -122.2157); Reeds Creek (40.1687, -122.2377); Rice Creek (39.8495, -122.1626); Rock Creek (39.8189, -121.9124); Salt Creek (40.1869, -122.1845); Singer Creek (39.9200, -121.9612); Thomes Creek (39.8822, -122.5527); Toomes Creek (39.9808, -122.0642); Unnamed Tributary (39.8532, -122.1627); Unnamed Tributary (40.1682, -122.1459); Unnamed Tributary (40.1867, -122.1353).</P> <P>(2) Whitmore Hydrologic Unit 5507—(i) <E T="03">Inks Creek Hydrologic Sub-area 550711.</E> Outlet(s) = Inks Creek (Lat 40.3305, Long -122.1520) upstream to endpoint(s) in: Inks Creek 40.3418, -122.1332).</P> <P>(ii) <E T="03">Battle Creek Hydrologic Sub-area 550712</E> Outlet(s) = Battle Creek (Lat 40.4083, Long -122.1102) upstream to endpoint(s) in: Battle Creek (40.4228, -121.9975); North Fork Battle Creek (40.4746, -121.8436); South Fork Battle Creek (40.3549, -121.6861).</P> <P>(iii) <E T="03">Inwood Hydrologic Sub-area 550722.</E> Outlet(s) = Bear Creek (Lat 40.4352, Long -122.2039) upstream to endpoint(s) in: Bear Creek (40.4859, -122.1529); Dry Creek (40.4574, -122.1993).</P> <P>(3) Redding Hydrologic Unit 5508—(i) <E T="03">Enterprise Flat Hydrologic Sub-area 550810.</E> Outlet(s)= Sacramento River (Lat 40.2526, Long -122.1707) upstream to endpoint(s) in: Anderson Creek (40.3910, -122.1984); Ash Creek (40.4451, -122.1815); Battle Creek (40.4083, -122.1102); Churn Creek (40.5431, -122.3395); Clear Creek (40.5158, -122.5256); Cow Creek (40.5438, -122.1318); Olney Creek (40.5262, -122.3783); Paynes Creek (40.2810, -122.1587); Stillwater Creek (40.4789, -122.2597).</P> <P>(ii) <E T="03">Lower Cottonwood Hydrologic Sub-area 550820.</E> Outlet(s) = Cottonwood Creek (Lat 40.3777, Long -122.1991) upstream to endpoint(s) in: Cottonwood Creek (40.3943, -122.5254); Middle Fork Cottonwood Creek (40.3314, -122.6663); South Fork Cottonwood Creek (40.1578, -122.5809).</P> <P>(4) Eastern Tehama Hydrologic Unit 5509—(i) <E T="03">Big Chico Creek Hydrologic Sub-area 550914.</E> Outlet(s) = Big Chico Creek (Lat 39.7757, Long -121.7525) upstream to endpoint(s) in: Big Chico Creek (39.8873, -121.6979).</P> <P>(ii) <E T="03">Deer Creek Hydrologic Sub-area 550920.</E> Outlet(s) = Deer Creek (Lat 40.0144, Long -121.9481) upstream to endpoint(s) in: Deer Creek (40.2019, -121.5130).</P> <P>(iii) <E T="03">Upper Mill Creek Hydrologic Sub-area 550942.</E> Outlet(s) = Mill Creek (Lat 40.0550, Long -122.0317) upstream to endpoint(s) in: Mill Creek (40.3997, -121.5131).</P> <P>(iv) <E T="03">Antelope Creek Hydrologic Sub-area 550963.</E> Outlet(s) = Antelope Creek (Lat 40.2023, Long -122.1272) upstream to endpoint(s) in: Antelope Creek (40.2416, -121.8630); North Fork Antelope Creek (40.2691, -121.8226); South Fork Antelope Creek (40.2309, -121.8325).</P> <P>(5) Sacramento Delta Hydrologic Unit 5510—(i) <E T="03">Sacramento Delta Hydrologic Sub-area 551000.</E> Outlet(s) = Sacramento River (Lat 38.0612, Long -121.7948) upstream to endpoint(s) in: Cache Slough (38.3086, -121.7633); Delta Cross Channel (38.2433, -121.4964); Elk Slough (38.4140, -121.5212); Elkhorn Slough (38.2898, -121.6271); Georgiana Slough (38.2401, -121.5172); Miners Slough (38.2864, -121.6051); Prospect Slough (38.1477, -121.6641); Sevenmile Slough (38.1171, -121.6298); Steamboat Slough (38.3052, -121.5737); Sutter Slough (38.3321, -121.5838); Threemile Slough (38.1155, -121.6835); Yolo Bypass (38.5800, -121.5838).</P> <P>(ii) [Reserved]</P> <P>(6) Valley-Putah-Cache Hydrologic Unit 5511—(i) <E T="03">Lower Putah Creek Hydrologic Sub-area 551120.</E> Outlet(s) = Yolo Bypass (Lat 38.5800, Long -121.5838) upstream to endpoint(s) in: Sacramento <PRTPAGE P="293"/>Bypass (38.6057, -121.5563); Yolo Bypass (38.7627, -121.6325).</P> <P>(ii) [Reserved]</P> <P>(7) Marysville Hydrologic Unit 5515—(i) <E T="03">Lower Yuba River Hydrologic Sub-area 551510.</E> Outlet(s) = Bear River (Lat 38.9398, Long -121.5790) upstream to endpoint(s) in: Bear River (38.9783, -121.5166).</P> <P>(ii) <E T="03">Lower Yuba River Hydrologic Sub-area 551530.</E> Outlet(s) = Yuba River (Lat 39.1270, Long -121.5981) upstream to endpoint(s) in: Yuba River (39.2203, -121.3314).</P> <P>(iii) <E T="03">Lower Feather River Hydrologic Sub-area 551540.</E> Outlet(s) = Feather River (Lat 39.1270, Long -121.5981) upstream to endpoint(s) in: Feather River (39.5203, -121.5475).</P> <P>(8) Yuba River Hydrologic Unit 5517—(i) <E T="03">Browns Valley Hydrologic Sub-Area 551712.</E> Outlet(s) = Dry Creek (Lat 39.2207, Long -121.4088); Yuba River (39.2203, -121.3314) upstream to endpoint(s) in: Dry Creek (39.3201, -121.3117); Yuba River (39.2305, -121.2813).</P> <P>(ii) <E T="03">Englebright Hydrologic Sub-area 551714.</E> Outlet(s) = Yuba River (Lat 39.2305, Long -121.2813) upstream to endpoint(s) in: Yuba River (39.2388, -121.2698).</P> <P>(9) Valley-American Hydrologic Unit 5519—(i) <E T="03">Lower American Hydrologic Sub-area 551921.</E> Outlet(s) = American River (Lat 38.5971, Long -121.5088) upstream to endpoint(s) in: American River (38.5669, -121.3827).</P> <P>(ii) <E T="03">Pleasant Grove Hydrologic Sub-area 551922.</E> Outlet(s) = Sacramento River (Lat 38.5965, Long -121.5086) upstream to endpoint(s) in: Feather River (39.1270, -121.5981).</P> <P>(10) Colusa Basin Hydrologic Unit 5520—(i) <E T="03">Sycamore-Sutter Hydrologic Sub-area 552010.</E> Outlet(s) = Sacramento River (Lat 38.7604, Long -121.6767) upstream to endpoint(s) in: Tisdale Bypass (39.0261, -121.7456).</P> <P>(ii) <E T="03">Sutter Bypass Hydrologic Sub-area 552030.</E> Outlet(s) = Sacramento River (Lat 38.7849, Long -121.6219) upstream to endpoint(s) in: Butte Creek (39.1987, -121.9285); Butte Slough (39.1987, -121.9285); Nelson Slough (38.8901, -121.6352); Sacramento Slough (38.7843, -121.6544); Sutter Bypass (39.1417, -121.8196; 39.1484, -121.8386); Tisdale Bypass (39.0261, -121.7456); Unnamed Tributary (39.1586, -121.8747).</P> <P>(iii) <E T="03">Butte Basin Hydrologic Sub-area 552040.</E> Outlet(s) = Butte Creek (Lat 39.1990, Long -121.9286); Sacramento River (39.4141, -122.0087) upstream to endpoint(s) in: Butte creek (39.7095, -121.7506); Colusa Bypass (39.2276, -121.9402); Unnamed Tributary (39.6762, -122.0151).</P> <P>(11) Butte Creek Hydrologic Unit 5521—<E T="03">Upper Little Chico Hydrologic Sub-area 552130.</E> Outlet(s) = Butte Creek (Lat 39.7096, -121.7504) upstream to endpoint(s) in Butte Creek (39.8665, -121.6344).</P> <P>(12) Shasta Bally Hydrologic Unit 5524—(i) <E T="03">Platina Hydrologic Sub-area 552436.</E> Outlet(s) = Middle Fork Cottonwood Creek (Lat 40.3314, -122.6663) upstream to endpoint(s) in Beegum Creek (40.3066, -122.9205); Middle Fork Cottonwood Creek (40.3655, -122.7451).</P> <P>(ii) <E T="03">Spring Creek Hydrologic Sub-area 552440.</E> Outlet(s) = Sacramento River (Lat 40.5943, Long -122.4343) upstream to endpoint(s) in: Sacramento River (40.6116, -122.4462)</P> <P>(iii) <E T="03">Kanaka Peak Hydrologic Sub-area 552462.</E> Outlet(s) = Clear Creek (Lat 40.5158, Long -122.5256) upstream to endpoint(s) in: Clear Creek (40.5992, -122.5394).</P> <P>(13) Maps of critical habitat for the Central Valley Spring Run Chinook ESU follow:</P> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="294"/> <GID>ER02SE05.036</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="295"/> <GID>ER02SE05.037</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="296"/> <GID>ER02SE05.038</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="297"/> <GID>ER02SE05.039</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="298"/> <GID>ER02SE05.040</GID> </GPH> <GPH DEEP="454" SPAN="2"> <PRTPAGE P="299"/> <GID>ER02SE05.041</GID> </GPH> <GPH DEEP="454" SPAN="2"> <PRTPAGE P="300"/> <GID>ER02SE05.042</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="301"/> <GID>ER02SE05.043</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="302"/> <GID>ER02SE05.044</GID> </GPH> <GPH DEEP="454" SPAN="2"> <PRTPAGE P="303"/> <GID>ER02SE05.045</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="304"/> <GID>ER02SE05.046</GID> </GPH> <GPH DEEP="454" SPAN="2"> <PRTPAGE P="305"/> <GID>ER02SE05.047</GID> </GPH> <P>(l) <E T="03">Central Valley steelhead (O. mykiss).</E> Critical habitat is designated to include the areas defined in the following CALWATER Hydrologic Units:</P> <P>(1) Tehama Hydrologic Unit 5504—(i) <E T="03">Lower Stony Creek Hydrologic Sub-area 550410.</E> Outlet(s) = Stony Creek (Lat 39.6760, Long -121.9732) upstream to <PRTPAGE P="306"/>endpoint(s) in: Stony Creek (39.8199, -122.3391).</P> <P>(ii) Red Bluff Hydrologic Sub-area 550420. Outlet(s) = Sacramento River (Lat 39.6998, Long -121.9419) upstream to endpoint(s) in: Antelope Creek (40.2023, -122.1272); Big Chico Creek (39.7757, -121.7525); Blue Tent Creek (40.2166, -122.2362); Burch Creek (39.8495, -122.1615); Butler Slough (40.1579, -122.1320); Craig Creek (40.1617, -122.1350); Deer Creek (40.0144, -121.9481); Dibble Creek (40.2002, -122.2421); Dye Creek (40.0910, -122.0719); Elder Creek (40.0438, -122.2133); Lindo Channel (39.7623, -121.7923); McClure Creek (40.0074, -122.1723); Mill Creek (40.0550, -122.0317); Mud Creek (39.7985, -121.8803); New Creek (40.1873, -122.1350); Oat Creek (40.0769, -122.2168); Red Bank Creek (40.1421, -122.2399); Rice Creek (39.8495, -122.1615); Rock Creek (39.8034, -121.9403); Salt Creek (40.1572, -122.1646); Thomes Creek (39.8822, -122.5527); Unnamed Tributary (40.1867, -122.1353); Unnamed Tributary (40.1682, -122.1459); Unnamed Tributary (40.1143, -122.1259); Unnamed Tributary (40.0151, -122.1148); Unnamed Tributary (40.0403, -122.1009); Unnamed Tributary (40.0514, -122.0851); Unnamed Tributary (40.0530, -122.0769).</P> <P>(2) Whitmore Hydrologic Unit 5507—(i) <E T="03">Inks Creek Hydrologic Sub-area 550711.</E> Outlet(s) = Inks Creek (Lat 40.3305, Long -122.1520) upstream to endpoint(s) in: Inks Creek (40.3418, -122.1332).</P> <P>(ii) <E T="03">Battle Creek Hydrologic Sub-area 550712.</E> Outlet(s) = Battle Creek (Lat 40.4083, Long -122.1102) upstream to endpoint(s) in: Baldwin Creek (40.4369, -121.9885); Battle Creek (40.4228, -121.9975); Brush Creek (40.4913, -121.8664); Millseat Creek (40.4808, -121.8526); Morgan Creek (40.3654, -121.9132); North Fork Battle Creek (40.4877, -121.8185); Panther Creek (40.3897, -121.6106); South Ditch (40.3997, -121.9223); Ripley Creek (40.4099, -121.8683); Soap Creek (40.3904, -121.7569); South Fork Battle Creek (40.3531, -121.6682); Unnamed Tributary (40.3567, -121.8293); Unnamed Tributary (40.4592, -121.8671).</P> <P>(iii) <E T="03">Ash Creek Hydrologic Sub-area 550721.</E> Outlet(s) = Ash Creek (Lat 40.4401, Long -122.1375) upstream to endpoint(s) in: Ash Creek (40.4628, -122.0066).</P> <P>(iv) <E T="03">Inwood Hydrologic Sub-area 550722.</E> Outlet(s) = Ash Creek (Lat 40.4628, Long -122.0066); Bear Creek (40.4352, -122.2039) upstream to endpoint(s) in: Ash Creek (40.4859, -121.8993); Bear Creek (40.5368, -121.9560); North Fork Bear Creek (40.5736, -121.8683).</P> <P>(v) <E T="03">South Cow Creek Hydrologic Sub-area 550731.</E> Outlet(s) = South Cow Creek (Lat 40.5438, Long -122.1318) upstream to endpoint(s) in: South Cow Creek (40.6023, -121.8623).</P> <P>(vi) <E T="03">Old Cow Creek Hydrologic Sub-area 550732.</E> Outlet(s) = Clover Creek (Lat 40.5788, Long -122.1252); Old Cow Creek (40.5442, -122.1317) upstream to endpoint(s) in: Clover Creek (40.6305, -122.0304); Old Cow Creek (40.6295, -122.9619).</P> <P>(vii) <E T="03">Little Cow Creek Hydrologic Sub-area 550733.</E> Outlet(s) = Little Cow Creek (Lat 40.6148, -122.2271); Oak Run Creek (40.6171, -122.1225) upstream to endpoint(s) in: Little Cow Creek (40.7114, -122.0850); Oak Run Creek (40.6379, -122.0856).</P> <P>(3) Redding Hydrologic Unit 5508—(i) <E T="03">Enterprise Flat Hydrologic Sub-area 550810.</E> Outlet(s) = Sacramento River (Lat 40.2526, Long -122.1707) upstream to endpoint(s) in: Ash Creek (40.4401, -122.1375); Battle Creek (40.4083, -122.1102); Bear Creek (40.4360, -122.2036); Calaboose Creek (40.5742, -122.4142); Canyon Creek (40.5532, -122.3814); Churn Creek (40.5986, -122.3418); Clear Creek (40.5158, -122.5256); Clover Creek (40.5788, -122.1252); Cottonwood Creek (40.3777, -122.1991); Cow Creek (40.5437, -122.1318); East Fork Stillwater Creek (40.6495, -122.2934); Inks Creek (40.3305, -122.1520); Jenny Creek (40.5734, -122.4338); Little Cow Creek (40.6148, -122.2271); Oak Run (40.6171, -122.1225); Old Cow Creek (40.5442, -122.1317); Olney Creek (40.5439, -122.4687); Oregon Gulch (40.5463, -122.3866); Paynes Creek (40.3024, -122.1012); Stillwater Creek (40.6495, -122.2934); Sulphur Creek (40.6164, -122.4077).</P> <P>(ii) <E T="03">Lower Cottonwood Hydrologic Sub-area 550820.</E> Outlet(s) = Cottonwood Creek (Lat 40.3777, Long -122.1991) upstream to endpoint(s) in: Cold Fork Cottonwood Creek (40.2060, -122.6608); Cottonwood Creek (40.3943, -122.5254); Middle Fork Cottonwood Creek (40.3314, -122.6663); North Fork Cottonwood <PRTPAGE P="307"/>Creek (40.4539, -122.5610); South Fork Cottonwood Creek (40.1578, -122.5809).</P> <P>(4) Eastern Tehama Hydrologic Unit 5509—(i) <E T="03">Big Chico Creek Hydrologic Sub-area 550914.</E> Outlet(s) = Big Chico Creek (Lat 39.7757, Long -121.7525) upstream to endpoint(s) in: Big Chico Creek (39.8898, -121.6952).</P> <P>(ii) <E T="03">Deer Creek Hydrologic Sub-area 550920.</E> Outlet(s) = Deer Creek (Lat 40.0142, Long -121.9476) upstream to endpoint(s) in: Deer Creek (40.2025, -121.5130).</P> <P>(iii) <E T="03">Upper Mill Creek Hydrologic Sub-area 550942.</E> Outlet(s) = Mill Creek (Lat 40.0550, Long -122.0317) upstream to endpoint(s) in: Mill Creek (40.3766, -121.5098); Rocky Gulch Creek (40.2888, -121.5997).</P> <P>(iv) <E T="03">Dye Creek Hydrologic Sub-area 550962.</E> Outlet(s) = Dye Creek (Lat 40.0910, Long -122.0719) upstream to endpoint(s) in: Dye Creek (40.0996, -121.9612).</P> <P>(v) <E T="03">Antelope Creek Hydrologic Sub-area 550963.</E> Outlet(s) = Antelope Creek (Lat 40.2023, Long -122.1272) upstream to endpoint(s) in: Antelope Creek (40.2416, -121.8630); Middle Fork Antelope Creek (40.2673, -121.7744); North Fork Antelope Creek (40.2807, -121.7645); South Fork Antelope Creek (40.2521, -121.7575).</P> <P>(5) Sacramento Delta Hydrologic Unit 5510—<E T="03">Sacramento Delta Hydrologic Sub-area 551000.</E> Outlet(s) = Sacramento River (Lat 38.0653, Long -121.8418) upstream to endpoint(s) in: Cache Slough (38.2984, -121.7490); Elk Slough (38.4140, -121.5212); Elkhorn Slough (38.2898, -121.6271); Georgiana Slough (38.2401, -121.5172); Horseshoe Bend (38.1078, -121.7117); Lindsey Slough (38.2592, -121.7580); Miners Slough (38.2864, -121.6051); Prospect Slough (38.2830, -121.6641); Putah Creek (38.5155, -121.5885); Sevenmile Slough (38.1171, -121.6298); Streamboat Slough (38.3052, -121.5737); Sutter Slough (38.3321, -121.5838); Threemile Slough (38.1155, -121.6835); Ulatis Creek (38.2961, -121.7835); Unnamed Tributary (38.2937, -121.7803); Unnamed Tributary (38.2937, -121.7804); Yolo Bypass (38.5800, -121.5838).</P> <P>(6) Valley-Putah-Cache Hydrologic Unit 5511—<E T="03">Lower Putah Creek Hydrologic Sub-area 551120.</E> Outlet(s) = Sacramento Bypass (Lat 38.6057, Long -121.5563); Yolo Bypass (38.5800, -121.5838) upstream to endpoint(s) in: Sacramento Bypass (38.5969, -121.5888); Yolo Bypass (38.7627, -121.6325).</P> <P>(7) American River Hydrologic Unit 5514—<E T="03">Auburn Hydrologic Sub-area 551422.</E> Outlet(s) = Auburn Ravine (Lat 38.8921, Long -121.2181); Coon Creek (38.9891, -121.2556); Doty Creek (38.9401, -121.2434) upstream to endpoint(s) in: Auburn Ravine (38.8888, -121.1151); Coon Creek (38.9659, -121.1781); Doty Creek (38.9105, -121.1244).</P> <P>(8) Marysville Hydrologic Unit 5515—(i) <E T="03">Lower Bear River Hydrologic Sub-area 551510.</E> Outlet(s) = Bear River (Lat 39.9398, Long -121.5790) upstream to endpoint(s) in: Bear River (39.0421, -121.3319).</P> <P>(ii) <E T="03">Lower Yuba River Hydrologic Sub-area 551530.</E> Outlet(s) = Yuba River (Lat 39.1270, Long -121.5981) upstream to endpoint(s) in: Yuba River (39.2203, -121.3314).</P> <P>(iii) <E T="03">Lower Feather River Hydrologic Sub-area 551540.</E> Outlet(s) = Feather River (Lat 39.1264, Long -121.5984) upstream to endpoint(s) in: Feather River (39.5205, -121.5475).</P> <P>(9) Yuba River Hydrologic Unit 5517—(i) <E T="03">Browns Valley Hydrologic Sub-area 551712.</E> Outlet(s) = Dry Creek (Lat 39.2215, Long -1121.4082); Yuba River (39.2203, -1121.3314) upstream to endpoint(s) in: Dry Creek (39.3232, Long -1121.3155); Yuba River (39.2305, -1121.2813).</P> <P>(ii) <E T="03">Englebright Hydrologic Sub-area 551714.</E> Outlet(s) = Yuba River (Lat 39.2305, Long -1121.2813) upstream to endpoint(s) in: Yuba River (39.2399, -1121.2689).</P> <P>(10) Valley American Hydrologic Unit 5519—(i) <E T="03">Lower American Hydrologic Sub-area 551921.</E> Outlet(s) = American River (Lat 38.5971, -1121.5088) upstream to endpoint(s) in: American River (38.6373, -1121.2202); Dry Creek (38.7554, -1121.2676); Miner's Ravine (38.8429, -1121.1178); Natomas East Main Canal (38.6646, -1121.4770); Secret Ravine(38.8541, -1121.1223).</P> <P>(ii) <E T="03">Pleasant Grove Hydrologic Sub-area 551922.</E> Outlet(s) = Sacramento River (Lat 38.6026, Long -1121.5155) upstream to endpoint(s) in: Auburn Ravine (38.8913, -1121.2424); Coon Creek (38.9883, -1121.2609); Doty Creek (38.9392, -1121.2475); Feather River (39.1264, -1121.5984).<PRTPAGE P="308"/> </P> <P>(11) Colusa Basin Hydrologic Unit 5520—(i) <E T="03">Sycamore-Sutter Hydrologic Sub-area 552010.</E> Outlet(s) = Sacramento River (Lat 38.7604, Long -1121.6767) upstream to endpoint(s) in: Tisdale Bypass (39.0261, -1121.7456).</P> <P>(ii) <E T="03">Sutter Bypass Hydrologic Sub-area 552030.</E> Outlet(s) = Sacramento River (Lat 38.7851, Long -1121.6238) upstream to endpoint(s) in: Butte Creek (39.1990, -1121.9286); Butte Slough (39.1987, -1121.9285); Nelson Slough (38.8956, -1121.6180); Sacramento Slough (38.7844, -1121.6544); Sutter Bypass (39.1586, -1121.8747).</P> <P>(iii) <E T="03">Butte Basin Hydrologic Sub-area 552040.</E> Outlet(s) = Butte Creek (Lat 39.1990, Long -1121.9286); Sacramento River (39.4141, -1122.0087) upstream to endpoint(s) in: Butte Creek (39.7096, -1121.7504); Colusa Bypass (39.2276, -1121.9402); Little Chico Creek (39.7380, -1121.7490); Little Dry Creek (39.6781, -1121.6580).</P> <P>(12) Butte Creek Hydrologic Unit 5521—(i) <E T="03">Upper Dry Creek Hydrologic Sub-area 552110.</E> Outlet(s) = Little Dry Creek (Lat 39.6781, -1121.6580) upstream to endpoint(s) in: Little Dry Creek (39.7424, -1121.6213).</P> <P>(ii) <E T="03">Upper Butte Creek Hydrologic Sub-area 552120.</E> Outlet(s) = Little Chico Creek (Lat 39.7380, Long -1121.7490) upstream to endpoint(s) in: Little Chico Creek (39.8680, -1121.6660).</P> <P>(iii) <E T="03">Upper Little Chico Hydrologic Sub-area 552130.</E> Outlet(s) = Butte Creek (Lat 39.7096, Long -1121.7504) upstream to endpoint(s) in: Butte Creek (39.8215, -1121.6468); Little Butte Creek (39.8159, -1121.5819).</P> <P>(13) Ball Mountain Hydrologic Unit 5523—<E T="03">Thomes Creek Hydrologic Sub-area 552310.</E> Outlet(s) = Thomes Creek (39.8822, -1122.5527) upstream to endpoint(s) in: Doll Creek (39.8941, -1122.9209); Fish Creek (40.0176, -1122.8142); Snake Creek (39.9945, -1122.7788); Thomes Creek (39.9455, -1122.8491); Willow Creek (39.8941, -1122.9209).</P> <P>(14) Shasta Bally Hydrologic Unit 5524—(i) <E T="03">South Fork Hydrologic Sub-area 552433.</E> Outlet(s) = Cold Fork Cottonwood Creek (Lat 40.2060, Long -1122.6608); South Fork Cottonwood Creek (40.1578, -1122.5809) upstream to endpoint(s) in: Cold Fork Cottonwood Creek (40.1881, -1122.8690); South Fork Cottonwood Creek (40.1232, -1122.8761).</P> <P>(ii) <E T="03">Platina Hydrologic Sub-area 552436.</E> Outlet(s) = Middle Fork Cottonwood Creek (Lat 40.3314, Long -1122.6663) upstream to endpoint(s) in: Beegum Creek (40.3149, -1122.9776): Middle Fork Cottonwood Creek (40.3512, -1122.9629).</P> <P>(iii) <E T="03">Spring Creek Hydrologic Sub-area 552440.</E> Outlet(s) = Sacramento River (Lat 40.5943, Long -1122.4343) upstream to endpoint(s) in: Middle Creek (40.5904, -1121.4825); Rock Creek (40.6155, -1122.4702); Sacramento River (40.6116, -1122.4462); Salt Creek (40.5830, -1122.4586); Unnamed Tributary (40.5734, -1122.4844).</P> <P>(iv) <E T="03">Kanaka Peak Hydrologic Sub-area 552462.</E> Outlet(s) = Clear Creek (Lat 40.5158, Long -1122.5256) upstream to endpoint(s) in: Clear Creek (40.5998, 122.5399).</P> <P>(15) North Valley Floor Hydrologic Unit 5531—(i) <E T="03">Lower Mokelumne Hydrologic Sub-area 553120.</E> Outlet(s) = Mokelumne River (Lat 38.2104, Long -1121.3804) upstream to endpoint(s) in: Mokelumne River (38.2263, -1121.0241); Murphy Creek (38.2491, -1121.0119).</P> <P>(ii) <E T="03">Lower Calaveras Hydrologic Sub-area 553130.</E> Outlet(s) = Calaveras River (Lat 37.9836, Long -1121.3110); Mormon Slough (37.9456,-121.2907) upstream to endpoint(s) in: Calaveras River (38.1025, -1120.8503); Mormon Slough (38.0532, -1121.0102); Stockton Diverting Canal (37.9594, -1121.2024).</P> <P>(16) Upper Calaveras Hydrologic Unit 5533—<E T="03">New Hogan Reservoir Hydrologic Sub-area 553310.</E> Outlet(s) = Calaveras River (Lat 38.1025, Long -1120.8503) upstream to endpoint(s) in: Calaveras River (38.1502, -1120.8143).</P> <P>(17) Stanislaus River Hydrologic Unit 5534—<E T="03">Table Mountain Hydrologic Sub-area 553410.</E> Outlet(s) = Stanislaus River (Lat 37.8355, Long -1120.6513) upstream to endpoint(s) in: Stanislaus River (37.8631, -1120.6298).</P> <P>(18) San Joaquin Valley Floor Hydrologic Unit 5535—(i) <E T="03">Riverbank Hydrologic Sub-area 553530.</E> Outlet(s) = Stanislaus River (Lat 37.6648, Long -1121.2414) upstream to endpoint(s) in: Stanislaus River (37.8355, -1120.6513).</P> <P>(ii) <E T="03">Turlock Hydrologic Sub-area 553550.</E> Outlet(s) = Tuolumne River (Lat 37.6059, Long -1121.1739) upstream to <PRTPAGE P="309"/>endpoint(s) in: Tuolumne River (37.6401, -1120.6526).</P> <P>(iii) <E T="03">Montpelier Hydrologic Sub-area 553560.</E> Outlet(s) = Tuolumne River (Lat 37.6401, Long -1120.6526) upstream to endpoint(s) in: Tuolumne River (37.6721, -1120.4445).</P> <P>(iv) <E T="03">El Nido-Stevinson Hydrologic Sub-area 553570.</E> Outlet(s) = Merced River (Lat 37.3505, Long -1120.9619) upstream to endpoint(s) in: Merced River (37.3620, -1120.8507).</P> <P>(v) <E T="03">Merced Hydrologic Sub-area 553580.</E> Outlet(s) = Merced River (Lat 37.3620, Long -1120.8507) upstream to endpoint(s) in: Merced River (37.4982, -1120.4612).</P> <P>(vi) <E T="03">Fahr Creek Hydrologic Sub-area 553590.</E> Outlet(s) = Merced River (Lat 37.4982, Long -1120.4612) upstream to endpoint(s) in: Merced River (37.5081, -1120.3581).</P> <P>(19) Delta-Mendota Canal Hydrologic Unit 5541—(i) <E T="03">Patterson Hydrologic Sub-area 554110.</E> Outlet(s) = San Joaquin River (Lat 37.6763, Long -1121.2653) upstream to endpoint(s) in: San Joaquin River (37.3491, -1120.9759).</P> <P>(ii) <E T="03">Los Banos Hydrologic Sub-area 554120.</E> Outlet(s) = Merced River (Lat 37.3490, Long -1120.9756) upstream to endpoint(s) in: Merced River (37.3505, -1120.9619).</P> <P>(20) North Diablo Range Hydrologic Unit 5543—<E T="03">North Diablo Range Hydrologic Sub-area 554300.</E> Outlet(s) = San Joaquin River (Lat 38.0247, Long -1121.8218) upstream to endpoint(s) in: San Joaquin River (38.0246, -1121.7471).</P> <P>(21) San Joaquin Delta Hydrologic Unit 5544—<E T="03">San Joaquin Delta Hydrologic Sub-area 554400.</E> Outlet(s) = San Joaquin River (Lat 38.0246, Long -1121.7471) upstream to endpoint(s) in: Big Break (38.0160, -1121.6849); Bishop Cut (38.0870, -1121.4158); Calaveras River (37.9836, -1121.3110); Cosumnes River (38.2538, -1121.4074); Disappointment Slough (38.0439, -1121.4201); Dutch Slough (38.0088, -1121.6281); Empire Cut (37.9714, -1121.4762); False River (38.0479, -1121.6232); Frank's Tract (38.0220, -1121.5997); Frank's Tract (38.0300, -1121.5830); Holland Cut (37.9939, -1121.5757); Honker Cut (38.0680, -1121.4589); Kellog Creek (37.9158, -1121.6051); Latham Slough (37.9716, -1121.5122); Middle River (37.8216, -1121.3747); Mokelumne River (38.2104, -1121.3804); Mormon Slough (37.9456,-121.2907); Mosher Creek (38.0327, -1121.3650); North Mokelumne River (38.2274, -1121.4918); Old River (37.8086, -1121.3274); Orwood Slough (37.9409, -1121.5332); Paradise Cut (37.7605, -1121.3085); Pixley Slough (38.0443, -1121.3868); Potato Slough (38.0440, -1121.4997); Rock Slough (37.9754, -1121.5795); Sand Mound Slough (38.0220, -1121.5997); Stockton Deep Water Channel (37.9957, -1121.4201); Turner Cut (37.9972, -1121.4434); Unnamed Tributary (38.1165, -1121.4976); Victoria Canal (37.8891, -1121.4895); White Slough (38.0818, -1121.4156); Woodward Canal (37.9037, -1121.4973).</P> <P>(22) Maps of critical habitat for the Central Valley Steelhead ESU follow:</P> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="310"/> <GID>ER02SE05.048</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="311"/> <GID>ER02SE05.049</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="312"/> <GID>ER02SE05.050</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="313"/> <GID>ER02SE05.051</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="314"/> <GID>ER02SE05.052</GID> </GPH> <GPH DEEP="454" SPAN="2"> <PRTPAGE P="315"/> <GID>ER02SE05.053</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="316"/> <GID>ER02SE05.054</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="317"/> <GID>ER02SE05.055</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="318"/> <GID>ER02SE05.056</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="319"/> <GID>ER02SE05.057</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="320"/> <GID>ER02SE05.058</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="321"/> <GID>ER02SE05.059</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="322"/> <GID>ER02SE05.060</GID> </GPH> <GPH DEEP="454" SPAN="2"> <PRTPAGE P="323"/> <GID>ER02SE05.061</GID> </GPH> <GPH DEEP="455" SPAN="2"> <PRTPAGE P="324"/> <GID>ER02SE05.062</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="325"/> <GID>ER02SE05.063</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="326"/> <GID>ER02SE05.064</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="327"/> <GID>ER02SE05.065</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="328"/> <GID>ER02SE05.066</GID> </GPH> <GPH DEEP="457" SPAN="2"> <PRTPAGE P="329"/> <GID>ER02SE05.067</GID> </GPH> <GPH DEEP="456" SPAN="2"> <PRTPAGE P="330"/> <GID>ER02SE05.068</GID> </GPH> <PRTPAGE P="331"/> <CITA>[70 FR 52536, Sept. 2, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.212</SECTNO> <SUBJECT>Critical habitat for 12 Evolutionarily Significant Units (ESUs) of salmon and steelhead (<E T="7462">Oncorhynchus spp.</E>) in Washington, Oregon and Idaho.</SUBJECT> <P>Critical habitat is designated in the following states and counties for the following ESUs as described in paragraph (a) of this section, and as further described in paragraphs (b) through (g) of this section. The textual descriptions of critical habitat for each ESU are included in paragraphs (i) through (t) of this section, and these descriptions are the definitive source for determining the critical habitat boundaries. General location maps are provided at the end of each ESU description (paragraphs (i) through (t) of this section) and are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.</P> <P>(a) Critical habitat is designated for the following ESUs in the following states and counties:</P> <GPOTABLE CDEF="s100,r100" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">ESU</CHED> <CHED H="1">State—Counties</CHED> </BOXHD> <ROW> <ENT I="01">(1) Puget Sound chinook salmon</ENT> <ENT> <E T="03">WA</E>—Clallam, Jefferson, King, Mason, Pierce, Skagit, Snohomish, Thurston, and Whatcom.</ENT> </ROW> <ROW> <ENT I="01">(2) Lower Columbia River chinook salmon</ENT> <ENT>(i) <E T="03">OR</E>—Clackamas, Clatsop, Columbia, Hood River, and Multnomah.<LI>(ii) <E T="03">WA</E>—Clark, Cowlitz, Klickitat, Lewis, Pacific, Skamania, and Wahkiakum.</LI> </ENT> </ROW> <ROW> <ENT I="01">(3) Upper Willamette River chinook salmon</ENT> <ENT>(i) <E T="03">OR</E>—Benton, Clackamas, Clatsop, Columbia, Lane, Linn, Marion, Multnomah, Polk, and Yamhill.<LI>(ii) <E T="03">WA</E>—Clark, Cowlitz, Pacific, and Wahkiakum.</LI> </ENT> </ROW> <ROW> <ENT I="01">(4) Upper Columbia River spring-run chinook salmon</ENT> <ENT>(i) <E T="03">OR</E>—Clatsop, Columbia, Gilliam, Hood River, Morrow, Multnomah, Sherman, Umatilla, and Wasco.<LI>(ii) <E T="03">WA</E>—Benton, Chelan, Clark, Cowlitz, Douglas, Franklin, Grant, Kittitas, Klickitat, Okanogan, Pacific, Skamania, Wahkiakum, Walla Walla, and Yakima.</LI> </ENT> </ROW> <ROW> <ENT I="01">(5) Hood Canal summer-run chum salmon</ENT> <ENT> <E T="03">WA</E>—Clallam, Jefferson, Kitsap, and Mason.</ENT> </ROW> <ROW> <ENT I="01">(6) Columbia River chum salmon</ENT> <ENT>(i) <E T="03">OR</E>—Clatsop, Columbia, Hood River, and Multnomah.<LI>(ii) <E T="03">WA</E>—Clark, Cowlitz, Klickitat, Lewis, Pacific, Skamania, and Wahkiakum.</LI> </ENT> </ROW> <ROW> <ENT I="01">(7) Ozette Lake sockeye salmon</ENT> <ENT> <E T="03">WA</E>—Clallam.</ENT> </ROW> <ROW> <ENT I="01">(8) Upper Columbia River steelhead</ENT> <ENT>(i) <E T="03">OR</E>—Clatsop, Columbia, Gilliam, Hood River, Morrow, Multnomah, Umatilla, and Wasco.<LI>(ii) <E T="03">WA</E>—Adams, Benton, Chelan, Clark, Cowlitz, Douglas, Franklin, Grant, Kittitas, Klickitat, Okanogan, Pacific, Skamania, Wahkiakum, Walla Walla, and Yakima.</LI> </ENT> </ROW> <ROW> <ENT I="01">(9) Snake River Basin steelhead</ENT> <ENT>(i) <E T="03">ID</E>—Adams, Blaine, Clearwater, Custer, Idaho, Latah, Lemhi, Lewis, Nez Perce, and Valley.<LI>(ii) <E T="03">OR</E>—Clatsop, Columbia, Gilliam, Hood River, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, and Wasco.</LI> <LI>(iii) <E T="03">WA</E>—Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Walla Walla, Wahkiakum, and Whitman.</LI> </ENT> </ROW> <ROW> <ENT I="01">(10) Middle Columbia River steelhead</ENT> <ENT>(i) <E T="03">OR</E>—Clatsop, Columbia, Crook, Gilliam, Grant, Hood River, Jefferson, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco, and Wheeler.<LI>(ii) <E T="03">WA</E>—Benton, Clark, Cowlitz, Columbia, Franklin, King, Kittitas, Klickitat, Lewis, Pacific, Pierce, Skamania, Wahkiakum, Walla Walla, and Yakima.</LI> </ENT> </ROW> <ROW> <ENT I="01">(11) Lower Columbia River steelhead</ENT> <ENT>(i) <E T="03">OR</E>—Clackamas, Clatsop, Columbia, Hood River, Marion, and Multnomah.<LI>(ii) <E T="03">WA</E>—Clark, Cowlitz, Klickitat, Lewis, Pacific, Skamania, and Wahkiakum.</LI> </ENT> </ROW> <ROW> <ENT I="01">(12) Upper Willamette River steelhead</ENT> <ENT>(i) <E T="03">OR</E>—Benton, Clackamas, Clatsop, Columbia, Linn, Marion, Multnomah, Polk, Tillamook, Washington, and Yamhill.<LI>(ii) <E T="03">WA</E>—Clark, Cowlitz, Pacific, and Wahkiakum.</LI> </ENT> </ROW> </GPOTABLE> <P>(b) <E T="03">Critical habitat boundaries.</E> Critical habitat includes the stream channels within the designated stream reaches, and includes a lateral extent as defined by the ordinary high-water line (33 CFR 319.11). In areas where ordinary high-water line has not been defined, the lateral extent will be defined by the bankfull elevation. Bankfull elevation is the level at which water begins to leave the channel and move into the floodplain and is reached at a <PRTPAGE P="332"/>discharge which generally has a recurrence interval of 1 to 2 years on the annual flood series. Critical habitat in lake areas is defined by the perimeter of the water body as displayed on standard 1:24,000 scale topographic maps or the elevation of ordinary high water, whichever is greater. In estuarine and nearshore marine areas critical habitat includes areas contiguous with the shoreline from the line of extreme high water out to a depth no greater than 30 meters relative to mean lower low water.</P> <P>(c) <E T="03">Primary constituent elements.</E> Within these areas, the primary constituent elements essential for the conservation of these ESUs are those sites and habitat components that support one or more life stages, including:</P> <P>(1) Freshwater spawning sites with water quantity and quality conditions and substrate supporting spawning, incubation and larval development;</P> <P>(2) Freshwater rearing sites with:</P> <P>(i) Water quantity and floodplain connectivity to form and maintain physical habitat conditions and support juvenile growth and mobility;</P> <P>(ii) Water quality and forage supporting juvenile development; and</P> <P>(iii) Natural cover such as shade, submerged and overhanging large wood, log jams and beaver dams, aquatic vegetation, large rocks and boulders, side channels, and undercut banks.</P> <P>(3) Freshwater migration corridors free of obstruction and excessive predation with water quantity and quality conditions and natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, side channels, and undercut banks supporting juvenile and adult mobility and survival;</P> <P>(4) Estuarine areas free of obstruction and excessive predation with:</P> <P>(i) Water quality, water quantity, and salinity conditions supporting juvenile and adult physiological transitions between fresh- and saltwater;</P> <P>(ii) Natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, side channels; and</P> <P>(iii) Juvenile and adult forage, including aquatic invertebrates and fishes, supporting growth and maturation.</P> <P>(5) Nearshore marine areas free of obstruction and excessive predation with:</P> <P>(i) Water quality and quantity conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation; and</P> <P>(ii) Natural cover such as submerged and overhanging large wood, aquatic vegetation, large rocks and boulders, and side channels.</P> <P>(6) Offshore marine areas with water quality conditions and forage, including aquatic invertebrates and fishes, supporting growth and maturation.</P> <P>(d) <E T="03">Exclusion of Indian lands.</E> Critical habitat does not include habitat areas on Indian lands. The Indian lands specifically excluded from critical habitat are those defined in the Secretarial Order, including:</P> <P>(1) Lands held in trust by the United States for the benefit of any Indian tribe;</P> <P>(2) Land held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation;</P> <P>(3) Fee lands, either within or outside the reservation boundaries, owned by the tribal government; and</P> <P>(4) Fee lands within the reservation boundaries owned by individual Indians.</P> <P>(e) <E T="03">Land owned or controlled by the Department of Defense.</E> Critical habitat does not include any areas subject to an approved Integrated Natural Resource Management Plan or associated with Department of Defense easements or right-of-ways. In areas within Navy security zones identified at 33 CFR 334 that are outside the areas described above, critical habitat is only designated within a narrow nearshore zone from the line of extreme high tide down to the line of mean lower low water. The specific sites addressed include:</P> <P>(1) Naval Submarine Base, Bangor;</P> <P>(2) Naval Undersea Warfare Center, Keyport;</P> <P>(3) Naval Ordnance Center, Port Hadlock (Indian Island);</P> <P>(4) Naval Radio Station, Jim Creek;</P> <P>(5) Naval Fuel Depot, Manchester;</P> <P>(6) Naval Air Station Whidbey Island;</P> <P>(7) Naval Air Station, Everett;</P> <P>(8) Bremerton Naval Hospital;</P> <P>(9) Fort Lewis (Army);<PRTPAGE P="333"/> </P> <P>(10) Pier 23 (Army);</P> <P>(11) Yakima Training Center (Army);</P> <P>(12) Puget Sound Naval Shipyard;</P> <P>(13) Naval Submarine Base Bangor security zone;</P> <P>(14) Strait of Juan de Fuca naval air-to-surface weapon range, restricted area;</P> <P>(15) Hood Canal and Dabob Bay naval non-explosive torpedo testing area;</P> <P>(16) Strait of Juan de Fuca and Whidbey Island naval restricted areas;</P> <P>(17) Admiralty Inlet naval restricted area;</P> <P>(18) Port Gardner Naval Base restricted area;</P> <P>(19) Hood Canal naval restricted areas;</P> <P>(20) Port Orchard Passage naval restricted area;</P> <P>(21) Sinclair Inlet naval restricted areas;</P> <P>(22) Carr Inlet naval restricted areas;</P> <P>(23) Dabob Bay/Whitney Point naval restricted area; and</P> <P>(24) Port Townsend/Indian Island/Walan Point naval restricted area.</P> <P>(f) <E T="03">Land subject to the Washington Department of Natural Resources Habitat Conservation Plan</E>. Critical habitat is excluded on lands covered by the incidental take permit issued by NMFS under section 10(a)(1)(B) of the ESA to the Washington Department of Natural Resources.</P> <P>(g) <E T="03">Land subject to the Green Diamond Company Habitat Conservation Plan</E>. Critical habitat is excluded on lands covered by the incidental take permit issued by NMFS under section 10(a)(1)(B) of the ESA to the Green Diamond Resources Company (formerly Simpson Timber Company).</P> <P>(h) <E T="03">Land subject to the West Fork Timber Company Habitat Conservation Plan</E>. Critical habitat is excluded on lands covered by the incidental take permit issued by NMFS under section 10(a)(1)(B) of the ESA to the West Fork Timber Company (formerly Murray Pacific Corporation).</P> <P> <E T="03">(i) Puget Sound Chinook Salmon (Oncorhynchus tshawytscha)</E>. Critical habitat is designated to include the areas defined in the following subbasins:</P> <P>(1) Nooksack Subbasin 17110004—(i) <E T="03">Upper North Fork Nooksack River Watershed 1711000401</E>. Outlet(s) = North Fork Nooksack River (Lat 48.9055, Long -121.9886) upstream to endpoint(s) in: Boyd Creek (48.8998, -121.8640); Canyon Creek (48.9366, -121.9451); Cascade Creek (48.8996, -121.8621); Cornell Creek (48.8882, -121.9594); Deadhorse Creek (48.9024, -121.8359); Gallop Creek (48.8849, -121.9447); Glacier Creek (48.8197, -121.8931); Hedrick Creek (48.8953, -121.9705); Thompson Creek (48.8837, -121.9028); Wells Creek (48.8940, -121.7976).</P> <P>(ii) <E T="03">Middle Fork Nooksack River Watershed 1711000402</E>. Outlet(s) = Middle Fork Nooksack River (Lat 48.8342, Long -122.1540) upstream to endpoint(s) in: Canyon Creek (48.8374, -122.1198); Clearwater Creek (48.7841, -122.0293); Middle Fork Nooksack River (48.7249, -121.8999); Porter Creek (48.7951, -122.1098); Sister Creek (48.7492, -121.9736); Unnamed (48.7809, -122.1157); Unnamed (48.7860, -122.1214); Warm Creek (48.7559, -121.9741).</P> <P>(iii) <E T="03">South Fork Nooksack River Watershed 1711000403</E>. Outlet(s) = South Fork Nooksack River (Lat 48.8095, Long -122.2026) upstream to endpoint(s) in: Black Slough (48.7715, -122.1931); Cavanaugh Creek (48.6446, -122.1094); Deer Creek (48.6041, -122.0912); Edfro Creek (48.6607, -122.1206); Fobes Creek (48.6230, -122.1139); Hard Scrabble Falls Creek (48.7601, -122.2273); Howard Creek (48.6118, -121.9639); Hutchinson Creek (48.7056, -122.1663); Jones Creek (48.7186, -122.2130); McCarty Creek (48.7275, -122.2188); Plumbago Creek (48.6088, -122.0949); Pond Creek (48.6958, -122.1651); Skookum Creek (48.6871, -122.1029); South Fork Nooksack River (48.6133, -121.9000); Standard Creek (48.7444, -122.2191); Sygitowicz Creek (48.7722, -122.2269); Unnamed (48.6048, -121.9143); Unnamed (48.6213, -122.1039); Unnamed (48.7174, -122.1815); Unnamed (48.7231, -122.1968); Unnamed (48.7843, -122.2188).</P> <P>(iv) <E T="03">Lower North Fork Nooksack River Watershed 1711000404</E>. Outlet(s) = Nooksack River (Lat 48.8711, Long -122.3227) upstream to endpoint(s) in: Anderson Creek (48.8088, -122.3410); Boulder Creek (48.9314, -122.0258); Coal Creek (48.8889, -122.1506); Kendall Creek (48.9251, -122.1455); Kenney Creek (48.8510, -122.1368); Macaulay Creek (48.8353, -122.2345); Maple Creek (48.9262, -122.0751); Mitchell Creek (48.8313, <PRTPAGE P="334"/>-122.2174); North Fork Nooksack River (48.9055, -121.9886); Racehorse Creek (48.8819, -122.1272); Smith Creek (48.8439, -122.2544); Unnamed (48.8103, -122.1855); Unnamed (48.9002, -122.1205); Unnamed (48.9040, -122.0875); Unnamed (48.9131, -122.0127); Unnamed (48.9158, -122.0091); Unnamed (48.9162, -122.0615); Unnamed (48.9200, -122.0463); Wildcat Creek (48.9058, -121.9995); Deer Creek (48.8439, -122.4839).</P> <P>(v) <E T="03">Nooksack River Watershed 1711000405</E>. Outlet(s) = Lummi River (Lat 48.8010, Long -122.6582); Nooksack River (48.7737, -122.5986); Silver Creek (48.7786, -122.5635); Slater Slough (48.7759, -122.6029); Unnamed (48.7776, -122.5708); Unnamed (48.7786, -122.5677); Unnamed (48.7973, -122.6717); Unnamed (48.8033, -122.6771) upstream to endpoint(s) in: Fishtrap Creek (49.0025, -122.4053); Fourmile Creek (48.8890, -122.4213); Lummi River (48.8198, -122.6049); Nooksack River (48.8711, -122.3227); Pepin Creek (49.0024, -122.4724); Slater Slough (48.7778, -122.6041); Tenmile Creek (48.8457, -122.3661); Unnamed (48.8191, -122.5705); Unnamed (48.8453, -122.6071); Unnamed (48.8548, -122.4749); Unnamed (48.9609, -122.5312); Unnamed (48.9634, -122.3928); Unnamed (49.0024, -122.4730); Unnamed (49.0025, -122.5218).</P> <P>(2) Upper Skagit Subbasin 17110005—(i) <E T="03">Skagit River/Gorge Lake Watershed 1711000504</E>. Outlet(s) = Skagit River (Lat 48.6725, Long -121.2633) upstream to endpoint(s) in: Goodell Creek (48.6890, -121.2718); Skagit River (48.6763, -121.2404).</P> <P>(ii) <E T="03">Skagit River/Diobsud Creek Watershed 1711000505.</E> Outlet(s) = Skagit River (Lat 48.5218, Long -121.4315) upstream to endpoint(s) in: Bacon Creek (48.6456, -121.4244); Diobsud Creek (48.5761, -121.4309); Falls Creek (48.6334, -121.4258); Skagit River (48.6725, -121.2633).</P> <P>(iii) <E T="03">Cascade River Watershed 1711000506</E>. Outlet(s) = Cascade River (Lat 48.5218, Long -121.4315) upstream to endpoint(s) in: Found Creek (48.4816, -121.2437); Kindy Creek (48.4613, -121.2094); Marble Creek (48.5398, -121.2612); North Fork Cascade River (48.4660, -121.1641); South Fork Cascade River (48.4592, -121.1494).</P> <P>(iv) <E T="03">Skagit River/Illabot Creek Watershed 1711000507</E>. Outlet(s) = Skagit River (Lat 48.5333, Long -121.7370) upstream to endpoint(s) in: Illabot Creek (48.4498, -121.4551); Jackman Creek (48.5294, -121.6957); Skagit River (48.5218, -121.4315); Unnamed (48.5013, -121.6598).</P> <P>(3) Sauk Subbasin 17110006—(i) <E T="03">Upper Sauk River Watershed 1711000601</E>. Outlet(s) = Sauk River (Lat 48.1731, Long -121.4714) upstream to endpoint(s) in: Camp Creek (48.1559, -121.2909); North Fork Sauk River (48.0962, -121.3710); Owl Creek (48.1623, -121.2948); South Fork Sauk River (48.0670, -121.4088); Swift Creek (48.1011, -121.3975); Unnamed (48.1653, -121.3288); White Chuck River (48.1528, -121.2645).</P> <P>(ii) <E T="03">Upper Suiattle River Watershed 1711000602.</E> Outlet(s) = Suiattle River (Lat 48.2586, Long -121.2237) upstream to endpoint(s) in: Downey Creek (48.2828, -121.2083); Milk Creek (48.2207, -121.1634); Suiattle River (48.2211, -121.1609); Sulphur Creek (48.2560, -121.1773); Unnamed (48.2338, -121.1792).</P> <P>(iii) <E T="03">Lower Suiattle River Watershed 1711000603.</E> Outlet(s) = Suiattle River (Lat 48.3384, Long -121.5482) upstream to endpoint(s) in: Big Creek (48.3435, -121.4416); Buck Creek (48.2753, -121.3268); Circle Creek (48.2555, -121.3395); Lime Creek (48.2445, -121.2933); Straight Creek (48.2594;-121.4009); Suiattle River (48.2586, -121.2237); Tenas Creek (48.3371, -121.4304).</P> <P>(iv) <E T="03">Lower Sauk River Watershed 1711000604</E>. Outlet(s) = Sauk River (Lat 48.4821, Long -121.6060) upstream to endpoint(s) in: Dan Creek (48.2702, -121.5473); Sauk River (48.1731, -121.4714); Unnamed (48.2247, -121.5826); Unnamed (48.3187, -121.5480).</P> <P>(4) Lower Skagit Subbasin 17110007—(i) <E T="03">Middle Skagit River/Finney Creek Watershed 1711000701.</E> Outlet(s) = Skagit River (Lat 48.4891, Long -122.2178) upstream to endpoint(s) in: Alder Creek (48.5280, -121.9498); Day Creek (48.4689, -122.0216); Finney Creek (48.4655, -121.6858); Grandy Creek (48.5510, -121.8621); Hansen Creek (48.5600, -122.2069); Jims Slough (48.5274, -122.0227); Jones Creek (48.5418, -122.0494); Mannser Creek (48.5260, -122.0430); Muddy Creek (48.5278, -122.0007); Pressentin Creek (48.5099, -121.8449); Skagit River (48.5333, -121.7370); Sorenson Creek (48.4875, -122.1029); Unnamed (48.4887, -122.0747); <PRTPAGE P="335"/>Unnamed (48.5312, -122.0149); Wiseman Creek (48.5160, -122.1286).</P> <P>(ii) <E T="03">Lower Skagit River/Nookachamps Creek Watershed 1711000702.</E> Outlet(s) = Browns Slough (Lat 48.3305, Long -122.4194); Freshwater Slough (48.3109, -122.3883); Hall Slough (48.3394, -122.4426); Isohis Slough (48.2975, -122.3711); North Fork Skagit River (48.3625, -122.4689); South Fork Skagit River (48.2920, -122.3670); Unnamed (48.3085, -122.3868); Unnamed (48.3831, -122.4842) upstream to endpoint(s) in: Britt Slough (48.3935, -122.3571); Browns Slough (48.3411, -122.4127); East Fork Nookachamps Creek (48.4044, -122.1790); Hall Slough (48.3437, -122.4376); Mundt Creek (48.4249, -122.2007); Skagit River (48.4891, -122.2178); Unnamed (48.3703, -122.3081); Unnamed (48.3827, -122.1893); Unnamed (48.3924