[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          50


          Parts 200 to 599

          Revised as of October 1, 2008


          Wildlife and Fisheries
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            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                                               767
          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      875
          Chapter V--Marine Mammal Commission                      935
  Finding Aids:
      Material Approved for Incorporation by Reference........     961
      Table of CFR Titles and Chapters........................     963
      Alphabetical List of Agencies Appearing in the CFR......     983
      List of CFR Sections Affected...........................     993

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                     ----------------------------

                     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.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

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

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2008), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

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

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

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INQUIRIES

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or write to the Director, Office of the Federal Register, National 
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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    October 1, 2008.







[[Page ix]]



                               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 of 17.95), part 17 
(17.96 to 17.99(h)), part 17 (17.99(i) to end of part 17), 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 of 
17.95), part 17 (17.96 to 17.99(h)), part 17 (17.99(i) to end of part 
17), 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, 2008.

    Alphabetical listings of endangered and threatened wildlife and 
plants appear in Sec. Sec.  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, Jonn V. Lilyea was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                    TITLE 50--WILDLIFE AND FISHERIES




                  (This book contains parts 200 to 599)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--National Marine Fisheries Service, National 
  Oceanic and Atmospheric Administration, Department of 
  Commerce..................................................         216

chapter iii--International Fishing and Related Activities...         300

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.............................         401

chapter v--Marine Mammal Commission.........................         501

[[Page 3]]



  CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND 
           ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------

               SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
       SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
                      SUBCHAPTER C--MARINE MAMMALS
Part                                                                Page
216             Regulations governing the taking and 
                    importing of marine mammals.............           5
217-220        [Reserved]

221             Prescriptions in FERC Hydropower Licenses...          99
222             General endangered and threatened marine 
                    species.................................         119
223             Threatened marine and anadromous species....         144
224             Endangered marine and anadromous species....         221
225             [Reserved]

226             Designated critical habitat.................         224
228             Notice and hearing on section 103(d) 
                    regulations.............................         636
229             Authorization for commercial fisheries under 
                    the Marine Mammal Protection Act of 1972         643
                          SUBCHAPTER D--WHALING
230             Whaling provisions..........................         692
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
                     SUBCHAPTER F--AID TO FISHERIES
253             Fisheries assistance programs...............         695
259             Capital construction fund...................         704
 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260             Inspection and certification................         716

[[Page 4]]

261             United States Standards for Grades..........         746
                SUBCHAPTER H--FISH AND SEAFOOD PROMOTION
270             Species-specific Seafood Marketing Councils.         488
                       SUBCHAPTERS I-J [RESERVED]
                     SUBCHAPTER K--CONTINENTAL SHELF
296             Fishermen's Contingency Fund................         760

[[Page 5]]



               SUBCHAPTER A_GENERAL PROVISIONS [RESERVED]





       SUBCHAPTER B_NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]





                       SUBCHAPTER C_MARINE MAMMALS





PART 216_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS--Table of Contents




                         Subpart A_Introduction

Sec.
216.1 Purpose of regulations.
216.2 Scope of regulations.
216.3 Definitions.
216.4 Other laws and regulations.
216.5 Payment of penalty.
216.6 Forfeiture and return of seized property.
216.7 Holding and bonding.
216.8 Enforcement officers.

                         Subpart B_Prohibitions

216.11 Prohibited taking.
216.12 Prohibited importation.
216.13 Prohibited uses, possession, transportation, sales, and permits.
216.14 Marine mammals taken before the MMPA.
216.15 Depleted species.
216.16 Prohibitions under the General Authorization for Level B 
          harassment for scientific research.
216.17 General prohibitions.

                      Subpart C_General Exceptions

216.21 Actions permitted by international treaty, convention, or 
          agreement.
216.22 Taking by State or local government officials.
216.23 Native exceptions.
216.24 Taking and related acts incidental to commercial fishing 
          operations by tuna purse seine vessels in the eastern tropical 
          Pacific Ocean.
216.25 Exempted marine mammals and marine mammal products.
216.26 Collection of certain marine mammal parts without prior 
          authorization.
216.27 Release, non-releasability, and disposition under special 
          exception permits for rehabilitated marine mammals.

                      Subpart D_Special Exceptions

216.30 [Reserved]
216.31 Definitions.
216.32 Scope.
216.33 Permit application submission, review, and decision procedures.
216.34 Issuance criteria.
216.35 Permit restrictions.
216.36 Permit conditions.
216.37 Marine mammal parts.
216.38 Reporting.
216.39 Permit amendments.
216.40 Penalties and permit sanctions.
216.41 Permits for scientific research and enhancement.
216.42 Photography. [Reserved]
216.43 Public display. [Reserved]
216.44 Applicability/transition.
216.45 General Authorization for Level B harassment for scientific 
          research.
216.46 U.S. citizens on foreign flag vessels operating under the 
          International Dolphin Conservation Program.
216.47 Access to marine mammal tissue, analyses, and data.
216.48-216.49 [Reserved]

                       Subpart E_Designated Ports

216.50 Importation at designated ports.

       Subpart F_Pribilof Islands, Taking for Subsistence Purposes

216.71 Allowable take of fur seals.
216.72 Restrictions on taking.
216.73 Disposition of fur seal parts.
216.74 Cooperation with Federal officials.

                Subpart G_Pribilof Islands Administration

216.81 Visits to fur seal rookeries.
216.82 Dogs prohibited.
216.83 Importation of birds or mammals.
216.84 [Reserved]
216.85 Walrus and Otter Islands.
216.86 Local regulations.
216.87 Wildlife research.

                  Subpart H_Dolphin Safe Tuna Labeling

216.90 Purposes.
216.91 Dolphin-safe labeling standards.
216.92 Dolphin-safe requirements for tuna harvested in the ETP by large 
          purse seine vessels.
216.93 Tracking and verification program.
216.94 False statements or endorsements.
216.95 Official mark for ``Dolphin-safe'' tuna products.

 Subpart I_General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

216.101 Purpose.

[[Page 6]]

216.102 Scope.
216.103 Definitions.
216.104 Submission of requests.
216.105 Specific regulations.
216.106 Letter of Authorization.
216.107 Incidental harassment authorization for Arctic waters.
216.108 Requirements for monitoring and reporting under incidental 
          harassment authorizations for Arctic waters.

    Subpart J_Taking Marine Mammals Incidental to Coastal Commercial 
Fireworks Displays at Monterey Bay National Marine Sanctuary, California

216.110 Specified activity and specified geographical region.
216.111 Effective dates.
216.112 Permissible methods of taking.
216.113 Prohibitions.
216.114 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Letters of Authorization.
216.118 Renewal of Letters of Authorization.
216.119 Modifications to Letters of Authorization.

Subpart K_Taking of Marine Mammals Incidental to Space Vehicle and Test 
                            Flight Activities

216.120 Specified activity and specified geographical region.
216.121 Effective dates.
216.122 Permissible methods of taking.
216.123 Prohibitions.
216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Renewal of Letters of Authorization.
216.128 Modifications of Letters of Authorization.

Subparts L-M [Reserved]

    Subpart N_Taking of Marine Mammals Incidental to Missile Launch 
                 Operations from San Nicolas Island, CA

216.151 Specified activity, geographical region, and incidental take 
          levels.
216.152 Effective dates.
216.153 Permissible methods of taking; mitigation.
216.154 Prohibitions.
216.155 Requirements for monitoring and reporting.
216.156 Letter of Authorization.
216.157 Renewal of the Letter of Authorization.
216.158 Modifications to the Letter of Authorization.

 Subpart O_Taking of Marine Mammals Incidental to Shock Testing the USS 
  MESA VERDE (LPD 19) by Detonation of Conventional Explosives in the 
               Offshore Waters of the U.S. Atlantic Coast

216.161 Specified activity and incidental take levels by species.
216.162 Effective dates.
216.163 Mitigation.
216.164 Prohibitions.
216.165 Requirements for monitoring and reporting.
216.166 Modifications to the Letter of Authorization.

Subpart P [Reserved]

  Subpart Q_Taking of Marine Mammals Incidental to Navy Operations of 
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA 
                              sonar) Sonar

216.180 Specified activity.
216.181 Effective dates.
216.182 Permissible methods of taking.
216.183 Prohibitions.
216.184 Mitigation.
216.185 Requirements for monitoring.
216.186 Requirements for reporting.
216.187 Applications for Letters of Authorization.
216.188 Letters of Authorization.
216.189 Renewal of Letters of Authorization.
216.190 Modifications to Letters of Authorization.
216.191 Designation of Offshore Biologically Important Marine Mammal 
          Areas.

   Subpart R_Taking of Marine Mammals Incidental to Construction and 
  Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea

216.200 Specified activity and specified geographical region.
216.201 Effective dates.
216.202 Permissible methods of taking.
216.203 Prohibitions.
216.204 Mitigation.
216.205 Measures to ensure availability of species for subsistence uses.
216.206 Requirements for monitoring and reporting.
216.207 Applications for Letters of Authorization.
216.208 Letters of Authorization.
216.209 Renewal of Letters of Authorization.
216.210 Modifications to Letters of Authorization.

[[Page 7]]

Subpart S--Taking of Marine Mammals Incidental to Explosive Severance 
Activities Conducted During Offshore Structure Removal Operations on the 
Outer Continental Shelf in the U.S. Gulf of Mexico

216.211 Specified activity and specified geographical region.
216.212 Effective dates.
216.213 Permissible methods of taking.
216.214 Prohibitions.
216.215 Definitions, terms, and criteria.
216.216 Mitigation.
216.217 Requirements for monitoring and reporting.
216.218 Letters of Authorization.
216.219 Renewal and modifications of Letters of Authorization.

Subpart T [Reserved]

 Subpart U_Taking of Marine Mammals Incidental to Rocket Launches from 
              the Kodiak Launch Complex, Kodiak Island, AK

216.230 Specified activity and specified geographical region.
216.231 Effective dates.
216.232 Permissible methods of taking.
216.233 Prohibitions.
216.234 Mitigation, monitoring and reporting.
216.235 Letter of Authorization.
216.236 Renewal of a Letter of Authorization.
216.237 Modifications to a Letter of Authorization.

Subpart V [Reserved]

   Subpart W_Taking Marine Mammals Incidental to Conducting Precision 
              Strike Weapon Missions in the Gulf of Mexico

216.250 Specified activity and specified geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and reporting.
216.256 Applications for Letters of Authorization.
216.257 Letters of Authorization.
216.258 Renewal of Letters of Authorization.
216.259 Modifications to Letters of Authorization.

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

    Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.
    Note to part 216: See also 50 CFR parts 228 and 229 for regulations 
governing certain incidental takings of marine mammals.



                         Subpart A_Introduction



Sec. 216.1  Purpose of regulations.

    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.



Sec. 216.2  Scope of regulations.

    This part 216 applies solely to marine mammals and marine mammal 
products as defined in Sec. 216.3. For regulations under the MMPA, with 
respect to other marine mammals and marine mammal products, see 50 CFR 
part 18.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.3  Definitions.

    In addition to definitions contained in the MMPA, and unless the 
context otherwise requires, in this part 216:
    Acts means, collectively, the Marine Mammal Protection Act of 1972, 
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973, 
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as 
amended, 16 U.S.C. 1151 et seq.
    Active sportfishing 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.
    Administrator, Southwest Region 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.
    Agreement on the International Dolphin Conservation Program 
(Agreement on the IDCP) means the Agreement establishing the formal 
binding IDCP that was signed in Washington, DC on May 21, 1998.

[[Page 8]]

    Alaskan Native 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.
    Article of handicraft means items made by an Indian, Aleut or Eskimo 
from the nonedible byproducts of fur seals taken for personal or family 
consumption which--
    (1) Were commonly produced by Alaskan Natives on or before October 
14, 1983;
    (2) Are composed wholly or in some significant respect of natural 
materials, and;
    (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 Sec. 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.
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Silver Spring, MD 20910, or his/her 
designee.
    Authentic native articles of handicrafts and clothing 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 Sec. 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.
    Bona fide scientific research: (1) Means scientific research on 
marine mammals conducted by qualified personnel, the results of which:
    (i) Likely would be accepted for publication in a refereed 
scientific journal;
    (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
    (iii) Are likely to identify, evaluate, or resolve conservation 
problems.
    (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).
    Carrying capacity 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

[[Page 9]]

builder of the vessel, a marine surveyor's report, or the highest amount 
reported landed from any one trip.
    Certified charter vessel 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.
    Co-investigator means the on-site representative of a principal 
investigator.
    Commercial fishing operation 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.
    Commercial passenger fishing vessel 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.
    Custody 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.
    Declaration of Panama means the declaration signed in Panama City, 
Republic of Panama, on October 4, 1995.
    Director, Office of Protected Resources means Director, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    Dolphin Mortality Limit (DML) means the maximum allowable number of 
incidental dolphin mortalities per calendar year assigned to a vessel, 
unless a shorter time period is specified.
    Endangered Species 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).
    ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    ETP means the eastern tropical Pacific Ocean which includes the 
Pacific Ocean area bounded by 40[deg] N. latitude, 40[deg] S. latitude, 
160[deg] W. longitude and the coastlines of North, Central and South 
America.
    Facility 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
    (2) A traveling display/exhibit, where the enclosure(s) and 
associated infrastructure is transported together with the marine 
mammals.
    Feeding 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.
    First exporter 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.
    Fisheries Certificate of Origin, or FCO, means NOAA Form 370, as 
described in Sec. 216.24(f)(4).
    Force majeure means forces outside the vessel operator's or vessel 
owner's control that could not be avoided by the exercise of due care.
    FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et 
seq.
    Fur seal means North Pacific fur seal, scientifically known as 
Callorhinus ursinus.
    Hard part means any bone, tooth, baleen, treated pelt, or other part 
of a marine mammal that is relatively solid or durable.

[[Page 10]]

    Harvesting nation 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.
    Humane 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.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the 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 Sec. 216.24(f)(1)(ii) shall 
apply.
    Incidental catch 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: Provided, 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.
    Intentional purse seine set means that a tuna purse seine vessel or 
associated vessels chase marine mammals and subsequently make a purse 
seine set.
    International Dolphin Conservation Program (IDCP) means the 
international program established by the 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.
    International Dolphin Conservation Program Act (IDCPA) means Public 
Law 105-42, enacted into law on August 15, 1997.
    International Review Panel (IRP) means the International Review 
Panel established by the Agreement on the IDCP.
    Intrusive research 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:
    (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
    (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.
    Label means a display of written, printed, or graphic matter on or 
affixed to the immediate container of any article.
    Land or landing means to begin offloading any fish, to arrive in 
port with the intention of offloading fish, or to cause any fish to be 
offloaded.
    Large-scale driftnet 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.

[[Page 11]]

    Level A Harassment means any act of pursuit, torment, or annoyance 
which has the potential to injure a marine mammal or marine mammal stock 
in the wild.
    Level B Harassment 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.
    Marine environment means the oceans and the seas, including 
estuarine and brackish waters.
    Marine mammal 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).
    MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 
U.S.C. 1361 et seq.
    Native village or town means any community, association, tribe, 
band, clan or group.
    Optimum sustainable population 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.
    Per-stock per-year dolphin mortality limit means the maximum 
allowable number of incidental dolphin mortalities and serious injuries 
from a specified stock per calendar year, as established under the IDCP.
    Pregnant means pregnant near term.
    Pribilovians means Indians, Aleuts, and Eskimos who live on the 
Pribilof Islands.
    Principal investigator 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.
    Public display means an activity that provides opportunities for the 
public to view living marine mammals at a facility holding marine 
mammals captive.
    Regional Director 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.
    Rehabilitation 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.
    Secretary shall mean the Secretary of Commerce or his authorized 
representative.
    Serious injury means any injury that will likely result in 
mortality.
    Sexual harassment 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.
    Soft part means any marine mammal part that is not a hard part. Soft 
parts do not include urine or fecal material.
    South Pacific Ocean means any waters of the Pacific Ocean that lie 
south of the equator.
    South Pacific Tuna Treaty means the Treaty on Fisheries Between the 
Governments of Certain Pacific Island States and the Government of the

[[Page 12]]

United States of America (50 CFR part 300, subpart D).
    Stranded or stranded marine mammal means a marine mammal specimen 
under the jurisdiction of the Secretary:
    (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
    (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.
    Subsistence 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.
    Subsistence uses 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--
    (1) Family means all persons related by blood, marriage, or 
adoption, or any person living within a household on a permanent basis.
    (2) Barter means the exchange of fur seals or their parts, taken for 
subsistence uses--
    (i) For other wildlife or fish or their parts, or
    (ii) For other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial nature.
    Take 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.
    Threatened species means a species of marine mammal listed as 
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat. 
884, Pub. L. 93-205.
    Trip 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.
    Tuna product means any food product processed for retail sale and 
intended for human or animal consumption that contains an item listed in 
Sec. 216.24(f)(2)(i) or (ii), but does not include perishable items 
with a shelf life of less than 3 days.
    Wasteful manner 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.

[39 FR 1852, Jan. 15, 1974]

    Editorial Note: For Federal Register citations affecting Sec. 
216.3, see the List of Sections Affected, which appears in the Finding 
Aids section of the printed volume and on GPO Access.



Sec. 216.4  Other laws and regulations.

    (a) Federal. 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.
    (b) State laws or regulations. See part 403 of this chapter.

[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 
FR 65134, Dec. 13, 1993]

[[Page 13]]



Sec. 216.5  Payment of penalty.

    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.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]



Sec. 216.6  Forfeiture and return of seized property.

    (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.
    (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.
    (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 Sec. 
216.60, such seized property shall immediately be returned to the 
respondent.
    (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.
    (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: Provided, 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.
    (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: Provided, 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.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.7  Holding and bonding.

    (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 Sec. 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.

[[Page 14]]

    (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.

[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]



Sec. 216.8  Enforcement officers.

    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.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



                         Subpart B_Prohibitions



Sec. 216.11  Prohibited taking.

    Except as otherwise provided in subparts C, D, and I of this part 
216 or in part 228 or 229, it is unlawful for:
    (a) Any person, vessel, or conveyance subject to the jurisdiction of 
the United States to take any marine mammal on the high seas, or
    (b) Any person, vessel, or conveyance to take any marine mammal in 
waters or on lands under the jurisdiction of the United States, or
    (c) Any person subject to the jurisdiction of the United States to 
take any marine mammal during the moratorium.

[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 
FR 21921, May 19, 1989]



Sec. 216.12  Prohibited importation.

    (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.
    (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:
    (1) Marine mammal:
    (i) Taken in violation of the MMPA, or
    (ii) Taken in another country in violation to the laws of that 
country;
    (2) Any marine mammal product if
    (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
    (ii) The sale in commerce of such product in the country of origin 
if the product is illegal.
    (c) Except in accordance with an exception referred to in subpart C 
and Sec. Sec. 216.31 (regarding scientific research permits only) and 
216.32 of this part 216, it is unlawful to import into the United States 
any:
    (1) Marine mammal which was pregnant at the time of taking.
    (2) Marine mammal which was nursing at the time of taking, or less 
than 8 months old, whichever occurs later.
    (3) Specimen of an endangered or threatened species of marine 
mammal.
    (4) Specimen taken from a depleted species or stock of marine 
mammals, or
    (5) Marine mammal taken in an inhumane manner.
    (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.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.13  Prohibited uses, possession, transportation, sales,
and permits.

    It is unlawful for:

[[Page 15]]

    (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
    (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.
    (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.
    (d) Any person to violate any term, condition, or restriction of any 
permit issued by the Secretary.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994; 61 FR 21933, May 10, 1996]



Sec. 216.14  Marine mammals taken before the MMPA.

    (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:
    (1) The Affiant's name and address;
    (2) Identification of the Affiant;
    (3) A description of the marine mammals or marine mammal products 
which the Affiant desires to import;
    (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;
    (5) A statement by the Affiant in the following language:

    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.

    (b) Either one of two exhibits shall be attached to such affidavit, 
and will contain either:
    (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
    (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.
    (c) No pre-Act marine mammal or pre-Act marine mammal product may be 
imported unless the requirements of this section have been fulfilled.
    (d) This section has no application to any marine mammal or marine 
mammal product intended to be imported pursuant to Sec. Sec. 216.21, 
216.31 or Sec. 216.32.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994]



Sec. 216.15  Depleted species.

    The following species or population stocks have been designated by 
the Assistant Administrator as depleted under the provisions of the 
MMPA.
    (a) Hawaiian monk seal (Monachus schauinslandi).
    (b) Bowhead whale (Balaena mysticetus).
    (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island 
population.
    (d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock 
along the U.S. mid-Atlantic coast.

[[Page 16]]

    (e) Eastern spinner dolphin (Stenella longirostris orientalis).
    (f) Northeastern offshore spotted dolphin (Stenella attenuata).
    (g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus 
leucas). The stock includes all beluga whales occurring in waters of the 
Gulf of Alaska north of 58[deg] 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.
    (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.
    (i) AT1 stock of killer whales (Orcinus orca). 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.

[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]



Sec. 216.16  Prohibitions under the General Authorization for Level B
harassment for scientific research.

    It shall be unlawful for any person to:
    (a) Provide false information in a letter of intent submitted 
pursuant to Sec. 216.45(b);
    (b) Violate any term or condition imposed pursuant to Sec. 
216.45(d).

[59 FR 50376, Oct. 3, 1994]



Sec. 216.17  General prohibitions.

    It is unlawful for any person to:
    (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.
    (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.
    (c) Resist a lawful arrest for any act prohibited under the MMPA.
    (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.
    (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.

[70 FR 19008, Apr. 12, 2005]



                      Subpart C_General Exceptions



Sec. 216.21  Actions permitted by international treaty, convention,
or agreement.

    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.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]



Sec. 216.22  Taking by State or local government officials.

    (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:
    (1) Is accomplished in a humane manner;

[[Page 17]]

    (2) Is for the protection or welfare of such mammal or for the 
protection of the public health or welfare; and
    (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.
    (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:
    (1) The animal involved;
    (2) The circumstances requiring the taking;
    (3) The method of taking;
    (4) The name and official position of the State official or employee 
involved;
    (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
    (6) Such other information as the Secretary may require.
    (c) Salvage of dead stranded marine mammals or parts therefrom and 
subsequent transfer.
    (1) Salvage. 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.
    (2) Registration. 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:
    (i) The name, address, and any official position of the individual 
engaged in the taking and salvage;
    (ii) A description of the marine mammal specimen salvaged including 
the scientific and common names of the species;
    (iii) A description of the parts salvaged;
    (iv) The date and the location of the taking;
    (v) Such other information as deemed necessary by the Assistant 
Administrator.
    (3) Identification and curation. 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.
    (4) No sale or commercial trade. No person may sell or trade for 
commercial purposes any marine mammal specimen salvaged under this 
section.
    (5) Transfer without prior authorization. A person who salvages a 
marine mammal specimen under this section

[[Page 18]]

may transfer that specimen to another person if:
    (i) The person transferring the marine mammal specimen does not 
receive remuneration for the specimen;
    (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;
    (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;
    (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
    (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.
    (6) Other transfers within the United States. Except as provided 
under paragraphs (c)(5) and (c)(8) of this section, a person who 
salvages a marine mammal specimen, or who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to another person within the United States unless the Regional 
Director of the appropriate Regional Office of the National Marine 
Fisheries Service grants prior written authorization for the transfer. 
The Regional Director may grant authorization for the transfer if there 
is evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (7) Tranfers outside of the United States. 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.
    (8) Exceptions to requirements for notification or prior 
authorization. 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:
    (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
    (ii) The transfer is a loan of not more than 1 year to another 
professionally accredited scientific collection within the United 
States.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]



Sec. 216.23  Native exceptions.

    (a) Taking. 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:
    (1) By Alaskan Natives who reside in Alaska for subsistence, or
    (2) For purposes of creating and selling authentic native articles 
of handicraft and clothing, and
    (3) In each case, not accomplished in a wasteful manner.
    (b) Restrictions. (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:
    (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

[[Page 19]]

purpose of processing, and will be returned directly or through a 
registered agent to the Alaskan Native; or
    (ii) It is sold or transferred to a registered agent in Alaska for 
resale or transfer to an Alaskan Native; or
    (iii) It is an edible portion and it is sold in an Alaskan Native 
village or town.
    (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:
    (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
    (ii) It is sold or transferred to a registered agent for resale or 
transfer to an Indian, Aleut, or Eskimo; or
    (iii) It has first been transformed into an authentic native article 
of handicraft or clothing; or
    (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.
    (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:
    (i) The name and address of the applicant;
    (ii) A description of the applicant's procedures for receiving, 
storing, processing, and shipping materials;
    (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;
    (iv) Such other information as the Secretary may request;
    (v) 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 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.

    (vi) The signature of the applicant.

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.
    (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.
    (e) Marking and reporting of Cook Inlet Beluga Whales--(1) 
Definitions. In addition to definitions contained in the MMPA and the 
regulations in this part:
    (i) Reporting means the collection and delivery of biological data, 
harvest data, and other information regarding the effect of taking a 
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by 
NMFS.
    (ii) Whaling captain or vessel operator means the individual who is 
identified by Alaskan Natives as the leader of each hunting team 
(usually the other

[[Page 20]]

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.
    (iii) Cook Inlet means all waters of Cook Inlet north of 59[deg] 
North latitude, including, but not limited to, waters of Kachemak Bay, 
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
    (2) Marking. Each whaling captain or vessel operator, upon killing 
and landing a beluga whale (Delphinapterus leucas) 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.
    (3) Reporting. 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.
    (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.
    (ii) Data collected pursuant to paragraph (e) of this section will 
be reported on forms obtained from the Anchorage Field Office. These 
data will be maintained in the NMFS Alaska Regional Office in Juneau, 
Alaska, where such data will be available for public review.
    (4) No person may falsify any information required to be set forth 
on the reporting form as required by paragraph (e) of this section.
    (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.
    (f) Harvest management of Cook Inlet beluga whales--(1) Cooperative 
management of subsistence harvest. Subject to the provisions of 16 
U.S.C. 1371(b) and any further limitations set forth in Sec. 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).
    (2) Limitations. (i) Sale of Cook Inlet beluga whale parts and 
products. 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.
    (ii) Beluga whale calves or adults with calves. The taking of a calf 
or an adult whale accompanied by a calf is prohibited.
    (iii) Season. All takings of beluga whales authorized under Sec. 
216.23(f) shall occur no earlier than July 1 of each year.
    (iv) Taking during 2001-2004. The harvest of Cook Inlet beluga 
whales is restricted during the four-year period of 2001-2004 as 
follows:
    (A) Strike limitations. 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).
    (B) Strike allocations. 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.

[[Page 21]]

    (C) Emergency provisions. Takings of beluga whales authorized under 
Sec. 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.
    (v) Taking during 2005 and subsequent years. [Reserved]

[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]



Sec. 216.24  Taking and related acts incidental to commercial fishing
operations by tuna purse seine vessels in the eastern tropical

Pacific Ocean.

    (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 Sec. 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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (b) Permits--(1) Vessel permit. 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

[[Page 22]]

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.
    (2) Operator permit. 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.
    (3) Possession and display. 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.
    (4) Application for vessel permit. The owner or managing owner of a 
purse seine vessel may apply for a permit 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 Sec. 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:
    (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;
    (ii) A statement of whether the vessel will make sets involving the 
intentional taking of marine mammals;
    (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;
    (iv) The name(s) of the operator(s) anticipated to be used; and
    (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.
    (5) Application for operator permit. An applicant for an operator 
permit must provide the following information to the Administrator, 
Southwest Region, allowing at least 45 days for processing:
    (i) The name, address, telephone and fax numbers of the applicant;
    (ii) The type and identification number(s) of any Federal, state, 
and local fishing licenses held by the applicant;

[[Page 23]]

    (iii) The name of the vessel(s) on which the applicant anticipates 
serving as an operator;
    (iv) The date, location, and provider of training required under 
paragraph (c)(5) of this section for the operator permit; and
    (v) The applicant's signature or the signature of the applicant's 
representative.
    (6) Fees--(i) Vessel permit application fees. 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.
    (ii) Operator permit fee. 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.
    (iii) Observer placement fee. 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.
    (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 Sec. 300.22(b)(4) of this title.
    (B) The owner or managing owner of a vessel for which a DML has not 
been requested, but that is listed on the Vessel Register, as defined in 
Sec. 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 Sec. 300.22(b)(4) of this title.
    (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 Sec. 
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 Sec. 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 Sec. 300.22(b)(4) of this title.
    (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 Sec. 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.
    (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 Sec. 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.
    (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

[[Page 24]]

applicable organization approved by the Administrator, Southwest Region.
    (7) Application approval. 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.
    (8) Conditions applicable to all permits--(i) General conditions. 
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.
    (ii) Observer placement. 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.
    (iii) Explosives. The use of explosive devices is prohibited during 
all tuna purse seine operations that involve marine mammals.
    (iv) Reporting requirements. (A) The vessel permit holder of each 
permitted vessel must notify the Administrator, Southwest Region or the 
IATTC contact designated by the Administrator, Southwest Region, at 
least 5 days in advance of the vessel's departure on a fishing trip to 
allow for observer placement on every trip.
    (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.
    (v) Data release. 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.
    (9) Mortality and serious injury reports. 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.
    (c) Purse seining by vessels with Dolphin Mortality Limits (DMLs). 
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:
    (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.
    (2) No retention of live marine mammals. 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.
    (3) Gear and equipment required for valid permit. A vessel 
possessing a vessel permit for purse seining involving

[[Page 25]]

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.
    (i) Dolphin safety panel. 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.
    (ii) Dolphin safety panel markers. Each end of the dolphin safety 
panel and dolphin apron, if present, must be identified with an easily 
distinguishable marker.
    (iii) Dolphin safety panel hand holds. 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.
    (iv) Dolphin safety panel corkline hangings. 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.
    (v) Speedboats. 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.
    (vi) Raft. A raft suitable to be used as a dolphin observation-and-
rescue platform must be carried.
    (vii) Facemask and snorkel, or viewbox. At least two facemasks and 
snorkels or viewboxes must be carried.
    (viii) Lights. 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.
    (4) Vessel inspection--(i) Annual. At least once during each 
calendar year, purse seine nets and other gear and equipment required 
under Sec. 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.
    (ii) Reinspection. 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.
    (iii) Failure to pass inspection. 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.
    (5) Operator permit holder training requirements. An operator must 
maintain

[[Page 26]]

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.
    (6) Marine mammal release requirements. 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.
    (i) Backdown procedure. 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 release procedures required will be continued so that all live 
dolphins are released prior to the initiation of the sack-up procedure.
    (ii) Prohibited use of sharp or pointed instrument. The use of a 
sharp or pointed instrument to remove any marine mammal from the net is 
prohibited.
    (iii) Sundown sets prohibited. 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.
    (iv) Dolphin safety panel. 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.
    (7) Experimental fishing operations. 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.

[[Page 27]]

    (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:
    (A) The name(s) of the vessel(s) and the vessel permit holder(s) to 
participate;
    (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;
    (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;
    (D) A description of the applicability of this modification to other 
purse seine vessels;
    (E) The planned design, time, duration, and general area of the 
experimental operation;
    (F) The name(s) of the permitted operator(s) of the vessel(s) during 
the experiment;
    (G) A statement of the qualifications of the individual or company 
doing the analysis of the research; and
    (H) Signature of the permitted operator or of the operator's 
representative.
    (ii) The Administrator, Southwest Region, will acknowledge receipt 
of the application and, upon determining that it is complete, will 
publish a notice in the Federal Register 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.
    (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.
    (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.
    (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.
    (8) Operator permit holder performance requirements. [Reserved]
    (9) Vessel permit holder dolphin mortality limits. 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.
    (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.
    (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

[[Page 28]]

on the IDCP and will not exceed one-half of an unadjusted full-year DML 
as calculated by the IDCP.
    (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.
    (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.
    (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.
    (iv)(A) A vessel assigned a full-year DML that does not make a set 
on dolphins by April 1 or that leaves the fishery will lose its DML for 
the remainder of the year, unless the failure to set on dolphins is due 
to force majeure or other extraordinary circumstances as determined by 
the International Review Panel.
    (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.
    (C) Any vessel that loses its DML for 2 consecutive years will not 
be eligible to receive a DML for the following year.
    (D) NMFS will determine, based on available information, whether a 
vessel has left the fishery.
    (1) 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.
    (2) 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.
    (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.
    (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

[[Page 29]]

Panel. After two consecutive losses of a DML, a vessel will not be 
eligible to receive a DML for the next fishing year.
    (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.
    (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:
    (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
    (B) after the time and date provided in actual notification or 
notification in the Federal Register 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.
    (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.
    (x) Vessel and operator permit holders must not intentionally deploy 
a purse seine net on or encircle dolphins intentionally:
    (A) after a set in which the vessel's DML, as adjusted, has been 
reached or exceeded; or
    (B) after the date and time provided in actual notification by 
letter, facsimile, radio, or electronic mail, or notice in the Federal 
Register 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.
    (d) Purse seining by vessels without assigned DMLs. 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.
    (e) Observers--(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.
    (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

[[Page 30]]

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.
    (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.
    (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.
    (5)(i) All observers must be provided sleeping, toilet and eating 
accommodations at least equal to that provided to a full crew member. A 
mattress or futon on the floor or a cot is not acceptable in place of a 
regular bunk. Meal and other galley privileges must be the same for the 
observer as for other crew members.
    (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.
    (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.
    (f) Importation, purchase, shipment, sale and transport. (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.
    (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 Sec. 216.3.
    (2) Imports requiring a Fisheries Certificate of Origin. 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.
    (i) HTS numbers requiring a Fisheries Certificate of Origin, subject 
to yellowfin tuna embargo. 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

[[Page 31]]

under paragraphs (f)(6) and (f)(8) of this section, respectively.

(A) Frozen:...............................
0303.42.0020..............................  Yellowfin tuna, whole,
                                             frozen
0303.42.0040..............................  Yellowfin tuna, eviscerated,
                                             head on, frozen
0303.42.0060..............................  Yellowfin tuna, other,
                                             frozen
(B) Airtight Containers: (products
 containing Yellowfin).
1604.14.1010..............................  Tuna, non-specific, in oil,
                                             in foil or other flexible
                                             airtight containers
                                             weighing with their
                                             contents not more than 6.8
                                             kg each
1604.14.1090..............................  Tuna, non-specific, in oil,
                                             in airtight containers,
                                             other
1604.14.2291..............................  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
1604.14.2299..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, under quota
1604.14.3091..............................  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
1604.14.3099..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, over quota
(C) Loins: (Yellowfin)....................
1604.14.4000..............................  Tuna, not in airtight
                                             containers, not in oil,
                                             weighing with their
                                             contents over 6.8 kg
1604.14.5000..............................  Tuna, not in airtight
                                             containers, other
(D) Other: (products containing Yellowfin)
0304.20.2066..............................  Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5 kg, frozen
0304.20.6096..............................  Other fish, fillets, frozen
1604.20.2500..............................  Balls and cakes, not in oil,
                                             in airtight containers,
                                             other
1604.20.3000..............................  Balls and cakes, other
------------------------------------------------------------------------

    (ii) HTS numbers requiring a Fisheries Certificate of Origin, not 
subject to yellowfin tuna embargo. 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 shipments imported into the United States 
under these HTS numbers must be accompanied by an FCO.

(A) Frozen:...............................
0303.41.0000..............................  Albacore or longfinned
                                             tunas, frozen
0303.43.0000..............................  Skipjack, frozen
0303.44.0000..............................  Bigeye, frozen
0303.45.0000..............................  Bluefin, frozen
0303.46.0000..............................  Bluefin Southern, frozen
0303.49.0100..............................  Other tuna, frozen
(B) Airtight Containers: (Other than
 Yellowfin).
1604.14.1010..............................  Tuna, non-specific, in oil,
                                             in foil or other flexible
                                             airtight containers
                                             weighing with their
                                             contents not more than 6.8
                                             kg each
1604.14.1090..............................  Tuna, non-specific, in oil,
                                             in airtight containers,
                                             other
1604.14.2251..............................  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
1604.14.2259..............................  Tuna, albacore, not in oil,
                                             in airtight containers,
                                             other, under quota
1604.14.2291..............................  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
1604.14.2299..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, other, under
                                             quota
1604.14.3051..............................  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
1604.14.3059..............................  Tuna, albacore, not in oil,
                                             in airtight containers,
                                             other, over quota
1604.14.3091..............................  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
1604.14.3099..............................  Tuna, other than albacore,
                                             not in oil, in airtight
                                             containers, other, over
                                             quota
(C) Loins: (Other than Yellowfin).........
1604.14.4000..............................  Tuna, not in airtight
                                             containers, in bulk or in
                                             immediate containers
                                             weighing with their
                                             contents over 6.8 kg, in
                                             oil
1604.14.5000..............................  Tuna, not in airtight
                                             containers, other
(D) Other: (only if the product contains
 tuna).
0304.20.2066..............................  Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5 kg, frozen
0304.20.6096..............................  Other fish, fillets, frozen
1604.20.2500..............................  Balls and cakes, not in oil,
                                             in airtight containers,
                                             other
1604.20.3000..............................  Balls and cakes, other
------------------------------------------------------------------------

    (iii) Exports from driftnet nations only: HTS numbers requiring a 
Fisheries Certificate of Origin and official certification. 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.

(A) Frozen:...............................
0303.19.0012..............................  Salmon, chinook, frozen
0303.19.0022..............................  Salmon, chum, frozen
0303.19.0032..............................  Salmon, pink, frozen

[[Page 32]]

 
0303.19.0052..............................  Salmon, coho, frozen
0303.19.0062..............................  Salmon, Pacific, non-
                                             specific, frozen
0303.21.0000..............................  Trout, frozen
0303.22.0000..............................  Salmon, Atlantic and Danube,
                                             frozen
0303.29.0000..............................  Salmonidae, other, frozen
0303.75.0010..............................  Dogfish, frozen
0303.75.0090..............................  Other sharks, frozen
0303.79.2041..............................  Swordfish steaks, frozen
0303.79.2049..............................  Swordfish, other, frozen
0303.79.4097..............................  Fish, other, frozen
0304.20.2066..............................  Fish, fillet, skinned, in
                                             blocks, frozen over 4.5 kg
0304.20.6008..............................  Salmonidae, salmon fillet,
                                             frozen
0304.20.6092..............................  Swordfish fillets, frozen
0304.20.6096..............................  Fish, fillet, other, frozen
0307.49.0010..............................  Squid, other, fillet, frozen
(B) Canned:...............................
1604.11.2020..............................  Salmon, pink, canned in oil,
                                             in airtight containers
1604.11.2030..............................  Salmon, sockeye, canned in
                                             oil, in airtight containers
1604.11.2090..............................  Salmon, other, canned in
                                             oil, in airtight containers
1604.11.4010..............................  Salmon, chum, canned, not in
                                             oil
1604.11.4020..............................  Salmon, pink, canned, not in
                                             oil
1604.11.4030..............................  Salmon, sockeye, canned, not
                                             in oil
1604.11.4040..............................  Salmon, other, canned, not
                                             in oil
1604.11.4050..............................  Salmon, other, canned, not
                                             in oil
1604.19.2000..............................  Fish, other, in airtight
                                             containers, not in oil
1604.19.3000..............................  Fish, other, in airtight
                                             containers, in oil
1605.90.6050..............................  Squid, loligo, prepared/
                                             preserved
1605.90.6055..............................  Squid, other, prepared/
                                             preserved
(C) Other:................................
0305.30.6080..............................  Fish, other, fillet, dried/
                                             salted/brine
0305.49.4040..............................  Fish, other, smoked
0305.59.2000..............................  Shark fins, dried
0305.59.4000..............................  Fish, other, dried
0305.69.4000..............................  Salmon, other, salted (or in
                                             brine)
0305.69.5000..............................  Fish, other, salted (or in
                                             brine), in immediate
                                             containers, not over 6.8 kg
0305.69.6000..............................  Fish, other, salted (or in
                                             brine)
0307.49.0050..............................  Squid, other, frozen/dried/
                                             salted/brine
0307.49.0060..............................  Squid, other, & cuttle fish
                                             frozen/dried/salted/brine
------------------------------------------------------------------------

    (3) Disposition of Fisheries Certificates of Origin. The FCO 
described in paragraph (f)(4) of this section may be obtained from the 
Administrator, Southwest Region, or downloaded from the Internet at 
http://swr.nmfs.noaa.gov/noaa370.htm.
    (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.
    (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: SWRTuna.Track@noaa.gov. 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.
    (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.
    (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.
    (4) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the exporter(s) of the accompanying shipment, must 
include the following information:
    (i) Customs entry identification;
    (ii) Date of entry;
    (iii) Exporter's full name and complete address;

[[Page 33]]

    (iv) Importer's or consignee's full name and complete address;
    (v) Species description, product form, and HTS number;
    (vi) Total net weight of the shipment in kilograms;
    (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);
    (viii) Type of fishing gear used to harvest the fish (purse seine, 
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and line, 
or other);
    (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;
    (x) Dates on which the fishing trip began and ended;
    (xi) The name of the harvesting vessel;
    (xii) Dolphin-safe condition of the shipment, described by checking 
the appropriate statement on the form and attaching additional 
certifications if required;
    (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
    (xiv) Each additional importer, exporter, or processor who takes 
custody of the shipment must sign and date the form to certify that the 
form and attached documentation accurately describes the shipment of 
fish that they accompany.
    (5) Dolphin-safe label. 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 (Sec. 216.90 et seq.).
    (6) Scope of embargoes--(i) ETP yellowfin tuna embargo. 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:
    (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;
    (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
    (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.
    (ii) Driftnet embargo. 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.
    (iii) Pelly certification. 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)).

[[Page 34]]

    (iv) Coordination. The Assistant Administrator will promptly advise 
the Department of State and the Department of Homeland Security of 
embargo decisions, actions, and finding determinations.
    (7) Large-scale driftnet nation: determination. 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 Federal 
Register. 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 
Federal Register, that none of that nation's vessels engage in fishing 
with large-scale driftnets.
    (8) Affirmative finding procedure for nations harvesting yellowfin 
tuna using a purse seine in the ETP. (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 Federal Register. A finding will remain valid for 1 year 
or for such other period as the Assistant Administrator may determine. 
An affirmative finding will be terminated if the Assistant Administrator 
determines that the requirements of this paragraph are no longer being 
met. Every 5 years, the government of the harvesting nation must submit 
such documentary evidence directly to the Assistant Administrator and 
request an affirmative finding. Documentary evidence 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:
    (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;
    (B) The nation is meeting its obligations under the IDCP and its 
obligations of membership in the IATTC, including all financial 
obligations;
    (C)(1) 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
    (2)(i) 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
    (ii) 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
    (D)(1) 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;
    (2) 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

[[Page 35]]

any) for the year preceding the year in which the finding would start; 
or
    (3)(i) 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
    (ii) 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.
    (iii) Documentary Evidence and Compliance with the IDCP--(A) 
Documentary Evidence. 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.
    (B) Revocation. 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 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.
    (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.
    (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.
    (vi) Reconsideration of finding. 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.
    (9) Intermediary nation. 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.
    (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.
    (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.
    (iii) The Assistant Administrator will publish in the Federal 
Register 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.
    (iv) Changing the status of intermediary nation determinations. 
Imports

[[Page 36]]

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 Federal Register, 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.
    (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.
    (10) Fish refused entry. 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.
    (11) Disposition of fish refused entry into the United States. Fish 
that is denied entry under paragraph (f)(2) of this section and that is 
not exported under Customs supervision within 90 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.
    (12) Market Prohibitions. (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:
    (A) Dolphin-safe under subpart H of this part; or
    (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.
    (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).
    (g) Penalties. 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.

[69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005]



Sec. 216.25  Exempted marine mammals and marine mammal products.

    (a) The provisions of the MMPA and these regulations shall not 
apply:
    (1) To any marine mammal taken before December 21, 1972 \1\, or
---------------------------------------------------------------------------

    \1\ 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.
---------------------------------------------------------------------------

    (2) To any marine mammal product if the marine mammal portion of 
such product consists solely of a marine mammal taken before such date.
    (b) The prohibitions contained in Sec. 216.12(c) (3) and (4) shall 
not apply to marine mammals or marine mammal

[[Page 37]]

products imported into the United States before the date on which a 
notice is published in the Federal Register with respect to the 
designation of the species or stock concerned as depleted or endangered.
    (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.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 
FR 50376, Oct. 3, 1994]



Sec. 216.26  Collection of certain marine mammal parts without
prior authorization.

    Notwithstanding any other provision of this subpart:
    (a) Any bones, teeth or ivory of any dead marine mammal may be 
collected from a beach or from land within\1/4\ of a mile of the ocean. 
The term ocean includes bays and estuaries.
    (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.
    (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 Sec. 216.22(c). 
In registering a marine mammal part collected or imported under 
paragraph (b) of this section, the person who collected or imported the 
part must also state the scientific research or enhancement purpose for 
which the part was collected or imported.
    (d) No person may purchase, sell or trade for commercial purposes 
any marine mammal part collected or imported under this section.
    (e) The export of parts collected without prior authorization under 
paragraph (b) of this section may occur if consistent with the 
provisions at Sec. 216.37(d) under subpart D.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 
FR 21933, May 10, 1996]



Sec. 216.27  Release, non-releasability, and disposition under special
exception permits for rehabilitated marine mammals.

    (a) Release requirements. (1) Any marine mammal held for 
rehabilitation must be released within six months of capture or import 
unless the attending veterinarian determines that:
    (i) The marine mammal might adversely affect marine mammals in the 
wild;
    (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
    (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.
    (2) The custodian of the rehabilitated marine mammal shall provide 
written notification prior to any release into the wild.
    (i) Notification shall be provided to:
    (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
    (B) The Office Director at least 30 days in advance of releasing any 
imported marine mammal.
    (ii) Notification shall include the following:
    (A) A description of the marine mammal, including its physical 
condition and estimated age;
    (B) The date and location of release; and
    (C) The method and duration of transport prior to release.
    (3) The Regional Director, or the Office Director as appropriate, 
may:
    (i) Require additional information prior to any release;

[[Page 38]]

    (ii) Change the date or location of release, or the method or 
duration of transport prior to release;
    (iii) Impose additional conditions to improve the likelihood of 
success or to monitor the success of the release; or
    (iv) Require other disposition of the marine mammal.
    (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.
    (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.
    (b) Non-releasability and postponed determinations. (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.
    (2) Upon receipt of a report under paragraph (b)(1) of this section, 
the Regional Director or Office Director, in their sole discretion, may:
    (i) Order the release of the marine mammal;
    (ii) Order continued rehabilitation for an additional 6 months; or
    (iii) Order other disposition as authorized.
    (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:
    (i) Request authorization to retain or transfer custody of the 
marine mammal in accordance with paragraph (c) of this section, or;
    (ii) Humanely euthanize the marine mammal or arrange any other 
disposition of the marine mammal authorized by the Regional Director or 
Office Director.
    (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.
    (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.
    (c) Disposition for a special exception purpose. (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.
    (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.
    (3) The Office Director may authorize retention or transfer of 
custody of the marine mammal only if:
    (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 Sec. 216.33 or a request for a major amendment 
under Sec. 216.39 has been submitted to the Office Director and has 
been found complete;
    (ii) The recipient agrees to hold the marine mammal in conformance 
with all applicable requirements and standards; and
    (iii) The recipient acknowledges that the marine mammal is subject 
to seizure by the Office Director:
    (A) If, at any time pending issuance of the major amendment or 
permit, the Office Director determines that seizure

[[Page 39]]

is necessary in the interest of the health or welfare of the marine 
mammal;
    (B) If the major amendment or permit is denied; or
    (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.
    (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.
    (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
    (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.
    (d) Reporting. In addition to the report required under Sec. 
216.22(b), the person authorized to hold marine mammals for 
rehabilitation must submit reports to the Regional Director or Office 
Director regarding release or other disposition. These reports must be 
provided in the form and frequency specified by the Regional Director or 
Office Director.

[61 FR 21933, May 10, 1996]



                      Subpart D_Special Exceptions



Sec. 216.30  [Reserved]



Sec. 216.31  Definitions.

    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.

[61 FR 21935, May 10, 1996]



Sec. 216.32  Scope.

    The regulations of this subpart apply to:
    (a) All marine mammals and marine mammal parts taken or born in 
captivity after December 20, 1972; and
    (b) All marine mammals and marine mammal parts that are listed as 
threatened or endangered under the ESA.

[61 FR 21935, May 10, 1996]



Sec. 216.33  Permit application submission, review, and decision
procedures.

    (a) Application submission. 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.
    (b) Applications to export living marine mammals. For applicants 
seeking a special exception permit to export living marine mammals, the 
application must:
    (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.
    (2) Include a certification from the foreign government that:
    (i) The information set forth in the application is accurate;
    (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
    (iii) The foreign government involved will afford comity to any 
permit amendment, modification, suspension or revocation decision.

[[Page 40]]

    (c) Initial review. (1) NMFS will notify the applicant of receipt of 
the application.
    (2) During the initial review, the Office Director will determine:
    (i) Whether the application is complete.
    (ii) Whether the proposed activity is for purposes authorized under 
this subpart.
    (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.
    (iv) Whether the activities proposed are to be conducted consistent 
with the permit restrictions and permit specific conditions as described 
in Sec. 216.35 and Sec. 216.36(a).
    (v) Whether sufficient information is included regarding the 
environmental impact of the proposed activity to enable the Office 
Director:
    (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
    (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.
    (3) The Office Director may consult with the Marine Mammal 
Commission (Commission) and its Committee of Scientific Advisors on 
Marine Mammals (Committee) in making these initial, and any subsequent, 
determinations.
    (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.
    (d) Notice of receipt and application review. (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 Federal 
Register. The notice will:
    (i) Summarize the application, including:
    (A) The purpose of the request;
    (B) The species and number of marine mammals;
    (C) The type and manner of special exception activity proposed;
    (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
    (E) The requested period of the permit.
    (ii) List where the application is available for review.
    (iii) Invite interested parties to submit written comments 
concerning the application within 30 days of the date of the notice.
    (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.
    (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.
    (3) The Office Director may consult with any other person, 
institution, or agency concerning the application.
    (4) Within 30 days of publication of the notice of receipt in the 
Federal Register, any interested party may submit written comments or 
may request a public hearing on the application.
    (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 Federal Register. Notice of the date, time, and place of 
the public hearing

[[Page 41]]

will be published in the Federal Register 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.
    (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 Federal Register within 60 days of publication 
of the notice of receipt in the Federal Register.
    (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.
    (e) Issuance or denial procedures. (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.
    (2) The decision to issue or deny a permit will be based upon:
    (i) All relevant issuance criteria set forth at Sec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set forth 
at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (iii) All comments received or views solicited on the permit 
application; and
    (iv) Any other information or data that the Office Director deems 
relevant.
    (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:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; and
    (ii) Acknowledges that the authority to conduct certain activities 
specified in the permit is conditional and subject to authorization by 
the Office Director.
    (4) Notice of the decision of the Office Director shall be published 
in the Federal Register 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:
    (i) Was applied for in good faith;
    (ii) If exercised, will not operate to the disadvantage of such 
endangered or threatened species; and
    (iii) Is consistent with the purposes and policy set forth in 
section 2 of the ESA.
    (5) If the permit is denied, the Office Director shall provide the 
applicant with an explanation for the denial.
    (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 Federal Register within 10 days of issuance.
    (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.

[61 FR 21935, May 10, 1996]



Sec. 216.34  Issuance criteria.

    (a) For the Office Director to issue any permit under this subpart, 
the applicant must demonstrate that:

[[Page 42]]

    (1) The proposed activity is humane and does not present any 
unnecessary risks to the health and welfare of marine mammals;
    (2) The proposed activity is consistent with all restrictions set 
forth at Sec. 216.35 and any purpose-specific restrictions as 
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (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;
    (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;
    (5) Whether the applicant's expertise, facilities, and resources are 
adequate to accomplish successfully the objectives and activities stated 
in the application;
    (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
    (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.
    (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.

[61 FR 21936, May 10, 1996]



Sec. 216.35  Permit restrictions.

    The following restrictions shall apply to all permits issued under 
this subpart:
    (a) The taking, importation, export, or other permitted activity 
involving marine mammals and marine mammal parts shall comply with the 
regulations of this subpart.
    (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 
Sec. 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.
    (c) Except as provided for in Sec. 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.
    (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.
    (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.
    (f) The permit holder is responsible for all activities of any 
individual who is operating under the authority of the permit;
    (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;
    (h) Persons who require state or Federal licenses to conduct 
activities authorized under the permit must be duly licensed when 
undertaking such activities;
    (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;

[[Page 43]]

    (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.

[61 FR 21936, May 10, 1996]



Sec. 216.36  Permit conditions.

    (a) Specific conditions. (1) Permits issued under this subpart shall 
contain specific terms and conditions deemed appropriate by the Office 
Director, including, but not limited to:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which marine mammals may be taken according to 
type of take;
    (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;
    (iv) The period during which the permit is valid.
    (2) [Reserved]
    (b) Other conditions. 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.

[61 FR 21937, May 10, 1996]



Sec. 216.37  Marine mammal parts.

    With respect to marine mammal parts acquired by take or import 
authorized under a permit issued under this subpart:
    (a) Marine mammal parts are transferrable if:
    (1) The person transferring the part receives no remuneration of any 
kind for the marine mammal part;
    (2) The person receiving the marine mammal part is:
    (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;
    (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
    (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;
    (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.
    (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;
    (4) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal part or container;
    (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
    (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,

[[Page 44]]

and, if applicable, the recipient's permit number.
    (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:
    (1) A record of the loan is maintained; and
    (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).
    (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:
    (1) Maintained as part of a properly curated, professionally 
accredited collection; or
    (2) Made available for purposes of scientific research or 
enhancement at the request of the Office Director.
    (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:
    (1) The permit holder or other person receives no remuneration for 
the marine mammal part;
    (2) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal specimen or container;
    (3) The marine mammal part is exported or reimported in compliance 
with all applicable domestic and foreign laws;
    (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
    (5) Special reports are submitted within 30 days after both export 
and reimport as required by the Office Director under Sec. 216.38.

[61 FR 21937, May 10, 1996]



Sec. 216.38  Reporting.

    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.

[61 FR 21937, May 10, 1996]



Sec. 216.39  Permit amendments.

    (a) General. 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.
    (1) A major amendment means any change to the permit specific 
conditions under Sec. 216.36(a) regarding:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (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;
    (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
    (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.
    (2) A minor amendment means any amendment that does not constitute a 
major amendment.
    (b) Amendment requests and proposals. (1) Requests by a permit 
holder for an amendment must be submitted in writing and include the 
following:
    (i) The purpose and nature of the amendment;
    (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 Sec. 216.34, 
and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.

[[Page 45]]

    (iii) Any additional information required by the Office Director for 
purposes of reviewing the proposed amendment.
    (2) If an amendment is proposed by the Office Director, the permit 
holder will be notified of the proposed amendment, together with an 
explanation.
    (c) Review of proposed amendments--(1) Major amendments. The 
provisions of Sec. 216.33(d) and (e) governing notice of receipt, 
review and decision shall apply to all proposed major amendments.
    (2) Minor amendments. (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.
    (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 Federal Register within 10 
days from the date of the Office Director's decision.
    (iii) A minor amendment will be effective upon a final decision by 
the Office Director.

[61 FR 21937, May 10, 1996]



Sec. 216.40  Penalties and permit sanctions.

    (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.
    (b) All special exception permits are subject to suspension, 
revocation, modification and denial in accordance with the provisions of 
subpart D of 15 CFR part 904.

[61 FR 21938, May 10, 1996]



Sec. 216.41  Permits for scientific research and enhancement.

    In addition to the requirements under Sec. Sec. 216.33 through 
216.38, permits for scientific research and enhancement are governed by 
the following requirements:
    (a) Applicant. (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.
    (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.
    (b) Issuance Criteria. For the Office Director to issue any 
scientific research or enhancement permit, the applicant must 
demonstrate that:
    (1) The proposed activity furthers a bona fide scientific or 
enhancement purpose;
    (2) If the lethal taking of marine mammals is proposed:
    (i) Non-lethal methods for conducting the research are not feasible; 
and
    (ii) For depleted, endangered, or threatened species, the results 
will directly benefit that species or stock, or will fulfill a 
critically important research need.
    (3) Any permanent removal of a marine mammal from the wild is 
consistent with any applicable quota established by the Office Director.
    (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.
    (5) For species or stocks designated or proposed to be designated as 
depleted, or listed or proposed to be listed as endangered or 
threatened:
    (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;
    (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;
    (iii) The proposed research will either:

[[Page 46]]

    (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;
    (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
    (C) Contribute significantly to fulfilling a critically important 
research need.
    (6) For proposed enhancement activities:
    (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.
    (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.
    (iii) The activity is consistent with:
    (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
    (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.
    (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:
    (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
    (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.
    (v) The Office Director may authorize the public display of marine 
mammals held under the authority of an enhancement permit only if:
    (A) The public display is incidental to the authorized captive 
maintenance;
    (B) The public display will not interfere with the attainment of the 
survival or recovery objectives;
    (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
    (D) The marine mammals will be excluded from any interactive program 
and will not be trained for performance.
    (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:
    (A) Is incidental to the permitted enhancement activities; and
    (B) Will not interfere with the attainment of the survival or 
recovery objectives.
    (c) Restrictions. (1) The following restrictions apply to all 
scientific research permits issued under this subpart:
    (i) Research activities must be conducted in the manner authorized 
in the permit.
    (ii) Research results shall be published or otherwise made available 
to the scientific community in a reasonable period of time.
    (iii) Research activities must be conducted under the direct 
supervision of

[[Page 47]]

the principal investigator or a co-investigator identified in the 
permit.
    (iv) Personnel involved in research activities shall be reasonable 
in number and limited to:
    (A) Individuals who perform a function directly supportive of and 
necessary to the permitted research activity; and
    (B) Support personnel included for the purpose of training or as 
backup personnel for persons described in paragraph (c)(1)(iv)(A).
    (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.
    (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:
    (A) Are necessary to address scientific research objectives and have 
been specifically authorized by the Office Director under the scientific 
research permit; and
    (B) Are conducted incidental to and do not in any way interfere with 
the permitted scientific research; and
    (C) Are conducted in a manner consistent with provisions applicable 
to public display, unless exceptions are specifically authorized by the 
Office Director.
    (vii) Any activity conducted incidental to the authorized scientific 
research activity must not involve any taking of marine mammals beyond 
what is necessary to conduct the research (i.e., educational and 
commercial photography).
    (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.

[61 FR 21938, May 10, 1996]



Sec. 216.42  Photography. [Reserved]



Sec. 216.43  Public display. [Reserved]



Sec. 216.44  Applicability/transition.

    (a) General. 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.
    (b) Scientific research. Any intrusive research as defined in Sec. 
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.

[61 FR 21939, May 10, 1996]



Sec. 216.45  General Authorization for Level B harassment for 
scientific research.

    (a) General Authorization. (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 Sec. 216.3, for purposes of bona fide 
scientific research Provided, That:
    (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
    (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 Sec. 222.23 through Sec. 222.28, to take marine 
mammals in the wild for the purpose of scientific research, the taking 
authorized under the permit involves such

[[Page 48]]

Level B harassment of marine mammals or marine mammal stocks, and they 
comply with the terms and conditions of that permit.
    (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.
    (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).
    (b) Letter of intent. 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.
    (1) The letter of intent must be submitted by the principal 
investigator (who shall be deemed the applicant). For purposes of this 
section, the principal investigator is the individual who is responsible 
for the overall research project, or the institution, governmental 
entity, or corporation responsible for supervision of the principal 
investigator.
    (2) The letter of intent must include the following information:
    (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;
    (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;
    (iii) The geographic location(s) in which the research is to be 
conducted, e.g., geographic name or lat./long.;
    (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;
    (v) The purpose of the research, including a description of how the 
proposed research qualifies as bona fide research as defined in Sec. 
216.3; and
    (vi) The methods to be used to conduct the research.
    (3) The letter of intent must be signed, dated, and certified by the 
applicant as follows:

    In accordance with section 104(c)(3)(C) of the Marine Mammal 
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) 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.

    (c) Confirmation that the General Authorization applies or 
notification of permit requirement. (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:

[[Page 49]]

    (i) Confirming that the General Authorization applies to the 
proposed scientific research as described in the letter of intent;
    (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
    (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 Sec. 216.3.
    (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.
    (3) Periodically, NMFS will publish a summary document in the 
Federal Register notifying the public of letters of confirmation issued.
    (d) Terms and conditions. Persons issued letters of confirmation in 
accordance with paragraph (c) of this section are responsible for 
complying with the following terms and conditions:
    (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;
    (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:
    (i) A summary of research activities conducted;
    (ii) Identification of the species and number of each species taken 
by Level B harassment;
    (iii) An evaluation of the progress made in meeting the objectives 
of the research as described in the letter of intent; and
    (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.
    (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;
    (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;
    (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;
    (6) If research activities result in a taking which exceeds Level B 
harassment, the applicant shall:
    (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
    (ii) Temporarily discontinue for 72 hours all field research 
activities that

[[Page 50]]

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.
    (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:
    (i) Allow any employee of NOAA or any other person designated by the 
Director, Office of Protected Resources to observe research activities; 
and
    (ii) Provide any documents or other information relating to the 
scientific research;
    (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
    (9) Persons conducting scientific research under authority of the 
General Authorization may not transfer or assign any authority granted 
thereunder to any other person.
    (e) Suspension, revocation, or modification. (1) NMFS may suspend, 
revoke, or modify the authority to conduct scientific research under the 
General Authorization if:
    (i) The letter of intent included false information or statements of 
a material nature;
    (ii) The research does not constitute bona fide scientific research;
    (iii) Research activities result in takings of marine mammals other 
than by Level B harassment;
    (iv) Research activities differ from those described in the letter 
of intent submitted by the applicant and letter of confirmation issued 
by NMFS; or
    (v) The applicant violates any term or condition set forth in this 
section.
    (2) Any suspension, revocation, or modification is subject to the 
requirements of 15 CFR part 904.

[59 FR 50376, Oct. 3, 1994]



Sec. 216.46  U.S. citizens on foreign flag vessels operating under 
the International Dolphin Conservation Program.

    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.

[65 FR 56, Jan. 3, 2000]



Sec. 216.47  Access to marine mammal tissue, analyses, and data.

    (a) Applications for the National Marine Mammal Tissue Bank samples 
(NMMTB). (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:
    (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.
    (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

[[Page 51]]

parameters; and to coordinate effective responses to unusual mortality 
events.
    (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.
    (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;
    (iii) Name of principal investigator, official title, and affiliated 
research or academic organization;
    (iv) Specific tissue sample and quantity desired;
    (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;
    (vi) Verification that funding is available to conduct the research;
    (vii) Estimated date for completion of research, and schedule/date 
of subsequent reports;
    (viii) Agreement that all research findings based on use of the 
banked tissue will be reported to the NMMTB, MMHSRP Program Manager and 
the 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
    (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.
    (2) The applicant shall insert the following acknowledgment in all 
publications, abstracts, or presentations based on research using the 
banked tissue:
    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].
    (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:
    (i) Appropriate Federal agency (NMFS or USFWS) marine mammal 
management office for that particular species; and
    (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.
    (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).
    (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.
    (6) Each committee chair will provide recommendations on the request 
and an evaluation of the study plan to the

[[Page 52]]

Director, Office of Protected Resources, NMFS.
    (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.
    (8) The applicant will bear all shipping and homogenization costs 
related to use of any specimens from the NMMTB.
    (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.
    (b) [Reserved]

[69 FR 41979, July 13, 2004]



Sec. Sec. 216.48-216.49  [Reserved]



                       Subpart E_Designated Ports



Sec. 216.50  Importation at designated ports.

    (a) Any marine mammal or marine mammal product which is subject to 
the jurisdiction of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, Department of Commerce and is 
intended for importation into the United States shall be subject to the 
provisions of 50 CFR part 14.
    (b) For the information of importers, designated ports of entry for 
the United States are:

New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.

    (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:

Alaska--Juneau, Anchorage, Fairbanks
Hawaii--Honolulu
Puerto Rico--San Juan
Guam--Honolulu, Hi.
American Samoa--Honolulu, Hi.
Virgin Islands--San Juan, P.R.

    (d) Importers are advised to see 50 CFR part 14 for importation 
requirements and information.

[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]



       Subpart F_Pribilof Islands, Taking for Subsistence Purposes



Sec. 216.71  Allowable take of fur seals.

    Pribilovians may take fur seals on the Pribilof Islands if such 
taking is
    (a) For subsistence uses, and
    (b) Not accomplished in a wasteful manner.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.72  Restrictions on taking.

    (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.
    (b) By April 1 of every third year, beginning April 1994, the 
Assistant Administrator will publish in the Federal Register 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

[[Page 53]]

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.
    (c)(1) No fur seal may be taken on the Pribilof Islands before June 
23 of each year.
    (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.
    (3) Any taking of adult fur seals or pups, or the intentional taking 
of subadult female fur seals is prohibited.
    (4) Only subadult male fur seals 124.5 centimeters or less in length 
may be taken.
    (5) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (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:
    (1) St. Paul Island--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.
    (2) St. George Island--Seals may only be harvested from the 
following haulout areas: Northeast and Zapadni. Neither haulout area may 
be harvested more than twice per week.
    (e)(1) The Assistant Administrator is required to suspend the take 
provided for in Sec. 215.31 when:
    (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;

or
    (ii) He determines that the harvest is otherwise being conducted in 
a wasteful manner; or
    (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.
    (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.
    (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.
    (f) The Assistant Administrator shall terminate the take provided 
for in Sec. 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.

[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]



Sec. 216.73  Disposition of fur seal parts.

    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

[[Page 54]]

any person unless it is a nonedible byproduct which:
    (a) Has been transformed into an article of handicraft, or
    (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
    (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.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.74  Cooperation with Federal officials.

    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:
    (a) The number of seals taken each day in the subsistence harvest,
    (b) The extent of the utilization of fur seals taken, and
    (c) Other information determined by the Assistant Administrator to 
be necessary for determining the subsistence needs of the Pribilovians 
or for making determinations under Sec. 215.32(e).

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



                Subpart G_Pribilof Islands Administration



Sec. 216.81  Visits to fur seal rookeries.

    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.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.82  Dogs prohibited.

    In order to prevent molestation of fur seal herds, the landing of 
any dogs at Pribilof Islands is prohibited.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.83  Importation of birds or mammals.

    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.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.84  [Reserved]



Sec. 216.85  Walrus and Otter Islands.

    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.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.86  Local regulations.

    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.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.87  Wildlife research.

    (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:
    (1) Any person or agency, seeking to conduct such research shall 
first obtain any Federal or State of Alaska permit

[[Page 55]]

required for the type of research involved.
    (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:
    (i) Copies of the required Federal and State of Alaska permits; and
    (ii) A resume of the intended research program.
    (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.
    (4) Any approved research program shall be subject to such terms and 
conditions as the Director, Pribilof Islands Program deems appropriate.
    (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.

[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]



                  Subpart H_Dolphin Safe Tuna Labeling

    Authority: 16 U.S.C. 1385.



Sec. 216.90  Purposes.

    This subpart governs the requirements for using the official mark 
described in Sec. 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.

[69 FR 55307, Sept. 13, 2004]



Sec. 216.91  Dolphin-safe labeling standards.

    (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:
    (1) ETP large purse seine vessel. In the ETP by a purse seine vessel 
of greater than 400 st (362.8 mt) carrying capacity unless:
    (i) the documentation requirements for dolphin-safe tuna under Sec. 
216.92 and 216.93 are met;
    (ii) No dolphins were killed or seriously injured during the sets in 
which the tuna were caught; and
    (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 Federal Register 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.
    (2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a 
purse seine net:
    (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

[[Page 56]]

    (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;
    (3) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (4) Other fisheries. 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.
    (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.
    (c) A tuna product that is labeled with the official mark, described 
in Sec. 216.95, may not be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

[69 FR 55307, Sept. 13, 2004]



Sec. 216.92  Dolphin-safe requirements for tuna harvested in the ETP
by large purse seine vessels.

    (a) U.S. vessels. 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:
    (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;
    (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 Sec. 216.93; and
    (3) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec. 216.91.
    (b) Imported tuna. (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 Sec. 216.24(f)(8).
    (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:
    (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;
    (ii) The tuna or tuna products are accompanied by a properly 
completed FCO; and
    (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:
    (A) There was an IDCP approved observer on board the vessel(s) 
during the entire trip(s); and
    (B) The tuna contained in the shipment were caught according to the 
dolphin-safe labeling standards of Sec. 216.91.

[69 FR 55307, Sept. 13, 2004]

[[Page 57]]



Sec. 216.93  Tracking and verification program.

    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 Sec. Sec. 
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.
    (a) Tuna tracking forms. 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 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.
    (b) Dolphin-Safe Certification. 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.
    (c) Tracking fishing operations. (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.
    (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.
    (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.

[[Page 58]]

    (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.
    (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.
    (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.
    (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 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.
    (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.
    (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.
    (d) Tracking cannery operations. (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.
    (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:
    (i) Domestic receipts: 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.
    (ii) Import receipts: 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.
    (3) Tuna processors must report on a monthly basis the amounts of 
ETP-

[[Page 59]]

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:
    (i) The date of removal from cold storage or disposition;
    (ii) Storage container or lot identifier number(s) and dolphin-safe 
or non-dolphin-safe designation of each container or lot; and
    (iii) Details of the disposition of fish (for example, canning, 
sale, rejection, etc.).
    (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.
    (e) Tracking imports. All tuna products, except fresh tuna, that are 
imported into the United States must be accompanied by a properly 
certified FCO as required by Sec. 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 Sec. 216.24(f)(3)(ii).
    (f) Verification requirements--(1) Record maintenance. 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 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.
    (2) Record submission. 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.
    (3) Audits and spot checks. 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.
    (g) Confidentiality of proprietary information. 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.''

[69 FR 55307, Sept. 13, 2004, as amended at 70 FR 19009, Apr. 12, 2005]



Sec. 216.94  False statements or endorsements.

    Any person who knowingly and willfully makes a false statement or 
false endorsement required by Sec. 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.

[61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004]



Sec. 216.95  Official mark for ``Dolphin-safe'' tuna products.

    (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 Sec. Sec. 216.91 through 216.94:

[[Page 60]]

[GRAPHIC] [TIFF OMITTED] TR30MY00.019

    (b) Location and size of the official mark. The official mark on 
labels must allow the consumer to identify the official mark and be 
similar in design and scale to figure 1. A full color version of the 
official mark is available at http://swr.ucsd.edu/dsl.htm.

[65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004]



 Subpart I_General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

    Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.



Sec. 216.101  Purpose.

    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.



Sec. 216.102  Scope.

    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:
    (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

[[Page 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;
    (b) Prescribes either regulations under Sec. 216.106, or 
requirements and conditions contained within an incidental harassment 
authorization issued under Sec. 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
    (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.



Sec. 216.103  Definitions.

    In addition to definitions contained in the MMPA, and in Sec. 
216.3, and unless the context otherwise requires, in subsequent subparts 
to this part:
    Arctic waters means the marine and estuarine waters north of 60[deg] 
N. lat.
    Citizens of the United States and U.S. citizens 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.
    Incidental harassment, incidental taking and incidental, but not 
intentional, taking 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 Sec. 216.3).
    Negligible impact 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.
    Small numbers means a portion of a marine mammal species or stock 
whose taking would have a negligible impact on that species or stock.
    Specified activity 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.
    Specified geographical region means an area within which a specified 
activity is conducted and that has certain biogeographic 
characteristics.
    Unmitigable adverse impact means an impact resulting from the 
specified activity:
    (1) That is likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by:
    (i) Causing the marine mammals to abandon or avoid hunting areas;
    (ii) Directly displacing subsistence users; or
    (iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and
    (2) That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.



Sec. 216.104  Submission of requests.

    (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:
    (1) A detailed description of the specific activity or class of 
activities that can be expected to result in incidental taking of marine 
mammals;
    (2) The date(s) and duration of such activity and the specific 
geographical region where it will occur;
    (3) The species and numbers of marine mammals likely to be found 
within the activity area;

[[Page 62]]

    (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;
    (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;
    (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;
    (7) The anticipated impact of the activity upon the species or stock 
of marine mammal;
    (8) The anticipated impact of the activity on the availability of 
the species or stocks of marine mammals for subsistence uses;
    (9) The anticipated impact of the activity upon the habitat of the 
marine mammal populations, and the likelihood of restoration of the 
affected habitat;
    (10) The anticipated impact of the loss or modification of the 
habitat on the marine mammal populations involved;
    (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;
    (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:
    (i) A statement that the applicant has notified and provided the 
affected subsistence community with a draft plan of cooperation;
    (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;
    (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
    (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;
    (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
    (14) Suggested means of learning of, encouraging, and coordinating 
research opportunities, plans, and activities relating to reducing such 
incidental taking and evaluating its effects.
    (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 
Federal Register either:
    (i) A proposed incidental harassment authorization; or
    (ii) A notice of receipt of a request for the implementation or 
reimplementation of regulations governing the incidental taking.

[[Page 63]]

    (2) Through notice in the Federal Register, 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 Federal Register. 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.
    (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.
    (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.
    (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 Federal Register the negative finding along with the 
basis for denying the request.



Sec. 216.105  Specific regulations.

    (a) For all petitions for regulations under this paragraph, 
applicants must provide the information requested in Sec. 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.
    (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:
    (1) Permissible methods of taking;
    (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
    (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.
    (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.



Sec. 216.106  Letter of Authorization.

    (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 Sec. 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.
    (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.

[[Page 64]]

    (c) Letters of Authorization will specify the period of validity and 
any additional terms and conditions appropriate for the specific 
request.
    (d) Notice of issuance of all Letters of Authorization will be 
published in the Federal Register within 30 days of issuance.
    (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:
    (1) The regulations prescribed are not being substantially complied 
with; or
    (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.
    (f) The requirement for notice and opportunity for public review in 
Sec. 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.
    (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.



Sec. 216.107  Incidental harassment authorization for Arctic waters.

    (a) Except for activities that have the potential to result in 
serious injury or mortality, which must be authorized under Sec. 
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:
    (1) Permissible methods of taking by harassment;
    (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
    (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.
    (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.
    (c) An incidental harassment authorization will be either issued or 
denied within 45 days after the close of the public review period.
    (d) Notice of issuance or denial of an incidental harassment 
authorization will be published in the Federal Register within 30 days 
of issuance of a determination.
    (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.
    (f) An incidental harassment authorization shall be modified, 
withdrawn, or suspended if, after notice and opportunity for public 
comment, the Assistant Administrator determines that:
    (1) The conditions and requirements prescribed in the authorization 
are not being substantially complied with; or
    (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.
    (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.
    (h) A violation of any of the terms and conditions of an incidental 
harassment authorization shall subject the

[[Page 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.



Sec. 216.108  Requirements for monitoring and reporting under 
incidental harassment authorizations for Arctic waters.

    (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.
    (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.
    (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.
    (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.
    (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.
    (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:
    (i) Dates and type(s) of activity;
    (ii) Dates and location(s) of any activities related to monitoring 
the effects on marine mammals; and
    (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.
    (2) Monitoring reports will be reviewed by the Assistant 
Administrator and, if determined to be incomplete or inaccurate, will be 
returned to the

[[Page 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.
    (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.



    Subpart J_Taking Marine Mammals Incidental to Coastal Commercial 
    Fireworks Displays at Monterey Bay National Marine Sanctuary, CA

    Source: 71 FR 40932, July 19, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 40932, July 19, 2006, Subpart J 
consisting of Sec. Sec. 216.110 through 216.119 were added, effective 
July 4, 2006 through July 3, 2011.



Sec. 216.110  Specified activity and specified geographical region.

    (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.
    (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 (Zalophus californianus) and 
Pacific harbor seals (Phoca vitulina).



Sec. 216.111  Effective dates.

    Regulations in this subpart are effective from July 4, 2006, through 
July 3, 2011.



Sec. 216.112  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
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 
Sec. 216.110(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified in Sec. 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.
    (c) The taking of marine mammals is authorized for the species 
listed in Sec. 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.



Sec. 216.113  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.110 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.117, no person in connection with the activities described in Sec. 
216.110 may:
    (a) Take any marine mammal not specified in Sec. 216.110(b);
    (b) Take any marine mammal specified in Sec. 216.110(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec. 216.110(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.117.



Sec. 216.114  Mitigation.

    (a) The activity identified in Sec. 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 Sec. 216.110(a), all the mitigation measures contained in 
the Letter of Authorization issued under Sec. Sec. 216.106 and 216.117 
must be implemented, including but not limited to:
    (1) Limiting the location of the authorized fireworks displays to 
the four specifically prescribed areas at Half

[[Page 67]]

Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey 
Peninsula, and Cambria (Santa Rosa Creek);
    (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;
    (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;
    (4) Prohibiting fireworks displays at MBNMS between March 1 and June 
30 of any year; and
    (5) Implementing the following special conditions for fireworks when 
authorizing fireworks displays at the MBNMS:
    (i) Delay of aerial ``salute'' effects until five minutes after the 
commencement of any fireworks display.
    (ii) Removal of all plastic labels and wrappings from pyrotechnic 
devices prior to use.
    (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.
    (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.



Sec. 216.115  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.117 for activities described in Sec. 
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 
Sec. 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 Sec. 216.110(b).
    (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:
    (1) A one-time comprehensive pinniped census at the City of Monterey 
Fourth of July Celebration in 2007;
    (2) A one-time acoustic measurement of the Monterey Fourth of July 
Celebration in 2007;
    (3) Counts of pinnipeds in the impact area prior to all displays at 
all locations; and
    (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.
    (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;
    (1) An estimate of the number of marine mammals disturbed by the 
authorized activities,
    (2) Results of the monitoring required in Sec. 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.
    (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

[[Page 68]]

NMFS, the draft report will be considered to be the final comprehensive 
monitoring report.



Sec. 216.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec. 216.103) conducting the activity 
identified in Sec. 216.110(a) must apply for and obtain either an 
initial Letter of Authorization in accordance with Sec. Sec. 216.117 or 
a renewal under Sec. 216.118.



Sec. 216.117  Letters of Authorization.

    (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 Sec. 
216.118.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (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
    (3) Requirements for mitigation, monitoring and reporting.
    (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).
    (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.



Sec. 216.118  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.117 for the activity identified in Sec. 216.110(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 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;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.115(b), and the Letter of Authorization issued under Sec. 216.117, 
which has been reviewed and accepted by NMFS; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 216.114 and the Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.117, were 
undertaken and will be undertaken during the upcoming annual period of 
validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 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:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.



Sec. 216.119  Modifications to Letters of Authorization.

    (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 Sec. Sec. 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 Sec. 216.118, without modification (except for the 
period of validity), is not considered a substantive modification.

[[Page 69]]

    (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 Sec. 216.110(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.117 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.



Subpart K_Taking of Marine Mammals Incidental to Space Vehicle and Test 
                            Flight Activities

    Source: 69 FR 5727, Feb. 6, 2004, unless otherwise noted.

    Effective Date Note: At 69 FR 5727, Feb. 6, 2004, subpart K, 
consisting of Sec. Sec. 216.120 through 216.128 were added, effective 
Feb. 6, 2004, through Feb. 6, 2009.



Sec. 216.120  Specified activity and specified geographical region.

    (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:
    (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,
    (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,
    (3) Aircraft flight test operations, and
    (4) Helicopter operations from Vandenberg Air Force Base.
    (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 (Phoca vitulina), California sea lions (Zalophus 
californianus), northern elephant seals (Mirounga angustirostris), and 
northern fur seals (Callorhinus ursinus).



Sec. 216.121  Effective dates.

    Regulations in this subpart are effective from February 6, 2004, 
through February 6, 2009.



Sec. 216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. 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 Sec. 216.120, provided all terms, 
conditions, and requirements of these regulations and such Letter(s) of 
Authorization are complied with.
    (b) [Reserved]



Sec. 216.123  Prohibitions.

    No person in connection with the activities described in Sec. 
216.120 shall:
    (a) Take any marine mammal not specified in Sec. 216.120(b);
    (b) Take any marine mammal specified in Sec. 216.120(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec. 216.120(b) if such take 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. 216.106.



Sec. 216.124  Mitigation.

    (a) The activity identified in Sec. 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 Sec. 216.120, the following mitigation measures must be 
utilized:
    (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.g., Point Sal, Purisima Point, Rocky Point), except in 
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting) which may require approaching pinniped rookeries 
closer than 1,000 ft (305 m).
    (2) For missile and rocket launches, holders of Letters of 
Authorization must avoid, whenever possible,

[[Page 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.
    (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.
    (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.
    (5) Additional mitigation measures as contained in a Letter of 
uthorization.
    (b) [Reserved]



Sec. 216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to Sec. 
216.106 for activities described in Sec. 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.
    (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:
    (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,
    (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,
    (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),
    (4) Investigate the potential for spontaneous abortion, disruption 
of effective female-neonate bonding, and other reproductive dysfunction,
    (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,
    (6) Conduct acoustic measurements of those launch vehicles that have 
not had sound pressure level measurements made previously, and
    (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.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (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:
    (1) Date(s) and time(s) of the launch,
    (2) Design of the monitoring program, and
    (3) Results of the monitoring programs, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haulout prior to 
commencement of the launch,

[[Page 71]]

    (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,
    (iii) The length of time(s) pinnipeds remained off the haulout or 
rookery,
    (iv) The numbers of pinniped adults or pups that may have been 
injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted at the time of renewal of the 
LOA.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impact on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (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.



Sec. 216.126  Applications for Letters of Authorization.

    (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 Sec. 216.106.
    (b) The application must be submitted to the National Marine 
Fisheries Service at least 30 days before the activity is scheduled to 
begin.
    (c) Applications for Letters of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity, and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (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.



Sec. 216.127  Renewal of Letters of Authorization.

    A Letter of Authorization issued under Sec. 216.126 for the 
activity identified in Sec. 216.120(a) will be renewed annually upon:
    (a) Timely receipt of the reports required under Sec. 216.125(d), 
if determined by the Assistant Administrator to be acceptable; and
    (b) A determination that the mitigation measures required under 
Sec. 216.124 and the Letter of Authorization have been undertaken.



Sec. 216.128  Modifications of Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 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.
    (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 Sec. 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 
Federal Register subsequent to the action.

Subparts L-M [Reserved]



    Subpart N_Taking of Marine Mammals Incidental to Missile Launch 
                 Operations from San Nicolas Island, CA

    Source: 68 FR 52138, Sept. 2, 2003, unless otherwise noted.

    Effective Date Note: At 68 FR 52138, Sept. 2, 2003, Subpart N, 
consisting of Sec. Sec. 216.151 through 216.158 were added, effective 
Oct. 2, 2003, through Oct. 2, 2008.

[[Page 72]]



Sec. 216.151  Specified activity, geographical region, and incidental
take levels.

    (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.
    (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 (Mirounga angustirostris), harbor seals 
(Phoca vitulina), and California sea lions (Zalophus californianus).
    (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.



Sec. 216.152  Effective dates.

    Regulations in this subpart are effective from October 2, 2003 
through October 2, 2008.



Sec. 216.153  Permissible methods of taking; mitigation.

    (a) Under a Letter of Authorization issued pursuant to Sec. 
216.106, the U.S. Navy may incidentally, but not intentionally, take 
those marine mammal species specified in Sec. 216.151(b) by Level B 
harassment, in the course of conducting target missile launch activities 
within the area described in Sec. 216.151(a), provided all terms, 
conditions, and requirements of these regulations and such Letter of 
Authorization are complied with.
    (b) The activity specified in Sec. 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:
    (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.
    (2) The holder of the Letter of Authorization must avoid launch 
activities during harbor seal pupping season (February to April), when 
operationally practicable.
    (3) The holder of this Authorization must limit launch activities 
during other pinniped pupping seasons, when operationally practicable.
    (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).
    (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.
    (6) The holder of the Letter of Authorization must limit launch 
activities during nighttime hours when operationally practicable.
    (7) Aircraft and helicopter flight paths must maintain a minimum 
altitude of 1,000 feet (304.8 m) from pinniped haul-outs.
    (8) If injurious or lethal take is discovered during monitoring 
conducted under Sec. 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.
    (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.



Sec. 216.154  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.151(b) and by a 
Letter of Authorization issued under Sec. 216.106, the following 
activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions,

[[Page 73]]

and requirements of this part or a Letter of Authorization issued under 
Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified, or in a manner not authorized, in this subpart.



Sec. 216.155  Requirements for monitoring and reporting.

    (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.
    (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.
    (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.
    (d) The holder of the Letter of Authorization must implement the 
following monitoring measures:
    (1) Visual Land-Based Monitoring. (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.
    (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.
    (iii) Documentation, both via autonomous video camera and human 
observer, will consist of:
    (A) Numbers and sexes of each age class in focal subgroups;
    (B) Description and timing of launch activities or other disruptive 
event(s);
    (C) Movements of pinnipeds, including number and proportion moving, 
direction and distance moved, and pace of movement;
    (D) Description of reactions;
    (E) Minimum distances between interacting and reacting pinnipeds;
    (F) Study location;
    (G) Local time;
    (H) Substratum type;
    (I) Substratum slope;
    (J) Weather condition;
    (K) Horizontal visibility; and
    (L) Tide state.
    (2) Acoustic Monitoring. (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.
    (ii) Acoustic recordings will be supplemented by the use of radar 
and telemetry systems to obtain the trajectory of target missiles in 
three dimensions.
    (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.
    (e) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (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 Sec. 216.155(d)(1)(iii) 
to the National Marine Fisheries Service, Southwest Regional Office, 
unless other arrangements for monitoring are agreed in writing.
    (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:
    (i) Timing and nature of launch operations;

[[Page 74]]

    (ii) Summary of pinniped behavioral observations;
    (iii) Estimate of the amount and nature of all takes by harassment 
or by other means.
    (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.
    (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.
    (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.
    (f) Activities related to the monitoring described in paragraph (d) 
of this section, or in the Letter of Authorization issued under Sec. 
216.106, may be conducted without the need for a separate scientific 
research permit.
    (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.



Sec. 216.156  Letter of Authorization.

    (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.
    (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 Sec. 216.157.
    (c) A Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Specified geographic area for taking;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (4) Requirements for monitoring and reporting incidental takes.
    (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.
    (e) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.157  Renewal of a Letter of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.156 for the activity specified in Sec. 216.151 will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application for a Letter of Authorization 
submitted under Sec. 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;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.155, and acceptance by the National Marine Fisheries Service;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring, and reporting measures required under 
Sec. Sec. 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
    (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

[[Page 75]]

taking allowable under these regulations.
    (b) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.158  Modifications to the Letter of Authorization.

    (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 Sec. 216.106 and subject to 
the provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (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 Sec. 216.151(b), the Letter of 
Authorization issued pursuant to Sec. 216.106 may be substantively 
modified without prior notice and an opportunity for public comment. 
Notification will be published in the Federal Register subsequent to the 
action.



 Subpart O_Taking of Marine Mammals Incidental to Shock Testing the USS 
  MESA VERDE (LPD 19) by Detonation of Conventional Explosives in the 
  
               Offshore Waters of the U.S. Atlantic Coast

    Source: 73 FR 43136, July 24, 2007, unless otherwise noted.

    Effective Date Note: At 73 FR 43136, July 24, 2008, subpart O, 
consisting of Sec. Sec. 216.161 through 216.166 was added, effective 
July 18, 2008 through July 18, 2013.



Sec. 216.161  Specified activity and incidental take levels by species.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by persons 
engaged in the detonation of up to four 4,536 kg (10,000 lb) 
conventional explosive charges within the waters of the U.S. Atlantic 
Coast offshore Mayport, FL, for the purpose of conducting one full ship-
shock trial (FSST) of the USS MESA VERDE (LPD 19) during the time period 
between July 23 and September 20, 2008, and May 1 and September 20, 2009 
through 2013.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: Minke whale (Balaenoptera acutorostrata), dwarf sperm whale 
(Kogia simus); pygmy sperm whale (K. breviceps); pilot whale 
(Globicephala macrorhynchus); Atlantic spotted dolphin (Stenella 
frontalis); spinner dolphin (S. longirostris); bottlenose dolphin 
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed 
dolphin (Steno bredanensis); common dolphin (Delphinus delphis), false 
killer whale (Pseudorca crassidens); Cuvier's beaked whale (Ziphius 
cavirostris), Blainville's beaked whale (Mesoplodon densirostris); 
Gervais' beaked whale (M. europaeus); and True's beaked whale (M. 
mirus).
    (c) The incidental take of marine mammals identified in paragraph 
(b) of this section is limited to a total, across all species, of no 
more than 1 mortality or serious injury, 2 takings by Level A harassment 
(injuries), and 282 takings by Level B behavioral harassment (through 
temporary threshold shift). The incidental taking of any species listed 
as threatened or endangered under the Endangered Species Act is 
prohibited.



Sec. 216.162  Effective dates.

    Regulations in this subpart are effective July 18, 2008 through July 
18, 2013.



Sec. 216.163  Mitigation.

    (a) Under a Letter of Authorization issued pursuant to Sec. 
216.106, the U.S. Navy may incidentally, but not intentionally, take 
marine mammals in the course of the activity described in Sec. 
216.161(a) provided all requirements of these regulations and such 
Letter of Authorization are met.
    (b) The activity identified in paragraph Sec. 216.161(a) of this 
section must be conducted in a manner that minimizes, to the greatest 
extent practicable, adverse impacts on marine mammals and their habitat. 
When detonating explosives, the following mitigation measures must be 
implemented:

[[Page 76]]

    (1) Except as provided under the following paragraph (2), if any 
marine mammals are visually detected within the designated 3.5 nm (6.5 
km) Safety Range surrounding the USS MESA VERDE, detonation must be 
delayed until the marine mammals are positively resighted outside the 
Safety Range either due to the animal(s) swimming out of the Safety 
Range or due to the Safety Range moving beyond the mammal's last 
verified location.
    (2) If a North Atlantic right whale or other marine mammal listed 
under the Endangered Species Act (ESA) is seen within the Safety Range, 
detonation must not occur until the animal is positively resighted 
outside the Safety Range and at least one additional aerial monitoring 
of the Safety Range shows that no other right whales or other ESA-listed 
marine mammals are present;
    (3) If the sea state exceeds 3 on the Beaufort scale (i.e., 
whitecaps on 33 to 50 percent of surface; 2 ft (0.6 m) to 3 ft (0.9 m) 
waves), the visibility is equal to or less than 3 nm (5.6 km), or the 
aircraft ceiling (i.e., vertical visibility) is equal to or less than 
1,000 ft (305 m), detonation must not occur until conditions improve 
sufficiently for aerial surveillance to be undertaken.
    (4) A detonation must not be conducted earlier than 3 hours after 
sunrise or later than 3 hours prior to sunset to ensure adequate 
daylight for conducting the pre-detonation and post-detonation 
monitoring requirements in Sec. 216.165;
    (5) If post-detonation surveys determine that an injury or lethal 
take of a marine mammal has occurred,
    (i) the Director, Office of Protected Resources, National Marine 
Fisheries Service must be notified within 24 hours of the taking 
determination,
    (ii) the FSST procedures and monitoring methods must be reviewed in 
coordination with the National Marine Fisheries Service, and
    (iii) appropriate changes to avoid future injury or mortality must 
be made prior to conducting the next detonation.



Sec. 216.164  Prohibitions.

    No person in connection with the activities described in Sec. 
216.161(a) shall:
    (a) Take any marine mammal not specified in Sec. 216.161(b);
    (b) Take any marine mammal specified in Sec. 216.161(b) other than 
by incidental, unintentional Level A or Level B harassment or mortality;
    (c) Take a marine mammal specified in Sec. 216.161(b) if such 
taking results in more than a negligible impact on the species or stocks 
or marine mammals;
    (d) Violate, or failure to comply with, the requirements of a Letter 
of Authorization issued under Sec. 216.106.



Sec. 216.165  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, or state or local agency with regulatory authority for 
monitoring the impacts of the activity on marine mammals. The holder 
must notify the Director, Office of Protected Resources, National Marine 
Fisheries Service at least 2 weeks prior to activities involving the 
detonation of explosives in order to satisfy paragraph (f) of this 
section.
    (b) The holder of the Letter of Authorization must designate at 
least 6 experienced on-site marine mammal observers (MMOs) onboard the 
USS MESA VERDE, 2 experienced MMOs onboard the survey aircraft and 2 
experienced MMOs onboard the Navy support vessel each of whom has been 
approved in advance by NMFS, to monitor the Safety Range for presence of 
marine mammals and to record the effects of explosives detonation on 
marine mammals that inhabit the Navy's Jacksonville/Charleston Operating 
Area offshore of Mayport, Florida.
    (c)(1) Prior to each detonation for the FSST, an area will be 
located which has been determined by an aerial survey to contain the 
lowest marine mammal abundance relative to other areas within the area 
off Mayport, FL.
    (2) The test area must be monitored by aerial and shipboard 
monitoring for the following periods of time:
    (i) 48-72 hours prior to a scheduled detonation (aircraft only),
    (ii) on the day of detonation,

[[Page 77]]

    (iii) immediately after each detonation and continuing for at least 
3 hours subsequent to each detonation (or until sighting conditions 
become unsuitable for visual observations),
    (iv) for at least 2 days after each detonation, unless weather and/
or sea conditions preclude surveillance, in which case post-test survey 
dates must be extended, and
    (v) for a period of 7 days after the last detonation for a minimum 
of 3 hours per day at the detonation site and down-current from the 
site.
    (3) Monitoring shall include, but is not limited to, aerial and 
vessel surveillance sufficient to ensure that no marine mammals are 
within the designated Safety Range prior to or at the time of 
detonation.
    (d) Under the direction of an attending U.S.-licensed veterinarian 
(an attending U.S. licensed veterinarian is one who has graduated from a 
veterinary school accredited by the American Veterinary Medical 
Association Council on Education, has a certificate by the American 
Veterinary Graduates Association's Education Commission for Foreign 
Veterinary Graduates, or has received equivalent formal education, as 
determined by the NMFS Assistant Administrator), an examination and 
recovery of any dead or injured marine mammals will be conducted in 
accordance with protocols and best practices of the NOAA Health and 
Stranding Response Program. Necropsies will be performed and tissue 
samples taken from any dead animals. After completion of the necropsy, 
animals not retained for shoreside examination will be tagged and 
returned to the sea.
    (e) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, including the retention of marine mammals, may 
be conducted without a separate scientific research permit. The use of 
retained marine mammals for scientific research other than shoreside 
examination must be authorized pursuant to Subpart D of this part.
    (f) Subject to relevant Navy regulations, the National Marine 
Fisheries Service at its discretion may place an observer on any ship or 
aircraft involved in marine mammal monitoring either prior to, during, 
or after explosives detonation.
    (g) A final report must be submitted to the Director, Office of 
Protected Resources, no later than 120 days after completion of the USS 
MESA VERDE (LPD 19) shock trial. This report must contain the following 
information:
    (1) Date and time of all detonations conducted under the Letter of 
Authorization.
    (2) A detailed description of all pre-detonation and post-detonation 
activities related to mitigating and monitoring the effects of 
explosives detonation on marine mammals.
    (3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the 
detonation and an estimate of the number, by species, of marine mammals 
in the Safety Range at the time of detonation based on post-test aerial 
monitoring and current density estimates.
    (4) Results of coordination with coastal marine mammal/sea turtle 
stranding networks.



Sec. 216.166  Modifications to the Letter of Authorization.

    (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 Sec. 216.106 and subject to 
the provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (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 Sec. 216.151(b), the Letter of 
Authorization may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be published in 
the Federal Register subsequent to the action.

Subpart P [Reserved]

[[Page 78]]



  Subpart Q_Taking of Marine Mammals Incidental to Navy Operations of 
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA 

                              sonar) Sonar

    Source: 72 FR 46890, Aug. 21, 2007, unless otherwise noted.

    Effective Date Note: At 72 FR 46890, Aug. 21, 2007, subpart Q, 
consisting of Sec. Sec. 216.180 through 216.191 were added, effective 
Aug. 16, 2007 through Aug. 15, 2012.



Sec. 216.180  Specified activity.

    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 four 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 Sec. Sec. 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 Sec. 216.185 
during training, testing, and routine military operations of SURTASS LFA 
sonar.
    (a) With the exception of those areas specified in Sec. 216.183(d), 
the incidental taking by harassment may be authorized in the areas 
(biomes, provinces, and subprovinces) described in Longhurst (1998), as 
specified in a Letter of Authorization.
    (b) The incidental take, by Level A and Level B harassment, of 
marine mammals from the activity identified in this section is limited 
to the following species and species groups:
    (1) Mysticete whales--blue (Balaenoptera musculus), fin 
(Balaenoptera physalus), minke (Balaenoptera acutorostrata), Bryde's 
(Balaenoptera edeni), sei (Balaenoptera borealis), humpback (Megaptera 
novaeangliae), North Atlantic right (Eubalaena glacialis), North Pacific 
right (Eubalena japonica) southern right (Eubalaena australis), pygmy 
right (Capera marginata), bowhead (Balaena mysticetus), and gray 
(Eschrichtius robustus) whales.
    (2) Odontocete whales--harbor porpoise (Phocoena phocoena), 
spectacled porpoise (Phocoena dioptrica), beluga (Dephinapterus leucas), 
Stenella spp., Risso's dolphin (Grampus griseus), rough-toothed dolphin 
(Steno bredanensis), Fraser's dolphin (Lagenodelphis hosei), northern 
right-whale dolphin (Lissodelphis borealis), southern right whale 
dolphin (Lissodelphis peronii), short-beaked common dolphin (Delphius 
delphis), long-beaked common dolphin (Delphinus capensis), very long-
beaked common dolphin (Delphinus tropicalis), Lagenorhynchus spp., 
Cephalorhynchus spp., bottlenose dolphin (Tursiops truncatus), Dall's 
porpoise (Phocoenoides dalli), melon-headed whale (Peponocephala spp.), 
beaked whales (Berardius spp., Hyperoodon spp., Mesoplodon spp., 
Cuvier's beaked whale (Ziphius cavirostris), Shepard's beaked whale 
(Tasmacetus shepherdi), Longman's beaked whale (Indopacetus pacificus), 
killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), 
pygmy killer whale (Feresa attenuata), sperm whale (Physeter 
macrocephalus), dwarf and pygmy sperm whales (Kogia simus and K. 
breviceps), and short-finned and long-finned pilot whales (Globicephala 
macrorhynchus and G. melas).
    (3) Pinnipeds--hooded seal (Cystophora cristata), harbor seal (Phoca 
vitulina), spotted seal (P. largha), ribbon seal (P. fasciata), gray 
seal (Halichoerus grypus), elephant seal (Mirounga angustirostris and M. 
leonina), Hawaiian monk seal (Monachus schauinslandi), Mediterranean 
monk seal (Monachus monachus), northern fur seal (Callorhinus ursinus), 
southern fur seal (Arctocephalus spp.), harp seal (Phoca groenlandica), 
Galapagos sea lion (Zalophus californianus wollebaeki), Japanese sea 
lion (Zalophus californianus japonicus), Steller sea lion (Eumetopias 
jubatus), California sea lion (Zalophus californianus), Australian sea 
lion (Neophoca cinerea), New Zealand sea lion (Phocarctos hookeri), and 
South American sea lion (Otaria flavescens).

[[Page 79]]



Sec. 216.181  Effective dates.

    Regulations in this subpart are effective from August 16, 2007 
through August 15, 2012.



Sec. 216.182  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
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 Sec. 216.180(a), 
provided the activity is in compliance with all terms, conditions, and 
requirements of these regulations and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec. 216.180 must be conducted in 
a manner that minimizes, to the greatest extent practicable, any adverse 
impacts on marine mammals and their habitat.



Sec. 216.183  Prohibitions.

    No person in connection with the activities described in Sec. 
216.180 shall:
    (a) Take any marine mammal not specified in Sec. 216.180(b);
    (b) Take any marine mammal specified in Sec. 216.180(b) other than 
by incidental, unintentional Level A and Level B harassment;
    (c) Take a marine mammal specified in Sec. 216.180(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of the regulations in this subpart or any Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.188.



Sec. 216.184  Mitigation.

    The activity identified in Sec. 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 Sec. 216.180, the mitigation measures described in this 
section and in any Letter of Authorization issued under Sec. Sec. 
216.106 and 216.188 must be implemented.
    (a) Through monitoring described under Sec. 216.185, the Holder of 
a Letter of Authorization must act to ensure, to the greatest extent 
practicable, that no marine mammal is subjected to a sound pressure 
level of 180 dB or greater.
    (b) If a marine mammal is detected within or about to enter the 
mitigation zone (the area subjected to sound pressure levels of 180 dB 
or greater plus the 1 km (0.54 nm) buffer zone extending beyond the 180-
dB zone), SURTASS LFA sonar transmissions will be immediately delayed or 
suspended. Transmissions will not resume earlier than 15 minutes after:
    (1) All marine mammals have left the area of the mitigation and 
buffer zones; and
    (2) There is no further detection of any marine mammal within the 
mitigation and buffer zones as determined by the visual and/or passive 
or active acoustic monitoring described in Sec. 216.185.
    (c) The high-frequency marine mammal monitoring sonar (HF/M3) 
described in Sec. 216.185 will be ramped-up slowly to operating levels 
over a period of no less than 5 minutes:
    (1) At least 30 minutes prior to any SURTASS LFA sonar 
transmissions;
    (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
    (3) Anytime after the HF/M3 source has been powered down for more 
than 2 minutes.
    (d) The HF/M3 sound pressure level will not be increased once a 
marine mammal is detected; ramp-up may resume once marine mammals are no 
longer detected.
    (e) The Holder of a Letter of Authorization will not operate the 
SURTASS LFA sonar, such that:
    (1) the SURTASS LFA sonar sound field exceeds 180 dB (re 1 
microPa(rms)) at a distance less than 12 nautical miles (nm) (22 
kilometers (km)) from any coastline, including offshore islands;
    (2) the SURTASS LFA sonar sound field exceeds 180 db (re 1 
microPa(rms)) at a distance of 1 km (0.5 nm) seaward of the outer 
perimeter of any offshore biologically important area designated in 
216.184(f) during the biologically important period specified.

[[Page 80]]

    (f) The following areas have been designated by NMFS as Offshore 
Biologically Important Areas (OBIAs) for marine mammals (by season if 
appropriate):

------------------------------------------------------------------------
                                                            Months of
         Name of area              Location of area         importance
------------------------------------------------------------------------
(1) 200-m isobath North        From 28[deg] N. to        Year-round.
 American East Coast.           50[deg] N., west of
                                40[deg] W.
(2) Antarctic Convergence      30[deg] E. to 80[deg] E.  October 1-March
 Zone.                          to 45[deg]; 80[deg] E.    31.
                                to 150[deg] E. to
                                55[deg]; S. 150[deg] E.
                                to 50[deg] W. to
                                60[deg] S.; 50[deg] W.
                                to 30[deg] E. to
                                50[deg] S.
(3) Costa Rica Dome..........  Centered at 9[deg] N.     Year-round.
                                and 88[deg] W.
(4) Hawaiian Islands Humpback  Centered at 21[deg] N.    November 1
 Whale National Marine          and 157[deg] 30' W.       through May 1.
 Sanctuary-Penguin Bank.
(5) Cordell Bank National      Boundaries in accordance  Year-round.
 Marine Sanctuary.              with 15 CFR 922.110.
(6) Gulf of the Farallones     Boundaries in accordance  Year-round.
 National Marine Sanctuary.     with 15 CFR 922.80.
(7) Monterey Bay National      Boundaries in accordance  Year-round.
 Marine Sanctuary.              with 15 CFR 922.30.
(8) Olympic Coast National     Boundaries within 23 nm   December
 Marine Sanctuary.              of the coast from         January, March
                                47[deg]07[min] N. to      and May.
                                48[deg]30[min] N.
                                latitude.
(9) Flower Garden Banks        Boundaries in accordance  Year-round.
 National Marine Sanctuary.     with 15 CFR 922.120.
(10) The Gully...............  44[deg]13[min] N.,        Year-round.
                                59[deg]06[min] W. to
                                43[deg]47[min] N.;
                                58[deg]35[min] W. to
                                43[deg]35[min] N.;
                                58[deg]35[min] W. to
                                43[deg]35[min] N.;
                                59[deg]08[min] W. to
                                44[deg]06[min] N.;
                                59[deg]20[min] W.
------------------------------------------------------------------------



Sec. 216.185  Requirements for monitoring.

    (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 Sec. Sec. 216.106 and 216.188 must:
    (1) Conduct visual monitoring from the ship's bridge during all 
daylight hours (30 minutes before sunrise until 30 minutes after 
sunset);
    (2) Use low frequency passive SURTASS sonar to listen for vocalizing 
marine mammals; and
    (3) Use the HF/M3 (high frequency) sonar developed 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.
    (b) Monitoring under paragraph (a) of this section must:
    (1) Commence at least 30 minutes before the first SURTASS LFA sonar 
transmission;
    (2) Continue between transmission pings; and
    (3) Continue either for at least 15 minutes after completion of the 
SURTASS LFA sonar transmission exercise, or, if marine mammals are 
exhibiting unusual changes in behavioral patterns, for a period of time 
until behavior patterns return to normal or conditions prevent continued 
observations;
    (c) Holders of Letters of Authorization for activities described in 
Sec. 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.
    (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.
    (e) Holders of Letters of Authorization must conduct all monitoring 
required under the Letter of Authorization.



Sec. 216.186  Requirements for reporting.

    (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:

[[Page 81]]

    (1) Dates, times, and location of each vessel during each mission;
    (2) Information on sonar transmissions during each mission;
    (3) Results of the marine mammal monitoring program specified in the 
Letter of Authorization; and
    (4) Estimates of the percentages of marine mammal species and stocks 
affected (both for the quarter and cumulatively for the year) covered by 
the Letter of Authorization.
    (b) The Holder of a Letter of Authorization must submit an annual 
report to the Director, Office of Protected Resources, NMFS, no later 
than 45 days after the expiration of a Letter of Authorization. This 
report must contain all the information required by the Letter of 
Authorization.
    (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 unclassified analysis of new passive sonar 
technologies and an assessment of whether such a system is feasible as 
an alternative to SURTASS LFA sonar.



Sec. 216.187  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Navy authority conducting the activity identified 
in Sec. 216.180 must apply for and obtain a Letter of Authorization in 
accordance with Sec. 216.106.
    (b) The application for 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.
    (c) All applications for a Letter of Authorization must include the 
following information:
    (1) The date(s), duration, and the area(s) where the vessel's 
activity will occur;
    (2) The species and/or stock(s) of marine mammals likely to be found 
within each area;
    (3) The type of incidental taking authorization requested (i.e., 
take by Level A and/or Level B harassment);
    (4) The estimated percentage of marine mammal species/stocks 
potentially affected in each area for the 12-month period of 
effectiveness of the Letter of Authorization; and
    (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.
    (d) The National Marine Fisheries Service will review an application 
for a Letter of Authorization in accordance with Sec. 216.104(b) and, 
if adequate and complete, issue a Letter of Authorization.



Sec. 216.188  Letters of Authorization.

    (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 Sec. 216.189.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Authorized geographic areas for incidental takings;
    (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
    (4) Requirements for monitoring and reporting incidental takes.
    (c) Issuance of each Letter of Authorization will be based on a 
determination that the total number of marine mammals taken by the 
activity specified in Sec. 216.180 as a whole will have no more than a 
negligible impact on the species or stocks 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.
    (d) Notice of issuance or denial of an application for a Letter of 
Authorization will be published in the Federal

[[Page 82]]

Register within 30 days of a determination.



Sec. 216.189  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued for the activity identified in 
Sec. 216.180 may be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.187 will be undertaken and that 
there will not be a substantial modification to the described activity, 
mitigation or monitoring undertaken during the upcoming season;
    (2) Notification to NMFS of the information identified in Sec. 
216.187(c), including the planned geographic area(s), and anticipated 
duration of each SURTASS LFA sonar operation;
    (3) Timely receipt of the monitoring reports required under Sec. 
216.185, which have been reviewed by NMFS and determined to be 
acceptable;
    (4) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. Sec. 216.184 and 216.185 and the 
previous Letter of Authorization were undertaken and will be undertaken 
during the upcoming annual period of validity of a renewed Letter of 
Authorization; and
    (5) A determination by NMFS that the 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 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.
    (b) If a request for a renewal of a Letter of Authorization 
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 Authorization, NMFS will provide a period 
of 30 days for public review and comment on the proposed modification. 
Amending the areas for upcoming SURTASS LFA sonar operations is not 
considered a substantial modification to the Letter of Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.190  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantial modification (including withdrawal or suspension) to a 
Letter of Authorization 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, 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.
    (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 Sec. 216.180(b), a 
Letter of Authorization may be substantially modified without prior 
notice and opportunity for public comment. Notification will be 
published in the Federal Register within 30 days of the action.



Sec. 216.191  Designation of Offshore Biologically Important Marine
Mammal Areas.

    (a) Offshore biologically important areas for marine mammals may be 
nominated under this paragraph by the National Marine Fisheries Service 
or by members of the public.
    (b) Proponents must petition NMFS by requesting an area be added to 
the list of offshore biologically important areas in Sec. 216.184(f) 
and submitting the following information:
    (1) Geographic region proposed for consideration (including 
geographic boundaries);
    (2) A list of marine mammal species or stocks within the proposed 
geographic region;
    (3) Whether the proposal is for year-round designation or seasonal, 
and if seasonal, months of years for proposed designation;
    (4) Detailed information on the biology of marine mammals within the 
area, including estimated population

[[Page 83]]

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
    (5) Detailed information on the area with regard to its importance 
for feeding, breeding, or migration for those species of marine mammals 
that have the potential to be affected by low frequency sounds;
    (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.
    (d) If a petition does not contain 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.
    (e)(1) If through a petition or independently, NMFS makes a 
preliminary determination that an offshore area is biologically 
important for marine mammals and is not located within a previously 
designated area, NMFS will publish a Federal Register notice proposing 
to add the area to Sec. 216.184(f) and solicit public comment.
    (2) The National Marine Fisheries Service will publish its final 
determination in the Federal Register.



   Subpart R_Taking of Marine Mammals Incidental to Construction and 
  Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea

    Source: 71 FR 11322, Mar. 7, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 11322, Mar. 7, 2006, subpart R, 
consisting of Sec. Sec. 216.200 through 216.210 were added, effective 
Apr. 6, 2006 through Apr. 6, 2011.



Sec. 216.200  Specified activity and specified geographical region.

    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 Sec. Sec. 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.
    (a)(1) Northstar Oil and Gas Development; and
    (2) [Reserved]
    (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 (Balaena 
mysticetus), gray whale (Eschrichtius robustus), beluga whale 
(Delphinapterus leucas), ringed seal (Phoca hispida), spotted seal 
(Phoca largha) and bearded seal (Erignathus barbatus).



Sec. 216.201  Effective dates.

    Regulations in this subpart are effective from April 6, 2006 through 
April 6, 2011.



Sec. 216.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
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 Sec. 
216.200(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified in Sec. 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.



Sec. 216.203  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.200 and authorized 
by a Letter of Authorization issued under

[[Page 84]]

Sec. Sec. 216.106 and 216.208, no person in connection with the 
activities described in Sec. 216.200 shall:
    (a) Take any marine mammal not specified in Sec. 216.200(b);
    (b) Take any marine mammal specified in Sec. 216.200(b) other than 
by incidental, unintentional Level A or Level B harassment or mortality;
    (c) Take a marine mammal specified in Sec. 216.200(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. 216.106.



Sec. 216.204  Mitigation.

    The activity identified in Sec. 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 Sec. 216.200, the mitigation measures contained in the 
Letter of Authorization issued under Sec. Sec. 216.106 and 216.208 must 
be utilized.



Sec. 216.205  Measures to ensure availability of species for 
subsistence uses.

    When applying for a Letter of Authorization pursuant to Sec. 
216.207, or a renewal of a Letter of Authorization pursuant to Sec. 
216.209, the applicant must submit a Plan of Cooperation that identifies 
what measures have been taken and/or will be taken to minimize any 
adverse effects on the availability of marine mammals for subsistence 
uses. A plan must include the following:
    (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;
    (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;
    (c) What plans the applicant has to continue to meet with the 
affected communities to notify the communities of any changes in 
operation.



Sec. 216.206  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.208 for activities described in Sec. 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.
    (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 Sec. 
216.106 and Sec. 216.208.
    (c) Holders of Letters of Authorization must conduct all monitoring 
and/or research required under the Letter of Authorization.
    (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.
    (e) A final annual comprehensive report must be submitted within the 
time period specified in the governing Letter of Authorization.
    (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

[[Page 85]]

after the expiration of these regulations if renewal of the regulations 
will not be requested.



Sec. 216.207  Applications for Letters of Authorization.

    (a) To incidentally take bowhead whales and other marine mammals 
pursuant to these regulations, the U.S. citizen (see definition at Sec. 
216.103) conducting the activity identified in Sec. 216.200 must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec. Sec. 216.106 and 216.208, or a renewal under Sec. 216.209.
    (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.
    (c) Applications for initial Letters of Authorization must include 
all information items identified in Sec. 216.104(a).
    (d) NMFS will review an application for an initial Letter of 
Authorization in accordance with Sec. 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 Sec. 216.200(a). In conjunction with 
amending Sec. 216.200(a), the National Marine Fisheries Service will 
provide for public comment on the application for an initial Letter of 
Authorization.
    (e) Upon receipt of a complete application for an initial Letter of 
Authorization, and at its discretion, the National Marine Fisheries 
Service may submit the monitoring plan to members of a peer review panel 
for review and/or schedule a workshop to review the plan. Unless 
specified in the Letter of Authorization, the applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an initial Letter of Authorization.



Sec. 216.208  Letters of Authorization.

    (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 Sec. 216.209.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (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
    (3) Requirements for monitoring and reporting, including any 
requirements for the independent peer-review of proposed monitoring 
plans.
    (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.
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.209  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.208 for the activity identified in Sec. 216.200 will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec. 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;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.205, and the Letter of Authorization issued under Sec. 216.208, 
which have been reviewed and accepted by the National Marine Fisheries 
Service, and of the Plan of Cooperation required under Sec. 216.205; 
and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under Sec. 
216.204 and the Letter of Authorization issued under Sec. Sec. 216.106 
and 216.208, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.208 indicates that a

[[Page 86]]

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:
    (1) New cited information and data that indicates that the 
determinations made in this document are in need of reconsideration,
    (2) The Plan of Cooperation, and
    (3) The proposed monitoring plan.
    (c) A notice of issuance or denial of a Renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.210  Modifications to Letters of Authorization.

    (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 Sec. Sec. 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 Sec. 216.209, 
without modification (except for the period of validity), is not 
considered a substantive modification.
    (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 Sec. 216.200(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.208 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.



  Subpart S	Taking of Marine Mammals Incidental to Explosive Severance 
Activities Conducted During Offshore Structure Removal Operations on the 

           Outer Continental Shelf in the U.S. Gulf of Mexico

    Source: 73 FR 34889, June 19, 2008, unless otherwise noted.

    Effective Date Note: At 73 FR 34889, June 19, 2008, subpart S, 
consisting of Sec. Sec. 216.211 through 216.219 were added, effective 
July 21, 2008 through July 19, 2013.



Sec. 216.211  Specified activity and specified geographical region.

    (a) 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 explosive severance activities 
conducted during offshore oil and gas structure removal activities in 
areas within state and Federal waters in the U.S. Gulf of Mexico 
adjacent to the coasts of Texas, Mississippi, Louisiana, Alabama, and 
Florida. The incidental, but not intentional, taking of marine mammals 
by U.S. citizens holding a Letter of Authorization issued pursuant to 
Sec. 216.218 is permitted during the course of severing pilings, well 
conductors, and related supporting structures, and other activities 
related to the removal of the oil and gas structure.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to a total of 5 
bottlenose dolphin, one Atlantic spotted dolphin, and one pantropical 
spotted dolphin by Level A harassment over the period of validity of 
these regulations; and Level B harassment of the following species 
annually: 227 bottlenose dolphins, 65 Atlantic spotted dolphins, 77 
pantropical spotted dolphins, 27 Clymene dolphins, 12 rough-toothed 
dolphins, 14 striped dolphins, 15 melon-headed whales, 10 pilot whales, 
5 spinner dolphins, 3 Risso's dolphins, and 2 sperm whales.



Sec. 216.212  Effective dates.

    Regulations in this subpart are effective from July 21, 2008 until 
July 19, 2013.

[[Page 87]]



Sec. 216.213  Permissible methods of taking.

    The Holder of a Letter of Authorization issued pursuant to Sec. 
216.218, may incidentally, but not intentionally, take marine mammals by 
harassment within the area described in Sec. 216.211(a), provided the 
activity is in compliance with all terms, conditions, and requirements 
of these regulations and the appropriate Letter of Authorization.



Sec. 216.214  Prohibitions.

    No person in connection with the activities described in Sec. 
216.211(a) shall:
    (a) Take any marine mammal not specified in Sec. 216.211(b);
    (b) Take any marine mammal specified in Sec. 216.211(b) in a manner 
or amount greater than described therein;
    (c) Take any marine mammal specified in Sec. 216.211(b) if NMFS 
determines that the taking of marine mammals incidental to the 
activities described in Sec. 216.211(a) is having more than a 
negligible impact on the species or stocks of marine mammals;
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
pursuant to Sec. Sec. 216.106 and 216.218;
    (e) Take any marine mammal in violation of these regulations by 
using a charge with a weight greater than 500 lbs (227 kg);
    (f) Take any marine mammal when conditions preclude conducting 
mitigation and monitoring requirements of these regulations or a Letter 
of Authorization.



Sec. 216.215  Definitions, terms, and criteria

    (a) Definitions.
    (1) Below-mud-line or BML means that the explosives are detonated 
below the water-mud interface, either inside or outside a pipe, other 
structure or cable.
    (2) Above-mud-line or AML means that the explosives are detonated in 
the water column above the water-mud interface, either inside or outside 
a pipe, other structure or cable.
    (3) Multiple charge detonation means any explosive configuration 
where more than one charge is required in a single detonation event.
    (4) Scenario means an alpha-numeric designation provided to describe 
charge size, activity location, and target design employed in order to 
determine the appropriate marine mammal mitigation/monitoring measures.
    (b) Terms
    (1) Impact zone (required for all scenarios) means the area around a 
decommissioning target measured by the horizontal radius, in which a 
marine mammal could be affected by the pressure or acoustic energy 
released during the detonation of an explosive-severance charge.
    (2) Predetonation survey (required for all scenarios) means any 
marine mammal monitoring survey (e.g., surface, aerial, or acoustic) 
conducted prior to the detonation of any explosive severance tool.
    (3) Postdetonation survey (required for all scenarios) means any 
marine mammal monitoring survey (e.g., surface, aerial, or post-post-
detonation aerial) conducted after the detonation event occurs.
    (4) Waiting period (required for all scenarios) means the amount of 
time detonation operations must hold before the requisite monitoring 
survey(s) can be repeated.
    (5) Company observer (for scenarios A1-A4 only) means trained 
company observers authorized to perform marine mammal detection surveys 
only for ``very-small'' blasting scenarios A1-A4.
    (6) NMFS observer (for scenarios B1-E4) means observers trained and 
approved by an instructor with experience as a NMFS Platform Removal 
Observer Program trainer. NMFS observers are required to perform marine 
mammal detection surveys for all detonation scenarios with the exception 
of scenarios A1-A4. Two NMFS observers will be assigned to each 
operation for detection survey duties, except mitigation-scenarios C2, 
C4, D2, D4, E2, and E4 require a minimum of three NMFS observers for the 
simultaneous surface, aerial, and acoustic surveys.
    (c) Criteria
    (1) Blasting category parameters and associated severance scenarios. 
To determine the appropriate marine mammal mitigation and monitoring 
requirements in Sec. Sec. 216.218 and 216.219, holders

[[Page 88]]

of Letters of Authorization for activities described in Sec. 216.211(a) 
of this subpart must determine, from Table 1 in Sec. 216.217(b)(1), the 
appropriate explosive severance mitigation/monitoring scenario to follow 
for the blasting category, species-delineation zone, and charge 
configuration for their activity.
    (2) [Reserved]



Sec. 216.216  Mitigation.

    (a) The activity identified in Sec. 216.211(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 Sec. 216.211(a), all mitigation measures contained in 
this subpart and in the Letter of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.218 must be implemented. When using 
explosives, the following mitigation measures must be carried out:
    (1)(i) If marine mammals are observed within (or about to enter) the 
marine mammal impact zone identified in Table 1 in Sec. 216.217(b)(1) 
column 5 for the relevant charge range and configuration (i.e., BML or 
AML) for the activity, detonation must be delayed until the marine 
mammal(s) are outside that zone;
    (ii) Pre-detonation surveys shall not begin prior to sunrise and 
detonations shall not occur if the post-detonation survey cannot be 
concluded prior to sunset;
    (iii) Whenever weather or sea conditions preclude adequate aerial, 
shipboard or subsurface marine mammal monitoring as determined by the 
trained observer, detonations must be delayed until conditions improve 
sufficiently for marine mammal monitoring to be undertaken or resumed;
    (iv) Whenever the weather or sea conditions prevent implementation 
of the aerial survey monitoring required under Sec. 216.217(c)(2), the 
aerial survey must be repeated prior to detonation of charges; and
    (v) Multiple charge detonations must be staggered at an interval of 
0.9 sec (900 msec) between blasts.
    (2) [Reserved]
    (b) If a marine mammal is found seriously injured, or dead, the 
explosive severance activity will immediately cease and the holder of 
the Letter of Authorization, designee or the designated lead observer 
will contact the Minerals Management Service and the Regional 
Administrator, National Marine Fisheries Service' Southeast Regional 
Office, or designee at the earliest opportunity. Procedures and 
monitoring methods will be reviewed and, if necessary, appropriate 
changes made to the mitigation and monitoring measures prior to 
conducting the next detonation to avoid future injury or mortality 
takings.
    (c) Any mitigation measures proposed to be contained in a Letter of 
Authorization that are not specified in this subpart, or not considered 
an emergency requirement under Sec. 216.219(d), will first be subject 
to notice and comment through publication in the Federal Register, as 
provided in Sec. 216.219(c).



Sec. 216.217  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued for activities 
described in Sec. 216.211(a) are required to cooperate with the 
National Marine Fisheries Service, and any other Federal, state or local 
agency with regulatory authority over the offshore oil-and-gas 
activities for the purpose of monitoring the impacts of the activity on 
marine mammals.
    (b)(1) Table 1 summarizes the required mitigation and monitoring 
survey modes, duration and zones for all blasting scenarios of marine 
mammal impact zones for implementation of surface and aerial monitoring 
requirements depending upon charge weight and severance scenario.
    (2) Holders of Letters of Authorization must fully comply with the 
relevant mitigation and monitoring program for the explosive-severance 
activity described in subparagraph (c) of this paragraph that 
corresponds to the holder of the Letter of Authorization's blast 
scenario shown in Table 1.

[[Page 89]]



                  Table 1. Blast Categories, Mitigation Scenarios, Survey and Time Requirements For All Explosive Severance Scenarios.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         Post
                                Configuration     Species                  Impact    Pre Det    Pre Det   Pre Det  Post Det  Post Det  Post Det  Waiting
      Blasting Category          (Charge wt/    Delineation   Mitgation     Zone     Surface    Aerial   Acoustic   Surface   Aerial    Aerial    Period
                                 placement)        Zone       Scenario     Radius     Survey    Survey    Survey    Survey    Survey    Survey    (min)
                                                                                      (min)      (min)     (min)     (min)     (min)   (Yes/No)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   A1          261 m      60         N/A       N/A       30        N/A       No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Very-                          (0-10 lb)       Slope (200
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small                          AML             Shelf (<200   A3          293 m      60         N/A       N/A       30        N/A       No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (0-5 lb)        Slope (200
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   B1          373 m      90         30        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Small                          (10- Shelf (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   B3          522 m      90         30        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (5-  Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   C1          631 m      90         30        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Standard                       (20- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   C3          829 m      90         45        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (20- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   D1          941 m      120        45        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Large                          (80- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   D3          1,126 m    120        60        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (80- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   E1          1,500 m    150        90        N/A       N/A       45        No        45
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Specialty                      (20  Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   E3          1,528 m    150        90        N/A       N/A       45        No        45
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (20  Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Severance of subsea structures that do not penetrate the sea surface will follow the mitigation scenario for above mudline (AML) detonations even if
  charges are placed below mudline.


[[Page 90]]

    (c) Holders of Letters of Authorization must ensure that the 
following monitoring programs are conducted as appropriate for the 
required monitoring scenario.
    (1) Surface monitoring survey. A surface monitoring survey must be 
conducted for the length of time that corresponds to the relevant 
explosive severance scenario. Surface monitoring surveys are to be 
conducted from the highest vantage point and/or other location(s) that 
provide the best, clear view of the entire impact zone. These vantage 
points may be on the structure being removed or proximal surface vessels 
(i.e., crewboats, derrick barges, etc.). Surface surveys are restricted 
to daylight hours only, and the monitoring will cease if the designated 
lead observer determines that weather or marine conditions are not 
adequate for visual observations.
    (2) Aerial monitoring survey. Aerial surveys are required for all 
explosive severance scenarios except monitoring scenarios A1-A4. Aerial 
monitoring surveys are to be conducted from helicopters running standard 
low-altitude search patterns over the extent of the impact zone that 
corresponds to the appropriate explosive severance scenario. Aerial 
surveys will be restricted to daylight hours only (defined as ``legal 
sunrise'' to ``legal sunset''), and cannot begin until the requisite 
surface monitoring survey has been completed. Aerial surveys will cease 
if the designated lead observer determines that weather or marine 
conditions are not adequate for visual observations, or when the pilot/
removal supervisor determines that helicopter operations must be 
suspended.
    (3) Acoustic monitoring survey.
    (i) Acoustic monitoring surveys are required to be conducted on all 
Standard, Large, and Specialty blasting scenarios conducted at slope 
(200 m (656 ft)) locations (i.e., scenarios C2, C4, D2, D4, 
E2, and E4).
    (ii) Persons conducting acoustic surveys will be required to comply 
with NMFS-approved passive acoustic monitoring protocols and use 
approved devices and technicians.
    (iii) Acoustic surveys will be run concurrent with requisite pre-
detonation surveys, beginning with the surface observations and 
concluding at the finish of the aerial surveys when the detonation(s) is 
allowed to proceed.
    (4) Post-detonation surface monitoring survey. A 30-minute post-
detonation surface survey must be conducted by the trained company 
observer for scenarios A1 - A4 immediately upon conclusion of the 
detonation.
    (5) Post-detonation aerial monitoring survey. For scenarios B1-D4, a 
30-minute aerial survey must be conducted immediately upon conclusion of 
the detonation. For scenarios E1-E4, a 45-minute aerial survey must be 
conducted immediately upon conclusion of the detonation.
    (6) Post-post-detonation aerial monitoring survey. Post-post-
detonation aerial monitoring surveys must be conducted for scenarios C4, 
D2, D4, E2 and E4 within 2-7 days after detonation activities conclude, 
by either helicopter or fixed-wing aircraft. Observations are to start 
at the removal site and proceed leeward and outward of wind and current 
movement. Any distressed, shocked, injured or dead marine mammals will 
be noted in the survey report, and if possible, tracked and collected 
after notifying the National Marine Fisheries Service within the time 
requirements stated in Sec. 216.217(f).
    (7) If unforeseen conditions or events occur during an explosive 
severance operation that may necessitate additional monitoring not 
specified in this paragraph, the designated NMFS lead observer will 
contact the appropriate National Marine Fisheries Service and Minerals 
Management Service personnel as detailed in the Letter of Authorization 
for additional guidance.
    (d) Holders of Letters of Authorization must conduct all monitoring 
and research required under the Letter of Authorization. Any monitoring 
or research measures proposed to be contained in a Letter of 
Authorization that are not specified in this subpart or not considered 
an emergency requirement under Sec. 216.218(d), will first be subject 
to public notice and comment through publication in the Federal 
Register, as provided by Sec. 216.219(c).
    (e) Reporting (1) A report summarizing the results of structure 
removal

[[Page 91]]

activities, mitigation measures, monitoring efforts, and other 
information as required by a Letter of Authorization, must be submitted 
to the Director, Office of Protected Resources, within 30 days of 
completion of the removal activity.
    (2) The National Marine Fisheries Service will accept the NMFS 
observer report as the activity report required by subparagraph (1) of 
this paragraph if all requirements for reporting contained in the Letter 
of Authorization are provided to the NMFS observer before the NMFS 
observer's report is submitted to the PROP Manager.
    (3) If a marine mammal is found shocked, injured, or dead, the 
Holder of the Letter of Authorization, or designee, must report the 
incident to the National Marine Fisheries Service Southeast Regional 
Office, at the earliest opportunity.



Sec. 216.218  Letters of Authorization.

    (a) To incidentally take marine mammal species listed in Sec. 
216.211(b) pursuant to these regulations, each company or contractor 
responsible for the removal of the structure or an industry-related 
seafloor obstruction in the area specified in Sec. 216.211(a) must 
apply for and obtain either a Letter of Authorization in accordance with 
Sec. 216.106 or a renewal under Sec. 216.219(a).
    (b) An application for a Letter of Authorization must be submitted 
to the National Marine Fisheries Service at least 30 days before the 
explosive removal activity is scheduled to begin.
    (c) Issuance of a Letter of Authorization and renewal of a Letter of 
Authorization under Sec. 216.219(a) will be based on a determination by 
the National Marine Fisheries Service that the number of each species or 
stock of cetaceans taken annually by the activity will be small and that 
the total taking over the 5-year period will have a negligible impact on 
the species or stock of affected marine mammal(s).
    (d) A Letter of Authorization may be renewed annually, subject to 
conditions in Sec. 216.219(a).
    (e) A Letter of Authorization for activities in this subpart will 
not be valid after the effective period of this subpart.
    (f) A copy of the Letter of Authorization must be in the possession 
of the persons conducting the activity specified in Sec. 216.211(a) 
that may involve incidental takings of marine mammals.
    (g) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.219  Renewal and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued for the activity identified in 
Sec. 216.211(a) will be renewed annually upon:
    (1) Receipt of an application for renewal of a Letter of 
Authorization under Sec. 216.218.
    (2) Timely receipt of the report(s) required under Sec. 216.217(f), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable; and
    (3) A determination that the required mitigation, monitoring and 
reporting measures have been undertaken.
    (b) Notice of issuance of a renewal of the Letter of Authorization 
will be published in the Federal Register within 30 days of issuance.
    (c) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (d) of this section, no substantive 
modification, including a request for a variance in the mitigation or 
monitoring requirements in this subpart or a withdrawal or suspension of 
the Letter of Authorization issued pursuant to Sec. 216.106 and subject 
to the provisions of this subpart, shall be made until after notice and 
an opportunity for public comment. For purposes of this paragraph, 
renewal of a Letter of Authorization under Sec. 216.219, without 
modification other than an effective date change, is not considered a 
substantive modification.
    (d) 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 Sec. 216.211(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.118, or 
renewed pursuant to this paragraph may be modified without prior notice 
and opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.

[[Page 92]]

Subpart T [Reserved]



 Subpart U_Taking of Marine Mammals Incidental to Rocket Launches from 
              the Kodiak Launch Complex, Kodiak Island, AK

    Source: 71 FR 4308, Jan. 26, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 4308, Jan. 26, 2006, subpart U, 
consisting of Sec. Sec. 216.230 through 216.237 were added, effective 
Feb. 27, 2006 through Feb. 28, 2011.



Sec. 216.230  Specified activity and specified geographical region.

    (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.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to Steller sea 
lions (Eumetopius jubatus) and Pacific harbor seals (Phoca vitulina 
richardsi).



Sec. 216.231  Effective dates.

    Regulations in this subpart are effective from February 27, 2006 
through February 28, 2011.



Sec. 216.232  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec. 
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 Sec. 216.230(a), provided all terms, 
conditions, and requirements of these regulations and such Letter of 
Authorization are complied with.
    (b) The activities identified in Sec. 216.230(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitat.



Sec. 216.233  Prohibitions.

    The following activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this subpart or a Letter of 
Authorization issued under Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified, or in a manner not authorized, in this subpart.



Sec. 216.234  Mitigation, monitoring and reporting.

    (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.
    (b) The holder of the Letter of Authorization must implement the 
following measures for all launches occurring from June through October:
    (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.
    (2) At least one biologist observer will accompany the pilot during 
all aerial surveys.
    (3) Data gathered during aerial surveys will be gathered visually 
and through the use of a camera with a zoom lens.
    (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.
    (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

[[Page 93]]

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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (j) The National Marine Fisheries Service must be informed 
immediately of any proposed changes or deletions to any portions of the 
monitoring requirements.
    (k) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (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.
    (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 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.
    (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

[[Page 94]]

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:
    (i) Timing and nature of launch operations and monitoring flights;
    (ii) A summary of marine mammal behavioral observations in relation 
to recorded acoustic stimuli and other known visual or audio stimuli;
    (iii) An estimate of the amount and nature of all takes.
    (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.
    (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.
    (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.
    (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.



Sec. 216.235  Letter of Authorization.

    (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.
    (b) A Letter of Authorization will set forth:
    (1) Species of marine mammals authorized to be taken;
    (2) Permissible methods of incidental taking;
    (3) Specified geographical region;
    (4) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (5) Requirements for monitoring and reporting incidental takes.
    (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).
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.236  Renewal of a Letter of Authorization.

    (a) A Letter of Authorization for the activity identified in Sec. 
216.230(a) will be renewed upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application for a Letter of Authorization 
submitted under Sec. 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;
    (2) Timely receipt of and acceptance by the National Marine 
Fisheries Service of the monitoring reports required under Sec. 
216.234;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under 
Sec. Sec. 216.232 and 216.234 and the Letter of Authorization were 
undertaken and will be undertaken during the upcoming period of validity 
of a renewed Letter of Authorization; and
    (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

[[Page 95]]

made for the total taking allowable under these regulations.
    (b) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.237  Modifications to a Letter of Authorization.

    (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 Sec. 216.236 
without modification is not considered a substantive modification.
    (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 Sec. 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 Federal Register within 30 days of the action.

Subpart V [Reserved]



   Subpart W_Taking Marine Mammals Incidental to Conducting Precision 
              Strike Weapon Missions in the Gulf of Mexico

    Source: 71 FR 67822, Nov. 24, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 67822, Nov. 24, 2006, subpart W, 
consisting of Sec. Sec. 216.250 through 216.259 were added, effective 
Dec. 26, 2006 through Dec. 27, 2011.



Sec. 216.250  Specified activity and specified geographical region.

    (a) 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 U.S. Air Force Precision Strike 
Weapon missions within the Eglin Air Force Base Gulf Test and Training 
Range within the northern Gulf of Mexico. The authorized activities as 
specified in a Letter of Authorization issued under Sec. Sec. 216.106 
and 216.257 include, but are not limited to, activities associated with 
(1) the Joint Air-to-Surface Stand-off Missile (JASSM) exercise for a 
maximum of two live shots (single) and 4 inert shots (single) annually 
and (2) the small-diameter bomb (SDB) exercise for a maximum of six live 
shots a year, with two of the shots occurring simultaneously and a 
maximum of 12 inert shots, with up to two occurring simultaneously.
    (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: Atlantic bottlenose 
dolphins (Tursiops truncatus), Atlantic spotted dolphins (Stenella 
frontalis), dwarf sperm whales (Kogia simus) and pygmy sperm whale 
(Kogia breviceps).



Sec. 216.251  Effective dates.

    Regulations in this subpart are effective from December 26, 2006 
until December 27, 2011.



Sec. 216.252  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.257, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment, including lethal take within the area described in 
Sec. 216.250(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The taking of marine mammals under a Letter of Authorization is 
limited to the species listed in Sec. 216.250(b) and is limited to a 
total of 1 mortality, 2 takes by Level A harassment, and 53 takes by 
Level B harassment annually.



Sec. 216.253  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.250 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.257, no person in connection with the activities described in Sec. 
216.250 shall:

[[Page 96]]

    (a) Take any marine mammal not specified in Sec. 216.250(b);
    (b) Take any marine mammal specified in Sec. 216.250(b) other than 
by incidental, unintentional Level A or Level B harassment or mortality;
    (c) Take a marine mammal specified in Sec. 216.250(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.257.



Sec. 216.254  Mitigation.

    The activity identified in Sec. 216.250(a) must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammal species and stocks and their habitats. When 
conducting operations identified in Sec. 216.250(a) under a Letter of 
Authorization, the following mitigation measures must be implemented:
    (a)(1) For the JASSM, the holder of the Letter of Authorization must 
establish and monitor a safety zone for marine mammals with a radius of 
2.0 nm (3.7 km) from the center of the detonation and a buffer zone with 
a radius of 1.0 nm (1.85 km) radius from the outer edge of the safety 
zone.
    (2) For the SDB, the holder of the Letter of Authorization must 
establish and monitor a safety for marine mammals with a radius of no 
less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double 
bombs and a buffer zone from the outer edge of the safety zone with a 
radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km) 
for double bombs.
    (b) Prior to a JASSM or SDB launch:
    (1) If any marine mammals are observed within the designated safety 
zone prescribed in condition (a)(1) above, or within the buffer zone 
prescribed in condition (a)(2) above and it/they are on a course that 
will put them within the safety zone prior to an JASSM or SDB launch, 
the launch must be delayed until all marine mammals are no longer within 
the designated safety zone.
    (2) If any marine mammals are detected in the buffer zone and 
subsequently cannot be reacquired, the mission launch will not continue 
until the next verified location is outside of the safety zone and the 
animal is moving away from the mission area.
    (3) If weather and/or sea conditions preclude adequate aerial 
surveillance for detecting marine mammals, detonation must be delayed 
until adequate sea conditions exist for aerial surveillance to be 
undertaken. Adequate sea conditions means the sea state does not exceed 
Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 percent of surface; 
0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or 
greater, and the ceiling is 305 m (1,000 ft) or greater.
    (4) To ensure adequate daylight for pre- and post-detonation 
monitoring, mission launches may not take place earlier than 2 hours 
after sunrise, and detonations may not take place later than 2 hours 
prior to sunset, or whenever darkness or weather conditions will 
preclude completion of the post-test survey effort described in Sec. 
216.255.
    (5) If post-detonation surveys determine that a serious injury or 
lethal take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes must be made prior to conducting the 
next mission detonation.
    (6) Mission launches must be delayed if aerial or vessel monitoring 
programs described under Sec. 216.255 cannot be carried out fully.



Sec. 216.255  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.257 for activities described in Sec. 
216.250(a) is required to conduct the monitoring and reporting measures 
specified in this section and any additional monitoring measures 
contained in the Letter of Authorization.
    (b) 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 authorized to monitor the impacts of the 
activity on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the

[[Page 97]]

Holder of the Letter of Authorization must notify the Director, Office 
of Protected Resources, National Marine Fisheries Service, or designee, 
by letter or telephone (301-713-2289), at least 2 weeks prior to any 
modification to the activity identified in Sec. 216.250(a) that has the 
potential to result in the mortality or Level A or Level B harassment of 
marine mammals that was not identified and addressed previously.
    (c) The Holder of this Authorization must:
    (1) Designate qualified on-site marine mammal observers to record 
the effects of mission launches on marine mammals that inhabit the 
northern Gulf of Mexico;
    (2) Have on-site marine mammal observers approved in advance by the 
National Marine Fisheries Service to conduct the mitigation, monitoring 
and reporting activities specified in these regulations and in the 
Letter of Authorization issued pursuant to Sec. 216.106 and Sec. 
216.257.
    (3) Conduct aerial surveys to reduce impacts on protected species. 
The aerial survey/monitoring team will consist of two experienced marine 
mammal observers, approved in advance by the Southeast Region, National 
Marine Fisheries Service. The aircraft will also have a data recorder 
who would be responsible for relaying the location, the species if 
possible, the direction of movement, and the number of animals sighted.
    (4) Conduct shipboard monitoring to reduce impacts to protected 
species. Trained marine mammal observers will conduct monitoring from 
the highest point possible on each mission or support vessel(s). The 
observer on the vessel must be equipped with optical equipment with 
sufficient magnification (e.g., 25X power ``Big-Eye'' binoculars. The 
marine mammal observation platform must be of sufficient height to 
provide observers a platform to see a major portion of the safety zone.
    (d) The aerial and shipboard monitoring teams will maintain proper 
lines of communication to avoid communication deficiencies. The 
observers from the aerial team and operations vessel will have direct 
communication with the lead scientist aboard the operations vessel.
    (e) Pre-mission Monitoring: Approximately 5 hours prior to the 
mission, or at daybreak, the appropriate vessel(s) would be on-site in 
the primary test site near the location of the earliest planned mission 
point. Observers onboard the vessel will assess the suitability of the 
test site, based on visual observation of marine mammals and overall 
environmental conditions (visibility, sea state, etc.). This information 
will be relayed to the lead scientist.
    (f) Three Hours Prior to Mission:
    (1) Approximately three hours prior to the mission launch, aerial 
monitoring will commence within the test site to evaluate the test site 
for environmental suitability. Evaluation of the entire test site would 
take approximately 1 to 1.5 hours. The aerial monitoring team will begin 
monitoring the safety zone and buffer zone around the target area.
    (2) Shipboard observers will monitor the safety and buffer zone, and 
the lead scientist will enter all marine mammal sightings, including the 
time of sighting and the direction of travel, into a marine animal 
tracking and sighting database.
    (g) One to 1.5 Hours Prior to Mission Launch:
    (1) Depending upon the mission, aerial and shipboard viewers will be 
instructed to leave the area and remain outside the safety area. The 
aerial team will report all marine animals spotted and their directions 
of travel to the lead scientist onboard the vessel.
    (2) The shipboard monitoring team will continue searching the buffer 
zone for protected species as it leaves the safety zone. The surface 
vessels will continue to monitor from outside of the safety area until 
after impact.
    (h) Post-mission monitoring:
    (1) The vessels will move into the safety zone from outside the 
safety zone and continue monitoring for at least two hours, 
concentrating on the area down current of the test site.
    (2) The Holder of the Letter of Authorization will closely 
coordinate mission launches with marine animal

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stranding networks. Coordination shall include:
    (i) Pre-activity notification of a PSW exercise; and
    (ii) Post-event surveying of the Eglin AFB shore-line in the 
vicinity of the PSW exercise.
    (3) The monitoring team will document any dead or injured marine 
mammals and, if practicable, recover and examine any dead animals.
    (i) Activities related to the monitoring described in this section 
may include retention of marine mammals without the need for a separate 
scientific research permit.
    (j) The Holder of the Letter of Authorization must conduct any 
marine mammal research required under the Letter of Authorization.
    (k) Reporting. (1) Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must submit an 
annual report to the Director, Office of Protected Resources, National 
Marine Fisheries Service, no later than 30 days prior to the date of 
expiration of the Letter of Authorization. This report must contain all 
information required by these regulations and the Letter of 
Authorization.
    (2) The 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 new 
regulations will not be requested.



Sec. 216.256  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined at Sec. 216.103 ) conducting the activity 
identified in Sec. 216.250(a) must apply for and obtain either an 
initial Letter of Authorization in accordance with Sec. Sec. 216.106 
and 216.257 or a renewal under Sec. 216.258.



Sec. 216.257  Letters of Authorization.

    (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 to exceed the period of validity of this subpart, and must be 
renewed annually subject to annual renewal conditions in Sec. 216.258.
    (b) A Letter of Authorization with a period of validity less than 
the period of this subpart may be renewed subject to renewal conditions 
in Sec. 216.258.
    (c) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (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
    (3) Requirements for monitoring and reporting incidental takes.
    (d) 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 species or stock of affected marine mammals.
    (e) Except for the initial Letter of Authorization, notice of 
issuance or denial of subsequent Letters of Authorization will be 
published in the Federal Register within 30 days of a determination.



Sec. 216.258  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.257 for the activity identified in Sec. 216.250(a) will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec. 216.256 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;
    (2) Timely receipt of the monitoring report required under Sec. 
216.255(k), and the Letter of Authorization, which has been reviewed and 
accepted by the National Marine Fisheries Service; and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under Sec. 
216.254, Sec. 216.255, and the Letter of Authorization issued under 
Sec. Sec. 216.106 and 216.257, were undertaken and will be undertaken 
during

[[Page 99]]

the upcoming annual period of validity of a renewed Letter of 
Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.258 indicates that a substantial 
modification to the described work, mitigation, monitoring or research 
undertaken during the upcoming season will occur, the National Marine 
Fisheries Service will provide the public a period of 30 days for review 
and seek comment on:
    (1) New cited information and data that indicates that the 
determinations made for promulgating these regulations are in need of 
reconsideration, and
    (2) Proposed changes to the mitigation, monitoring and research 
requirements contained in these regulations or in the current Letter of 
Authorization.



Sec. 216.259  Modifications to Letters of Authorization.

    (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 Sec. Sec. 216.106 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 Sec. 216.258, without modification (except for the 
period of validity), is not considered a substantive modification.
    (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 Sec. 216.250(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.257 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

                        PARTS 217	220 [RESERVED]



PART 221_PRESCRIPTIONS IN FERC HYDROPOWER LICENSES--Table of Contents




                      Subpart A_General Provisions

Sec.
221.1 What is the purpose of this part, and to what license proceedings 
          does it apply?
221.2 What terms are used in this part?
221.3 How are time periods computed?
221.4 What deadlines apply to pending applications?

                        Subpart B_Hearing Process

                             Representatives

221.10 Who may represent a party, and what requirements apply to a 
          representative?

                       Document Filing and Service

221.11 What are the form and content requirements for documents under 
          this subpart?
221.12 Where and how must documents be filed?
221.13 What are the requirements for service of documents?

                      Initiation of Hearing Process

221.20 What supporting information must NMFS provide with its 
          preliminary prescriptions?
221.21 How do I request a hearing?
221.22 How do I file a notice of intervention and response?
221.23 When will hearing requests be consolidated?
221.24 How will NMFS respond to any hearing requests?
221.25 What will NMFS do with any hearing requests?
221.26 What regulations apply to a case referred for a hearing?

                 General Provisions Related to Hearings

221.30 What will the Department of Commerce's designated ALJ office do 
          with a case referral?
221.31 What are the powers of the ALJ?
221.32 What happens if the ALJ becomes unavailable?
221.33 Under what circumstances may the ALJ be disqualified?
221.34 What is the law governing ex parte communications?
221.35 What are the requirements for motions?

                  Prehearing Conferences and Discovery

221.40 What are the requirements for prehearing conferences?
221.41 How may parties obtain discovery of information needed for the 
          case?

[[Page 100]]

221.42 When must a party supplement or amend information it has 
          previously provided?
221.43 What are the requirements for written interrogatories?
221.44 What are the requirements for depositions?
221.45 What are the requirements for requests for documents or tangible 
          things or entry on land?
221.46 What sanctions may the ALJ impose for failure to comply with 
          discovery?
221.47 What are the requirements for subpoenas and witness fees?

                     Hearing, Briefing, and Decision

221.50 When and where will the hearing be held?
221.51 What are the parties' rights during the hearing?
221.52 What are the requirements for presenting testimony?
221.53 How may a party use a deposition in the hearing?
221.54 What are the requirements for exhibits, official notice, and 
          stipulations?
221.55 What evidence is admissible at the hearing?
221.56 What are the requirements for transcription of the hearing?
221.57 What is the standard of proof?
221.58 When will the hearing record close?
221.59 What are the requirements for post-hearing briefs?
221.60 What are the requirements for the ALJ's decision?

                     Subpart C_Alternatives Process

221.70 How must documents be filed and served under this subpart?
221.71 How do I propose an alternative?
221.72 What will NMFS do with a proposed alternative?
221.73 How will NMFS analyze a proposed alternative and formulate its 
          modified prescription?
221.74 Has OMB approved the information collection provisions of this 
          subpart?

    Authority: 16 U.S.C. 797(e), 811, 823d.

    Source: 70 FR 69840, Nov. 17, 2005, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 221.1  What is the purpose of this part, and to what license 
proceedings does it apply?

    (a) Hearing process. (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 et seq. 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.
    (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).
    (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 Sec. 221.23:
    (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
    (ii) A hearing requested under this part will be conducted by one of 
the other Departments, pursuant to 7 CFR 1.601 et seq. or 43 CFR 45.1 et 
seq., as applicable.
    (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 Sec. 221.60(a).
    (b) Alternatives process. 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.

[[Page 101]]

    (c) Reservation of authority. 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.
    (d) Applicability. (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.
    (2) If NMFS has already filed one or more preliminary prescriptions 
or prescriptions as of November 17, 2005, the special applicability 
provisions of Sec. 221.4 also apply.



Sec. 221.2  What terms are used in this part?

    As used in this part:
    ALJ 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.
    Alternative 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.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Department of Commerce's designated ALJ office means the ALJ office 
that is assigned to preside over the hearings process for NMFS.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    Ex parte communication means an oral or written communication to the 
ALJ that is made without providing all parties reasonable notice and an 
opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Intervention means a process by which a person who did not request a 
hearing under Sec. 221.21 can participate as a party to the hearing 
under Sec. 221.22.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document 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 et seq.
    NMFS 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.
    Office of Habitat Conservation 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.
    Party means, with respect to NMFS's hearing process under subpart B 
of this part:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 221.21; or
    (ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing 
process consolidated under Sec. 221.23;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 221.22; or
    (ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing 
process consolidated under Sec. 221.23;

[[Page 102]]

    (3) NMFS, if it has filed a preliminary prescription; and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under Sec. 
221.23.
    Person 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.
    Preliminary condition or prescription 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.
    Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 
811, to provide for the safe, timely, and effective passage of fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec. 221.10.
    Secretary means the Secretary of Commerce or his or her designee.
    Senior Department employee has the same meaning as the term ``senior 
employee'' in 5 CFR 2637.211(a).
    You refers to a party other than a Department.



Sec. 221.3  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.
    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec. 221.21, a notice of 
intervention and response under Sec. 221.22, an answer under Sec. 
221.24, or any document under subpart C of this part.
    (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.
    (i) To request an extension of time, a party must file a motion 
under Sec. 221.35 stating how much additional time is needed and the 
reasons for the request.
    (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.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec. 221.60.



Sec. 221.4  What deadlines apply to pending applications?

    (a) Applicability. (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.
    (2) The deadlines in this section will apply in such a case, in lieu 
of any inconsistent deadline in other sections of this part.
    (b) Hearing process. (1) Any request for a hearing under Sec. 
221.21 must be filed with the Office of Habitat Conservation by December 
19, 2005.
    (2) Any notice of intervention and response under Sec. 221.22 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of this 
section, NMFS must do the following by March 17, 2006:
    (i) Comply with the requirements of Sec. 221.23;
    (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 Sec. 221.24; and
    (iii) Issue a notice to each party specifying the time frame for the 
hearing process, including the deadline for NMFS to file an answer.

[[Page 103]]

    (c) Alternatives process. (1) Any alternative under Sec. 221.71 
must be filed with the Office of Habitat Conservation by December 19, 
2005.
    (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:
    (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 modified prescription under Sec. 221.72(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
prescription.
    (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.



                        Subpart B_Hearing Process

                             Representatives



Sec. 221.10  Who may represent a party, and what requirements apply 
to a representative?

    (a) Individuals. 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.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (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.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under Sec. 
221.11;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (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
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

                       Document Filing and Service



Sec. 221.11  What are the form and content requirements for documents
under this subpart?

    (a) Form. Each document filed in a case under this subpart must:
    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, which 
may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under this subpart must begin with 
a caption that sets forth:
    (1) The name of the case under this subpart and the docket number, 
if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under this subpart relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under this 
subpart must

[[Page 104]]

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.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, street 
address (if different), telephone number, facsimile number (if any), and 
electronic mail address (if any).



Sec. 221.12  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under this 
subpart must be filed with the appropriate office, as follows:
    (1) Before NMFS refers a case for docketing under Sec. 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 Sec. 221.2.
    (2) NMFS will notify the parties of the date on which it refers a 
case for docketing under Sec. 221.25. After that date, any documents 
must be filed with:
    (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
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec. 221.25. The 
name, address, telephone number, and facsimile number of the appropriate 
hearings component will be provided in the referral notice from NMFS.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission was 
successful; and
    (C) The original of the document is sent by regular mail on the same 
day.
    (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.
    (c) Date of filing. 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.
    (d) Nonconforming documents. 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.



Sec. 221.13  What are the requirements for service of documents?

    (a) Filed documents. 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:
    (1) A complete copy of any request for a hearing under Sec. 221.21 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response under 
Sec. 221.22 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec. 221.21, and NMFS, using one of the 
methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (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.

[[Page 105]]

    (b) Documents issued by the ALJ. 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.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day;
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day; or
    (4) By sending the document, including all attachments, by 
electronic mail if:
    (i) A copy of the document is sent by regular mail on the same day; 
and
    (ii) The party acknowledges receipt of the document by close of the 
next business day.
    (d) Acknowledgment of service. Any party who receives a document 
under this subpart by electronic mail must promptly send a reply 
electronic mail message acknowledging receipt.
    (e) Certificate of service. 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:
    (1) The name, address, and other contact information of each party's 
representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and
    (3) The date of service.

                      Initiation of Hearing Process



Sec. 221.20  What supporting information must NMFS provide with its 
preliminary prescriptions?

    (a) Supporting information. (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.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, NMFS must:
    (i) File them with FERC at the time it files the preliminary 
prescription; and
    (ii) Provide copies to the license applicant.
    (b) Service. NMFS will serve a copy of its preliminary prescription 
on each license party.



Sec. 221.21  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any prescription filed by NMFS, you must:
    (1) Be a license party; and
    (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.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by [the 
bureau] under Sec. 221.20(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (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.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:

[[Page 106]]

    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 221.22  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, you 
must:
    (i) Be a license party; and
    (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.
    (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.
    (b) Content. 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 Sec. 221.21(b).
    (1) If you agree with the information provided by NMFS under Sec. 
221.20(a) or by the requester under Sec. 221.21(b), your response may 
refer to NMFS's explanation or the requester's hearing request for 
support.
    (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 Sec. 221.21(b).
    (c) Witnesses and exhibits. 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.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 221.23  When will hearing requests be consolidated?

    (a) Initial Department coordination. 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 Sec. 221.21 and 
determine:
    (1) Whether any of the other Departments has also filed a 
preliminary condition or prescription relating to the license with FERC; 
and
    (2) If so, whether the other Departments have also received a 
hearing request with respect to the preliminary condition or 
prescription.
    (b) Decision on consolidation. Within 25 days after the deadline for 
filing hearing requests under Sec. 221.21, if NMFS has received a 
hearing request, NMFS must:
    (1) Consult with any other Department that has also received a 
hearing request; and
    (2) Decide jointly with the other Department:
    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any prescriptions from NMFS 
will be consolidated for hearing.
    (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:
    (i) Two or more hearing requests with respect to prescriptions from 
NMFS and the Department of the Interior; or

[[Page 107]]

    (ii) Two or more hearing requests with respect to any condition from 
another Department and any prescription from NMFS.



Sec. 221.24  How will NMFS respond to any hearing requests?

    (a) General. NMFS will determine whether to file an answer to any 
hearing request under Sec. 221.21.
    (b) Content. If NMFS files an answer:
    (1) For each of the numbered factual issues listed under Sec. 
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:
    (i) That NMFS is willing to stipulate to the facts as alleged by the 
requester;
    (ii) That NMFS believes the issue listed by the requester is not a 
factual issue, explaining the basis for such belief;
    (iii) That NMFS believes the issue listed by the requester is not 
material, explaining the basis for such belief; or
    (iv) That NMFS agrees that the issue is factual, material, and in 
dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec. 
221.23 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. NMFS's answer must also list the 
witnesses and exhibits that it intends to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, NMFS must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, NMFS must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If NMFS elects not to file an answer 
to a hearing request:
    (1) NMFS is deemed to agree that the issues listed by the requester 
are factual, material, and in dispute;
    (2) NMFS may file a list of witnesses and exhibits with respect to 
the request only as provided in Sec. 221.42(b); and
    (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 Sec. 221.23.



Sec. 221.25  What will NMFS do with any hearing requests?

    (a) Case referral. Within 50 days after the deadline in Sec. 
221.21(a), NMFS will refer the case for a hearing as follows:
    (1) If the hearing is to be conducted by NMFS, NMFS will refer the 
case to the Department of Commerce's designated ALJ office.
    (2) If the hearing is to be conducted by another Department, NMFS 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary prescription under Sec. 221.20;
    (2) The original of any hearing request under Sec. 221.21;
    (3) The original of any notice of intervention and response under 
Sec. 221.22;
    (4) The original of any answer under Sec. 221.24; and
    (5) An original referral notice under paragraph (c) of this section.
    (c) Notice. At the time NMFS refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of the 
Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and

[[Page 108]]

    (4) The date on which NMFS is referring the case for docketing.
    (d) Delivery and service. (1) NMFS must refer the case to the 
appropriate Department hearings component by one of the methods 
identified in Sec. 221.12(b)(1)(i) through (b)(1)(ii).
    (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 Sec. 
221.13(c)(1) and (c)(2).



Sec. 221.26  What regulations apply to a case referred for a hearing?

    (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.
    (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 et seq. will apply from that point on.
    (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 et seq. 
will apply from that point on.

                 General Provisions Related to Hearings



Sec. 221.30  What will the Department of Commerce's designated ALJ 
office do with a case referral?

    Within 5 days after issuance of the referral notice under Sec. 
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c):
    (a) The Department of Commerce's designated ALJ office must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec. 221.40. This 
notice may be combined with the docketing notice under paragraph (a)(3) 
of this section.



Sec. 221.31  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec. 221.60(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in this subpart;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec. 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
    (j) Take any other action authorized by law.



Sec. 221.32  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec. 221.31, the Department of Commerce's 
designated ALJ office shall designate a successor.
    (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.



Sec. 221.33  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (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.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting

[[Page 109]]

forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (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.
    (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.



Sec. 221.34  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (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.



Sec. 221.35  What are the requirements for motions?

    (a) General. 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 Sec. 221.30.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of this subpart with respect to 
form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. 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.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing of 
a motion does not stay the hearing process.
    (f) Ruling. 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.

                  Prehearing Conferences and Discovery



Sec. 221.40  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec. 221.30, on or about the 20th day after 
issuance of the referral notice under Sec. 221.25(c).
    (1) The initial prehearing conference will be used:
    (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;
    (ii) To consider the parties' motions for discovery under Sec. 
221.41 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely at 
the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec. 221.52; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and

[[Page 110]]

    (v) To consider any other matters that may aid in the disposition of 
the case.
    (b) Other conferences. 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.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (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.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. 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.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. 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.



Sec. 221.41  How may parties obtain discovery of information needed
for the case?

    (a) General. 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:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other purposes.
    (b) Criteria. 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:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (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).

[[Page 111]]

    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec. 221.25(c).
    (e) Objections. (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.
    (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.
    (f) Materials prepared for hearing. 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).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (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.
    (g) Experts. 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:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and
    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, or 
other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by subpoena.
    (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.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (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
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.



Sec. 221.42  When must a party supplement or amend information it
has previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (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 Sec. Sec. 221.21(c), 
221.22(c), or 221.24(c).
    (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 
Sec. Sec. 221.21(c), 221.22(c), or 221.24(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec. 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

[[Page 112]]

evidence at the hearing testimony from a witness or other information 
that it failed to disclose.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would disrupt 
the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.



Sec. 221.43  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
propound interrogatories must file a motion under Sec. 221.41(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 221.41(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. 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.
    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (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
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and make a copy, 
compilation, abstract, or summary.



Sec. 221.44  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a party 
wishing to take a deposition must file a motion under Sec. 221.41(c). 
Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition is 
to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 221.41(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. 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.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.

[[Page 113]]

    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (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:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.
    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. 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.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (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.
    (g) Video recording. 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.
    (1) The video recording may be in conjunction with an oral 
examination by telephone conference held under paragraph (c)(3) of this 
section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec. 221.53.



Sec. 221.45  What are the requirements for requests for documents or
tangible things or entry on land?

    (a) Motion. 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 Sec. 221.41(c). A 
request may include any of the following that are in the possession, 
custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license proceeding 
record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (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.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 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:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. 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.

[[Page 114]]



Sec. 221.46  What sanctions may the ALJ impose for failure to comply
with discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under Sec. 
221.42(a).
    (b) The ALJ may impose one or more of the following sanctions:
    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.



Sec. 221.47  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (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.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (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
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not a 
party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (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.
    (c) Witness fees. (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.
    (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.
    (d) Motion to quash. (1) A person to whom a subpoena is directed may 
request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for compliance, 
if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. 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.

[[Page 115]]

                     Hearing, Briefing, and Decision



Sec. 221.50  When and where will the hearing be held?

    (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 Sec. 221.40, generally within 15 days after the date 
set for completion of discovery.
    (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:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.



Sec. 221.51  What are the parties' rights during the hearing?

    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:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-cross 
examination as permitted by the ALJ.



Sec. 221.52  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct hearing testimony must be prepared and submitted in written 
form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each page;
    (ii) Be authenticated by an affidavit or declaration of the witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. 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.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (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.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec. 221.47 directing a 
witness to testify by telephonic conference call.



Sec. 221.53  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken under Sec. 
221.44 against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (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
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. 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.

[[Page 116]]



Sec. 221.54  What are the requirements for exhibits, official notice,
and stipulations?

    (a) General. (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.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (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.
    (c) Official notice. (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.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (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.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is binding 
on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.



Sec. 221.55  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec. 221.42(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (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.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (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.
    (b) Objections. 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.



Sec. 221.56  What are the requirements for transcription of the hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (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.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (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.
    (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.
    (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

[[Page 117]]

will issue an order making any corrections to the transcript that the 
ALJ finds are warranted.



Sec. 221.57  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.



Sec. 221.58  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the transcript may be corrected under Sec. 221.56(b).



Sec. 221.59  What are the requirements for post-hearing briefs?

    (a) General. (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.
    (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.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with page 
references.



Sec. 221.60  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec. 221.58; or
    (2) 90 days after issuance of the referral notice under Sec. 
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact (such 
as rulings on materiality and on the admissibility of evidence); and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one or 
more of the parties.
    (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.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. 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. 825l(b).



                     Subpart C_Alternatives Process



Sec. 221.70  How must documents be filed and served under this subpart?

    (a) Filing. (1) A document under this subpart must be filed using 
one of the methods set forth in Sec. 221.12(b).

[[Page 118]]

    (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.
    (b) Service. (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:
    (i) One of the methods of service in Sec. 221.13(c); or
    (ii) Regular mail.
    (2) The provisions of Sec. 221.13(d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
subpart.



Sec. 221.71  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (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.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to NMFS's preliminary prescription;
    (2) An explanation of how the alternative will be no less protective 
than the fishway prescribed by NMFS;
    (3) An explanation of how the alternative, as compared to the 
preliminary prescription, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (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.g., 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.



Sec. 221.72  What will NMFS do with a proposed alternative?

    If any license party proposes an alternative to a preliminary 
prescription under Sec. 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):
    (a) Analyze the alternative under Sec. 221.73; and
    (b) File with FERC:
    (1) Any prescription that NMFS adopts as its modified prescription; 
and
    (2) Its analysis of the modified prescription and any proposed 
alternatives under Sec. 221.73(c).



Sec. 221.73  How will NMFS analyze a proposed alternative and 
formulate its modified prescription?

    (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:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on NMFS's preliminary prescription;
    (3) Any ALJ decision on disputed issues of material fact issued 
under Sec. 221.60 with respect to the preliminary prescription;
    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec. 221.71.
    (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:
    (1) Cost significantly less to implement; or

[[Page 119]]

    (2) Result in improved operation of the project works for 
electricity production.
    (c) When NMFS files with FERC the prescription that NMFS adopts as 
its modified prescription under Sec. Sec. 221.72(b), it must also file:
    (1) A written statement explaining:
    (i) The basis for the adopted prescription; and
    (ii) If NMFS is not adopting any alternative, its reasons for not 
doing so; and
    (2) Any study, data, and other factual information relied on that is 
not already part of the licensing proceeding record.
    (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:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.



Sec. 221.74  Has OMB approved the information collection provisions
of this subpart?

    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 et seq. (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.



PART 222_GENERAL ENDANGERED AND THREATENED MARINE SPECIES--
Table of Contents




              Subpart A_Introduction and General Provisions

Sec.
222.101 Purpose and scope of regulations.
222.102 Definitions.
222.103 Federal/state cooperation in the conservation of endangered and 
          threatened species.

Subpart B_Certificates of Exemption for Pre-Act Endangered Species Parts

222.201 General requirements.
222.202 Certificate renewal.
222.203 Modification, amendment, suspension, and revocation of 
          certificates.
222.204 Administration of certificates.
222.205 Import and export requirements.

                   Subpart C_General Permit Procedures

222.301 General requirements.
222.302 Procedure for obtaining permits.
222.303 Issuance of permits.
222.304 Renewal of permits.
222.305 Rights of succession and transfer of permits.
222.306 Modification, amendment, suspension, cancellation, and 
          revocation of permits.
222.307 Permits for incidental taking of species.
222.308 Permits for scientific purposes or for the enhancement of 
          propagation or survival of species.
222.309 Permits for listed species of sea turtles involving the Fish and 
          Wildlife Service.
222.310 Permit authority for designated agents and employees of 
          specified Federal and state agencies.

                     Subpart D_Observer Requirement

222.401 Observer requirement.
222.402 Annual determination of fisheries to be observed; notice and 
          comment.
222.403 Duration of selection; effective date.
222.404 Observer program sampling.

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.
    Section 222.403 also issued under 16 U.S.C. 1361 et seq.

    Source: 64 FR 14054, Mar. 23, 1999, unless otherwise noted.



              Subpart A_Introduction and General Provisions



Sec. 222.101  Purpose and scope of regulations.

    (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

[[Page 120]]

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 Sec. Sec. 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.
    (b) For rules and procedures relating to species determined to be 
threatened or endangered under the jurisdiction of the Secretary of the 
Interior, see 50 CFR parts 10 through 17. For rules and procedures 
relating to the general implementation of the Act jointly by the 
Departments of the Interior and Commerce and for certain species under 
the joint jurisdiction of both the Secretaries of the Interior and 
Commerce, see 50 CFR Chapter IV. Marine mammals listed as endangered or 
threatened and subject to these regulations may also be subject to 
additional requirements pursuant to the Marine Mammal Protection Act 
(for regulations implementing that act, see 50 CFR part 216).
    (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.



Sec. 222.102  Definitions.

    Accelerator funnel means a device used to accelerate the flow of 
water through a shrimp trawl net.
    Act means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    Adequately covered 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.
    Alaska Regional Administrator 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.
    Approved turtle excluder device (TED) 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.
    Assistant Administrator 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.
    Atlantic Area means all waters of the Atlantic Ocean south of 
36[deg]33[min]00.8[sec] N.

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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).
    Atlantic Shrimp Fishery--Sea Turtle Conservation Area (Atlantic 
SFSTCA) means the inshore and offshore waters extending to 10 nautical 
miles (18.5 km) offshore along the coast of the States of Georgia and 
South Carolina from the Georgia-Florida border (defined as the line 
along 30[deg]42[min]45.6[sec] N. lat.) to the North Carolina-South 
Carolina border (defined as the line extending in a direction of 
135[deg]34[min]55[sec] from true north from the North Carolina-South 
Carolina land boundary, as marked by the border station on Bird Island 
at 33[deg]51[min]07.9[sec] N. lat., 078[deg]32[min]32.6[sec] W. long.).
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard;
    (2) Any special agent or enforcement officer of the National Marine 
Fisheries Service;
    (3) Any officer designated by the head of a Federal or state agency 
that has entered into an agreement with the Secretary or the Commandant 
of the Coast Guard to enforce the provisions of the Act; or
    (4) Any Coast Guard personnel accompanying and acting under the 
direction of any person described in paragraph (1) of this definition.
    Bait shrimper means a shrimp trawler that fishes for and retains its 
shrimp catch alive for the purpose of selling it for use as bait.
    Beam trawl 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.
    Certificate of exemption means any document so designated by the 
National Marine Fisheries Service and signed by an authorized official 
of the National Marine Fisheries Service, including any document which 
modifies, amends, extends or renews any certificate of exemption.
    Chain mat 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.
    Changed circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that can 
reasonably be anticipated by plan developers and NMFS and that can be 
planned for (e.g., the listing of new species, or a fire or other 
natural catastrophic event in areas prone to such events).
    Commercial activity means all activities of industry and trade, 
including, but not limited to, the buying or selling of commodities and 
activities conducted for the purpose of facilitating such buying and 
selling: Provided, however, that it does not include the exhibition of 
commodities by museums or similar cultural or historical organizations.
    Conservation plan 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.''
    Conserved habitat areas means areas explicitly designated for 
habitat restoration, acquisition, protection, or other conservation 
purposes under a conservation plan.
    Cooperative Agreement 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.
    Dredge or dredge gear, 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.
    Fishing, or to fish, means:
    (1) The catching, taking, or harvesting of fish or wildlife;
    (2) The attempted catching, taking, or harvesting of fish or 
wildlife;
    (3) Any other activity that can reasonably be expected to result in 
the catching, taking, or harvesting of fish or wildlife; or
    (4) Any operations on any waters in support of, or in preparation 
for, any

[[Page 122]]

activity described in paragraphs (1) through (3) of this definition.
    Footrope means a weighted rope or cable attached to the lower lip 
(bottom edge) of the mouth of a trawl net along the forward most 
webbing.
    Footrope length means the distance between the points at which the 
ends of the footrope are attached to the trawl net, measured along the 
forward-most webbing.
    Foreign commerce 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.
    Four-seam, straight-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing are parallel over the entire length.
    Four-seam, tapered-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing converge toward the rear of the trawl.
    Gillnet 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.
    Gulf Area means all waters of the Gulf of Mexico west of 81[deg] W. 
long. (the line at which the Gulf Area meets the Atlantic Area) and all 
waters shoreward thereof (including ports).
    Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means 
the offshore waters extending to 10 nautical miles (18.5 km) offshore 
along the coast of the States of Texas and Louisiana from the South Pass 
of the Mississippi River (west of 89[deg]08.5[min] W. long.) to the 
U.S.-Mexican border.
    Habitat restoration activity means an activity that has the sole 
objective of restoring natural aquatic or riparian habitat conditions or 
processes.
    Harm 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.
    Headrope means a rope that is attached to the upper lip (top edge) 
of the mouth of a trawl net along the forward-most webbing.
    Headrope length means the distance between the points at which the 
ends of the headrope are attached to the trawl net, measured along the 
forward-most webbing.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the meaning 
of the tariff laws of the United States.
    Inshore means marine and tidal waters landward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Modified pound net leader 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 \5/16\ 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

[[Page 123]]

with a level of stiffness equivalent to the stiffness of a \5/16\ 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.
    Northeast Regional Administrator 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.
    Northwest Regional Administrator means the Regional Administrator 
for the Northwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northwest 
Regional Administrator should be addressed: Northwest Regional 
Administrator, F/NW, Northwest Regional Office, National Marine 
Fisheries Service, NOAA, 7600 Sand Point Way NE, Seattle, WA 98115-0070.
    Office of Enforcement 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.
    Office of Protected Resources 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.
    Offshore means marine and tidal waters seaward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Operating conservation program 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.
    Permit 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.
    Person means an individual, corporation, partnership, trust, 
association, or any other private entity, or any officer, employee, 
agent, department, or instrumentality of the Federal government of any 
state or political subdivision thereof or of any foreign government.
    Possession means the detention and control, or the manual or ideal 
custody of anything 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.
    Pound net leader 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

[[Page 124]]

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.
    Pound Net Regulated Area I means Virginia waters of the mainstem 
Chesapeake Bay, south of 37[deg]19.0[min] N. lat. and west of 
76[deg]13.0[min] W. long., and all waters south of 37[deg]13.0[min] N. 
lat. to the Chesapeake Bay Bridge Tunnel (extending from approximately 
37[deg]05[min] N. lat., 75[deg]59[min] W. long. to 36[deg]55[min] N. 
lat., 76[deg]08[min] 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[deg]59.55[min] N. lat., 76[deg]18.64[min] 
W. long.) and the York River downstream of the Coleman Memorial Bridge 
(Route 17; approximately 37[deg]14.55[min] N. lat, 76[deg]30.40[min] W. 
long.)
    Pound Net Regulated Area II 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[deg]55[min] N. lat., 
75[deg]55[min] W. long.), the Great Wicomico River downstream of the 
Jessie Dupont Memorial Highway Bridge (Route 200; approximately 
37[deg]50.84[min] N. lat, 76[deg]22.09[min] W. long.), the Rappahannock 
River downstream of the Robert Opie Norris Jr. Bridge (Route 3; 
approximately 37[deg]37.44[min] N. lat, 76[deg]25.40[min] W. long.), and 
the Piankatank River downstream of the Route 3 Bridge (approximately 
37[deg]30.62[min] N. lat, 76[deg]25.19[min] W. long.) to the COLREGS 
line at the mouth of the Chesapeake Bay.
    Pre-Act endangered species part means any sperm whale oil, including 
derivatives and products thereof, which was lawfully held within the 
United States on December 28, 1973, in the course of a commercial 
activity; or any finished scrimshaw product, if such product or the raw 
material for such product was lawfully held within the United States on 
December 28, 1973, in the course of a commercial activity.
    Properly implemented conservation plan means any conservation plan, 
implementing agreement, or permit whose commitments and provisions have 
been or are being fully implemented by the permittee.
    Pusher-head trawl (chopsticks) means a trawl that is spread by two 
poles suspended from the bow of the trawler in an inverted ``V'' 
configuration.
    Resident species 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.
    Right whale means, as used in Sec. 224.103(c), any whale that is a 
member of the western North Atlantic population of the northern right 
whale species (Eubalaena glacialis).
    Roller trawl means a variety of beam trawl that is used, usually by 
small vessels, for fishing over uneven or vegetated sea bottoms.
    Scrimshaw product 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.
    Secretary means the Secretary of Commerce or an authorized 
representative.
    Shrimp means any species of marine shrimp (Order Crustacea) found in 
the Atlantic Area or the Gulf Area, including, but not limited to:
    (1) Brown shrimp (Penaeus aztecus).
    (2) White shrimp (Penaeus setiferus).
    (3) Pink shrimp (Penaeus duorarum).
    (4) Rock shrimp (Sicyonia brevirostris).
    (5) Royal red shrimp (Hymenopenaeus robustus).
    (6) Seabob shrimp (Xiphopenaeus kroyeri).
    Shrimp trawler means any vessel that is equipped with one or more 
trawl nets and that is capable of, or used for, fishing for shrimp, or 
whose on-board or landed catch of shrimp is more than 1 percent, by 
weight, of all fish comprising its on-board or landed catch.
    Skimmer trawl means a trawl that 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.

[[Page 125]]

    Southeast Regional Administrator 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.
    Southwest Regional Administrator 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.
    Stretched mesh size means the distance between the centers of the 
two opposite knots in the same mesh when pulled taut.
    Summer flounder means the species Paralichthys dentatus.
    Summer flounder fishery-sea turtle protection area means all 
offshore waters, bounded on the north by a line along 37[deg]05[min] N. 
lat. (Cape Charles, VA) and bounded on the south by a line extending in 
a direction of 135[deg]34[min]55[sec] from true north from the North 
Carolina-South Carolina land boundary, as marked by the border station 
on Bird Island at 33[deg]51[min]07.9[sec] N. lat., 
078[deg]32[min]32.6[sec] W. long.(the North Carolina-South Carolina 
border).
    Summer flounder trawler means any vessel that is equipped with one 
or more bottom trawl nets and that is capable of, or used for, fishing 
for flounder or whose on-board or landed catch of flounder is more than 
100 lb (45.4 kg).
    Take 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.
    Taper, in reference to the webbing used in trawls, means the angle 
of a cut used to shape the webbing, expressed as the ratio between the 
cuts that reduce the width of the webbing by cutting into the panel of 
webbing through one row of twine (bar cuts) and the cuts that extend the 
length of the panel of webbing by cutting straight aft through two 
adjoining rows of twine (point cuts). For example, sequentially cutting 
through the lengths of twine on opposite sides of a mesh, leaving an 
uncut edge of twines all lying in the same line, produces a relatively 
strong taper called ``all-bars''; making a sequence of 4-bar cuts 
followed by 1-point cut produces a more gradual taper called ``4 bars to 
1 point'' or ``4b1p''; similarly, making a sequence of 2-bar cuts 
followed by 1-point cut produces a still more gradual taper called 
``2b1p''; and making a sequence of cuts straight aft does not reduce the 
width of the panel and is called a ``straight'' or ``all-points'' cut.
    Taut means a condition in which there is no slack in the net 
webbing.
    Test net, or try net, means a net pulled for brief periods of time 
just before, or during, deployment of the primary net(s) in order to 
test for shrimp concentrations or determine fishing conditions (e.g., 
presence or absence of bottom debris, jellyfish, bycatch, seagrasses, 
etc.).
    Tongue means any piece of webbing along the top, center, leading 
edge of a trawl, whether lying behind or ahead of the headrope, to which 
a towing bridle can be attached for purposes of pulling the trawl net 
and/or adjusting the shape of the trawl.
    Transportation means to ship, convey, carry or transport by any 
means whatever, and deliver or receive for such shipment, conveyance, 
carriage, or transportation.
    Triple-wing trawl means a trawl with a tongue on the top, center, 
leading edge of the trawl and an additional tongue along the bottom, 
center, leading edge of the trawl.
    Two-seam trawl means a design of shrimp trawl in which the main body 
of the trawl is formed from a top and a bottom panel of webbing that are 
directly attached to each other down the sides of the trawl.

[[Page 126]]

    Underway with respect to a vessel, means that the vessel is not at 
anchor, or made fast to the shore, or aground.
    Unforeseen circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that could not 
reasonably have been anticipated by plan developers and NMFS at the time 
of the conservation plan's negotiation and development, and that result 
in a substantial and adverse change in the status of the covered 
species.
    Vessel 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.
    Vessel restricted in her ability to maneuver has the meaning 
specified for this term at 33 U.S.C. 2003(g).
    Wildlife means any member of the animal kingdom, including without 
limitation any mammal, fish, bird (including any migratory, 
nonmigratory, or endangered bird for which protection is also afforded 
by treaty or other international agreement), amphibian, reptile, 
mollusk, crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or parts 
thereof.
    Wing net (butterfly trawl) 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.

[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]



Sec. 222.103  Federal/state cooperation in the conservation of 
endangered and threatened species.

    (a) Application for and renewal of cooperative agreements. (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.
    (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.
    (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.
    (b) Allocation and availability of funds. (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:
    (i) The international commitments of the United States to protect 
endangered or threatened species;
    (ii) The readiness of a state to proceed with a conservation program 
consistent with the objectives and purposes of the Act;
    (iii) The number of federally listed endangered and threatened 
species within a state;
    (iv) The potential for restoring endangered and threatened species 
within a state; and
    (v) The relative urgency to initiate a program to restore and 
protect an endangered or threatened species in terms of survival of the 
species.
    (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.
    (c) Financial assistance and payments. (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

[[Page 127]]

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.
    (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.
    (3)(i) The payment of the Federal share of costs incurred when 
conducting activities included under a contract or award shall not 
exceed 75 percent of the program costs as stated in the agreement. 
However, the Federal share may be increased to 90 percent when two or 
more states having a common interest in one or more endangered or 
threatened resident species, the conservation of which may be enhanced 
by cooperation of such states, jointly enter into an agreement with the 
Assistant Administrator.
    (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.
    (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.



Subpart B_Certificates of Exemption for Pre-Act Endangered Species Parts



Sec. 222.201  General requirements.

    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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

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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.



Sec. 222.202  Certificate renewal.

    (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.
    (b) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of paragraph 
(c) of this section. At least 15 days should be allowed for processing. 
When an application for a renewal has been received and deemed 
sufficient, the Assistant Administrator shall issue a Certificate of 
Renewal to the applicant as soon as practicable.
    (c) The following information will be used as the basis for 
determining whether an application for renewal of a Certificate of 
Exemption is complete:
    (1) Title: Application for Renewal of Certificate of Exemption.
    (2) The date of application.
    (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.
    (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.
    (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.
    (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 Sec. 222.201(d).
    (iii) No renewals will be issued for scrimshaw products in excess of 
any quantities declared in the original application for a Certificate of 
Exemption.
    (6) A Certification in the following language: I hereby certify that 
the foregoing information is complete,

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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.
    (7) Signature of the applicant.
    (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.



Sec. 222.203  Modification, amendment, suspension, and revocation of
certificates.

    (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.
    (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.
    (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.



Sec. 222.204  Administration of certificates.

    (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.
    (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 Sec. 222.201(d).
    (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.
    (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.
    (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.
    (f) The records pertaining to pre-Act endangered species parts 
prescribed by this subpart shall be in permanent

[[Page 130]]

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.
    (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 Sec. 222.201(d), 
must similarly maintain records of all such parts or products they 
receive.
    (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.
    (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.
    (ii) Quarterly reports are due on January 15, April 15, July 15, and 
October 15.
    (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.



Sec. 222.205  Import and export requirements.

    (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.
    (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.
    (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.
    (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

[[Page 131]]

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.
    (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 Sec. 222.103.
    (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.

    Effective Date Note: At 64 FR 14054, Mar. 23, 1999, part 222 was 
revised, effective Mar. 23, 1999, with the exception of Sec. 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.



                   Subpart C_General Permit Procedures



Sec. 222.301  General requirements.

    (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.
    (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.
    (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.
    (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.
    (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.
    (2) A duplicate copy of the issued permit must be physically 
attached to the

[[Page 132]]

tank, container, package, enclosure, or other means of containment, in 
which the animal is placed for purposes of storage, transit, 
supervision, or care.
    (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.
    (f) Permits shall not be altered, erased, or mutilated, and any 
permit which has been altered, erased, or mutilated shall immediately 
become invalid.
    (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.
    (h) Permittees may be required to file reports of the activities 
conducted under the permit. Any such reports shall be filed not later 
than March 31 for the preceding calendar year ending December 31, or any 
portion thereof, during which a permit was in force, unless the 
regulations of parts 222, 223, or 224 of this chapter or the provisions 
of the permit set forth other reporting requirements.
    (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.
    (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.



Sec. 222.302  Procedure for obtaining permits.

    (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 Sec. 222.301(a)(2), will applications be 
accepted either orally or by telephone.
    (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 Federal Register.
    (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.
    (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.

[[Page 133]]



Sec. 222.303  Issuance of permits.

    (a)(1) No permit may be issued prior to the receipt of a written 
application unless an emergency pursuant to Sec. 222.301(a)(2) exists, 
and a written variation from the requirements is recorded by the 
National Marine Fisheries Service.
    (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 Sec. 222.102.
    (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.
    (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 Federal Register. 
Information received by the Assistant Administrator as a part of the 
application shall be available to the public as a matter of public 
record at every stage of the proceeding. An interested party, within 30 
days after the date of publication of such notice, may submit to the 
Assistant Administrator written data, views, or arguments with respect 
to the taking, importation, or to other action proposed in the 
application, and may request a hearing in connection with the action to 
be taken thereon.
    (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 Federal Register 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.
    (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 Federal Register, the 
Assistant Administrator shall issue or deny issuance of the permit. 
Notice of the decision of the Assistant Administrator shall be published 
in the Federal Register within 10 days after the date of the issuance or 
denial and indicate where copies of the permit, if issued, may be 
obtained.
    (e)(1) The Assistant Administrator shall issue the permit unless:
    (i) Denial of the permit has been made pursuant to subpart D to 15 
CFR part 904;
    (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;
    (iii) The applicant has failed to demonstrate a valid justification 
for the permit or a showing of responsibility;
    (iv) The authorization requested potentially threatens a fish or 
wildlife population; or
    (v) The Assistant Administrator finds through further inquiry or 
investigation, or otherwise, that the applicant is not qualified.
    (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.
    (f) If a permit is issued under Sec. 222.308, the Assistant 
Administrator shall publish notice thereof in the Federal Register, 
including the Assistant Administrator's finding that such permit--
    (1) Was applied for in good faith;
    (2) Will not operate to the disadvantage of such endangered species; 
and

[[Page 134]]

    (3) Will be consistent with the purposes and policy set forth in 
section 2 of the Act.
    (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 Federal Register within 10 days following the 
issuance of the permit.



Sec. 222.304  Renewal of permits.

    When the permit is renewable and a permittee intends to continue the 
activity described in the permit during any portion of the year ensuing 
its expiration, the permittee shall, unless otherwise notified in 
writing by the Assistant Administrator, file a request for permit 
renewal, together with a certified statement, verifying that the 
information in the original application is still currently correct. If 
the information is incorrect the permittee shall file a statement of all 
changes in the original application, accompanied by any required fee at 
least 30 days prior to the expiration of the permit. Any person holding 
a valid renewable permit, who has complied with the foregoing provision 
of this section, may continue such activities as were authorized by the 
expired permit until the renewal application is acted upon.



Sec. 222.305  Rights of succession and transfer of permits.

    (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.
    (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:
    (i) The surviving spouse, child, executor, administrator, or other 
legal representative of a deceased permittee, and
    (ii) The receiver or trustee in bankruptcy or a court designated 
assignee for the benefit of creditors.
    (3) Incidental take permits issued under Sec. 222.307, and 
enhancement permits issued under Sec. 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:
    (i) The proposed transferee meets all of the qualifications under 
parts 222, 223, or 224 (as applicable) for holding a permit;
    (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
    (iii) The proposed transferee has provided such other information as 
NMFS determines is relevant to process the transfer.
    (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.

[64 FR 14054, Mar. 23, 1999, as amended at 67 FR 57973, Sept. 13, 2002]

    Effective Date Note: At 64 FR 14054, Mar. 23, 1999, part 222 was 
revised, effective Mar. 23, 1999, with the exception of Sec. 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.

[[Page 135]]



Sec. 222.306  Modification, amendment, suspension, cancellation, 
and revocation of permits.

    (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.
    (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 amended permit to the person to whom 
it was issued.
    (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.
    (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.
    (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.



Sec. 222.307  Permits for incidental taking of species.

    (a) Scope. (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.
    (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.
    (b) Permit application procedures. 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:
    (1) The type of application, either:
    (i) Application for an Individual Incidental Take Permit under the 
Act; or
    (ii) Application for a General Incidental Take Permit under the Act;
    (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;
    (3) The species or stocks, by common and scientific name, and a 
description of the status, distribution, seasonal distribution, habitat 
needs, feeding

[[Page 136]]

habits and other biological requirements of the affected species or 
stocks;
    (4) A detailed description of the proposed activity, including the 
anticipated dates, duration, and specific location. If the request is 
for a general incidental take permit, an estimate of the total level of 
activity expected to be conducted;
    (5) A conservation plan, based on the best scientific and commercial 
data available, which specifies the following:
    (i) The anticipated impact (i.e., amount, extent, and type of 
anticipated taking) of the proposed activity on the species or stocks;
    (ii) The anticipated impact of the proposed activity on the habitat 
of the species or stocks and the likelihood of restoration of the 
affected habitat;
    (iii) The steps (specialized equipment, methods of conducting 
activities, or other means) that will be taken to monitor, minimize, and 
mitigate such impacts, and the funding available to implement such 
measures;
    (iv) The alternative actions to such taking that were considered and 
the reasons why those alternatives are not being used; and
    (v) A list of all sources of data used in preparation of the plan, 
including reference reports, environmental assessments and impact 
statements, and personal communications with recognized experts on the 
species or activity who may have access to data not published in current 
literature.
    (c) Issuance criteria. (1) In determining whether to issue a permit, 
the Assistant Administrator will consider the following:
    (i) The status of the affected species or stocks;
    (ii) The potential severity of direct, indirect, and cumulative 
impacts on the species or stocks and habitat as a result of the proposed 
activity;
    (iii) The availability of effective monitoring techniques;
    (iv) The use of the best available technology for minimizing or 
mitigating impacts; and
    (v) The views of the public, scientists, and other interested 
parties knowledgeable of the species or stocks or other matters related 
to the application.
    (2) To issue the permit, the Assistant Administrator must find 
that--
    (i) The taking will be incidental;
    (ii) The applicant will, to the maximum extent practicable, monitor, 
minimize, and mitigate the impacts of such taking;
    (iii) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild;
    (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
    (v) There are adequate assurances that the conservation plan will be 
funded and implemented, including any measures required by the Assistant 
Administrator.
    (d) Permit conditions. 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:
    (1) Reporting requirements or rights of inspection for determining 
whether the terms and conditions are being complied with;
    (2) The species and number of animals covered;
    (3) The authorized method of taking;
    (4) The procedures to be used to handle or dispose of any animals 
taken; and
    (5) The payment of an adequate fee to the National Marine Fisheries 
Service to process the application.
    (e) Duration of permits. 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

[[Page 137]]

or to increase the long-term survivability of the species.
    (f) Certificates of inclusion. (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:
    (i) The general incidental take permit under which the applicant 
wants coverage;
    (ii) The name, address, and telephone number of the applicant. If 
the applicant is a partnership or a corporate entity, the applicable 
details;
    (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
    (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.
    (2) To issue a Certificate of Inclusion, the Assistant Administrator 
must find that:
    (i) The applicant will be engaged in the activity covered by the 
general permit, and
    (ii) The applicant has made adequate assurances that the applicable 
measures of the conservation plan will be funded and implemented.
    (g) Assurances provided to permittee in case of changed or 
unforeseen circumstances. 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.
    (1) Changed circumstances provided for in the plan. 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.
    (2) Changed circumstances not provided for in the plan. 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.
    (3) Unforeseen circumstances. (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.
    (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.
    (iii) NMFS has the burden of demonstrating that unforeseen 
circumstances exist, using the best scientific and commercial data 
available.

[[Page 138]]

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:
    (A) Size of the current range of the affected species;
    (B) Percentage of range adversely affected by the conservation plan;
    (C) Percentage of range conserved by the conservation plan;
    (D) Ecological significance of that portion of the range affected by 
the conservation plan;
    (E) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the conservation 
plan; and
    (F) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (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.



Sec. 222.308  Permits for scientific purposes or for the enhancement
of propagation or survival of species.

    (a) Scope. 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.
    (b) Application procedures. 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 Sec. 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:
    (1) Title, as applicable, either--
    (i) Application for permit for scientific purposes under the Act; or
    (ii) Application for permit for the enhancement of the propagation 
or survival of the endangered species Under the Act.
    (2) The date of the application.
    (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.
    (4) A description of the purpose of the proposed acts, including the 
following:
    (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
    (ii) A detailed description of how the species will be used.
    (5) A detailed description of the project, or program, in which the 
endangered species is to be used, including the following:
    (i) The period of time over which the project or program will be 
conducted;
    (ii) A list of the names and addresses of the sponsors or 
cooperating institutions and the scientists involved;
    (iii) A copy of the formal research proposal or contract if one has 
been prepared;
    (iv) A statement of whether the proposed project or program has 
broader

[[Page 139]]

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
    (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.
    (6) A description of the endangered species which is the subject of 
the application, including the following:
    (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;
    (ii) A physical description of each animal, including the age, size, 
and sex;
    (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;
    (iv) A description of the status of the stock of each species 
related insofar as possible to the location or area of taking;
    (v) A description of the manner of taking for each animal, including 
the gear to be used;
    (vi) The name and qualifications of the persons or entity which will 
capture or otherwise take the animals; and
    (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.
    (7) A description of the manner of transportation for any live 
animal taken, imported, exported, or shipped in interstate commerce, 
including the following:
    (i) Mode of transportation;
    (ii) Name of transportation company;
    (iii) Length of time in transit for the transfer of the animal(s) 
from the capture site to the holding facility;
    (iv) Length of time in transit for any planned future move or 
transfer of the animals;
    (v) The qualifications of the common carrier or agent used for 
transportation of the animals;
    (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;
    (vii) Special care before and during transportation, such as salves, 
antibiotics, moisture; and
    (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.
    (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:
    (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;
    (ii) The water supply, amount, and quality;
    (iii) The diet, amount and type, for all animals;
    (iv) Sanitation practices used;
    (v) Qualifications and experience of the staff;
    (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
    (vii) The availability in the future of a consulting expert or 
veterinarian meeting paragraph requirements of (b)(8)(vi) in this 
section.

[[Page 140]]

    (9) A statement of willingness to participate in a cooperative 
breeding program and maintain or contribute data to a stud book.
    (10) A statement of how the applicant's proposed project or program 
will enhance or benefit the wild population.
    (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:
    (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;
    (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;
    (iii) The cause(s) of any such mortality; and
    (iv) The steps which have been taken by applicant to avoid or 
decrease any such mortality.
    (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.
    (13) The applicant and/or an officer thereof must sign the 
application.
    (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.
    (c) Issuance criteria. 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:
    (1) Whether the permit was applied for in good faith;
    (2) Whether the permit, if granted and exercised, will not operate 
to the disadvantage of the endangered species;
    (3) Whether the permit would be consistent with the purposes and 
policy set forth in section 2 of the Act;
    (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;
    (5) The status of the population of the requested species and the 
effect of the proposed action on the population, both direct and 
indirect;
    (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;
    (7) Whether alternative non-endangered species or population stocks 
can and should be used;
    (8) Whether the animal was born in captivity or was (or will be) 
taken from the wild;
    (9) Provision for disposition of the species if and when the 
applicant's project or program terminates;
    (10) How the applicant's needs, program, and facilities compare and 
relate to proposed and ongoing projects and programs;
    (11) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to successfully accomplish the 
objectives stated in the application; and
    (12) Opinions or views of scientists or other persons or 
organizations knowledgeable about the species which is the

[[Page 141]]

subject of the application or of other matters germane to the 
application.
    (d) Terms and conditions. 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:
    (1) The number and kind of species covered;
    (2) The location and manner of taking;
    (3) Port of entry or export;
    (4) The methods of transportation, care, and maintenance to be used 
with live species;
    (5) Any requirements for reports or rights of inspections with 
respect to any activities carried out pursuant to the permit;
    (6) The transferability or assignability of the permit;
    (7) The sale or other disposition of the species, its progeny, or 
the species product; and
    (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.



Sec. 222.309  Permits for listed species of sea turtles involving the
Fish and Wildlife Service.

    (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.
    (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.
    (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.
    (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.
    (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.



Sec. 222.310  Permit authority for designated agents and employees of
specified Federal and state agencies.

    (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.
    (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,

[[Page 142]]

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 Sec. 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:
    (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 be 
examined and scanned for the presence of any pre-existing flipper or PIT 
tags.
    (2) Turtles may also be weighed, measured, and photographed prior to 
release.
    (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.
    (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:
    (1) Name and position of the official or employee involved;
    (2) Description of the sea turtle(s) involved including species and 
condition of the animal;
    (3) When applicable, description of entangling gear, its location on 
the turtle, and the amount of gear left on the turtle at release;
    (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
    (5) Such other information as the Assistant Administrator, or 
authorized representative, may require.

[70 FR 42509, July 25, 2005]



                     Subpart D_Observer Requirement

    Source: 72 FR 43185, Aug. 3, 2007, unless otherwise noted.



Sec. 222.401  Observer requirement.

    Any United States fishing vessel, either commercial or recreational, 
which operates within the territorial seas or exclusive economic zone of 
the United States or on the high seas, or any fishing vessel that is 
otherwise subject to the jurisdiction of the United States, operating in 
a fishery that is identified through the annual determination process 
specified in Sec. 222.402 must carry aboard a NMFS-approved observer 
upon request by the NMFS Assistant Administrator, in consultation with 
NMFS Regional Administrators and Science Center Directors, as 
appropriate. NMFS and/or interested cooperating entities will pay direct 
costs for the observer. Owners and operators must comply with observer 
safety requirements specified at 50 CFR 600.725 and 50 CFR 600.746 and 
the terms and conditions specified in the written notification.



Sec. 222.402  Annual determination of fisheries to be observed; 
notice and comment.

    (a) The Assistant Administrator, in consultation with Regional 
Administrators and Science Center Directors, will make an annual 
determination identifying which fisheries the agency intends to observe. 
This determination will be based on the extent to which:
    (1) The fishery operates in the same waters and at the same time as 
sea turtles are present;
    (2) The fishery operates at the same time or prior to elevated sea 
turtle strandings; or

[[Page 143]]

    (3) The fishery uses a gear or technique that is known or likely to 
result in incidental take of sea turtles based on documented or reported 
takes in the same or similar fisheries; and
    (4) NMFS intends to monitor the fishery and anticipates that it will 
have the funds to do so.
    (b) The Assistant Administrator shall publish the proposed 
determination and any final determination in the Federal Register. 
Public comment will be sought at the time of publication of the proposed 
determination. In addition, a written notification of the final 
determination 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 such 
notification will be otherwise served on the owners or operator of the 
vessel. Additionally, NMFS will notify state agencies and provide 
notification through publication in local newspapers, radio broadcasts, 
and any other means as appropriate. The proposed and any final 
determinations will include, to the extent practicable, information on 
fishing sector, targeted gear type, target fishery, temporal and 
geographic scope of coverage, or other information, as appropriate.
    (c) Fisheries listed on the most recent annual Marine Mammal 
Protection Act List of Fisheries in any given year, in accordance with 
16 U.S.C. 1387, will serve as the comprehensive set of commercial 
fisheries to be considered for inclusion in the annual determination. 
Recreational fisheries may also be included in the annual determination.
    (d) Publication of the proposed and final determinations should be 
coordinated to the extent possible with the annual Marine Mammal 
Protection Act List of Fisheries process as specified at 50 CFR 229.8.
    (e) Inclusion of a fishery in a proposed or final determination does 
not constitute a conclusion by NMFS that those participating in the 
fishery are illegally taking sea turtles.



Sec. 222.403  Duration of selection; effective date.

    (a) Fisheries included in the final annual determination in a given 
year will remain eligible for observer coverage under this rule for five 
years, without need for NMFS to include the fishery in the intervening 
proposed annual determinations, to enable the design of an appropriate 
sampling program and to ensure collection of scientific data. If NMFS 
wishes to continue observations beyond the fifth year, NMFS must include 
the fishery in the proposed annual determination and seek comment, prior 
to the expiration of the fifth year.
    (b) A 30-day delay in effective date for implementing observer 
coverage will follow the annual notification, except for those fisheries 
that were included in a previous determination within the preceding five 
years or where the AA has determined that there is good cause pursuant 
to the Administrative Procedure Act to make the rule effective without a 
30-day delay.



Sec. 222.404  Observer program sampling.

    (a) During the program design, NMFS would be guided by the following 
standards in the distribution and placement of observers among fisheries 
and vessels in a particular fishery:
    (1) The requirements to obtain the best available scientific 
information;
    (2) The requirement that assignment of observers is fair and 
equitable among fisheries and among vessels in a fishery;
    (3) The requirement that no individual person or vessel, or group of 
persons or vessels, be subject to inappropriate, excessive observer 
coverage; and
    (4) The need to minimize costs and avoid duplication, where 
practicable.
    (b) Consistent with 16 U.S.C. 1881(b), vessels where the facilities 
for accommodating an observer or carrying out observer functions are so 
inadequate or unsafe (due to size or quality of equipment, for example) 
that the health or safety of the observer or the safe operation of the 
vessel would be jeopardized, would not be required to take observers 
under this rule.

[[Page 144]]



PART 223_THREATENED MARINE AND ANADROMOUS SPECIES--Table of Contents




                      Subpart A_General Provisions

Sec.
223.101 Purpose and scope.
223.102 Enumeration of threatened marine and anadromous species.

 Subpart B_Restrictions Applicable to Threatened Marine and Anadromous 
                                 Species

223.201 Guadalupe fur seal.
223.202 Steller sea lion.
223.203 Anadromous fish.
223.204 Tribal plans.
223.205 Sea turtles.
223.206 Exceptions to prohibitions relating to sea turtles.
223.207 Approved TEDs.
223.209 [Reserved]

Figures 1-2 to Part 223 [Reserved]
Figure 3 to Part 223--Matagorda TED
Figure 4 to Part 223--Georgia TED
Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker 
          Soft TED
Figure 6 to Part 223--TED Extension in Summer Flounder Trawl
Figures 7-9b to Part 223 [Reserved]
Figure 10 to Part 223--Flounder TED
Figure 11 to Part 223 [Reserved]
Figure 12 to Part 223--Escape Opening & Cover Dimensions for 71-inch TED
Figure 13 to Part 223--Single Grid Hard TED Escape Opening
Figure 14a to Part 223--Maximum Angle of Deflector Bars With Straight 
          Bars Attached to the Bottom of the Frame
Figure 14b to Part 223--Maximum Angle of Deflector Bars With Bent Bars 
          Attached to the Bottom of the Frame
Figure 15 to Part 223--Weedless TED Brace Bar Description
Figure 16 to Part 223--Escape Opening and Flap Dimensions for the Double 
          Cover Flap TED

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202 also 
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec. 
223.206(d)(9).

    Source: 43 FR 32809, July 28, 1978, unless otherwise noted. 
Redesignated at 64 FR 14068, Mar. 23, 1999.



                      Subpart A_General Provisions



Sec. 223.101  Purpose and scope.

    (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.
    (b) The regulations contained in this part apply only to the 
threatened species enumerated in Sec. 223.102.
    (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.

[64 FR 14068, Mar. 23, 1999]



Sec. 223.102  Enumeration of threatened marine and anadromous species.

    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 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 Federal Register citations for the listings and critical 
habitat designations.

----------------------------------------------------------------------------------------------------------------
                    Species \1\                                           Citation(s) for      Citation(s) for
---------------------------------------------------    Where listed           listing          critical habitat
           Common name             Scientific name                       determination(s)       designation(s)
----------------------------------------------------------------------------------------------------------------
(a) Marine Mammals                 ...............  .................  ....................  ...................
(1) Guadalupe fur seal             Arctocephalus    Wherever found     50 FR 51252; Dec 16,  NA
                                    townsendi        U.S.A. (Farallon   1985
                                                     Islands of CA)
                                                     south to Mexico
                                                     (Islas
                                                     Revillagigedo)
                                   ...............  .................  ....................  ...................
(2) Steller sea lion               Eumetopias       Eastern            55 FR 13488; Apr 10,  58 FR 45278; Aug
                                    jubatus          population,        1990                  27, 1993
                                                     which consists    55 FR 50006; Dec 4,   64 FR 14067; Mar
                                                     of all Steller     1990                  23, 1999
                                                     sea lions from    62 FR 30772; Jun 5,
                                                     breeding           1997
                                                     colonies located
                                                     east of 144[deg]
                                                     W. longitude

[[Page 145]]

 
(b) Sea Turtles                    ...............  .................  ....................  ...................
(1) Green turtle \2\               Chelonia mydas   Wherever found,    43 FR 32808; Jul 28,  63 FR 46701; Sep 2,
                                                     except where       1978                  1998
                                                     listed as                               64 FR 14067; Mar
                                                     endangered under                         23, 1999
                                                     Sec.
                                                     224.101(c);
                                                     circumglobal in
                                                     tropical and
                                                     temperate seas
                                                     and oceans
                                   ...............  .................  ....................  ...................
(2) Loggerhead turtle \2\          Caretta caretta  Wherever found;    43 FR 32808; Jul 28,  NA
                                                     circumglobal in    1978
                                                     tropical and
                                                     temperate seas
                                                     and oceans
                                   ...............  .................  ....................  ...................
(3) Olive ridley turtle \2\        Lepidochelys     Wherever found,    43 FR 32808; Jul 28,  NA
                                    olivacea         except where       1978
                                                     listed as
                                                     endangered under
                                                     Sec.
                                                     224.101(c);
                                                     circumglobal in
                                                     tropical and
                                                     temperate seas.
(c) Fishes                         ...............  .................  ....................  ...................
(1) Green sturgeon - southern DPS  Acipenser        U.S.A., CA. The    71 FR 17757; April    ...................
                                    medirostris      southern DPS       7, 2006;
                                                     includes all      71 FR 19241; April
                                                     spawning           13, 2006
                                                     populations of
                                                     green sturgeon
                                                     south of the Eel
                                                     River
                                                     (exclusive),
                                                     principally
                                                     including the
                                                     Sacramento River
                                                     green sturgeon
                                                     spawning
                                                     population.
                                   ...............  .................  ....................  ...................
(2) Gulf sturgeon                  Acipenser        Wherever found.    56 FR 49653; Sep 30,  68 FR 13370; Mar
                                    oxyrinchus                          1991                  19, 2003
                                    desotoi
                                   ...............  .................  ....................  ...................
(3) Ozette Lake sockeye            Oncorhynchus     U.S.A.- WA,        64 FR 14528; Mar 25,  70 FR 52630; Sep 2,
                                    nerka            including all      1999                  2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
                                   ...............  .................  ....................  ...................
(4) Central Valley spring-run      Oncorhynchus     U.S.A.- CA,        64 FR 50394; Sep 16,  70 FR 52488; Sep 2,
 Chinook                            tshawytscha      including all      1999                  2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
                                   ...............  .................  ....................  ...................
(5) California Coastal Chinook     Oncorhynchus     U.S.A.-CA,         64 FR 50394; Sep 16,  70 FR 52488; Sep 2,
                                    tshawytscha      including all      1999                  2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.

[[Page 146]]

 
                                   ...............  .................  ....................  ...................
(6) Upper Willamette River         Oncorhynchus     U.S.A.- OR,        64 FR 14308; Mar. 24  70 FR 52630; Sep 2,
 Chinook                            tshawytscha      including all      1999                  2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
                                   ...............  .................  ....................  ...................
(7) Lower Columbia River Chinook   Oncorhynchus     U.S.A.- OR, WA,    64 FR 14308; Mar.     70 FR 52630; Sep 2,
                                    tshawytscha      including all      24, 1999              2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
 

[[Page 147]]

 
                                   ...............  .................  ....................  ...................
(8) Puget Sound Chinook            Oncorhynchus     U.S.A.- WA,        64 FR 14308; Mar.     70 FR 52630; Sep 2,
                                    tshawytscha      including all      24, 1999              2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
                                   ...............  .................  ....................  ...................
(9) Snake River fall-run Chinook   Oncorhynchus     U.S.A.- OR, WA,    57 FR 14653; Apr 22,  58 FR 68543; Dec
                                    tshawytscha      ID, including      1992                  28, 1993
                                                     all naturally     57 FR 23458; Jun 3,
                                                     spawned            1992
                                                     populations of    70 FR 37160; Jun 28,
                                                     fall-run Chinook   2005
                                                     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.
 

[[Page 148]]

 
                                   ...............  .................  ....................  ...................
(10) Snake River spring/summer-    Oncorhynchus     U.S.A.- OR, WA,    57 FR 14653; Apr 22,  58 FR 68543; Dec
 run Chinook                        tshawytscha      ID, including      1992                  28, 1993
                                                     all naturally     57 FR 23458; Jun 3,   64 FR 57399; Oct
                                                     spawned            1992                  25, 1999
                                                     populations of    70 FR 37160; Jun 28,
                                                     spring/summer-     2005
                                                     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.
                                   ...............  .................  ....................  ...................
(11) Southern Oregon/Northern      Oncorhynchus     U.S.A.- CA, OR,    62 FR 24588; May 6,   64 FR 24049; May 5,
 California Coast coho              kisutch          including all      1997                  1999
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
 

[[Page 149]]

 
                                   ...............  .................  ....................  ...................
(12) Lower Columbia River coho     Oncorhynchus     U.S.A.- OR, WA,    70 FR 37160; Jun 28,  NA
                                    kisutch          including all      2005
                                                     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.
                                   ...............  .................  ....................  ...................
(13) Columbia River chum           Oncorhynchus     U.S.A.- OR, WA,    64 FR 14508; Mar.     70 FR 52630; Sep 2,
                                    keta             including all      25, 1999              2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
 

[[Page 150]]

 
                                   ...............  .................  ....................  ...................
(14) Hood Canal summer-run chum    Oncorhynchus     U.S.A.- WA,        64 FR 14508; Mar.     70 FR 52630; Sep 2,
                                    keta             including all      25, 1999              2005
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     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.
                                   ...............  .................  ....................  ...................
(15) South-Central California      Oncorhynchus     U.S.A.- CA,        62 FR 43937; Aug 18,  70 FR 52488; Sep 2,
 Coast Steelhead                    mykiss           including all      1997                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     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.
                                   ...............  .................  ....................  ...................
(16) Central California Coast      Oncorhynchus     U.S.A.- CA,        62 FR 43937; Aug 18,  70 FR 52488; Sep 2,
 Steelhead                          mykiss           including all      1997                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     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.
                                   ...............  .................  ....................  ...................
(17) California Central Valley     Oncorhynchus     U.S.A.- CA,        63 FR 13347; Mar.     70 FR 52488; Sep 2,
 Steelhead                          mykiss           including all      19, 1998              2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     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.
                                   ...............  .................  ....................  ...................
(18) Northern California           Oncorhynchus     U.S.A.- CA,        65 FR 36074; June 7,  70 FR 52488; Sep 2,
 Steelhead                          mykiss           including all      2000                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     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.
                                   ...............  .................  ....................  ...................
(19) Upper Willamette River        Oncorhynchus     U.S.A.- OR,        62 FR 43937; Aug 18,  70 FR 52630; Sep 2,
 Steelhead                          mykiss           including all      1997                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     winter-run
                                                     steelhead in the
                                                     Willamette
                                                     River, Oregon,
                                                     and its
                                                     tributaries
                                                     upstream from
                                                     Willamette Falls
                                                     to the Calapooia
                                                     River,
                                                     inclusive.
 

[[Page 151]]

 
                                   ...............  .................  ....................  ...................
(20) Lower Columbia River          Oncorhynchus     U.S.A.- OR, WA,    63 FR 13347; Mar 19,  70 FR 52630; Sep 2,
 Steelhead                          mykiss           including all      1998                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     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.
                                   ...............  .................  ....................  ...................
(21) Middle Columbia River         Oncorhynchus     U.S.A.- OR, WA,    57 FR 14517; Mar 25,  70 FR 52630; Sep 2,
 Steelhead                          mykiss           including all      1999                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     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.
                                   ...............  .................  ....................  ...................
(22) Snake River Basin Steelhead   Oncorhynchus     U.S.A.- OR, WA,    62 FR 43937; Aug 18,  70 FR 52630; Sep 2,
                                    mykiss           ID, including      1997                  2005
                                                     all naturally     71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in streams in
                                                     the Snake River
                                                     Basin of
                                                     southeast
                                                     Washington,
                                                     northeast
                                                     Oregon, and
                                                     Idaho.
                                   ...............  .................  ....................  ...................
(23) Puget Sound Steelhead         Oncorhynchus     U.S.A., WA,        72 FR 26722; May 11,  NA
                                    mykiss           Distinct           2007
                                                     Population
                                                     Segment
                                                     including all
                                                     naturally
                                                     spawned
                                                     anadromous O.
                                                     mykiss
                                                     (steelhead)
                                                     populations,
                                                     from streams in
                                                     the river basins
                                                     of the Strait of
                                                     Juan de Fuca,
                                                     Puget Sound, and
                                                     Hood Canal,
                                                     Washington,
                                                     bounded to the
                                                     west by the
                                                     Elwha River
                                                     (inclusive) and
                                                     to the north by
                                                     the Nooksack
                                                     River and Dakota
                                                     Creek
                                                     (inclusive), as
                                                     well as the
                                                     Green River
                                                     natural and
                                                     Hamma Hamma
                                                     winter-run
                                                     steelhead
                                                     hatchery stocks.
(24) Oregon Coast Coho             Oncorhynchus     U.S.A., OR, all    73 FR 7816; Feb 11,   73 FR 7816; Feb 11,
                                    kisutch          naturally          2008                  2008.
                                                     spawned
                                                     populations of
                                                     coho salmon in
                                                     Oregon coastal
                                                     streams south of
                                                     the Columbia
                                                     River and north
                                                     of Cape Blanco,
                                                     including the
                                                     Cow Creek (ODFW
                                                     stock 37) coho
                                                     hatchery program
(d) Marine Invertebrates           ...............  .................  ....................  ...................
                                   ...............  .................  ....................  ...................
(1) Elkhorn coral                  Acropora         Wherever found.    71 FR 26852, May 9,   NA
                                    palmata          Includes United    2006
                                                     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.
                                   ...............  .................  ....................  ...................
 

[[Page 152]]

 
(2) Staghorn coral                 Acropora         Wherever found.    71 FR 26852, May 9,   NA
                                    cervicornis      Includes United    2006
                                                     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.
                                   ...............  .................  ....................  ...................
(e) Marine Plants                  ...............  .................  ....................  ...................
                                   ...............  .................  ....................  ...................
(1) Johnson's seagrass             Halophila        Wherever found.    63 FR 49035; Sep 14,  65 FR 17786; Apr 5,
                                    johnsonii        U.S.A. -           1998                  2000
                                                     Southeastern FL
                                                     between
                                                     Sebastian Inlet
                                                     and north
                                                     Biscayne Bay.
----------------------------------------------------------------------------------------------------------------
\1\ 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).
\2\ 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.


[71 FR 26861, May 9, 2006, as amended at 71 FR 31965, June 2, 2006; 71 
FR 38270, July 6, 2006; 72 FR 26734, May 11, 2007; 73 FR 7843, Feb. 11, 
2008]



 Subpart B_Restrictions Applicable to Threatened Marine and Anadromous 
                                 Species



Sec. 223.201  Guadalupe fur seal.

    (a) Prohibitions. 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.
    (b) Exceptions. (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.
    (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:
    (i) Is accomplished in a humane manner;
    (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;
    (iii) Includes steps designed to ensure the return of the animal to 
its natural habitat, if feasible; and
    (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.
    (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.

[50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, 
Mar. 23, 1999]



Sec. 223.202  Steller sea lion.

    (a) General prohibitions. 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:
    (1) No discharge of firearms. 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.
    (2) No approach in buffer areas. Except as provided in paragraph (b) 
of this section:

[[Page 153]]

    (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;
    (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
    (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.
    (3) Listed sea lion rookery sites. Listed Steller sea lion rookery 
sites consist of the rookeries in the Aleutian Islands and the Gulf of 
Alaska listed in Table 1.

                      Table 1 to Sec. 223.202--Listed Steller Sea Lion Rookery Sites \1\
----------------------------------------------------------------------------------------------------------------
                                            From                    To
              Island              ---------------------------------------------- NOAA chart         Notes
                                      Lat.        Long.       Lat.      Long.
----------------------------------------------------------------------------------------------------------------
1. Outer I.......................  59[deg]20.  150[deg]23  59[deg]21  150[deg]2      16681   S quadrant.
                                    5 N         .0 W        .0 N       4.5 W
2. Sugarloaf I...................  58[deg]53.  152[deg]02  .........  .........      16580   Whole island.
                                    0 N         .0 W
3. Marmot I......................  58[deg]14.  151[deg]47  58[deg]10  151[deg]5      16580   SE quadrant.
                                    5 N         .5 W        .0 N       1.0 W
4. Chirikof I....................  55[deg]46.  155[deg]39  55[deg]46  155[deg]4      16580   S quadrant.
                                    5 N         .5 W        .5 N       3.0 W
5. Chowiet I.....................  56[deg]00.  156[deg]41  56[deg]00  156[deg]4      16013   S quadrant.
                                    5 N         .5 W        .5 N       2.0 W
6. Atkins I......................  55[deg]03.  159[deg]18  .........  .........      16540   Whole island.
                                    5 N         .5 W
7. Chernabura I..................  54[deg]47.  159[deg]31  54[deg]45  159[deg]3      16540   SE corner.
                                    5 N         .0 W        .5 N       3.5 W
8. Pinnacle Rock.................  54[deg]46.  161[deg]46  .........  .........      16540   Whole island.
                                    0 N         .0 W
9. Clubbing Rks (N)..............  54[deg]43.  162[deg]26  .........  .........      16540   Whole island.
                                    0 N         .5 W
Clubbing Rks (S).................  54[deg]42.  162[deg]26  .........  .........      16540   Whole Island.
                                    0 N         .5 W
10. Sea Lion Rks.................  55[deg]28.  163[deg]12  .........  .........      16520   Whole island.
                                    0 N         .0 W
11. Ugamak I.....................  54[deg]14.  164[deg]48  54[deg]13  164[deg]4      16520   E end of island.
                                    0 N         .0 W        .0 N       8.0 W
12. Akun I.......................  54[deg]18.  165[deg]32  54[deg]18  165[deg]3      16547   Billings Head
                                    0 N         .5 W        .0 N       1.5 W                  Bight.
13. Akutan I.....................  54[deg]03.  166[deg]00  54[deg]05  166[deg]0      16520   SW corner, Cape
                                    5 N         .0 W        .5 N       5.0 W                  Morgan.
14. Bogoslof I...................  53[deg]56.  168[deg]02  .........  .........      16500   Whole island.
                                    0 N         .0 W
15. Ogchul I.....................  53[deg]00.  168[deg]24  .........  .........      16500   Whole island.
                                    0 N         .0 W
16. Adugak I.....................  52[deg]55.  169[deg]10  .........  .........      16500   Whole island.
                                    0 N         .5 W
17. Yunaska I....................  52[deg]42.  170[deg]38  52[deg]41  170[deg]3      16500   NE end.
                                    0 N         .5 W        .0 N       4.5 W
18. Seguam I.....................  52[deg]21.  172[deg]35  52[deg]21  172[deg]3      16480   N coast,
                                    0 N         .0 W        .0 N       3.0 W                  Saddleridge Pt.
19. Agligadak I..................  52[deg]06.  172[deg]54  .........  .........      16480   Whole island.
                                    5 N         .0 W
20. Kasatochi I..................  52[deg]10.  175[deg]31  52[deg]10  175[deg]2      16480   N half of island.
                                    0 N         .5 W        .5 N       9.0 W
21. Adak I.......................  51[deg]36.  176[deg]59  51[deg]38  176[deg]5      16460   SW Point, Lake
                                    5 N         .0 W        .0 N       9.5 W                  Point.
22. Gramp rock...................  51[deg]29.  178[deg]20  .........  .........      16460   Whole island.
                                    0 N         .5 W
23. Tag I........................  51[deg]33.  178[deg]34  .........  .........      16460   Whole island.
                                    5 N         .5 W
24. Ulak I.......................  51[deg]20.  178[deg]57  51[deg]18  178[deg]5      16460   SE corner, Hasgox
                                    0 N         .0 W        .5 N       9.5 W                  Pt.
25. Semisopochnoi................  51[deg]58.  179[deg]45  51[deg]57  179[deg]4      16440   E quadrant, Pochnoi
                                    5 N         .5 E        .0 N       6.0 E                  Pt.
Semisopochnoi....................  52[deg]01.  179[deg]37  52[deg]01  179[deg]3      16440   N quadrant, Petrel
                                    5 N         .5 E        .5 N       9.0 E                  Pt.
26. Amchitka I...................  51[deg]22.  179[deg]28  51[deg]21  179[deg]2      16440   East Cape.
                                    5 N         .0 E        .5 N       5.0 E
27. Amchitka I...................  51[deg]32.  178[deg]49  .........  .........      16440   Column Rocks.
                                    5 N         .5 E
28. Ayugadak Pt..................  51[deg]45.  178[deg]24  .........  .........      16440   SE coast of Rat
                                    5 N         .5 E                                          Island.
29. Kiska I......................  51[deg]57.  177[deg]21  51[deg]56  177[deg]2      16440   W central, Lief
                                    5 N         .0 E        .5 N       0.0 E                  Cove.
30. Kiska I......................  51[deg]52.  177[deg]13  51[deg]53  177[deg]1      16440   Cape St. Stephen.
                                    5 N         .0 E        .5 N       2.0 E
31. Walrus I.....................  57[deg]11.  169[deg]56  .........  .........      16380   Whole island.
                                    0 N         .0 W
32. Buldir I.....................  52[deg]20.  175[deg]57  52[deg]23  175[deg]5      16420   Se point to NW
                                    5 N         .0 E        .5 N       1.0 E                  point.
33. Agattu I.....................  52[deg]24.  173[deg]21  .........  .........      16420   Gillion Point.
                                    0 N         .5 E
34. Agattu I.....................  52[deg]23.  173[deg]43  52[deg]22  173[deg]4      16420   Cape Sabak.
                                    5 N         .5 E        .0 N       1.0 E
35. Attu I.......................  52[deg]54.  172[deg]28  52[deg]57  172[deg]3      16681   S Quadrant.
                                    5 N         .5 E        .5 N       1.5 E
----------------------------------------------------------------------------------------------------------------
\1\ 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.


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    (4) Commercial Fishing Operations. 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.
    (b) Exceptions--(1) Permits. 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.

[[Page 183]]

    (2) Official activities. 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:
    (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
    (ii) Entering the buffer areas to perform activities that are 
necessary for national defense, or the performance of other legitimate 
governmental activities.
    (3) Subsistence takings by Alaska natives. 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.
    (4) Emergency situations. 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.
    (5) Exemptions. 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 Federal Register. 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.
    (6) Navigational transit. 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:

------------------------------------------------------------------------
                Rookery                     Straits, narrows, or pass
------------------------------------------------------------------------
Akutan Island..........................  Akutan Pass between Cape Morgan
                                          and Unalga Island.
Clubbing Rocks.........................  Between Clubbing Rocks and
                                          Cherni Island.
Outer Island...........................  Wildcat Pass between Rabbit and
                                          Ragged Islands.
------------------------------------------------------------------------

    (c) Penalties. (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.
    (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.

[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]



Sec. 223.203  Anadromous fish.

    Available guidance documents cited in the regulatory text are listed 
in Appendix A to this section.
    (a) Prohibitions. 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 Sec. 223.102(a).
    (b) Limits on the prohibitions. The limits to the prohibitions of 
paragraph (a) of this section relating to threatened species of 
salmonids listed in Sec. 223.102(a) are described in the following 
paragraphs (b)(1) through (b)(13):
    (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 Sec. 
223.102(a).
    (2) The prohibitions of paragraph (a) of this section relating to 
Oregon Coast coho salmon, listed in Sec. 223.102(a)(24), do not apply 
to activities specified in an application for a permit for scientific

[[Page 184]]

purposes or to enhance the conservation or survival of the species, 
provided that the application has been received by the Assistant 
Administrator for Fisheries, NOAA (AA), no later than June 10, 2008. The 
prohibitions of this section apply to these activities upon the 
Assistant Administrator's rejection of the application as insufficient, 
upon issuance or denial of a permit, or March 31, 2009, whichever occurs 
earliest.
    (3) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 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:
    (i) Aid a sick, injured, or stranded salmonid,
    (ii) Dispose of a dead salmonid, or
    (iii) Salvage a dead salmonid which may be useful for scientific 
study.
    (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.
    (4) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to fishery harvest activities provided that:
    (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:
    (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.
    (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

[[Page 185]]

that are functioning at or below critical threshold must not be allowed 
to appreciably increase genetic and demographic risks facing the 
population and must be designed to permit the population's achievement 
of viable function, unless the plan demonstrates that the likelihood of 
survival and recovery of the entire ESU in the wild would not be 
appreciably reduced by greater risks to that individual population.
    (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.
    (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.
    (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.
    (F) Provide for evaluating monitoring data and making any revisions 
of assumptions, management strategies, or objectives that data show are 
needed.
    (G) Provide for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (H) Include restrictions on resident and anadromous species 
fisheries that minimize any take of listed species, including time, 
size, gear, and area restrictions.
    (I) Be consistent with plans and conditions established within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (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.
    (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 Federal Register 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.
    (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 Federal Register 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

[[Page 186]]

Northwest Region's website (www.nwr.noaa.gov).
    (v) The prohibitions of paragraph (a) of this section relating to 
threatened species of steelhead listed in Sec. 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.
    (5) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to activity associated with artificial propagation programs provided 
that:
    (i) A state or Federal Hatchery and Genetics Management Plan (HGMP) 
has been approved by NMFS as meeting the following criteria:
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (I) The HGMP provides for evaluating monitoring data and making any 
revisions of assumptions, management

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strategies, or objectives that data show are needed;
    (J) NMFS provides written concurrence of the HGMP which specifies 
the implementation and reporting requirements. For Federally operated or 
funded hatcheries, the ESA section 7 consultation will achieve this 
purpose.
    (K) The HGMP is consistent with plans and conditions set within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (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.
    (iii) The state confers with NMFS on a regular basis regarding 
intended collections of listed broodstock to ensure congruity with the 
approved HGMP.
    (iv) Prior to final approval of an HGMP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment for a period of at least 30 days.
    (v) NMFS' approval of a plan shall be a written approval by NMFS 
Southwest or Northwest Regional Administrator, as appropriate.
    (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 Federal Register 
announcing its intention to withdraw the limit on activities associated 
with that program. Such an announcement will provide for a comment 
period of no less than 30 days, after which NMFS will make a final 
determination whether to withdraw the limit so that take prohibitions, 
likeall other activity not within a limit, would then apply to that 
program. A template for developing HGMPs is available from NMFS 
Northwest Region's website (www.nwr.noaa.gov).
    (6) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 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 United 
States v. Washington or United States v. Oregon, the on-going Federal 
court proceedings to enforce and implement reserved treaty fishing 
rights, provided that:
    (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.
    (ii) The joint plan will be implemented and enforced within the 
parameters set forth in United States v. Washington or United States v. 
Oregon.
    (iii) In making that determination for a joint plan, the Secretary 
has taken comment on how any fishery management plan addresses the 
criteria in Sec. 223.203(b)(4), or on how any hatchery and genetic 
management plan addresses the criteria in Sec. 223.203(b)(5).
    (iv) The Secretary shall publish notice in the Federal Register 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.
    (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

[[Page 188]]

the new information, NMFS will publish notification in the Federal 
Register announcing its intention to withdraw the limit on activities 
associated with that joint plan. Such an announcement will provide for a 
comment period of no less than 30 days, after which NMFS will make a 
final determination whether to withdraw the limit so that take 
prohibitions would then apply to that joint plan as to all other 
activity not within a limit.
    (7) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to scientific research activities provided that:
    (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.
    (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.
    (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.
    (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.
    (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.
    (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).
    (vii) NMFS' approval of a research program shall be a written 
approval by NMFS Northwest or Southwest Regional Administrator.
    (8) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 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:
    (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.
    (ii) The State's watershed conservation plan guidelines have been 
found by NMFS to provide for plans that:
    (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.
    (B) Will not reduce the likelihood of either survival or recovery of 
listed species in the wild.
    (C) Ensure that any taking will be incidental.
    (D) Minimize and mitigate any adverse impacts.
    (E) Provide for effective monitoring and adaptive management.
    (F) Use the best available science and technology, including 
watershed analysis.
    (G) Provide for public and scientific review and input.
    (H) Include any measures that NMFS determines are necessary or 
appropriate.
    (I) Include provisions that clearly identify those activities that 
are part of plan implementation.
    (J) Control risk to listed species by ensuring funding and 
implementation of the above plan components.
    (iii) NMFS will periodically review state certifications of 
Watershed Conservation Plans to ensure adherence to

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approved watershed conservation plan guidelines.
    (iv) ``Habitat restoration activity'' is defined as an activity 
whose primary purpose is to restore natural aquatic or riparian habitat 
conditions or processes. ``Primary purpose'' means the activity would 
not be undertaken but for its restoration purpose.
    (v) Prior to approving watershed conservation plan guidelines under 
paragraph (b)(8)(ii) of this section, NMFS will publish notification in 
the Federal Register 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.
    (9) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to the physical diversion of water from a stream or lake, provided that:
    (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.
    (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.
    (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.
    (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.
    (10) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to routine road maintenance activities provided that:
    (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.
    (ii) NMFS finds the routine road maintenance activities of any 
state, city, county, or port to be consistent with the conservation of 
listed

[[Page 190]]

salmonids' habitat when it contributes, as does the ODOT Guide, to the 
attainment and maintenance of properly functioning condition (PFC). NMFS 
defines PFC as the sustained presence of natural habitat-forming 
processes that are necessary for the long-term survival of salmonids 
through the full range of environmental variation. Actions that affect 
salmonid habitat must not impair properly functioning habitat, 
appreciably reduce the functioning of already impaired habitat, or 
retard the long-term progress of impaired habitat toward PFC. 
Periodically, NMFS will evaluate an approved program for its 
effectiveness in maintaining and achieving habitat function that 
provides for conservation of the listed salmonids. Whenever warranted, 
NMFS will identify to the jurisdiction ways in which the program needs 
to be altered or strengthened. Changes may be identified if the program 
is not protecting desired habitat functions, or where even with the 
habitat characteristics and functions originally targeted, habitat is 
not supporting population productivity levels needed to conserve the 
ESU. If any jurisdiction within the limit does not make changes to 
respond adequately to the new information in the shortest amount of time 
feasible, but not longer than one year, NMFS will publish notification 
in the Federal Register 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.
    (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.
    (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 Federal 
Register 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.
    (v) Pesticide and herbicide spraying is not included within this 
limit, even if in accord with the ODOT guidance.
    (11) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 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:
    (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.
    (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.
    (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).
    (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.
    (v) Prior to approving any substantive change in a program within 
this limit, NMFS will publish notification in the Federal Register 
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.
    (vi) NMFS' approval of amendments shall be a written approval by 
NMFS Northwest Regional Administrator.
    (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

[[Page 191]]

are necessary for the long-term survival of salmonids through the full 
range of environmental variation. Actions that affect salmonid habitat 
must not impair properly functioning habitat, appreciably reduce the 
functioning of already impaired habitat, or retard the long-term 
progress of impaired habitat toward PFC. Periodically, NMFS will 
evaluate the effectiveness of an approved program in maintaining and 
achieving habitat function that provides for conservation of the listed 
salmonids. Whenever warranted, NMFS will identify to the jurisdiction 
ways in which the program needs to be altered or strengthened. Changes 
may be identified if the program is not protecting desired habitat 
functions, or where even with the habitat characteristics and functions 
originally targeted, habitat is not supporting population productivity 
levels needed to conserve the ESU. If any jurisdiction within the limit 
does not make changes to respond adequately to the new information in 
the shortest amount of time feasible, but not longer than 1 year, NMFS 
will publish notification in the Federal Register 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.
    (12) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to municipal, residential, commercial, and industrial (MRCI) development 
(including redevelopment) activities provided that:
    (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:
    (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.
    (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.
    (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.
    (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.
    (E) MRCI development ordinance or plan adequately protects 
historical stream meander patterns and channel migration zones and 
avoids hardening of stream banks and shorelines.
    (F) MRCI development ordinance or plan adequately protects wetlands 
and wetland functions, including isolated wetlands.
    (G) MRCI development ordinance or plan adequately preserves the 
hydrologic capacity of permanent and intermittent streams to pass peak 
flows.
    (H) MRCI development ordinance or plan includes adequate provisions 
for

[[Page 192]]

landscaping with native vegetation to reduce need for watering and 
application of herbicides, pesticides, and fertilizer.
    (I) MRCI development ordinance or plan includes adequate provisions 
to prevent erosion and sediment run-off during construction.
    (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.
    (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.
    (L) MRCI development ordinance and plan complies with all other 
state and Federal environmental and natural resource laws and permits.
    (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.
    (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 Federal Register 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.
    (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 Federal Register 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.
    (13) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to non-Federal forest management activities conducted in the State of 
Washington provided that:
    (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

[[Page 193]]

the Forest Practices Board by a consortium of landowners, tribes, and 
state and Federal agencies.
    (ii) All non-regulatory elements of the Forests and Fish Report are 
being implemented.
    (iii) Actions involving use of herbicides, pesticides, or fungicides 
are not included within this limit.
    (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.
    (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 Federal Register 
announcing the availability of the Report and regulations for public 
review and comment.
    (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 Federal Register 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.
    (vii) NMFS approval of regulations shall be a written approval by 
NMFS Northwest Regional Administrator.
    (c) Affirmative Defense. 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 Sec. 
223.102(a), any person claiming the benefit of any limit listed in 
paragraph (b) of this section or Sec. 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.
    (d) Severability. 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.

[[Page 194]]

         Appendix A to Sec. 223.203--List of Guidance Documents

    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 Sec. 
600.502 of this title).
    1. Oregon Department of Transportation (ODOT) Maintenance Management 
System Water Quality and Habitat Guide (July, 1999).
    2. Guidelines for Electrofishing Waters Containing Salmonids Listed 
Under the Endangered Species Act.
    3. Fish Screening Criteria for Anadromous Salmonids, National Marine 
Fisheries Service, Southwest Region, 1997.
    4. Viable Salmonid Populations and the Recovery of Evolutionarily 
Significant Units. (June 2000).

[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; 73 FR 7843, Feb. 11, 2008]

    Effective Date Note: At 73 FR 55455, Sept. 25, 2008, Sec. 223.203 
was amended by revising (a), (b) introductory text, and (b)(2), 
effective Oct. 27, 2008. For the convenience of the user, the revised 
text is set forth as follows:



Sec. 223.203  Anadromous fish.

                                * * * * *

    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA (16 
U.S.C. 1538(a)(1)) relating to endangered species apply to fish with an 
intact adipose fin that are part of the threatened species of salmonids 
listed in Sec. 223.102(c)(3) through (c)(24).
    (b) Limits on the prohibitions. The limits to the prohibitions of 
paragraph (a) of this section relating to threatened species of 
salmonids listed in Sec. 223.102(c)(3) through (c)(24) are described in 
the following paragraphs (b)(1) through (b)(13):

                                * * * * *

    (2) The prohibitions of paragraph (a) of this section relating to 
threatened Puget Sound steelhead listed in Sec. 223.102(c)(23) do not 
apply to:
    (i) Activities specified in an application for a permit for 
scientific purposes or to enhance the conservation or survival of the 
species, provided that the application has been received by the 
Assistant Administrator for Fisheries, NOAA (AA), no later than November 
14, 2008. The prohibitions of this section apply to these activities 
upon the AA's rejection of the application as insufficient, upon 
issuance or denial of a permit, or June 1, 2009, whichever occurs 
earliest, or
    (ii) Steelhead harvested in tribal or recreational fisheries prior 
to June 1, 2009, so long as the harvest is authorized by the State of 
Washington or a tribe with jurisdiction over steelhead harvest. If NMFS 
does not receive a fishery management plan for Puget Sound steelhead by 
November 14, 2008, subsequent take by harvest will be subject to the 
take prohibitions.

                                * * * * *



Sec. 223.204  Tribal plans.

    (a) Limits on the prohibitions. The prohibitions of Sec. 223.203(a) 
of this subpart relating to threatened species of salmonids listed in 
Sec. 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.
    (b) Consideration of a Tribal Plan. (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.
    (2) Where there exists a Federal court proceeding with continuing 
jurisdiction over the subject matter of a Tribal

[[Page 195]]

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.
    (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.
    (4) The Secretary shall publish notification in the Federal Register 
of any determination regarding a Tribal Plan and the basis for that 
determination.

[65 FR 42485, July 10, 2000. Redesignated at 70 FR 37203, June 28, 2005]



Sec. 223.205  Sea turtles.

    (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 Sec. 223.206.
    (b) Except as provided in Sec. 223.206, it is unlawful for any 
person subject to the jurisdiction of the United States to do any of the 
following:
    (1) Own, operate, or be on board a vessel, except if that vessel is 
in compliance with all applicable provisions of Sec. 223.206(d);
    (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 Sec. 223.206(d);
    (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, Sec. 223.206(d)(3) or (d)(4);
    (4) Possess fish or wildlife taken in violation of paragraph (b) of 
this section;
    (5) Fail to follow any of the sea turtle handling and resuscitation 
requirements specified in Sec. 223.206(d)(1);
    (6) Possess a sea turtle in any manner contrary to the handling and 
resuscitation requirements of Sec. 223.206(d)(1);
    (7) Fail to comply immediately, in the manner specified at Sec. 
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;
    (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;
    (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;
    (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;
    (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;
    (12) Resist a lawful arrest for an act prohibited by this section;
    (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;
    (14) Sell, barter, trade or offer to sell, barter, or trade, a TED 
that is not an approved TED;
    (15) Fail to comply with the restrictions set forth in Sec. 
223.206(d)(10) regarding pound net leaders;
    (16) Fail to comply with the restrictions set forth in Sec. 
223.206(d)(11) regarding sea scallop dredges; or
    (17) Attempt to do, solicit another to do, or cause to be done, any 
of the foregoing.
    (c) In connection with any action alleging a violation of this 
section, any person claiming the benefit of any exemption, exception, or 
permit under

[[Page 196]]

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 Sec. 223.207 (c) or (d) has the 
burden of proving such claim.

[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]



Sec. 223.206  Exceptions to prohibitions relating to sea turtles.

    (a) Permits--(1) Scientific research, education, zoological 
exhibition, or species enhancement permits. The Assistant Administrator 
may issue permits authorizing activities which would otherwise be 
prohibited under Sec. 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.
    (2) Incidental-take permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
Sec. 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.
    (b) Exception for injured, dead, or stranded specimens. If any 
member of any threatened species of sea turtle is found injured, dead, 
or stranded, any agent or employee of the National Marine Fisheries 
Service, the Fish and Wildlife Service, the U.S. Coast Guard, or any 
other Federal land or water management agency, or any agent or employee 
of a state agency responsible for fish and wildlife who is designated by 
his or her agency for such purposes, may, when acting in the course of 
his or her official duties, take such specimens without a permit if such 
taking is necessary to aid a sick, injured, or stranded specimen or 
dispose of a dead specimen or salvage a dead specimen which may be 
useful for scientific study. Whenever possible, live specimens shall be 
returned to their aquatic environment as soon as possible. Every action 
shall be reported in writing to the Assistant Administrator within 30 
days, and reports of further occurrence shall be made as deemed 
appropriate by the Assistant Administrator until the specimen is either 
returned to its environment or disposed of. Reports shall be mailed by 
registered or certified mail, return receipt requested, to the Assistant 
Administrator and shall contain the following information:
    (1) Name and position of the official or employee involved;
    (2) Description of the specimen(s) involved;
    (3) Date and location of disposal;
    (4) Circumstances requiring the action;
    (5) Method of disposal;
    (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
    (7) Such other information as the Assistant Administrator may 
require.
    (c) Exception for research or conservation. 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.
    (d) Exception for incidental taking. The prohibitions against taking 
in Sec. 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)

[[Page 197]]

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.
    (1) Handling and resuscitation requirements. (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:
    (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.
    (B) Resuscitation must be attempted on sea turtles that are 
comatose, or inactive, as determined in paragraph (d)(1) of this 
section, by:
    (1) 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.
    (2) Sea turtles being resuscitated must be shaded and kept damp or 
moist but under no circumstance be 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.
    (3) 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.
    (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.
    (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 or bottom 
longline gear on board and that has been issued, or is required to have, 
a limited access permit for highly migratory species under Sec. 635.4 
of this title, must comply with the handling and release requirements 
specified in Sec. 635.21 of this title.
    (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.
    (2) Gear requirements for trawlers--(i) TED requirement for shrimp 
trawlers. 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.
    (ii) Exemptions from the TED requirement--(A) Alternative tow-time 
restrictions. 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:
    (1) Has on board no power or mechanical-advantage trawl retrieval 
system (i.e., any device used to haul any part of the net aboard);

[[Page 198]]

    (2) 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;
    (3) Has only a pusher-head trawl, skimmer trawl, or wing net rigged 
for fishing;
    (4) 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
    (5) 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.
    (B) Exempted gear or activities. The following fishing gear or 
activities are exempted from the TED requirements of paragraph (d)(2)(i) 
of this section:
    (1) 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
    (2) 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.
    (iii) Gear requirement--summer flounder trawlers--(A) TED 
requirement. (1) Any summer flounder trawler in the summer flounder 
fishery-sea turtle protection area must have an approved TED installed 
in each net that is rigged for fishing. A net is rigged for fishing if 
it is in the water, or if it is shackled, tied, or otherwise connected 
to any trawl door or board, or to any tow rope, cable, pole or 
extension, either on board or attached in any manner to the summer 
flounder trawler. Exceptions to the TED requirement for summer flounder 
trawlers are provided in paragraph (d)(2)(iii)(B) of this section.
    (2) 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.
    (B) Exemptions from the TED requirement. Any summer flounder trawler 
north of 35[deg]46.1[min] 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.
    (C) Monitoring. 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.
    (D) Additional sea turtle conservation measures. 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

[[Page 199]]

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.
    (3) Tow-time restrictions--(i) Duration of tows. 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:
    (A) 55 minutes from April 1 through October 31; and
    (B) 75 minutes from November 1 through March 31.
    (ii) Alternative--special environmental conditions. 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.
    (iii) Substitute--ineffectiveness of TEDs. 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.
    (iv) Notice; applicability; conditions. The Assistant Administrator 
will publish notification concerning any tow-time restriction imposed 
under paragraph (d)(3)(ii) or (iii) of this section in the Federal 
Register and will announce it in summary form on channel 16 of the 
marine VHF radio. A notification of tow-time restrictions will include 
findings in support of these restrictions as an alternative to, or as 
substitute for, the TED requirements. The notification will specify the 
effective dates, the geographic area where 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.
    (v) Procedures. 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.
    (4) Limitations on incidental takings during fishing activities--(i) 
Limitations. 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:
    (A) Would violate the restrictions, terms, or conditions of an 
incidental take statement or biological opinion;
    (B) Would violate the restrictions, terms, or conditions of an 
incidental take permit; or
    (C) May be likely to jeopardize the continued existence of a species 
listed under the Act.
    (ii) Determination; restrictions on fishing activities. 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

[[Page 200]]

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.
    (iii) Notice; applicability; conditions. The Assistant Administrator 
will publish a notification of a determination concerning unauthorized 
takings or a notification concerning the restriction of fishing 
activities in the Federal Register. The Assistant Administrator will 
provide as much advance notice as possible, consistent with the 
requirements of the Act, and will announce the notification in summary 
form on channel 16 of the marine VHF radio. Notification of a 
determination concerning unauthorized takings will include findings in 
support of that determination; specify the fishery, including the target 
species and gear used by the fishery, the area, and the times, for which 
incidental takings are not authorized; and include such other conditions 
and restrictions as the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance. 
Notification of restriction of fishing activities will include findings 
in support of the restriction, will specify the time and area where the 
restriction is applicable, and will specify any applicable conditions or 
restrictions that the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance. Such 
conditions and restrictions may include, but are not limited to, 
limitations on the types of fishing gear that may be used, tow-time 
restrictions, alteration or extension of the periods of time during 
which particular tow-time requirements apply, requirements to 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.
    (iv) Procedures. 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, except that emergency 
placement of observers will be effective for a period of up to 180 days 
and may be renewed for an additional period of 60 days. 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.
    (5)-(6) [Reserved]
    (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 \1/4\ 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[deg]46.3[min] N. lat., on the south by 35[deg]00[min] N. lat., and on 
the west by 76[deg]30[min] W. long.
    (8) Restrictions applicable to large mesh gillnet fisheries in the 
mid-Atlantic region. 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:
    (i) Waters north of 33[deg] 51.0[min] N. (North Carolina/South 
Carolina border at the coast) and south of 35[deg] 46.0[min] N. (Oregon 
Inlet) at any time;

[[Page 201]]

    (ii) Waters north of 35[deg] 46.0[min] N. (Oregon Inlet) and south 
of 3[deg] 22.5[min] N. (Currituck Beach Light, NC) from March 16 through 
January 14;
    (iii) Waters north of 36[deg] 22.5[min] N. (Currituck Beach Light, 
NC) and south of 37[deg] 34.6[min] N. (Wachapreague Inlet, VA) from 
April 1 through January 14; and
    (iv) Waters north of 37[deg] 34.6[min] N. (Wachapreague Inlet, VA) 
and south of 37[deg] 56.0[min] N. (Chincoteague, VA) from April 16 
through January 14.
    (9) Restrictions applicable to Pacific pelagic longline vessels. In 
addition to the general prohibitions specified in Sec. 600.725 of 
Chapter VI, it is unlawful for any person who is not operating under a 
western Pacific longline permit under Sec. 660.21 to do any of the 
following on the high seas of the Pacific Ocean east of 150[deg] W. 
long. and north of the equator (0[deg] N. lat.):
    (i) Direct fishing effort toward the harvest of swordfish (Xiphias 
gladius) using longline gear.
    (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 glow bead, chemical, or electrically powered 
light that is affixed underwater to the longline gear.
    (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[deg] W. long. and north of 
the equator (0[deg] N. lat.).
    (iv) Fail to employ basket-style longline gear such that the 
mainline is deployed slack when fishing.
    (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.
    (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.
    (10) Restrictions applicable to pound nets in Virginia--(i) Offshore 
pound net leaders in Pound Net Regulated Area I. 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.
    (ii) Nearshore pound net leaders in Pound Net Regulated Area I and 
all pound net leaders in Pound Net Regulated Area II. 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.
    (iii) Protocol for measuring mesh size. 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.
    (iv) Reporting requirement. 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

[[Page 202]]

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.
    (v) Monitoring. 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.
    (vi) Expedited modification of restrictions and effective dates. 
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.
    (11) Restrictions applicable to sea scallop dredges in the mid-
Atlantic--(i) Gear Modification. During the time period of May 1 through 
November 30, 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, that enters waters south of 41[deg]9.0[min] 
N. latitude, 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 horizontal (``tickler'') chains and 
vertical (up-and-down) chains that are configured such that the openings 
formed by the intersecting chains have no more than 4 sides. The length 
of each side of the openings formed by the intersecting chains, 
including the sweep, 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.
    (ii) Any vessel that enters the waters described in paragraph 
(d)(11)(i) of this section 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.
    (iii) Vessels subject to the requirements in paragraphs (d)(11)(i) 
and (d)(11)(ii) of this section transiting waters south of 
41[deg]9.0[min] N. latitude, from the shoreline to the outer boundary of 
the Exclusive Economic Zone, will be exempted from the chain-mat 
requirements provided the dredge gear is stowed in accordance with Sec. 
648.23(b) and there are no scallops on-board.

[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; 71 FR 66468, Nov. 15, 
2006; 72 FR 5641, Feb. 7, 2007; 72 FR 43186, Aug. 3, 2007; 73 FR 19000, 
Apr. 8, 2008]

    Effective Date Notes: 1. At 64 FR 14070, Mar. 23, 1999, newly 
redesignated Sec. 223.206 was

[[Page 203]]

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.
    2. At 67 FR 41203, June 17, 2002, Sec. 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.



Sec. 223.207  Approved TEDs.

    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.
    (a) Hard TEDs. 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:
    (1) Construction materials--(i) Single-grid and inshore hooped hard 
TED. 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:
    (A) Solid steel rod with a minimum outside diameter of 1/4 inch 
(0.64 cm);
    (B) Fiberglass or aluminum rod with a minimum outside diameter of 1/
2 inch (1.27 cm); or
    (C) Steel or aluminum tubing with a minimum outside diameter of 1/2 
inch (1.27 cm) and a minimum wall thickness of 1/8 inch (0.32 cm) (also 
known as schedule 40 tubing).
    (ii) Offshore hooped hard TED. An offshore hooped hard TED must be 
constructed of aluminum, with minimum dimensions as follows:
    (A) Solid rod with a minimum outside diameter of 5/8 inch (1.59 cm); 
or
    (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).
    (2) Method of attachment. A hard TED must be sewn into the trawl 
around the entire circumference of the TED with heavy twine.
    (3) Angle of deflector bars. (i) The angle of the deflector bars 
must be between 30[deg] and 55[deg] from the normal, horizontal flow 
through the interior of the trawl, except as provided in paragraph 
(a)(3)(ii) of this section.
    (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[deg], and the 
angle of the bottom-most 4 inches (10.2 cm) of each deflector bar, 
measured along the bars, must not exceed 45[deg] (Figures 14a and 14b to 
this part).
    (4) Space between bars. The space between deflector bars and the 
deflector bars and the TED frame must not exceed 4 inches (10.2 cm).
    (5) Direction of bars. 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.
    (6) Position of the escape opening. 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.
    (7) Size of escape opening--(i) Hooped hard TEDs--(A) Escape opening 
for inshore hooped hard TED. The inshore hooped hard TED escape opening 
must have a horizontal measurement of no

[[Page 204]]

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.
    (B) Escape opening for offshore hooped hard TED. 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).
    (ii) Single-grid hard TEDs. 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 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:
    (A) 44-inch inshore opening. 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.
    (B) The 71-inch offshore opening: 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.
    (C) Double cover offshore opening. 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.
    (8) Size of hoop or grid--(i) Hooped hard TED--(A) Inshore hooped 
hard TED. 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).
    (B) Offshore hooped hard TED. 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).

[[Page 205]]

    (ii) Single-grid hard TED. 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.
    (9) Flotation. 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.
    (i) Float dimension requirements. (A) For hard TEDs with a 
circumference of 120 inches (304.8 cm) or more, a minimum of either one 
round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 
cm) in diameter, or two expanded polyvinyl chloride or expanded ethylene 
vinyl acetate floats, each no smaller than 6.75 inches (17.2 cm) in 
diameter by 8.75 inches (22.2 cm) in length, must be attached.
    (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.
    (ii) Float buoyancy requirements. 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:
    (A) Float buoyancy markings. 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.
    (B) TED weight markings. 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.
    (iii) Buoyancy-dimension requirements. 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:
    (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);
    (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
    (C) For floats constructed of expanded polyvinyl chloride or 
expanded ethylene vinyl acetate, where the circumference of the TED is 
less than 120

[[Page 206]]

inches (304.8 cm), the combined buoyancy must equal or exceed 10 lb (4.5 
kg).
    (b) Special Hard TEDs. 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:
    (1) Flounder TED. (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 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.
    (2) Weedless TED. 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.
    (c) Soft TEDs. Soft TEDs are TEDs with deflector panels made from 
polypropylene or polyethylene netting. The following soft TEDs are 
approved TEDs:

[[Page 207]]

    (1) Parker TED. 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.
    (i) Excluder Panel. (Figure 5 to this part) The excluder panel of 
the Parker TED must be constructed of a single triangular piece of 8-
inch (20.3 cm) stretched mesh webbing and two trapezoidal pieces of 4-
inch (10.2-cm) stretched mesh webbing. The webbing must consist of 
number 48 (3-mm thick) or larger polypropylene or polyethylene webbing 
that is heat-set knotted or braided. The leading edge of the 8-inch 
(20.3-cm) mesh panel must be 36 meshes wide. The 8-inch (20.3-cm) mesh 
panel must be tapered on each side with all-bar cuts to converge on an 
apex, such that the length of each side is 36 bars. The leading edges of 
the 4-inch (10.2-cm) mesh panels must be 8 meshes wide. The edges of the 
4-inch (10.2-cm) mesh panels must be cut with all-bar cuts running 
parallel to each other, such that the length of the inner edge is 72 
bars and the length of the outer edge is 89 bars and the resulting fore-
and-aft edge is 8 meshes deep. The two 4-inch (10.2-cm) mesh panels must 
be sewn to the 8-inch (20.3-cm) mesh panel to create a single triangular 
excluder panel. The 72-bar edge of each 4-inch (10.2-cm) mesh panel must 
be securely joined with twine to one of the 36-bar edges of the 8-inch 
(20.3-cm) mesh panel, tied with knots at each knot of the 4-inch (10.2-
cm) webbing and at least two wraps of twine around each bar of 4-inch 
(10.2-cm) mesh and the adjoining bar of the 8-inch (20.3-cm) mesh. The 
adjoining fore-and-aft edges of the two 4-inch (10.2-cm) mesh panels 
must be sewn together evenly.
    (ii) Limitations on which trawls may have a Parker TED installed. 
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.
    (iii) Panel installation--(A) Leading edge attachment. 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:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 152-168 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 161-178 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 182-202 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 196-216 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 211-233 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 228-252 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 249-275 meshes; and
    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 274-302 meshes.
    (B) Apex attachment. 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:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 78-83 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 83-88 meshes;

[[Page 208]]

    (3) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 93-99 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 100-106 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 107-114 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 114-124 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 127-135 meshes; and
    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 137-146 meshes.
    (C) Side attachment. 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.
    (iv) Escape opening. The escape opening for the Parker soft TED must 
match one of the following specifications:
    (A) Inshore opening. 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 not be reinforced in any way; for example, by attaching additional 
rope or webbing or by changing the orientation of the webbing.
    (B) Offshore opening. 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\3/16\ 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 Sec. 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.
    (2) [Reserved]
    (d) Allowable modifications to hard TEDs and special hard TEDs. 
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:
    (1) Floats. 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.
    (2) Accelerator funnel. 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

[[Page 209]]

top opening TED only the bottom one-third of the circumference of the 
funnel may be attached to the TED.
    (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).
    (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).
    (3) Webbing flap. 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.
    (i) 44-inch inshore TED flap. This flap may not extend more than 24 
inches (61 cm) beyond the posterior edge of the grid.
    (ii) 71-inch offshore TED Flap. The flap must be a 133-inch (338-cm) 
by 52-inch (132-cm) piece of webbing. The 133-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).
    (iii) Double cover flap offshore TED flap. 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.
    (A) Edge lines. 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.
    (B) [Reserved]
    (4) Chafing webbing. 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.
    (5) Roller gear. 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:
    (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

[[Page 210]]

made from solid steel or solid aluminum rod no larger than \1/2\ 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.
    (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\1/2\ 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.
    (6) Water deflector fin for hooped hard TEDs. 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[deg] and 
45[deg] 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 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).
    (7) Hinged door frame for hooped hard TEDs. 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[deg] and 45[deg] 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.
    (e) Revision of generic design criteria, and approval of TEDs, of 
allowable modifications of hard TEDs, and of special hard TEDs. (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

[[Page 211]]

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.
    (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 Sec. 
223.206(d)(2). Applications should be made to the Southeast Regional 
Administrator (see Sec. 222.102 definition of ``Southeast Regional 
Administrator'').

[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]

    Effective Date Note: At 64 FR 14073, Mar. 23, 1999, Sec. 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.



Sec. 223.209  [Reserved]



                 Sec. Figures 1-2 to Part 223 [Reserved]



                Sec. Figure 3 to Part 223--Matagorda TED
[GRAPHIC] [TIFF OMITTED] TC01JY91.047


[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

[[Page 212]]



                 Sec. Figure 4 to Part 223--Georgia TED
[GRAPHIC] [TIFF OMITTED] TC01JY91.048


[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

[[Page 213]]



  Sec. Figure 5 to Part 223--Net Diagram for the Excluder Panel of the 
                             Parker Soft TED
[GRAPHIC] [TIFF OMITTED] TR13AP98.001


[63 FR 17958, Apr. 13, 1998]

[[Page 214]]



    Sec. Figure 6 to Part 223--TED Extension in Summer Flounder Trawl
[GRAPHIC] [TIFF OMITTED] TR15OC99.001


[64 FR 55864, Oct. 15, 1999]



                Sec. Figures 7-9b to Part 223 [Reserved]

[[Page 215]]

                   Figure 10 to Part 223--Flounder TED
[GRAPHIC] [TIFF OMITTED] TC01JY91.056


[58 FR 54069, Oct. 20, 1993]



                  Sec. Figure 11 to Part 223 [Reserved]

[[Page 216]]



  Sec. Figure 12 to Part 223--Escape Opening & Cover Dimensions for 71-
                                inch TED
[GRAPHIC] [TIFF OMITTED] TR21FE03.002


[68 FR 8469, Feb. 21, 2003]

[[Page 217]]



     Sec. Figure 13 to Part 223--Single Grid Hard TED Escape Opening
[GRAPHIC] [TIFF OMITTED] TC01JY91.060


[60 FR 15520, Mar. 24, 1995]

[[Page 218]]



 Sec. Figures 14a and 14b 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
[GRAPHIC] [TIFF OMITTED] TR19DE96.002


[61 FR 66946, Dec. 19, 1996]

[[Page 219]]



     Sec. Figure 15 to Part 223--Weedless TED Brace Bar Description
[GRAPHIC] [TIFF OMITTED] TR21FE03.003


[68 FR 8469, Feb. 21, 2003]

[[Page 220]]



 Sec. Figure 16 to Part 223--Escape Opening and Flap Dimensions for the 
                          Double Cover Flap TED
[GRAPHIC] [TIFF OMITTED] TR02JN04.003


[69 FR 31037, June 2, 2004]

[[Page 221]]



PART 224_ENDANGERED MARINE AND ANADROMOUS SPECIES--Table of Contents




Sec.
224.101 Enumeration of endangered marine and anadromous species.
224.102 Permits for endangered marine and anadromous species.
224.103 Special prohibitions for endangered marine mammals.
224.104 Special requirements for fishing activities to protect 
          endangered sea turtles.

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    Source: 64 FR 14066, Mar. 23, 1999, unless otherwise noted.



Sec. 224.101  Enumeration of endangered marine and anadromous species.

    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:
    (a) Marine and anadromous fish. 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.

----------------------------------------------------------------------------------------------------------------
                Species \1\                                               Citation(s) for        Citation for
--------------------------------------------       Where listed               listing          critical habitat
     Common name          Scientific name                                determination(s)        designation
----------------------------------------------------------------------------------------------------------------
Shortnose sturgeon...  Acipenser             Everywhere..............  32 FR 4001, Mar. 11,  NA.
                        brevirostrum.                                   1967.
Smalltooth sawfish...  Pristis pectinata...  U.S.A...................  68 FR 15674, Apr. 1,  NA.
                                                                        2003.
Totoaba..............  Cynoscion macdonaldi  Everywhere..............  44 FR 29480, May 21,  NA.
                                                                        1979.
Atlantic salmon......  Salmon salar........  U.S.A., ME, Gulf of       65 FR 69459, Nov.     NA.
                                              Maine population, which   17, 2000.
                                              includes all naturally
                                              reproducing populations
                                              and those river-
                                              specific hatchery
                                              populations cultured
                                              from them.
Snake River sockeye..  Oncorhynchus nerka..  U.S.A., ID, including     56 FR 58619, Nov.     58 FR 68543, Dec.
                                              all anadromous and        20, 1991.             28, 1993.
                                              residual sockeye salmon  June 28, 2005.......
                                              from the Snake River
                                              Basin, Idaho, as well
                                              as artificially
                                              propagated sockeye
                                              salmon from the Redfish
                                              Lake captive
                                              propagation program.
Sacramento River       Oncorhynchus          U.S.A., CA, including     52 FR 6041; Feb. 27,  58 FR 33212, June
 winter-run Chinook.    tshawytscha.          all naturally spawned     1987, 55 FR 49623;    16, 1993.
                                              populations of winter-    Nov. 30, 1990. 59
                                              run Chinook salmon in     FR 440; Jan. 1,
                                              the Sacramento River      1994.
                                              and its tributaries in   June 28, 2005.......
                                              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.
Upper Columbia spring- Oncorhynchus          U.S.A., WA, including     64 FR 14308, Mar.     NA.
 run Chinook.           tshawytscha.          all naturally spawned     24, 1999.            [vacated 9/29/03;
                                              populations of Chinook   June 28, 2005.......   68 FR 55900].
                                              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.

[[Page 222]]

 
Central California     Oncorhynchus kisutch  U.S.A., CA, including     61 FR 56138, Oct.     64 FR 24049,
 Coast coho.                                  all naturally spawned     31, 1996.             May 5, 1999.
                                              populations of coho      June 28, 2005.......
                                              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.
Southern California    Oncorhynchus mykiss.  U.S.A., CA, Distinct      62 FR 43937, Aug.     70 FR 52488,
 Steelhead.                                   Population Segment        18, 1997.             Sept. 2, 2005.
                                              including all naturally  Jan. 5, 2006........
                                              spawned anadromous O.
                                              mykiss (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.
----------------------------------------------------------------------------------------------------------------
\1\ 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).

    (b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead 
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis); 
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus); 
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal 
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae); Indus 
River dolphin (Platanista minor); Mediterranean monk seal (Monachus 
monachus); North Atlantic right whale (Eubalaena glacialis); North 
Pacific right whale (Eubalaena japonica); Southern right whale 
(Eubalaena australis); Saimaa seal (Phoca hispida saimensis); Sei whale 
(Balaenoptera borealis); Sperm whale (Physeter catodon); Western North 
Pacific (Korean) gray whale (Eschrichtius robustus); Steller sea lion, 
western population, (Eumetopias jubatus), which consists of Steller sea 
lions from breeding colonies located west of 144[deg] W. longitude.
    (c) Sea turtles. Green turtle (Chelonia mydas) breeding colony 
populations in Florida and on the Pacific coast of Mexico; Hawksbill 
turtle (Eretmochelys imbricata); Kemp's ridley turtle (Lepidochelys 
kempii); Leatherback turtle (Dermochelys coriacea); Olive ridley turtle 
(Lepidochelys olivacea) breeding colony population on the Pacific coast 
of Mexico.

    Note to Sec. 224.101(c): 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.
    (d) Marine invertebrates. White abalone (Haliotis sorenseni).

[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; 73 FR 12030, Mar. 6, 2008]



Sec. 224.102  Permits for endangered marine and anadromous species.

    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.



Sec. 224.103  Special prohibitions for endangered marine mammals.

    (a) Approaching humpback whales in Hawaii. Except as provided in 
part 222, subpart C, of this chapter (General Permit Procedures), it is 
unlawful for any person subject to the jurisdiction of the United States 
to commit, to attempt to commit, to solicit another to

[[Page 223]]

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 (Megaptera novaeangliae):
    (1) Operate any aircraft within 1,000 feet (300 m) of any humpback 
whale;
    (2) Approach, by any means, within 100 yard (90 m) of any humpback 
whale;
    (3) Cause a vessel or other object to approach within 100 yd (90 m) 
of a humpback whale; or
    (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.
    (b) Approaching humpback whales in Alaska--(1) Prohibitions. 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 
(Megaptera novaeangliae):
    (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;
    (ii) Cause a vessel or other object to approach within 100 yards 
(91.4 m) of a humpback whale; or
    (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.
    (2) Exceptions. 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:
    (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.
    (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.
    (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).
    (iv) Paragraph (b)(1) of this section does not apply to state, 
local, or Federal government vessels operating in the course of official 
duty.
    (v) Paragraph (b)(1) of this section does not affect the rights of 
Alaska Natives under 16 U.S.C. 1539(e).
    (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.
    (3) General measures. Notwithstanding the prohibitions and 
exceptions in paragraphs (b)(1) and (2) of this section, to avoid 
collisions with humpback whales, vessels must operate at a slow, safe 
speed when near a humpback whale. ``Safe speed'' has the same meaning as 
the term is defined in 33 U.S.C. 2006 and the International Regulations 
for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect 
to avoiding collisions with humpback whales.
    (c) Approaching right whales--(1) Prohibitions. Except as provided 
under paragraph (c)(3) of this section, it is unlawful for any person 
subject to the

[[Page 224]]

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:
    (i) Approach (including by interception) within 500 yards (460 m) of 
a right whale by vessel, aircraft, or any other means;
    (ii) Fail to undertake required right whale avoidance measures 
specified under paragraph (c)(2) of this section.
    (2) Right whale avoidance measures. 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:
    (i) If underway, a vessel must steer a course away from the right 
whale and immediately leave the area at a slow safe speed.
    (ii) An aircraft must take a course away from the right whale and 
immediately leave the area at a constant airspeed.
    (3) Exceptions. 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:
    (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.
    (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.
    (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.
    (iv) Paragraphs (c)(1) and (c)(2) of this section do not apply to an 
aircraft unless the aircraft is conducting whale watch activities.
    (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.
    (d) Special prohibitions relating to endangered Steller sea lion 
protection. 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[deg] W. 
long.

[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]



Sec. 224.104  Special requirements for fishing activities to protect
endangered sea turtles.

    (a) Shrimp fishermen in the southeastern United States and the Gulf 
of Mexico who comply with rules for threatened sea turtles specified in 
Sec. 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.
    (b) Summer flounder fishermen in the Summer flounder fishery-sea 
turtle protection area who comply with rules for threatened sea turtles 
specified in Sec. 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.
    (c) Special prohibitions relating to sea turtles are provided at 
Sec. 223.206(d).

[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; 72 FR 31757, June 8, 2007]

                           PART 225 [RESERVED]



PART 226_DESIGNATED CRITICAL HABITAT--Table of Contents




Sec.
226.101 Purpose and scope.
226.201 Critical habitat for Hawaiian monk seals.
226.202 Critical habitat for Steller sea lions.
226.203 Critical habitat for northern right whales.
226.204 Critical habitat for Sacramento winter-run chinook salmon.
226.205 Critical habitat for Snake River sockeye salmon, Snake River 
          fall chinook salmon, and Snake River spring/summer chinook 
          salmon.

[[Page 225]]

226.206 Critical habitat for the Southern Resident killer whale (Orcinus 
          orca).
226.207 Critical habitat for leatherback turtle.
226.208 Critical habitat for green turtle.
226.209 Critical habitat for hawksbill turtle.
226.210 Central California Coast Coho Salmon (Oncorhynchus kisutch), 
          Southern Oregon/Northern California Coasts Coho Salmon 
          (Oncorhynchus kisutch).
226.211 Critical habitat for Seven Evolutionarily Significant Units 
          (ESUs) of Salmon (Oncorhynchus spp.) in California.
226.212 Critical habitat for 12 Evolutionarily Significant Units (ESUs) 
          of salmon and steelhead (Oncorhynchus spp.) in Washington, 
          Oregon and Idaho.
226.213 Critical habitat for Johnson's seagrass.
226.214 Critical habitat for Gulf sturgeon.
226.215 Critical habitat for the North Pacific Right Whale (Eubalaena 
          japonica).

Table 1 to Part 226--Major Steller Sea Lion Rookery Sites
Table 2 to Part 226--Major Steller Sea Lion Haulout Sites in Alaska
Table 3 to Part 226--Hydrologic Units Containing Critical Habitat for 
          Snake River Sockeye Salmon and Snake River Spring/Summer and 
          Fall Chinook Salmon
Table 4 to Part 226 [Reserved]
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
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

    Authority: 16 U.S.C. 1533.



Sec. 226.101  Purpose and scope.

    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 Sec. 223.102 
of this chapter, if threatened and at Sec. 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 Sec. 
222.102, definition of ``Office of Protected Resources'').

[64 FR 14067, Mar. 23, 1999]



Sec. 226.201  Critical habitat for Hawaiian monk seals.

                           Hawaiian Monk Seal

                        (Monachus schauinslandi)

    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:

Kure Atoll (28[deg]24[min] N, 178[deg]20[min] W)
Midway Islands, except Sand Island and its harbor (28[deg]14[min] N, 
177[deg]22[min] W)
Pearl and Hermes Reef (27[deg]55[min] N, 175[deg] W)
Lisianski Island (26[deg]46[min] N, 173[deg]58[min] W)
Laysan Island (25[deg]46[min] N, 171[deg]44[min] W)
Maro Reef (25[deg]25[min] N, 170[deg]35[min] W)
Gardner Pinnacles (25[deg]00[min] N, 168[deg]00[min] W)
French Frigate Shoals (23[deg]45[min] N, 166[deg]00[min] W)
Necker Island (23[deg]34[min] N, 164[deg]42[min] W)
Nihoa Island (23[deg]03.5[min] N, 161[deg]55.5[min] W).

[[Page 226]]

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[53 FR 18990, May 26, 1988. Redesignated at 64 FR 14067, Mar. 23, 1999]

[[Page 234]]



Sec. 226.202  Critical habitat for Stellar sea lions.

                  Steller Sea Lion (Eumetopias jubatus)

    (a) Alaska rookeries, haulouts, and associated areas. 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[deg] 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[deg] W. longitude.
    (b) California and Oregon rookeries and associated areas. 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.
    (c) Three special aquatic foraging areas in Alaska. Three special 
aquatic foraging areas in Alaska, including the Shelikof Strait area, 
the Bogoslof area, and the Seguam Pass area.
    (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[deg]38[sec]/157[deg]27[min]W) and the 
southwestern tip of Tugidak Island (56[deg]24[min]N/154[deg]41[min]W) 
and bounded in the east by a line connecting Cape Douglas 
(58[deg]51[min]N/153[deg]15[min]W) and the northernmost tip of Shuyak 
Island (58[deg]37[min]N/152[deg]22[min]W).
    (2) Critical habitat includes the Bogoslof area in the Bering Sea 
shelf and consists of the area between 170[deg]00[min]W and 
164[deg]00[min]W, south of straight lines connecting 55[deg]00[min]N/
170[deg]00[min]W and 55[deg]00[min]N/168[deg]00[min]W; 55[deg]30[min]N/
168[deg]00[min]W and 55[deg]30[min]N/166[deg]00[min]W; 56[deg]00[min]N/
166[deg]00[min]W and 56[deg]00[min]N/164[deg]00[min]W and north of the 
Aleutian Islands and straight lines between the islands connecting the 
following coordinates in the order listed:
52[deg]49.2[min]N/169[deg]40.4[min]W
52[deg]49.8[min]N/169[deg]06.3[min]W
53[deg]23.8[min]N/167[deg]50.1[min]W
53[deg]18.7[min]N/167[deg]51.4[min]W
53[deg]59.0[min]N/166[deg]17.2[min]W
54[deg]02.9[min]N/166[deg]03.0[min]W
54[deg]07.7[min]N/165[deg]40.6[min]W
54[deg]08.9[min]N/165[deg]38.8[min]W
54[deg]11.9[min]N/165[deg]23.3[min]W
54[deg]23.9[min]N/164[deg]44.0[min]W

    (3) Critical habitat includes the Seguam Pass area and consists of 
the area between 52[deg]00[min]N and 53[deg]00[min]N and between 
173[deg]30[min]W and 172[deg]30[min]W.

[58 FR 45278, Aug. 27, 1993. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.203  Critical habitat for northern right whales.

    (a) Great South Channel. The area bounded by 41[deg]40[min] N/
69[deg]45[min] W; 41[deg]00[min] N/69[deg]05[min] W; 41[deg]38[min] N/
68[deg]13[min] W; and 42[deg]10[min] N/68[deg]31[min] W.
    (b) Cape Cod Bay, Massachusetts. The area bounded by 
42[deg]04.8[min] N/70[deg]10[min] W; 42[deg]12[min] N/70[deg]15[min] W; 
42[deg]12[min] N/70[deg]30[min] W; 41[deg]46.8[min] N/70[deg]30[min] W 
and on the south and east by the interior shore line of Cape Cod, 
Massachusetts.
    (c) Southeastern United States. The coastal waters between 
31[deg]15[min] N and 30[deg]15[min] N from the coast out 15 nautical 
miles; and the coastal waters between 30[deg]15[min] N and 
28[deg]00[min] N from the coast out 5 nautical miles (Figure 8 to part 
226).

[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; 73 FR 19011, Apr. 8, 2008]

[[Page 235]]



Sec. 226.204  Critical habitat for Sacramento winter-run chinook salmon.

    The following waterways, bottom and water of the waterways and 
adjacent riparian zones: The Sacramento River from Keswick Dam, Shasta 
County (River Mile 302) to Chipps Island (River Mile 0) at the westward 
margin of the Sacramento-San Joaquin Delta, all waters from Chipps 
Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay, 
Suisun Bay, and Carquinez Strait, all waters of San Pablo Bay westward 
of the Carquinez Bridge, and all waters of San Francisco Bay (north of 
the San Francisco/Oakland Bay Bridge) from San Pablo Bay to the Golden 
Gate Bridge.

[58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. 
Mar. 23, 1999]



Sec. 226.205  Critical habitat for Snake River sockeye salmon, Snake
River fall chinook salmon, and Snake River spring/summer 

chinook salmon.

    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: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (a) Snake River Sockeye Salmon (Oncorhynchus nerka). 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,

[[Page 236]]

Custer, Idaho, Lemhi, Lewis, Nez Perce.
    (b) Snake River Spring/Summer Chinook Salmon (Oncorhynchus 
tshawytscha). Geographic Boundaries. Critical habitat is designated to 
include the Columbia River from a straight line connecting the west end 
of the Clatsop jetty (south jetty, Oregon side) and the west end of the 
Peacock jetty (north jetty, Washington side) and including all Columbia 
River estuarine areas and river reaches proceeding upstream to the 
confluence of the Columbia and Snake Rivers; all Snake River reaches 
from the confluence of the Columbia River upstream to Hells Canyon Dam. 
Critical habitat also includes river reaches presently or historically 
accessible (except reaches above impassable natural falls (including 
Napias Creek Falls) and Dworshak and Hells Canyon Dams) to Snake River 
spring/summer chinook salmon in the following hydrologic units: Hells 
Canyon, Imnaha, Lemhi, Little Salmon, Lower Grande Ronde, Lower Middle 
Fork Salmon, Lower Salmon, Lower Snake-Asotin, Lower Snake-Tucannon, 
Middle Salmon-Chamberlain, Middle Salmon-Panther, Pahsimeroi, South Fork 
Salmon, Upper Middle Fork Salmon, Upper Grande Ronde, Upper Salmon, 
Wallowa. Critical habitat borders on or passes through the following 
counties in Oregon: Baker, Clatsop, Columbia, Gillium, Hood River, 
Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco; the 
following counties in Washington: Asotin, Benton, Clark, Columbia, 
Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, 
Walla, Whitman; and the following counties in Idaho: Adams, Blaine, 
Custer, Idaho, Lemhi, Lewis, Nez Perce, Valley.
    (c) Snake River Fall Chinook Salmon (Oncorhynchus tshawytscha). 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.

[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]



Sec. 226.206  Critical habitat for the Southern Resident killer whale
(Orcinus orca).

    Critical habitat is designated for the Southern Resident killer 
whale as described in this section. The textual descriptions of critical 
habitat in this section are the definitive source for determining the 
critical habitat boundaries. The overview map is provided for general 
guidance purposes only, and not as a definitive source for determining 
critical habitat boundaries.
    (a) Critical Habitat Boundaries. Critical habitat includes three 
specific marine areas of Puget Sound, Washington, within the following 
counties: Clallam, Jefferson, King, Kitsap, Island, Mason, Pierce, San 
Juan, Skagit, Snohomish,

[[Page 237]]

Thurston, and Whatcom. Critical habitat includes all waters relative to 
a contiguous shoreline delimited by the line at a depth of 20 feet (6.1 
m) relative to extreme high water in each of the following areas:
    (1) Summer Core Area: All U.S. marine waters in Whatcom and San Juan 
counties; and all marine waters in Skagit County west and north of the 
Deception Pass Bridge (Highway 20) (48[deg]24[min] 25[sec] N./
122[deg]38[min]35[sec] W.).
    (2) Puget Sound Area: All marine waters in Island County east and 
south of the Deception Pass Bridge (Highway 20) (48[deg]24[min] 25[sec] 
N./122[deg]38[min]35[sec] W.), and east of a line connecting the Point 
Wilson Lighthouse (48[deg]8[min]39[sec] N./122[deg]45[min]12[sec] W.) 
and a point on Whidbey Island located at 48[deg]12[min]30[sec] N./
122[deg]44[min]26[sec] W.; all marine waters in Skagit County east of 
the Deception Pass Bridge (Highway 20) (48[deg]24[min] 25[sec] N./
122[deg]38[min]35[sec] W.); all marine waters of Jefferson County east 
of a line connecting the Point Wilson Lighthouse (48[deg]8[min]39[sec] 
N./122[deg]45[min]12[sec] W.) and a point on Whidbey Island located at 
latitude 48[deg]12[min]30[sec] N./122[deg]44[min]26[sec] W., and north 
of the Hood Canal Bridge (Highway 104) (47[deg]51[min]36[sec] N./
122[deg]37[min]23[sec] W.); all marine waters in eastern Kitsap County 
east of the Hood Canal Bridge (Highway 104) (47[deg]51[min]36[sec] N./
122[deg]37[min]23[sec] W.); all marine waters (excluding Hood Canal) in 
Mason County; and all marine waters in King, Pierce, Snohomish, and 
Thurston counties.
    (3) Strait of Juan de Fuca Area: All U.S. marine waters in Clallam 
County east of a line connecting Cape Flattery, Washington 
(48[deg]23[min]10[sec] N./124[deg]43[min]32[sec] W.), Tatoosh Island, 
Washington (48[deg]23[min]30[sec] N./124[deg]44[min]12[sec] W.), and 
Bonilla Point, British Columbia (48[deg]35[min]30[sec] N./
124[deg]43[min]00[sec] W.); all marine waters in Jefferson and Island 
counties west of the Deception Pass Bridge (Highway 20) (48[deg]24[min] 
25[sec] N./122[deg]38[min]35[sec] W.), and west of a line connecting the 
Point Wilson Lighthouse (48[deg]8[min]39[sec] N./122[deg]45[min]12[sec] 
W.) and a point on Whidbey Island located at 48[deg]12[min]30[sec] N./
122[deg]44[min]26[sec] W.
    (b) An overview map of final critical habitat for the Southern 
Resident killer whale follows.

[[Page 238]]

[GRAPHIC] [TIFF OMITTED] TR29NO06.006

    (c) Primary Constituent Elements. The primary constituent elements 
essential for conservation of the Southern Resident killer whale are:
    (1) Water quality to support growth and development;
    (2) Prey species of sufficient quantity, quality, and availability 
to support individual growth, reproduction, and development, as well as 
overall population growth; and

[[Page 239]]

    (3) Passage conditions to allow for migration, resting, and 
foraging.
    (d) Sites owned or controlled by the Department of Defense. Critical 
habitat does not include the following areas owned or controlled by the 
Department of Defense, or designated for its use, in the State of 
Washington, including shoreline, nearshore areas around structures such 
as docks and piers, and marine areas:
    (1) Naval Undersea Warfare Center, Keyport;
    (2) Naval Ordnance Center, Port Hadlock (Indian Island);
    (3) Naval Fuel Depot, Manchester;
    (4) Naval Air Station, Whidbey Island;
    (5) Naval Station, Everett;
    (6) Naval Hospital Bremerton;
    (7) Fort Lewis (Army);
    (8) Pier 23 (Army);
    (9) Puget Sound Naval Ship Yard;
    (10) Strait of Juan de Fuca naval air-to-surface weapon range, 
restricted area;
    (11) Strait of Juan de Fuca and Whidbey Island naval restricted 
areas;
    (12) Admiralty Inlet naval restricted area;
    (13) Port Gardner Naval Base restricted area;
    (14) Port Orchard Passage naval restricted area;
    (15) Sinclair Inlet naval restricted area;
    (16) Carr Inlet naval restricted area;
    (17) Port Townsend/Indian Island/Walan Point naval restricted area; 
and
    (18) Crescent Harbor Explosive Ordnance Units Training Area.

[71 FR 69068, Nov. 29, 2006]



Sec. 226.207  Critical habitat for leatherback turtle.

              Leatherback Sea Turtle (dermochelys coriacea)

    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[deg]42[min]12[sec] North and 64[deg]50[min]00[sec] West.

[44 FR 17711, Mar. 23, 1979. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.208  Critical habitat for green turtle.

    (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 Geniqu[iacute], Isla Culebrita, Arrecife Culebrita, 
Cayo de Luis Pe[ntilde]a, Las Hermanas, El Mono, Cayo Lobo, Cayo Lobito, 
Cayo Botijuela, Alcarraza, Los Gemelos, and Piedra Steven.
    (b) [Reserved]

[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.209  Critical habitat for hawksbill turtle.

    (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).
    (b) [Reserved]

[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.210  Central California Coast Coho Salmon 
(Oncorhynchus kisutch), Southern Oregon/Northern California

Coasts Coho Salmon (Oncorhynchus kisutch).

    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,

[[Page 240]]

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: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (a) Central California Coast Coho Salmon (Oncorhynchus kisutch). 
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).
    (b) Southern Oregon/Northern California Coasts Coho Salmon 
(Oncorhynchus kisutch). 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 existence for 
at least several hundred years).

[64 FR 24061, May 5, 1999, as amended at 69 FR 18803, Apr. 9, 2004]



Sec. 226.211  Critical habitat for Seven Evolutionarily Significant
Units (ESUs) of Salmon (Oncorhynchus spp.) in California.

    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.
    (a) Critical habitat is designated for the following ESUs in the 
following California counties:

------------------------------------------------------------------------
                  ESU                            State--counties
------------------------------------------------------------------------
(1) California Coastal Chinook.........  CA--Humboldt, Trinity,
                                          Mendocino, Sonoma, Lake, Napa,
                                          Glenn, Colusa, and Tehama.
(2) Northern California Steelhead......  CA--Humboldt, Trinity,
                                          Mendocino, Sonoma, Lake,
                                          Glenn, Colusa, and Tehama.
(3) Central California Coast Steelhead.  CA--Lake, Mendocino, Sonoma,
                                          Napa, Marin, San Francisco,
                                          San Mateo, Santa Clara, Santa
                                          Cruz, Alameda, Contra Costa,
                                          and San Joaquin.
(4) South-Central Coast Steelhead......  CA--Monterey, San Benito, Santa
                                          Clara, Santa Cruz, San Luis
                                          Obispo.

[[Page 241]]

 
(5) Southern California Steelhead......  CA--San Luis Obispo, Santa
                                          Barbara, Ventura, Los Angeles,
                                          Orange and San Diego.
(6) Central Valley spring-run Chinook..  CA--Tehama, Butte, Glenn,
                                          Shasta, Yolo, Sacramento,
                                          Solano, Colusa, Yuba, Sutter,
                                          Trinity, Alameda, San Joaquin,
                                          and Contra Costa.
(7) Central Valley Steelhead...........  CA--Tehama, Butte, Glenn,
                                          Shasta, Yolo, Sacramento,
                                          Solona, Yuba, Sutter, Placer,
                                          Calaveras, San Joaquin,
                                          Stanislaus, Tuolumne, Merced,
                                          Alameda, Contra Costa.
------------------------------------------------------------------------

    (b) Critical habitat boundaries. 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.g. 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.
    (c) Primary constituent elements. 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:
    (1) Freshwater spawning sites with water quantity and quality 
conditions and substrate supporting spawning, incubation and larval 
development;
    (2) Freshwater rearing sites with:
    (i) Water quantity and floodplain connectivity to form and maintain 
physical habitat conditions and support juvenile growth and mobility;
    (ii) Water quality and forage supporting juvenile development; and
    (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.
    (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.
    (4) Estuarine areas free of obstruction and excessive predation 
with:
    (i) Water quality, water quantity, and salinity conditions 
supporting juvenile and adult physiological transitions between fresh- 
and saltwater;
    (ii) Natural cover such as submerged and overhanging large wood, 
aquatic vegetation, large rocks and boulders, side channels; and
    (iii) Juvenile and adult forage, including aquatic invertebrates and 
fishes, supporting growth and maturation.
    (d) Exclusion of Indian lands. 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:
    (1) Lands held in trust by the United States for the benefit of any 
Indian tribe;
    (2) Land held in trust by the United States for any Indian Tribe or 
individual subject to restrictions by the United States against 
alienation;
    (3) Fee lands, either within or outside the reservation boundaries, 
owned by the tribal government; and
    (4) Fee lands within the reservation boundaries owned by individual 
Indians.
    (e) Land owned or controlled by the Department of Defense. 
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):
    (1) Camp Pendleton Marine Corps Base;
    (2) Vandenberg Air Force Base;

[[Page 242]]

    (3) Camp San Luis Obispo;
    (4) Camp Roberts; and
    (5) Mare Island Army Reserve Center.
    (f) California Coastal Chinook Salmon (Oncorhynchus tshawytscha). 
Critical habitat is designated to include the areas defined in the 
following CALWATER Hydrologic units:
    (1) Redwood Creek Hydrologic Unit 1107--(i) Orick Hydrologic Sub-
area 110710. 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).
    (ii) Beaver Hydrologic Sub-area 110720. 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).
    (iii) Lake Prairie Hydrologic Sub-area 110730. Outlet(s) = Redwood 
Creek (Lat 40.9070, Long -123.8170) upstream to endpoint(s) in: Redwood 
Creek (40.7432, -123.7206).
    (2) Trinidad Hydrologic Unit 1108--(i) Big Lagoon Hydrologic Sub-
area 110810. 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).
    (ii) Little River Hydrologic Sub-area 110820. 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).
    (3) Mad River Hydrologic Unit 1109--(i) Blue Lake Hydrologic Sub-
area 110910. 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).
    (ii) North Fork Mad River 110920. 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).
    (iii) Butler Valley 110930. Outlet(s) = Mad River (Lat 40.8449, Long 
-123.9807) 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).
    (4) Eureka Plain Hydrologic Unit 1110--(i) Eureka Plain Hydrologic 
Sub-area 111000. 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).
    (ii) [Reserved]
    (5) Eel River Hydrologic Unit 1111--(i) Ferndale Hydrologic Sub-area 
111111. 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).
    (ii) Scotia Hydrologic Sub-area 111112. 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).

[[Page 243]]

    (iii) Larabee Creek Hydrologic Sub-area 111113. 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).
    (iv) Hydesville Hydrologic Sub-area 111121. 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).
    (v) Yager Creek Hydrologic Sub-area 111123. 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).
    (vi) Weott Hydrologic Sub-area 111131. 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).
    (vii) Benbow Hydrologic Sub-area 111132. 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, -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).
    (viii) Laytonville Hydrologic Sub-area 111133. 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).
    (ix) Sequoia Hydrologic Sub-area 111141. 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).

[[Page 244]]

    (x) Spy Rock Hydrologic Sub-area 111142. 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).
    (xi) North Fork Eel River Hydrologic Sub-area 111150. 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).
    (xii) Outlet Creek Hydrologic Sub-area 111161. 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).
    (xiii) Tomki Creek Hydrologic Sub-area 111162. 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).
    (xiv) Lake Pillsbury Hydrologic Sub-area 111163. Outlet(s) = Eel 
River (Lat 39.3860, Long -123.1163) upstream to endpoint(s) in: Eel 
River (39.4078, -122.958).
    (xv) Eden Valley Hydrologic Sub-area 111171. 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).
    (xvi) Round Valley Hydrologic Sub-area 111172. 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).
    (6) Cape Mendocino Hydrologic Unit 1112--(i) Capetown Hydrologic 
Sub-area 111220. 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).
    (ii) Mattole River Hydrologic Sub-area 111230. Outlet(s) = Mattole 
River (Lat 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).
    (7) Mendocino Coast Hydrologic Unit 1113--(i) Wages Creek Hydrologic 
Sub-area 111312. Outlet(s) = Wages Creek (Lat 39.6513, Long -123.7851) 
upstream to endpoint(s) in: Wages Creek (39.6393, -123.7146).
    (ii) Ten Mile River Hydrologic Sub-area 111313. 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).

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    (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).
    (iv) Big River Hydrologic Sub-area 111330. Outlet(s) = Big River 
(Lat 39.3030, Long -123.7957) upstream to endpoint(s) in: Big River 
(39.3095, -123.4454).
    (v) Albion River Hydrologic Sub-area 111340. Outlet(s) = Albion 
River (Lat 39.2253, Long -123.7679) upstream to endpoint(s) in: Albion 
River (39.2644, -123.6072).
    (vi) Garcia River Hydrologic Sub-area 111370. Outlet(s) = Garcia 
River (Lat 38.9455, Long -123.7257) upstream to endpoint(s) in: Garcia 
River (38.9160, -123.4900).
    (8) Russian River Hydrologic Unit 1114--(i) Guerneville Hydrologic 
Sub-area 111411. 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).
    (ii) Austin Creek Hydrologic Sub-area 111412. Outlet(s) = Austin 
Creek (Lat 38.5099, Long -123.0681) upstream to endpoint(s) in: Austin 
Creek (38.5326, -123.0844).
    (iii) Warm Springs Hydrologic Sub-area 111424. Outlet(s) = Dry Creek 
(Lat 38.5861, Long -122.8573) upstream to endpoint(s) in: Dry Creek 
(38.7179, -123.0075).
    (iv) Geyserville Hydrologic Sub-area 111425. Outlet(s) = Russian 
River (Lat 38.6132, Long -122.8321) upstream.
    (v) Ukiah Hydrologic Sub-area 111431. Outlet(s) = Russian River (Lat 
38.8828, Long -123.0557) upstream to endpoint(s) in: Feliz Creek 
(38.9941, -123.1779).
    (vi) Forsythe Creek Hydrologic Sub-area 111433. 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).
    (9) Maps of critical habitat for the California Coast chinook salmon 
ESU follow:

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    (g) Northern California Steelhead (O. mykiss). Critical habitat is 
designated to include the areas defined in the following CALWATER 
Hydrologic units:
    (1) Redwood Creek Hydrologic Unit 1107--(i) Orick Hydrologic Sub-
area 110710. 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,

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-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).
    (ii) Beaver Hydrologic Sub-area 110720. 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).
    (iii) Lake Prairie Hydrologic Sub-area 110730. 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).
    (2) Trinidad Hydrologic Unit 1108--(i) Big Lagoon Hydrologic Sub-
area 110810. 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).
    (ii) Little River Hydrologic Sub-area 110820. 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);

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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).
    (3) Mad River Hydrologic Unit 1109--(i) Blue Lake Hydrologic Sub-
area 110910. 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).
    (ii) North Fork Mad River Hydrologic Sub-area 110920. 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).
    (iii) Butler Valley Hydrologic Sub-area 110930. 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).
    (4) Eureka Plain Hydrologic Unit 1110--(i) Eureka Plain Hydrologic 
Sub-area 111000. 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

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(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).
    (ii) [Reserved]
    (5) Eel River Hydrologic Unit 1111--(i) Ferndale Hydrologic Sub-area 
111111. 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).
    (ii) Scotia Hydrologic Sub-area 111112. Outlet(s) = Eel River (Lat 
40.4918, Long -124.0988) 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).
    (iii) Larabee Creek Hydrologic Sub-area 111113. 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).
    (iv) Hydesville Hydrologic Sub-area 111121. 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).
    (v) Bridgeville Hydrologic Sub-area 111122. 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).

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    (vi) Yager Creek Hydrologic Sub-area 111123. 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).
    (vii) Weott Hydrologic Sub-area 111131. 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).
    (viii) Benbow Hydrologic Sub-area 111132. 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).
    (ix) Laytonville Hydrologic Sub-area 111133. 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,

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-23.5741); 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).
    (x) Sequoia Hydrologic Sub-area 111141. 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).
    (xi) Spy Rock Hydrologic Sub-area 111142. 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).
    (xii) Outlet Creek Hydrologic Sub-area 111161. 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).
    (xiii) Tomki Creek Hydrologic Sub-area 111162. 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).
    (xiv) Eden Valley Hydrologic Sub-area 111171. 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).
    (xv) Round Valley Hydrologic Sub-area 111172. 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).
    (xvi) Black Butte River Hydrologic Sub-area 111173. 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).

[[Page 259]]

    (xvii) Wilderness Hydrologic Sub-area 111174. 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).
    (6) Cape Mendocino Hydrologic Unit 1112--(i) Oil Creek Hydrologic 
Sub-area 111210. 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).
    (ii) Capetown Hydrologic Sub-area 111220. 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).
    (iii) Mattole River Hydrologic Sub-area 111230. 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

[[Page 260]]

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).
    (7) Mendocino Coast Hydrologic Unit 1113--(i) Usal Creek Hydrologic 
Sub-area 111311. 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).
    (ii) Wages Creek Hydrologic Sub-area 111312. 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).
    (iii) Ten Mile River Hydrologic Sub-area 111313. 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).

[[Page 261]]

    (iv) Noyo River Hydrologic Sub-area 111320. 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).
    (v) Big River Hydrologic Sub-area 111330. 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).
    (vi) Albion River Hydrologic Sub-area 111340. 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);

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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).
    (vii) Navarro River Hydrologic Sub-area 111350. 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).
    (viii) Greenwood Creek Hydrologic Sub-area 111361. Outlet(s) = 
Greenwood Creek (Lat 39.1262, Long -123.7181) upstream to endpoint(s) 
in: Greenwood Creek (39.0894, -123.5924).
    (ix) Elk Creek Hydrologic Sub-area 111362. Outlet(s) = Elk Creek 
(Lat 39.1024, Long -123.7080) upstream to endpoint(s) in: Elk Creek 
(39.0657, -123.6245).
    (x) Alder Creek Hydrologic Sub-area 111363. 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).
    (xi) Brush Creek Hydrologic Sub-area 111364. 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).
    (xii) Garcia River Hydrologic Sub-area 111370. 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

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(38.8758, -123.5692); Unnamed Tributary (38.8818, -123.5723); Whitlow 
Creek (38.9141, -123.4624).
    (xiii) North Fork Gualala River Hydrologic Sub-area 111381. 
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).
    (xiv) Rockpile Creek Hydrologic Sub-area 111382. Outlet(s) = 
Rockpile Creek (Lat 38.7507, Long -123.4706) upstream to endpoint(s) in: 
Rockpile Creek (38.7966, -123.3872).
    (xv) Buckeye Creek Hydrologic Sub-area 111383. 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).
    (xvi) Wheatfield Fork Hydrologic Sub-area 111384. 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).
    (xvii) Gualala Hydrologic Sub-area 111385. 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).
    (xviii) Russian Gulch Hydrologic Sub-area 111390. 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).
    (8) Maps of critical habitat for the Northern California Steelhead 
ESU follow:

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    (h) Central California Coast Steelhead (O. mykiss). Critical habitat 
is designated to include the areas defined in the following CALWATER 
Hydrologic Units:
    (1) Russian River Hydrologic Unit 1114--(i) Guerneville Hydrologic 
Sub-area 111411. Outlet(s) = Russian River (Lat 38.4507, Long -123.1289) 
upstream to endpoint(s) in: Atascadero Creek (38.3473, -122.8626); 
Austin Creek

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(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).
    (ii) Austin Creek Hydrologic Sub-area 111412. 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).
    (iii) Mark West Hydrologic Sub-area 111423. 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).
    (iv) Warm Springs Hydrologic Sub-area 111424. 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).
    (v) Geyserville Hydrologic Sub-area 111425. 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).
    (vi) Sulphur Creek Hydrologic Sub-area 111426. 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).

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    (vii) Ukiah Hydrologic Sub-area 111431. Outlet(s) = Russian River 
(Lat 38.8828, Long -123.0557) upstream to endpoint(s) in: Pieta Creek 
(38.8622, -122.9329).
    (viii) Forsythe Creek Hydrologic Sub-area 111433. 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).
    (2) Bodega Hydrologic Unit 1115--(i) Salmon Creek Hydrologic Sub-
area 111510. 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).
    (ii) Estero Americano Hydrologic Sub-area 111530. 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).
    (3) Marin Coastal Hydrologic Unit 2201--(i) Walker Creek Hydrologic 
Sub-area 220112. 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).
    (ii) Lagunitas Creek Hydrologic Sub-area 220113. 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).
    (iii) Point Reyes Hydrologic Sub-area 220120. 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).
    (iv) Bolinas Hydrologic Sub-area 220130. 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).
    (4) San Mateo Hydrologic Unit 2202--(i) San Mateo Coastal Hydrologic 
Sub-area 220221. 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).
    (ii) Half Moon Bay Hydrologic Sub-area 220222. 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).
    (iii) Tunitas Creek Hydrologic Sub-area 220223. 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).

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    (iv) San Gregorio Creek Hydrologic Sub-area 220230. 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).
    (v) Pescadero Creek Hydrologic Sub-area 220240. 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).
    (5) Bay Bridge Hydrologic UnitT 2203--(i) San Rafael Hydrologic Sub-
area 220320. 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).
    (ii) [Reserved]
    (6) Santa Clara Hydrologic Unit 2205--(i) Coyote Creek Hydrologic 
Sub-area 220530. 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).
    (ii) Guadalupe River--San Jose Hydrologic Sub-area 220540. Outlet(s) 
= Coyote Creek (Lat 37.2778, Long -121.8033) upstream to endpoint(s) in: 
Coyote Creek (37.2275, -121.7514).
    (iii) Palo Alto Hydrologic Sub-area 220550. 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).
    (7) San Pablo Hydrologic Unit 2206--(i) Petaluma River Hydrologic 
Sub-area 220630. 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).
    (ii) Sonoma Creek Hydrologic Sub-area 220640. 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).
    (iii) Napa River Hydrologic Sub-area 220650. 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

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(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).
    (8) Big Basin Hydrologic Unit 3304--(i) Davenport Hydrologic Sub-
area 330411. 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).
    (ii) San Lorenzo Hydrologic Sub-area 330412. 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).
    (iii) Aptos-Soquel Hydrologic Sub-area 330413. 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).
    (iv) Ano Nuevo Hydrologic Sub-area 330420. 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).

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    (9) Maps of critical habitat for the Central California Coast 
Steelhead ESU follow:
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    (i) South-Central California Coast Steelhead (O. mykiss). Critical 
habitat is designated to include the areas defined in the following 
CALWATER Hydrologic Units:
    (1) Pajaro River Hydrologic Unit 3305--(i) Watsonville Hydrologic 
Sub-area 330510. Outlet(s) = Pajaro River (Lat 36.8506, Long -121.8101) 
upstream to endpoint(s) in: Banks Canyon Creek (36.9958, -121.7264); 
Browns Creek

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(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).
    (ii) Santa Cruz Mountains Hydrologic Sub-area 330520. 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).
    (iii) South Santa Clara Valley Hydrologic Sub-area 330530. 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).
    (iv) Pacheco-Santa Ana Creek Hydrologic Sub-area 330540. 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).
    (v) San Benito River Hyddrologic Sub-area 330550. 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).
    (2) Carmel River Hydrologic Unit 3307--(i) Carmel River Hydrologic 
Sub-area 330700. 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).
    (ii) [Reserved]
    (3) Santa Lucia Hydrologic Unit 3308-(i) Santa Lucia Hydrologic Sub-
area 330800. 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

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(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).
    (ii) [Reserved]
    (4) Salinas River Hydrologic Unit 3309-(i) Neponset Hydrologic Sub-
area 330911. 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).
    (ii) Chualar Hydrologic Sub-area 330920. Outlet(s) = Gabilan Creek 
(Lat 36.6923, Long -121.6300) upstream.
    (iii) Soledad Hydrologic Sub-area 330930. 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).
    (iv) Upper Salinas Valley Hydrologic Sub-area 330940. Outlet(s) = 
Salinas River (Lat 36.3183, Long -121.1837) upstream.
    (v) Arroyo Seco Hydrologic Sub-area 330960. 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).
    (vi) Gabilan Range Hydrologic Sub-area 330970. Outlet(s) = Gabilan 
Creek (Lat 36.7800, -121.5836) upstream to endpoint(s) in: Gabilan Creek 
(36.7335, -121.4939).
    (vii) Paso Robles Hydrologic Sub-area 330981. Outlet(s) = Salinas 
River (Lat 35.9241, Long -120.8650) upstream to endpoint(s) in:
    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).
    (5) Estero Bay Hydrologic Unit 3310--(i) San Carpoforo Hydrologic 
Sub-area 331011. 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).
    (ii) Arroyo De La Cruz Hydrologic Sub-area 331012. 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).
    (iii) San Simeon Hydrologic Sub-area 331013. 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

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(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).
    (iv) Santa Rosa Hydrologic Sub-area 331014. 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).
    (v) Villa Hydrologic Sub-area 331015. 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).
    (vi) Cayucos Hydrologic Sub-area 331016. 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).
    (vii) Old Hydrologic Sub-area 331017. Outlet(s) = Old Creek (Lat 
35.4345, Long -120.8868) upstream to endpoint(s) in: Old Creek (35.4480, 
-120.8871)
    (viii) Toro Hydrologic Sub-area 331018. 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).
    (ix) Morro Hydrologic Sub-area 331021. 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).
    (x) Chorro Hydrologic Sub-area 331022. 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).
    (xi) Los Osos Hydrologic Sub-area 331023. Outlet(s) = Los Osos Creek 
(Lat 35.3379, Long -120.8273) upstream to endpoint(s) in: Los Osos Creek 
(35.2718, -120.7627).
    (xii) San Luis Obispo Creek Hydrologic Sub-area 331024. 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).
    (xiii) Point San Luis Hydrologic Sub-area 331025. 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).
    (xiv) Pismo Hydrologic Sub-area 331026. 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).
    (xv) Oceano Hydrologic Sub-area 331031. 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).
    (6) Maps of critical habitat for the South-Central Coast Steelhead 
ESU follow:

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    (j) Southern California Steelhead (O. mykiss). Critical habitat is 
designated to include the areas defined in the following CALWATER 
Hydrologic Units:
    (1) Santa Maria River Hydrologic Unit 3312--(i) Santa Maria 
Hydrologic Sub-area 331210. Outlet(s) = Santa Maria River (Lat 34.9710, 
Long -120.6504) upstream to endpoint(s) in:

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Cuyama River (34.9058, -120.3026); Santa Maria River (34.9042, -
120.3077); Sisquoc River (34.8941, -120.3063).
    (ii) Sisquoc Hydrologic Sub-area 331220. 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).
    (2) Santa Ynex Hydrologic Unit 3314--(i) Mouth of Santa Ynez 
Hydrologic Sub-area 331410. Outlet(s) = Santa Ynez River (Lat 34.6930, 
Long -120.6033) upstream to endpoint(s) in: San Miguelito Creek 
(34.6309, -120.4631).
    (ii) Santa Ynez, Salsipuedes Hydrologic Sub-area 331420. 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).
    (iii) Santa Ynez, Zaca Hydrologic Sub-area 331430. Outlet(s) = Santa 
Ynez River (Lat 34.6172, Long -120.2352) upstream.
    (iv) Santa Ynez to Bradbury Hydrologic Sub-area 331440. 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).
    (3) South Coast Hydrologic Unit 3315--(i) Arroyo Hondo Hydrologic 
Sub-area 331510. 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).

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    (ii) UCSB Slough Hydrologic Sub-area 331531. 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).
    (iii) Mission Hydrologic Sub-area 331532. 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).
    (iv) San Ysidro Hydrologic Sub-area 331533. 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).
    (v) Carpinteria Hydrologic Sub-area 331534. 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).
    (4) Ventura River Hydrologic Unit 4402--(i) Ventura Hydrologic Sub-
area 440210. 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).
    (ii) Ventura Hydrologic Sub-area 440220. 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).
    (iii) Lions Hydrologic Sub-area 440231. Outlet(s) = Lion Creek (Lat 
34.4222, Long -119.2644) upstream to endpoint(s) in: Lion Creek 
(34.4331, -119.2004).
    (iv) Thatcher Hydrologic Sub-area 440232. Outlet(s) = San Antonio 
Creek (Lat 34.4224, Long -119.2644) upstream to endpoint(s) in: San 
Antonio Creek (34.4370, -119.2417).
    (5) Santa Clara Calleguas Hydrologic Unit 4403--(i) Mouth of Santa 
Clara Hydrologic Sub-area 440310. Outlet(s) = Santa Clara River (Lat 
34.2348, Long -119.2568) upstream.
    (ii) Santa Clara, Santa Paula Hydrologic Sub-area 440321. Outlet(s) 
= Santa Clara River (Lat 34.2731, Long -119.1474) upstream to 
endpoint(s) in: Santa Paula Creek (34.4500, -119.0563).
    (iii) Sisar Hydrologic Sub-area 440322. Outlet(s) = Sisar Creek (Lat 
34.4271, Long -119.0908) upstream to endpoint(s) in: Sisar Creek 
(34.4615, -119.1312).
    (iv) Sespe, Santa Clara Hydrologic Sub-area 440331. Outlet(s) = 
Santa Clara River (Lat 34.3513, Long -119.0397) upstream to endpoint(s) 
in: Sespe Creek (34.4509, -118.9258).
    (v) Sespe Hydrologic Sub-area 440332. 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,

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-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).
    (vi) Santa Clara, Hopper Canyon, Piru Hydrologic Sub-area 440341. 
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).
    (6) Santa Monica Bay Hydrologic Unit 4404--(i) Topanga Hydrologic 
Sub-area 440411. Outlet(s) = Topanga Creek (Lat 34.0397, Long -118.5831) 
upstream to endpoint(s) in: Topanga Creek (34.0838, -118.5980).
    (ii) Malibu Hydrologic Sub-area 440421. Outlet(s) = Malibu Creek 
(Lat 34.0322, Long -118.6796) upstream to endpoint(s) in: Malibu Creek 
(34.0648, -118.6987).
    (iii) Arroyo Sequit Hydrologic Sub-area 440444. 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).
    (7) Calleguas Hydrologic Unit 4408--(i) Calleguas Estuary Hydrologic 
Sub-area 440813. 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).
    (ii) [Reserved]
    (8) San Juan Hydrologic Unit 4901--(i) Middle Trabuco Hydrologic 
Sub-area 490123. Outlet(s) = Trabuco Creek (Lat 33.5165, Long -117.6727) 
upstream to endpoint(s) in: Trabuco Creek (33.5264, -117.6700).
    (ii) Lower San Juan Hydrologic Sub-area 490127. 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).
    (iii) San Mateo Hydrologic Sub-area 490140. 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).
    (9) Maps of critical habitat for the Southern California Steelhead 
ESU follow:

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    (k) Central Valley Spring Run Chinook Salmon (O. tshawytscha). 
Critical habitat is designated to include the areas defined in the 
following CALWATER Hydrologic Units:
    (1) Tehama Hydrologic Unit 5504--(i) Lower Stony Creek Hydrologic 
Sub-area 550410. 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

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(39.7122, -122.0072); Stony Creek (39.8178, -122.3253).
    (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, -122.1275); 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).
    (2) Whitmore Hydrologic Unit 5507--(i) Inks Creek Hydrologic Sub-
area 550711. Outlet(s) = Inks Creek (Lat 40.3305, Long -122.1520) 
upstream to endpoint(s) in: Inks Creek 40.3418, -122.1332).
    (ii) Battle Creek Hydrologic Sub-area 550712 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).
    (iii) Inwood Hydrologic Sub-area 550722. 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).
    (3) Redding Hydrologic Unit 5508--(i) Enterprise Flat Hydrologic 
Sub-area 550810. 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).
    (ii) Lower Cottonwood Hydrologic Sub-area 550820. 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).
    (4) Eastern Tehama Hydrologic Unit 5509--(i) Big Chico Creek 
Hydrologic Sub-area 550914. Outlet(s) = Big Chico Creek (Lat 39.7757, 
Long -121.7525) upstream to endpoint(s) in: Big Chico Creek (39.8873, -
121.6979).
    (ii) Deer Creek Hydrologic Sub-area 550920. Outlet(s) = Deer Creek 
(Lat 40.0144, Long -121.9481) upstream to endpoint(s) in: Deer Creek 
(40.2019, -121.5130).
    (iii) Upper Mill Creek Hydrologic Sub-area 550942. Outlet(s) = Mill 
Creek (Lat 40.0550, Long -122.0317) upstream to endpoint(s) in: Mill 
Creek (40.3997, -121.5131).
    (iv) Antelope Creek Hydrologic Sub-area 550963. 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).
    (5) Sacramento Delta Hydrologic Unit 5510--(i) Sacramento Delta 
Hydrologic Sub-area 551000. 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).
    (ii) [Reserved]
    (6) Valley-Putah-Cache Hydrologic Unit 5511--(i) Lower Putah Creek 
Hydrologic Sub-area 551120. Outlet(s) = Yolo Bypass (Lat 38.5800, Long -
121.5838) upstream to endpoint(s) in: Sacramento

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Bypass (38.6057, -121.5563); Yolo Bypass (38.7627, -121.6325).
    (ii) [Reserved]
    (7) Marysville Hydrologic Unit 5515--(i) Lower Yuba River Hydrologic 
Sub-area 551510. Outlet(s) = Bear River (Lat 38.9398, Long -121.5790) 
upstream to endpoint(s) in: Bear River (38.9783, -121.5166).
    (ii) Lower Yuba River Hydrologic Sub-area 551530. Outlet(s) = Yuba 
River (Lat 39.1270, Long -121.5981) upstream to endpoint(s) in: Yuba 
River (39.2203, -121.3314).
    (iii) Lower Feather River Hydrologic Sub-area 551540. Outlet(s) = 
Feather River (Lat 39.1270, Long -121.5981) upstream to endpoint(s) in: 
Feather River (39.5203, -121.5475).
    (8) Yuba River Hydrologic Unit 5517--(i) Browns Valley Hydrologic 
Sub-Area 551712. 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).
    (ii) Englebright Hydrologic Sub-area 551714. Outlet(s) = Yuba River 
(Lat 39.2305, Long -121.2813) upstream to endpoint(s) in: Yuba River 
(39.2388, -121.2698).
    (9) Valley-American Hydrologic Unit 5519--(i) Lower American 
Hydrologic Sub-area 551921. Outlet(s) = American River (Lat 38.5971, 
Long -121.5088) upstream to endpoint(s) in: American River (38.5669, -
121.3827).
    (ii) Pleasant Grove Hydrologic Sub-area 551922. Outlet(s) = 
Sacramento River (Lat 38.5965, Long -121.5086) upstream to endpoint(s) 
in: Feather River (39.1270, -121.5981).
    (10) Colusa Basin Hydrologic Unit 5520--(i) Sycamore-Sutter 
Hydrologic Sub-area 552010. Outlet(s) = Sacramento River (Lat 38.7604, 
Long -121.6767) upstream to endpoint(s) in: Tisdale Bypass (39.0261, -
121.7456).
    (ii) Sutter Bypass Hydrologic Sub-area 552030. 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).
    (iii) Butte Basin Hydrologic Sub-area 552040. 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).
    (11) Butte Creek Hydrologic Unit 5521--Upper Little Chico Hydrologic 
Sub-area 552130. Outlet(s) = Butte Creek (Lat 39.7096, -121.7504) 
upstream to endpoint(s) in Butte Creek (39.8665, -121.6344).
    (12) Shasta Bally Hydrologic Unit 5524--(i) Platina Hydrologic Sub-
area 552436. 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).
    (ii) Spring Creek Hydrologic Sub-area 552440. Outlet(s) = Sacramento 
River (Lat 40.5943, Long -122.4343) upstream to endpoint(s) in: 
Sacramento River (40.6116, -122.4462)
    (iii) Kanaka Peak Hydrologic Sub-area 552462. Outlet(s) = Clear 
Creek (Lat 40.5158, Long -122.5256) upstream to endpoint(s) in: Clear 
Creek (40.5992, -122.5394).
    (13) Maps of critical habitat for the Central Valley Spring Run 
Chinook ESU follow:

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    (l) Central Valley steelhead (O. mykiss). Critical habitat is 
designated to include the areas defined in the following CALWATER 
Hydrologic Units:
    (1) Tehama Hydrologic Unit 5504--(i) Lower Stony Creek Hydrologic 
Sub-area 550410. Outlet(s) = Stony Creek (Lat 39.6760, Long -121.9732) 
upstream to

[[Page 316]]

endpoint(s) in: Stony Creek (39.8199, -122.3391).
    (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).
    (2) Whitmore Hydrologic Unit 5507--(i) Inks Creek Hydrologic Sub-
area 550711. Outlet(s) = Inks Creek (Lat 40.3305, Long -122.1520) 
upstream to endpoint(s) in: Inks Creek (40.3418, -122.1332).
    (ii) Battle Creek Hydrologic Sub-area 550712. 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).
    (iii) Ash Creek Hydrologic Sub-area 550721. Outlet(s) = Ash Creek 
(Lat 40.4401, Long -122.1375) upstream to endpoint(s) in: Ash Creek 
(40.4628, -122.0066).
    (iv) Inwood Hydrologic Sub-area 550722. 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).
    (v) South Cow Creek Hydrologic Sub-area 550731. Outlet(s) = South 
Cow Creek (Lat 40.5438, Long -122.1318) upstream to endpoint(s) in: 
South Cow Creek (40.6023, -121.8623).
    (vi) Old Cow Creek Hydrologic Sub-area 550732. 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).
    (vii) Little Cow Creek Hydrologic Sub-area 550733. 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).
    (3) Redding Hydrologic Unit 5508--(i) Enterprise Flat Hydrologic 
Sub-area 550810. 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).
    (ii) Lower Cottonwood Hydrologic Sub-area 550820. 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

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Creek (40.4539, -122.5610); South Fork Cottonwood Creek (40.1578, -
122.5809).
    (4) Eastern Tehama Hydrologic Unit 5509--(i) Big Chico Creek 
Hydrologic Sub-area 550914. Outlet(s) = Big Chico Creek (Lat 39.7757, 
Long -121.7525) upstream to endpoint(s) in: Big Chico Creek (39.8898, -
121.6952).
    (ii) Deer Creek Hydrologic Sub-area 550920. Outlet(s) = Deer Creek 
(Lat 40.0142, Long -121.9476) upstream to endpoint(s) in: Deer Creek 
(40.2025, -121.5130).
    (iii) Upper Mill Creek Hydrologic Sub-area 550942. 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).
    (iv) Dye Creek Hydrologic Sub-area 550962. Outlet(s) = Dye Creek 
(Lat 40.0910, Long -122.0719) upstream to endpoint(s) in: Dye Creek 
(40.0996, -121.9612).
    (v) Antelope Creek Hydrologic Sub-area 550963. 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).
    (5) Sacramento Delta Hydrologic Unit 5510--Sacramento Delta 
Hydrologic Sub-area 551000. 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).
    (6) Valley-Putah-Cache Hydrologic Unit 5511--Lower Putah Creek 
Hydrologic Sub-area 551120. 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).
    (7) American River Hydrologic Unit 5514--Auburn Hydrologic Sub-area 
551422. 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).
    (8) Marysville Hydrologic Unit 5515--(i) Lower Bear River Hydrologic 
Sub-area 551510. Outlet(s) = Bear River (Lat 39.9398, Long -121.5790) 
upstream to endpoint(s) in: Bear River (39.0421, -121.3319).
    (ii) Lower Yuba River Hydrologic Sub-area 551530. Outlet(s) = Yuba 
River (Lat 39.1270, Long -121.5981) upstream to endpoint(s) in: Yuba 
River (39.2203, -121.3314).
    (iii) Lower Feather River Hydrologic Sub-area 551540. Outlet(s) = 
Feather River (Lat 39.1264, Long -121.5984) upstream to endpoint(s) in: 
Feather River (39.5205, -121.5475).
    (9) Yuba River Hydrologic Unit 5517--(i) Browns Valley Hydrologic 
Sub-area 551712. 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).
    (ii) Englebright Hydrologic Sub-area 551714. Outlet(s) = Yuba River 
(Lat 39.2305, Long -1121.2813) upstream to endpoint(s) in: Yuba River 
(39.2399, -1121.2689).
    (10) Valley American Hydrologic Unit 5519--(i) Lower American 
Hydrologic Sub-area 551921. 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).
    (ii) Pleasant Grove Hydrologic Sub-area 551922. 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).

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    (11) Colusa Basin Hydrologic Unit 5520--(i) Sycamore-Sutter 
Hydrologic Sub-area 552010. Outlet(s) = Sacramento River (Lat 38.7604, 
Long -1121.6767) upstream to endpoint(s) in: Tisdale Bypass (39.0261, -
1121.7456).
    (ii) Sutter Bypass Hydrologic Sub-area 552030. 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).
    (iii) Butte Basin Hydrologic Sub-area 552040. 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).
    (12) Butte Creek Hydrologic Unit 5521--(i) Upper Dry Creek 
Hydrologic Sub-area 552110. Outlet(s) = Little Dry Creek (Lat 39.6781, -
1121.6580) upstream to endpoint(s) in: Little Dry Creek (39.7424, -
1121.6213).
    (ii) Upper Butte Creek Hydrologic Sub-area 552120. Outlet(s) = 
Little Chico Creek (Lat 39.7380, Long -1121.7490) upstream to 
endpoint(s) in: Little Chico Creek (39.8680, -1121.6660).
    (iii) Upper Little Chico Hydrologic Sub-area 552130. 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).
    (13) Ball Mountain Hydrologic Unit 5523--Thomes Creek Hydrologic 
Sub-area 552310. 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).
    (14) Shasta Bally Hydrologic Unit 5524--(i) South Fork Hydrologic 
Sub-area 552433. 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).
    (ii) Platina Hydrologic Sub-area 552436. 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).
    (iii) Spring Creek Hydrologic Sub-area 552440. 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).
    (iv) Kanaka Peak Hydrologic Sub-area 552462. Outlet(s) = Clear Creek 
(Lat 40.5158, Long -1122.5256) upstream to endpoint(s) in: Clear Creek 
(40.5998, 122.5399).
    (15) North Valley Floor Hydrologic Unit 5531--(i) Lower Mokelumne 
Hydrologic Sub-area 553120. 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).
    (ii) Lower Calaveras Hydrologic Sub-area 553130. 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).
    (16) Upper Calaveras Hydrologic Unit 5533--New Hogan Reservoir 
Hydrologic Sub-area 553310. Outlet(s) = Calaveras River (Lat 38.1025, 
Long -1120.8503) upstream to endpoint(s) in: Calaveras River (38.1502, -
1120.8143).
    (17) Stanislaus River Hydrologic Unit 5534--Table Mountain 
Hydrologic Sub-area 553410. Outlet(s) = Stanislaus River (Lat 37.8355, 
Long -1120.6513) upstream to endpoint(s) in: Stanislaus River (37.8631, 
-1120.6298).
    (18) San Joaquin Valley Floor Hydrologic Unit 5535--(i) Riverbank 
Hydrologic Sub-area 553530. Outlet(s) = Stanislaus River (Lat 37.6648, 
Long -1121.2414) upstream to endpoint(s) in: Stanislaus River (37.8355, 
-1120.6513).
    (ii) Turlock Hydrologic Sub-area 553550. Outlet(s) = Tuolumne River 
(Lat 37.6059, Long -1121.1739) upstream to

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endpoint(s) in: Tuolumne River (37.6401, -1120.6526).
    (iii) Montpelier Hydrologic Sub-area 553560. Outlet(s) = Tuolumne 
River (Lat 37.6401, Long -1120.6526) upstream to endpoint(s) in: 
Tuolumne River (37.6721, -1120.4445).
    (iv) El Nido-Stevinson Hydrologic Sub-area 553570. Outlet(s) = 
Merced River (Lat 37.3505, Long -1120.9619) upstream to endpoint(s) in: 
Merced River (37.3620, -1120.8507).
    (v) Merced Hydrologic Sub-area 553580. Outlet(s) = Merced River (Lat 
37.3620, Long -1120.8507) upstream to endpoint(s) in: Merced River 
(37.4982, -1120.4612).
    (vi) Fahr Creek Hydrologic Sub-area 553590. Outlet(s) = Merced River 
(Lat 37.4982, Long -1120.4612) upstream to endpoint(s) in: Merced River 
(37.5081, -1120.3581).
    (19) Delta-Mendota Canal Hydrologic Unit 5541--(i) Patterson 
Hydrologic Sub-area 554110. Outlet(s) = San Joaquin River (Lat 37.6763, 
Long -1121.2653) upstream to endpoint(s) in: San Joaquin River (37.3491, 
-1120.9759).
    (ii) Los Banos Hydrologic Sub-area 554120. Outlet(s) = Merced River 
(Lat 37.3490, Long -1120.9756) upstream to endpoint(s) in: Merced River 
(37.3505, -1120.9619).
    (20) North Diablo Range Hydrologic Unit 5543--North Diablo Range 
Hydrologic Sub-area 554300. Outlet(s) = San Joaquin River (Lat 38.0247, 
Long -1121.8218) upstream to endpoint(s) in: San Joaquin River (38.0246, 
-1121.7471).
    (21) San Joaquin Delta Hydrologic Unit 5544--San Joaquin Delta 
Hydrologic Sub-area 554400. 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).
    (22) Maps of critical habitat for the Central Valley Steelhead ESU 
follow:

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[70 FR 52536, Sept. 2, 2005]



Sec. 226.212  Critical habitat for 13 Evolutionarily Significant 
Units (ESUs) of salmon and steelhead (Oncorhynchus spp.)

in Washington, Oregon and Idaho.

    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 (u) 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 (u) of this section) and are 
provided for general guidance purposes only, and not as a definitive 
source for determining critical habitat boundaries.
    (a) Critical habitat is designated for the following ESUs in the 
following states and counties:

------------------------------------------------------------------------
                  ESU                            State--Counties
------------------------------------------------------------------------
(1) Puget Sound chinook salmon.........  WA--Clallam, Jefferson, King,
                                          Mason, Pierce, Skagit,
                                          Snohomish, Thurston, and
                                          Whatcom.
(2) Lower Columbia River chinook salmon  (i) OR--Clackamas, Clatsop,
                                          Columbia, Hood River, and
                                          Multnomah.
                                         (ii) WA--Clark, Cowlitz,
                                          Klickitat, Lewis, Pacific,
                                          Skamania, and Wahkiakum.
(3) Upper Willamette River chinook       (i) OR--Benton, Clackamas,
 salmon.                                  Clatsop, Columbia, Lane, Linn,
                                          Marion, Multnomah, Polk, and
                                          Yamhill.
                                         (ii) WA--Clark, Cowlitz,
                                          Pacific, and Wahkiakum.
(4) Upper Columbia River spring-run      (i) OR--Clatsop, Columbia,
 chinook salmon.                          Gilliam, Hood River, Morrow,
                                          Multnomah, Sherman, Umatilla,
                                          and Wasco.
                                         (ii) WA--Benton, Chelan, Clark,
                                          Cowlitz, Douglas, Franklin,
                                          Grant, Kittitas, Klickitat,
                                          Okanogan, Pacific, Skamania,
                                          Wahkiakum, Walla Walla, and
                                          Yakima.
(5) Hood Canal summer-run chum salmon..  WA--Clallam, Jefferson, Kitsap,
                                          and Mason.
(6) Columbia River chum salmon.........  (i) OR--Clatsop, Columbia, Hood
                                          River, and Multnomah.
                                         (ii) WA--Clark, Cowlitz,
                                          Klickitat, Lewis, Pacific,
                                          Skamania, and Wahkiakum.
(7) Ozette Lake sockeye salmon.........  WA--Clallam.
(8) Upper Columbia River steelhead.....  (i) OR--Clatsop, Columbia,
                                          Gilliam, Hood River, Morrow,
                                          Multnomah, Umatilla, and
                                          Wasco.
                                         (ii) WA--Adams, Benton, Chelan,
                                          Clark, Cowlitz, Douglas,
                                          Franklin, Grant, Kittitas,
                                          Klickitat, Okanogan, Pacific,
                                          Skamania, Wahkiakum, Walla
                                          Walla, and Yakima.
(9) Snake River Basin steelhead........  (i) ID--Adams, Blaine,
                                          Clearwater, Custer, Idaho,
                                          Latah, Lemhi, Lewis, Nez
                                          Perce, and Valley.
                                         (ii) OR--Clatsop, Columbia,
                                          Gilliam, Hood River, Morrow,
                                          Multnomah, Sherman, Umatilla,
                                          Union, Wallowa, and Wasco.
                                         (iii) WA--Asotin, Benton,
                                          Clark, Columbia, Cowlitz,
                                          Franklin, Garfield, Klickitat,
                                          Pacific, Skamania, Walla
                                          Walla, Wahkiakum, and Whitman.
(10) Middle Columbia River steelhead...  (i) OR--Clatsop, Columbia,
                                          Crook, Gilliam, Grant, Hood
                                          River, Jefferson, Morrow,
                                          Multnomah, Sherman, Umatilla,
                                          Union, Wallowa, Wasco, and
                                          Wheeler.
                                         (ii) WA--Benton, Clark,
                                          Cowlitz, Columbia, Franklin,
                                          King, Kittitas, Klickitat,
                                          Lewis, Pacific, Pierce,
                                          Skamania, Wahkiakum, Walla
                                          Walla, and Yakima.
(11) Lower Columbia River steelhead....  (i) OR--Clackamas, Clatsop,
                                          Columbia, Hood River, Marion,
                                          and Multnomah.
                                         (ii) WA--Clark, Cowlitz,
                                          Klickitat, Lewis, Pacific,
                                          Skamania, and Wahkiakum.
(12) Upper Willamette River steelhead..  (i) OR--Benton, Clackamas,
                                          Clatsop, Columbia, Linn,
                                          Marion, Multnomah, Polk,
                                          Tillamook, Washington, and
                                          Yamhill.
                                         (ii) WA--Clark, Cowlitz,
                                          Pacific, and Wahkiakum.
(13) Oregon Coast coho salmon..........  OR--Benton, Clatsop, Columbia,
                                          Coos, Curry, Douglas, Lane,
                                          Oregon Lincoln, Polk,
                                          Tillamook, Washington, and
                                          Yamhill.
------------------------------------------------------------------------

    (b) Critical habitat boundaries. 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

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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 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.
    (c) Primary constituent elements. 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:
    (1) Freshwater spawning sites with water quantity and quality 
conditions and substrate supporting spawning, incubation and larval 
development;
    (2) Freshwater rearing sites with:
    (i) Water quantity and floodplain connectivity to form and maintain 
physical habitat conditions and support juvenile growth and mobility;
    (ii) Water quality and forage supporting juvenile development; and
    (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.
    (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;
    (4) Estuarine areas free of obstruction and excessive predation 
with:
    (i) Water quality, water quantity, and salinity conditions 
supporting juvenile and adult physiological transitions between fresh- 
and saltwater;
    (ii) Natural cover such as submerged and overhanging large wood, 
aquatic vegetation, large rocks and boulders, side channels; and
    (iii) Juvenile and adult forage, including aquatic invertebrates and 
fishes, supporting growth and maturation.
    (5) Nearshore marine areas free of obstruction and excessive 
predation with:
    (i) Water quality and quantity conditions and forage, including 
aquatic invertebrates and fishes, supporting growth and maturation; and
    (ii) Natural cover such as submerged and overhanging large wood, 
aquatic vegetation, large rocks and boulders, and side channels.
    (6) Offshore marine areas with water quality conditions and forage, 
including aquatic invertebrates and fishes, supporting growth and 
maturation.
    (d) Exclusion of Indian lands. 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:
    (1) Lands held in trust by the United States for the benefit of any 
Indian tribe;
    (2) Land held in trust by the United States for any Indian Tribe or 
individual subject to restrictions by the United States against 
alienation;
    (3) Fee lands, either within or outside the reservation boundaries, 
owned by the tribal government; and
    (4) Fee lands within the reservation boundaries owned by individual 
Indians.
    (e) Land owned or controlled by the Department of Defense. 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:
    (1) Naval Submarine Base, Bangor;
    (2) Naval Undersea Warfare Center, Keyport;
    (3) Naval Ordnance Center, Port Hadlock (Indian Island);
    (4) Naval Radio Station, Jim Creek;
    (5) Naval Fuel Depot, Manchester;

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    (6) Naval Air Station Whidbey Island;
    (7) Naval Air Station, Everett;
    (8) Bremerton Naval Hospital;
    (9) Fort Lewis (Army);
    (10) Pier 23 (Army);
    (11) Yakima Training Center (Army);
    (12) Puget Sound Naval Shipyard;
    (13) Naval Submarine Base Bangor security zone;
    (14) Strait of Juan de Fuca naval air-to-surface weapon range, 
restricted area;
    (15) Hood Canal and Dabob Bay naval non-explosive torpedo testing 
area;
    (16) Strait of Juan de Fuca and Whidbey Island naval restricted 
areas;
    (17) Admiralty Inlet naval restricted area;
    (18) Port Gardner Naval Base restricted area;
    (19) Hood Canal naval restricted areas;
    (20) Port Orchard Passage naval restricted area;
    (21) Sinclair Inlet naval restricted areas;
    (22) Carr Inlet naval restricted areas;
    (23) Dabob Bay/Whitney Point naval restricted area; and
    (24) Port Townsend/Indian Island/Walan Point naval restricted area.
    (f) Land subject to the Washington Department of Natural Resources 
Habitat Conservation Plan. 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.
    (g) Land subject to the Green Diamond Company Habitat Conservation 
Plan. 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).
    (h) Land subject to the West Fork Timber Company Habitat 
Conservation Plan. 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).
    (i) Puget Sound Chinook Salmon (Oncorhynchus tshawytscha). Critical 
habitat is designated to include the areas defined in the following 
subbasins:
    (1) Nooksack Subbasin 17110004--(i) Upper North Fork Nooksack River 
Watershed 1711000401. 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).
    (ii) Middle Fork Nooksack River Watershed 1711000402. 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).
    (iii) South Fork Nooksack River Watershed 1711000403. 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).
    (iv) Lower North Fork Nooksack River Watershed 1711000404. 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

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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, -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).
    (v) Nooksack River Watershed 1711000405. 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).
    (2) Upper Skagit Subbasin 17110005--(i) Skagit River/Gorge Lake 
Watershed 1711000504. 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).
    (ii) Skagit River/Diobsud Creek Watershed 1711000505. 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).
    (iii) Cascade River Watershed 1711000506. 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).
    (iv) Skagit River/Illabot Creek Watershed 1711000507. 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).
    (3) Sauk Subbasin 17110006--(i) Upper Sauk River Watershed 
1711000601. 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).
    (ii) Upper Suiattle River Watershed 1711000602. 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).
    (iii) Lower Suiattle River Watershed 1711000603. 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).
    (iv) Lower Sauk River Watershed 1711000604. 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).
    (4) Lower Skagit Subbasin 17110007--(i) Middle Skagit River/Finney 
Creek Watershed 1711000701. 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,

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-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); Unnamed (48.5312, -122.0149); 
Wiseman Creek (48.5160, -122.1286).
    (ii) Lower Skagit River/Nookachamps Creek Watershed 1711000702. 
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, -122.4822); Walker Creek 
(48.3778, -122.1899).
    (5) Stillaguamish Subbasin 17110008--(i) North Fork Stillaguamish 
River Watershed 1711000801. Outlet(s) = North Fork Stillaguamish River 
(Lat 48.2037, Long -122.1256) upstream to endpoint(s) in: Ashton Creek 
(48.2545, -121.6708); Boulder River (48.2624, -121.8090); Deer Creek 
(48.2835, -121.9255); French Creek (48.2534, -121.7856); Furland Creek 
(48.2624, -121.6749); Grant Creek (48.2873, -122.0118); North Fork 
Stillaguamish River (48.3041, -121.6360); Rollins Creek (48.2908, -
121.8441); Squire Creek (48.2389, -121.6374); Unnamed (48.2393, -
121.6285); Unnamed (48.2739, -121.9948).
    (ii) South Fork Stillaguamish River Watershed 1711000802. Outlet(s) 
= South Fork Stillaguamish River (Lat 48.2037, Long -122.1256) upstream 
to endpoint(s) in: Jim Creek (48.2230, -121.9483); North Fork Canyon 
Creek (48.1697, -121.8194); Siberia Creek (48.1731, -122.0377); South 
Fork Canyon Creek (48.1540, -121.7840); South Fork Stillaguamish River 
(48.0454, -121.4819); Unnamed (48.1463, -122.0162).
    (iii) Lower Stillaguamish River Waterhed 1711000803. Outlet(s) = 
Stillaguamish River (Lat 48.2385, Long -122.3749); Unnamed (48.1983, -
122.3579) upstream to endpoint(s) in: Armstrong Creek (48.2189, -
122.1347); Pilchuck Creek (48.2983, -122.1672); Stillaguamish River 
(48.2037, -122.1256).
    (6) Skykomish Subbasin 17110009--(i) Tye and Beckler River Watershed 
1711000901. Outlet(s) = South Fork Skykomish River (Lat 47.7147, Long -
121.3393) upstream to endpoint(s) in: East Fork Foss River (47.6522, -
121.2792); Rapid River (47.8131, -121.2470) Tye River (47.7172, -
121.2254) Unnamed (47.8241, -121.2979); West Fork Foss River (47.6444, -
121.2972).
    (ii) Skykomish River Forks Watershed 1711000902. Outlet(s) = North 
Fork Skykomish River (Lat 47.8133, Long -121.5782) upstream to 
endpoint(s) in: Bridal Veil Creek (47.7987, -121.5597); Lewis Creek 
(47.8223, -121.5160); Miller River (47.7018, -121.3950); Money Creek 
(47.7208, -121.4062); North Fork Skykomish River (47.9183, -121.3073); 
South Fork Skykomish River (47.7147, -121.3393); Unnamed (47.7321, -
121.4176); Unnamed (47.8002, -121.5548).
    (iii) Skykomish River/Wallace River Watershed 1711000903. Outlet(s) 
= Skykomish River (Lat 47.8602, Long-121.8190) upstream to endpoint(s) 
in: Deer Creek (47.8191, -121.5805); Olney Creek (47.8796, -121.7163); 
Proctor Creek (47.8216, -121.6460); Skykomish River (47.8133, -
121.5782); Unnamed (47.8507, -121.8010); Wagleys Creek (47.8674, -
121.7972); Wallace River (47.8736, -121.6491).
    (iv) Sultan River Watershed 1711000904. Outlet(s) = Sultan River 
(Lat 47.8602, Long -121.8190) upstream to endpoint(s) in: Sultan River 
(47.9598, -121.7951).
    (v) Skykomish River/Woods Creek Watershed 1711000905. Outlet(s) = 
Skykomish River (Lat 47.8303, Long -122.0451) upstream to endpoint(s) 
in: Elwell Creek (47.8038, -121.8524); Skykomish River (47.8602, -
121.8190); Unnamed (47.8890, -121.8637); West Fork Woods Creek (47.9627, 
-121.9707); Woods Creek (47.8953, -121.8742); Youngs Creek (47.8081, -
121.8332).
    (7) Snoqualmie Subbasin 17110010--(i) Middle Fork Snoqualmie River 
Watershed 1711001003. Outlet(s) = Snoqualmie River (Lat 47.6407, Long -
121.9261) upstream to endpoint(s) in: Canyon Creek (47.5837, -121.9623); 
Deep Creek (47.4764, -121.8905); Griffin Creek (47.6164, -121.9014); 
Lake Creek (47.5036, -121.9035); Patterson Creek (47.6276, -121.9855); 
Raging River (47.4795,

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-121.8691); Snoqualmie River (47.5415, -121.8362); Tokul Creek (47.5563, 
-121.8285).
    (ii) Lower Snoqualmie River Watershed 1711001004. Outlet(s) = 
Snoqualmie River (Lat 47.8303, Long -122.0451) upstream to endpoint(s) 
in: Cherry Creek (47.7465, -121.8953); Margaret Creek (47.7547, -
121.8933); North Fork Tolt River (47.7060, -121.7957); Snoqualmie River 
(47.6407, -121.9261); South Fork Tolt River (47.6969, -121.7861); Tuck 
Creek (47.7442, -122.0032); Unnamed (47.6806, -121.9730); Unnamed 
(47.6822, -121.9770); Unnamed (47.7420, -122.0084); Unnamed (47.7522, -
121.9745); Unnamed (47.7581, -121.9586).
    (8) Snohomish Subbasin 17110011--(i) Pilchuck River Watershed 
1711001101. Outlet(s) = Pilchuck River (Lat 47.9013, Long -122.0917) 
upstream to endpoint(s) in: Pilchuck River (48.0052, -121.7718).
    (ii) Snohomish River Watershed 1711001102. Outlet(s) = Quilceda 
Creek (Lat 48.0556, Long -122.1908); Skykomish River (48.0173, -
122.1877); Steamboat Slough (48.0365, -122.1814); Union Slough (48.0299, 
-122.1794); Unnamed (48.0412, -122.1723) upstream to endpoint(s) in: 
Allen Creek (48.0767, -122.1404); Quilceda Creek (48.1124, -122.1540); 
Skykomish River (47.8303, -122.0451); Unnamed (47.9545, -122.1969); 
Unnamed (47.9777, -122.1632); Unnamed (48.0019, -122.1283); Unnamed 
(48.0055, -122.1303); Unnamed (48.1330, -122.1472).
    (9) Lake Washington Subbasin 17110012--(i) Cedar River Watershed 
1711001201. Outlet(s) = Cedar River (Lat 47.5003, Long -122.2146) 
upstream to endpoint(s) in: Cedar River (47.4192, -121.7805); Rock Creek 
(47.3673, -122.0132); Unnamed (47.4092, -122.0358); Webster Creek 
(47.3857, -121.9845).
    (ii) Lake Washington Watershed 1711001203. Outlet(s) = Lake 
Washington (Lat 47.6654, Long -122.3960) upstream to endpoint(s) in: 
Cedar River (47.5003, -122.2146); Sammamish River (47.7543, -122.2465).
    (10) Duwamish Subbasin 17110013--(i) Upper Green River Watershed 
1711001301. Outlet(s) = Green River (Lat 47.2234, Long -121.6081) 
upstream to endpoint(s) in: Friday Creek (47.2204, -121.4559); Intake 
Creek (47.2058, -121.4049); McCain Creek (47.2093, -121.5292); Sawmill 
Creek (47.2086, -121.4675); Smay Creek (47.2508, -121.5872); Snow Creek 
(47.2607, -121.4046); Sunday Creek (47.2587, -121.3659); Tacoma Creek 
(47.1875, -121.3630); Unnamed (47.2129, -121.4579).
    (ii) Middle Green River Watershed 1711001302. Outlet(s) = Green 
River (Lat 47.2911, Long -121.9714) upstream to endpoint(s) in: Bear 
Creek (47.2774, -121.7990); Cougar Creek (47.2439, -121.6442); Eagle 
Creek (47.3051, -121.7219); Gale Creek (47.2644, -121.7085); Green River 
(47.2234, -121.6081); Piling Creek (47.2820, -121.7553); Sylvester Creek 
(47.2457, -121.6537); Unnamed (47.2360, -121.6333).
    (iii) Lower Green River Watershed 1711001303. Outlet(s) = Duwamish 
River (Lat 47.5113, Long -122.2951) upstream to endpoint(s) in: Big Soos 
Creek (47.4191, -122.1599); Burns Creek (47.2779, -122.1087); Covington 
Creek (47.3341, -122.0399); Crisp Creek (47.2897, -122.0590); Green 
River (47.2911, -121.9714); Jenkins Creek (47.3791, -122.0899); Little 
Soos Creek (47.4031, -122.1235); Mill Creek (47.3263, -122.2455); 
Newaukum Creek (47.2303, -121.9518); Unnamed (47.2765, -121.9730); 
Unnamed (47.2891, -122.1557); Unnamed (47.3007, -122.1774); Unnamed 
(47.3250, -122.1961); Unnamed (47.3464, -122.2397); Unnamed (47.3751, -
122.2648); Unnamed (47.4046, -122.2134); Unnamed (47.4525, -122.2354); 
Unnamed (47.4618, -122.2315); Unnamed (47.4619, -122.2554); Unnamed 
(47.4876, -122.2781).
    (11) Puyallup Subbasin 17110014--(i) Upper White River Watershed 
1711001401. Outlet(s) = White River (Lat 47.1588, Long -121.6587) 
upstream to endpoint(s) in: Greenwater River (47.1204, -121.5055); 
Huckleberry Creek (47.0612, -121.6033); Pinochle Creek (47.0478, -
121.7043); Unnamed (46.9935, -121.5295); West Fork White River (47.0483, 
-121.6916); Wrong Creek (47.0403, -121.6999).
    (ii) Lower White River Watershed 1711001402. Outlet(s) = White River 
(Lat 47.2001, Long -122.2579) upstream to endpoint(s) in: Boise Creek 
(47.1958, -121.9467); Camp Creek (47.1430, -121.7012); Clearwater River 
(47.0852, -121.7823); Unnamed (47.1509, -121.7236); Unnamed (47.2247, -
122.1072); Unnamed (47.2307, -122.1079); Unnamed (47.2383, -122.2234); 
Unnamed (47.2498, -122.2346); White River (47.1588, -121.6587).
    (iii) Carbon River Watershed 1711001403. Outlet(s) = Carbon River 
(Lat 47.1308, Long -122.2315) upstream

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to endpoint(s) in: Carbon River (46.9965, -121.9198); South Fork South 
Prairie Creek (47.1203, -121.9963); Voight Creek (47.0751, -122.1285); 
Wilkeson Creek (47.0972, -122.0245).
    (iv) Upper Puyallup River Watershed 1711001404. Outlet(s) = Puyallup 
River (Lat 47.1308, Long -122.2315) upstream to endpoint(s) in: Deer 
Creek (46.8547, -121.9680); Kapowsin Creek (46.9854, -122.2008); Kellog 
Creek (46.9164, -122.0652); Mowich River (46.9209, -121.9739); 
Rushingwater Creek (46.8971, -121.9439); Unnamed (46.8867, -122.0194); 
Unnamed (46.8899, -121.9657).
    (v) Lower Puyallup River Watershed 1711001405. Outlet(s) = Hylebos 
Creek (Lat 47.2611, Long -122.3591); Puyallup River (47.2501, -122.4131) 
upstream to endpoint(s) in: Canyonfalls Creek (47.1421, -122.2186); 
Clarks Creek (47.1757.-122.3168); Clear Creek (47.2187, -122.3727); 
Fennel Creek (47.1495, -122.1849); Puyallup River (47.1308, -122.2315); 
Unnamed (47.1779, -122.1992); Unnamed (47.1799, -122.3066); Unnamed 
(47.1928, -122.3371); Unnamed (47.2723, -122.3216); West Hylebos Creek 
(47.2736, -122.3289).
    (12) Nisqually Subbasin 17110015--(i) Mashel/Ohop Watershed 
1711001502. Outlet(s) = Nisqually River (Lat 46.8646, Long -122.4776) 
upstream to endpoint(s) in: Little Mashel River (46.8504, -122.2724); 
Lynch Creek (46.8760, -122.2625); Mashel River (46.8431, -122.1205); 
Nisqually River (46.8303, -122.3225); Ohop Creek (46.9264, -122.2603); 
Powell Creek (46.8528, -122.4505); Tanwax Creek (46.8630, -122.4549); 
Twentyfive Mile Creek (46.9274, -122.2558).
    (ii) Lowland Watershed 1711001503. Outlet(s) = McAllister Creek (Lat 
47.1120, Long -122.7215); Nisqually River (47.1110, -122.7026); Unnamed 
(47.0071, -122.6556); Yelm Creek (46.9712, -122.6263) upstream to 
endpoint(s) in: Horn Creek (46.9042, -122.4776); McAllister Creek 
(47.0299, -122.7236); Nisqually River (46.8646, -122.4776); Unnamed 
(46.9108, -122.5032); Unnamed (47.0001, -122.6510); Unnamed (47.0055, -
122.6520); Yelm Creek (46.9629, -122.6194). Excluded is that segment of 
the Nisqually River from Lat 47.0703, Long -122.7017, to Lat 46.9668, 
Long -122.5640.
    (13) Skokomish Subbasin 17110017--Skokomish River Watershed 
1711001701. Outlet(s) = Skokomish River (Lat 47.3543, Long -123.1122); 
Unnamed (47.3420, -123.1092); Unnamed (47.3471, -123.1275); Unnamed 
(47.3509, -123.1101) upstream to endpoint(s) in: Brown Creek (47.4238, -
123.3052); Fir Creek (47.3363, -123.3016); McTaggert Creek (47.3749, -
123.2318); North Fork Skokomish River (47.5197, -123.3329); Purdy Canyon 
(47.3021, -123.1803); Unnamed (47.3048, -123.1528); Unnamed (47.3077, -
123.2012); Unnamed (47.3146, -123.1353); Unnamed (47.3209, -123.2212); 
Unnamed (47.3222, -123.3060); Unnamed (47.3237, -123.1467); Unnamed 
(47.3250, -123.1250); Vance Creek (47.3300, -123.3137); Weaver Creek 
(47.3097, -123.2384).
    (14) Hood Canal Subbasin 17110018--(i) Hamma Hamma River Watershed 
1711001803. Outlet(s) = Hamma Hamma River (Lat 47.5471, Long -123.0440) 
upstream to endpoint(s) in: Hamma Hamma River (47.5590, -123.0632); 
North Fork John Creek (47.5442, -123.0696)
    (ii) Duckabush River Watershed 1711001804. Outlet(s) = Duckabush 
River (Lat 47.6502, Long -122.9348) upstream to endpoint(s) in: 
Duckabush River (47.6825, -123.0675).
    (iii) Dosewallips River Watershed 1711001805. Outlet(s) = 
Dosewallips River (Lat 47.6881, Long -122.8945); Unnamed (47.6857, -
122.8967) upstream to endpoint(s) in: Dosewallips River (47.7289, -
123.1111); Rocky Brook (47.7212, -122.9405); Unnamed (47.6886, -
122.8977).
    (15) Dungeness/Elwha 17110020--(i) Dungeness River Watershed 
1711002003. Outlet(s) = Dungeness River (Lat 48.1506, Long -123.1311); 
Unnamed (48.1537, -123.1267) upstream to endpoint(s) in: Dungeness River 
(47.9386, -123.0885); Gray Wolf River (47.9168, -123.2409); Matriotti 
Creek (48.1368, -123.1428); Unnamed (48.1514, -123.1216).
    (ii) Elwha River Watershed 1711002007. Outlet(s) = Elwha River (Lat 
48.1466, Long -123.5671); Unnamed (48.1483, -123.5599) upstream to 
endpoint(s) in: Elwha River (48.0927, -123.5614).

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    (16) Nearshore Marine Areas--Except as provided in paragraph (e) of 
this section, critical habitat includes all nearshore marine areas 
(including areas adjacent to islands) of the Strait of Georgia (south of 
the international border), Puget Sound, Hood Canal, and the Strait of 
Juan de Fuca (to the western end of the Elwha River delta) from the line 
of extreme high tide out to a depth of 30 meters.
    (17) Maps of critical habitat for the Puget Sound chinook salmon ESU 
follow:

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    (j) Lower Columbia River Chinook Salmon (Oncorhynchus tshawytscha). 
Critical habitat is designated to include the areas defined in the 
following subbasins:
    (1) Middle Columbia/Hood Subbasin 17070105--(i) East Fork Hood River 
Watershed 1707010506. Outlet(s) = Hood River (Lat 45.6050, Long -
121.6323) upstream to endpoint(s) in: Dog River (45.4655, -121.5656); 
East Fork Hood River

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(45.4665, -121.5669); Pinnacle Creek (45.4595, -121.6568); Tony Creek 
(45.5435, -121.6411).
    (ii) West Fork Hood River Watershed 1707010507. Outlet(s) = West 
Fork Hood River (Lat 45.6050, Long -121.6323) upstream to endpoint(s) 
in: Divers Creek (45.5457, -121.7447); Elk Creek (45.4277, -121.7889); 
Indian Creek (45.5375, -121.7857); Jones Creek (45.4629, -121.7942); 
Lake Branch (45.5083, -121.8485); McGee Creek (45.4179, -121.7675); No 
Name Creek (45.5347, -121.7929); Red Hill Creek (45.4720, -121.7705), 
Unnamed (45.5502, -121.7014).
    (iii) Hood River Watershed 1707010508. Outlet(s) = Hood River (Lat 
45.7205, Long -121.5055) upstream to endpoint(s) in: Hood River 
(45.6050, -121.6323).
    (iv) White Salmon River Watershed 1707010509. Outlet(s) = White 
Salmon River (Lat 45.7226, Long -121.5214) upstream to endpoint(s) in: 
White Salmon River (45.7677, -121.5374).
    (v) Wind River Watershed 1707010511. Outlet(s) = Wind River (Lat 
45.7037, Long -121.7946) upstream to endpoint(s) in: Bear Creek 
(45.7620, -121.8293); Big Hollow Creek (45.9399, -121.9996); Dry Creek 
(45.9296, -121.9721); Falls Creek (45.9105, -121.9222); Little Wind 
River (45.7392, -121.7772); Ninemile Creek (45.8929, -121.9526); 
Paradise Creek (45.9527, -121.9408); Trapper Creek (45.8887, -122.0065); 
Trout Creek (45.8021, -121.9313); Wind River (45.9732, -121.9031).
    (vi) Middle Columbia/Grays Creek Watershed 1707010512. Outlet(s) = 
Columbia River (Lat 45.7044, Long -121.7980) upstream to endpoint(s) in: 
Columbia River (45.7205, -121.5056).
    (vii) Middle Columbia/Eagle Creek Watershed 1707010513. Outlet(s) = 
Columbia River (Lat 45.6447, Long -121.9395) upstream to endpoint(s) in: 
Camp Creek (45.6676, -121.8167); Carson Creek (45.7206, -121.8184); 
Columbia River (45.7044, -121.7980); Dry Creek (45.6717, -121.8732); 
Eagle Creek (45.6365, -121.9171); East Fork Herman Creek (45.6538, -
121.8122); Herman Creek (45.6749, -121.8477); Rock Creek (45.6958, -
121.8915); Unnamed (45.6654, -121.8164); Unnamed (45.6674, -121.8487); 
Unnamed (45.6689, -121.8444); Unnamed (45.6762, -121.9350); Unnamed 
(45.6902, -121.9034); Unnamed (45.6948, -121.9424).
    (2) Lower Columbia/Sandy Subbasin 17080001--(i) Salmon River 
Watershed 1708000101. Outlet(s) = Salmon River (Lat 45.3768, Long -
122.0293) upstream to endpoint(s) in: Cheeney Creek (45.3104, -
121.9561); Copper Creek (45.2508, -121.9053); Salmon River (45.2511, -
121.9025); South Fork Salmon River (45.2606, -121.9474); Unnamed 
(45.3434, -121.9920).
    (ii) Zigzag River Watershed 1708000102. Outlet(s) = Zigzag River 
(Lat 45.3489, Long -121.9442) upstream to endpoint(s) in: Henry Creek 
(45.3328, -121.9110); Still Creek (45.2755, -121.8413); Unnamed 
(45.3019, -121.8202); Zigzag River (45.3092, -121.8642).
    (iii) Upper Sandy River Watershed 1708000103. Outlet(s) = Sandy 
River (Lat 45.3489, Long -121.9442) upstream to endpoint(s) in: Clear 
Creek (45.3712, -121.9246); Clear Fork Sandy River (45.3994, -121.8525); 
Horseshoe Creek (45.3707, -121.8936); Lost Creek (45.3709, -121.8150); 
Sandy River (45.3899, -121.8620).
    (iv) Middle Sandy River Watershed 1708000104. Outlet(s) = Sandy 
River (Lat 45.4464, Long -122.2459) upstream to endpoint(s) in: Alder 
Creek (45.3776, -122.0994); Bear Creek (45.3368, -121.9265); Cedar Creek 
(45.4087, -122.2617); North Boulder Creek (45.3822, -122.0168); Sandy 
River (45.3489, -121.9442).
    (v) Bull Run River Watershed 1708000105. Outlet(s) = Bull Run River 
(Lat 45.4464, Long -122.2459) upstream to endpoint(s) in: Bull Run River 
(45.4455, -122.1561); Little Sandy Creek (45.4235, -122.1975).
    (vi) Washougal River (1708000106). Outlet(s) = Washougal River (Lat 
45.5795, Long -122.4022) upstream(s) to endpoint(s) in: Cougar Creek 
(45.6265, -122.2987); Dougan Creek (45.6770, -122.1522); Lacamas Creek 
(45.5972, -122.3933); Little Washougal River (45.6315, -122.3767); 
Washougal River (45.6729, -122.1524); West Fork Washougal River 
(45.6205, -122.2149).
    (vii) Columbia Gorge Tributaries Watershed 1708000107. Outlet(s) = 
Columbia River (Lat 45.5735, Long -122.3945) upstream to endpoint(s) in: 
Bridal Veil Creek (45.5542, -122.1793); Columbia River (45.6447, -
121.9395); Coopey Creek (45.5656, -122.1671); Government Cove (45.5948, 
-122.0630); Hamilton Creek

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(45.6414, -121.9764); Hardy Creek (45.6354, -121.9987); Horsetail Creek 
(45.5883, -122.0675); Latourell Creek (45.5388, -122.2173); McCord Creek 
(45.6115, -121.9929); Moffett Creek (45.6185, -121.9662); Multnomah 
Creek (45.5761, -122.1143), Oneonta Creek (45.5821, -122.0718); Tanner 
Creek (45.6264, -121.9522); Turnaft Creek (45.6101, -122.0284); Unnamed 
(45.5421, -122.2624); Unnamed (45.5488, -122.3504); Unnamed (45.6025, -
122.0443); Unnamed (45.6055, -122.0392); Unnamed (45.6083, -122.0329); 
Unnamed (45.6118, -122.0216); Unnamed (45.6124, -122.0172); Unnamed 
(45.6133, -122.0055); Wahkeena Creek (45.5755, -122.1266); Young Creek 
(45.5480, -122.1997).
    (viii) Lower Sandy River Watershed 1708000108. Outlet(s) = Sandy 
River (Lat 45.5680, Long -122.4023) upstream to endpoint(s) in: Beaver 
Creek (45.5258, -122.3822); Gordon Creek (45.4915, -122.2423); Sandy 
River (45.4464, -122.2459); Trout Creek (45.4844, -122.2785); Unnamed 
(45.5542, -122.3768); Unnamed (45.5600, -122.3650).
    (3) Lewis Subbasin 17080002--(i) East Fork Lewis River Watershed 
1708000205. Outlet(s) = East Fork Lewis River (Lat 45.8664, Long -
122.7189) upstream to endpoint(s) in: East Fork Lewis River (45.8395, -
122.4463).
    (ii) Lower Lewis River Watershed 1708000206. Outlet(s) = Lewis River 
(Lat 45.8519, Long -122.7806) upstream to endpoint(s) in: Cedar Creek 
(45.9049, -122.3684); Chelatchie Creek (45.9169, -122.4130); Johnson 
Creek (45.9385, -122.6261); Lewis River (45.9570, -122.5550); Pup Creek 
(45.9391, -122.5440); Unnamed (45.8882, -122.7412); Unnamed (45.9153, -
122.4362).
    (4) Lower Columbia/Clatskanie Subbasin 17080003--(i) Kalama River 
Watershed 1708000301. Outlet(s) = Burris Creek (45.8926, -122.7892); 
Kalama River (46.0340, -122.8695) upstream to endpoint(s) in: Arnold 
Creek (46.0463, -122.5938); Burris Creek (45.9391, -122.7780); Elk Creek 
(46.0891, -122.5117); Gobar Creek (46.0963, -122.6042); Hatchery Creek 
(46.0459, -122.8027); Kalama River (46.1109, -122.3579); Little Kalama 
River (45.9970, -122.6939); North Fork Kalama River (46.1328, -
122.4118); Wild Horse Creek (46.0626, -122.6367).
    (ii) Clatskanie River Watershed 1708000303. Outlet(s) = Clatskanie 
River (Lat 46.1398, Long -123.2303) upstream to endpoint(s) in: 
Clatskanie River (46.0435, -123.0829); Merrill Creek (46.0916, -
123.1727); Perkins Creek (46.0826, -123.1678).
    (iii) Skamokawa/Elochoman Watershed 1708000305. Outlet(s) = 
Elochoman River (Lat 46.2269, Long -123.4040); Skamokawa Creek (46.2677, 
-123.4562); Unnamed (46.2243, -123.3975) upstream to endpoint(s) in: 
Beaver Creek (46.2256, -123.3071); Elochoman River (46.3503, -123.2428); 
Falk Creek (46.2954, -123.4413); Left Fork Skamokawa Creek (46.3249, -
123.4538); McDonald Creek (46.3398, -123.4116); Standard Creek (46.3292, 
-123.3999); West Fork Elochoman River (46.3211, -123.2605); West Fork 
Skamokawa Creek (46.2871, -123.4654); Wilson Creek (46.2970, -123.3434).
    (iv) Plympton Creek Watershed 1708000306. Outlet(s) = Westport 
Slough (Lat 46.1434, Long -123.3816) upstream to endpoint(s) in: 
Plympton Creek (46.1261, -123.3842); Westport Slough (46.1195, -
123.2797).
    (5) Upper Cowlitz Subbasin 17080004--(i) Headwaters Cowlitz River 
1708000401. Outlet(s) = Cowlitz River (Lat 46.6580, Lat -121.6032) 
upstream to endpoint(s) in: Clear Fork Cowlitz River (46.6858, -
121.5668); Muddy Fork Cowlitz River (46.6994, -121.6169); Ohanapecosh 
River (46.6883, -121.5809).
    (ii) Upper Cowlitz River Watershed 1708000402. Outlet(s) = Cowlitz 
River (Lat 46.5763, Long -121.7051) upstream to endpoint(s) in: Cowlitz 
River (46.6580, -121.6032).
    (iii) Cowlitz Valley Frontal Watershed 1708000403. Outlet(s) = 
Cowlitz River (Lat 46.4765, Long -122.0952) upstream to endpoint(s) in: 
Cowlitz River (46.5763, -121.7051); Silver Creek (46.5576, -121.9178).
    (iv) Upper Cispus River Watershed 1708000404. Outlet(s) = Cispus 
River (Lat 46.4449, Long -121.7954) upstream to endpoint(s) in: Cispus 
River (46.3410, -121.6709); East Canyon Creek (46.3454, -121.7031); 
North Fork Cispus River (46.4355, -121.654).
    (v) Lower Cispus River Watershed 1708000405. Outlet(s) = Cispus 
River (Lat 46.4765, Long -122.0952) upstream to endpoint(s) in: Cispus 
River (46.4449, -121.7954); McCoy Creek (46.3892,

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-121.8190); Yellowjacket Creek (46.3871, -121.8335).
    (6) Cowlitz Subbasin 17080005--(i) Riffe Reservoir Watershed 
1708000502. Outlet(s) = Cowlitz River (Lat 46.5033, Long -122.5870) 
upstream to endpoint(s) in: Cowlitz River (46.4765, -122.0952).
    (ii) Jackson Prairie Watershed 1708000503. Outlet(s) = Cowlitz River 
(Lat 46.3678, Long -122.9337) upstream to endpoint(s) in: Bear Creek 
(46.4215, -122.9224); Blue Creek (46.4885, -122.7253); Cowlitz River 
(46.5033, -122.5870); Lacamas Creek (46.5118, -122.8113); Mill Creek 
(46.4701, -122.8557); Mill Creek (46.5176;-122.6209); Otter Creek 
(46.4800, -122.6996); Salmon Creek (46.4237, -122.8400); Skook Creek 
(46.5035, -122.7556).
    (iii) North Fork Toutle River Watershed 1708000504. Outlet(s) = 
North Fork Toutle River (Lat 46.3669, Long -122.5859) upstream to 
endpoint(s) in: North Fork Toutle River (46.3718, -122.5847).
    (iv) Green River Watershed 1708000505. Outlet(s) = Green River (Lat 
46.3718, Long -122.5847) upstream to endpoint(s) in: Cascade Creek 
(46.3924, -122.3530); Devils Creek (46.3875, -122.5113); Elk Creek 
(46.3929, -122.3224); Green River (46.3857, -122.1815); Miners Creek 
(46.3871, -122.2091); Shultz Creek (46.3744, -122.2987); Unnamed 
(46.3796, -122.3632).
    (v) South Fork Toutle River Watershed 1708000506. Outlet(s) = South 
Fork Toutle River (Lat 46.3282, Long -122.7215) upstream to endpoint(s) 
in: Johnson Creek (46.3100, -122.6338); South Fork Toutle River 
(46.2306, -122.4439); Studebaker Creek (46.3044, -122.6777).
    (vi) East Willapa Watershed 1708000507. Outlet(s) = Cowlitz River 
(Lat 46.2660, Long -122.9154) upstream to endpoint(s) in: Arkansas Creek 
(46.3275, -123.0123); Baxter Creek (46.3034, -122.9709); Brim Creek 
(46.4263, -123.0139); Campbell Creek (46.3756, -123.0401); Cowlitz River 
(46.3678, -122.9337); Delameter Creek (46.2495, -122.9916); Hemlock 
Creek (46.2585, -122.7269); Hill Creek (46.3724, -122.9211); King Creek 
(46.5076, -122.9885); Monahan Creek (46.2954, -123.0286); North Fork 
Toutle River (46.3669, -122.5859); Olequa Creek (46.5174, -122.9042); 
Stillwater Creek (46.3851, -123.0478); Sucker Creek (46.2628, -
122.8116); Unnamed (46.5074, -122.9585); Unnamed (46.5405, -122.9090); 
Wyant Creek (46.3424, -122.6302).
    (vii) Coweeman Watershed 1708000508. Outlet(s) = Cowlitz River (Lat 
46.0977, Long -122.9141); Owl Creek (46.0771, -122.8676) upstream to 
endpoint(s) in: Baird Creek (46.1704, -122.6119); Coweeman River 
(46.1505, -122.5792); Cowlitz River (46.2660, -122.9154); Leckler Creek 
(46.2092, -122.9206); Mulholland Creek (46.1932, -122.6992); North Fork 
Goble Creek (46.1209, -122.7689); Ostrander Creek (46.2095, -122.8623); 
Owl Creek (46.0914, -122.8692); Salmon Creek (46.2547, -122.8839); South 
Fork Ostrander Creek (46.1910, -122.8600); Unnamed (46.0838, -122.7264).
    (7) Lower Columbia Subbasin 17080006--(i) Big Creek Watershed 
1708000602. Outlet(s) = Bear Creek (Lat 46.1719; Long -123.6642); Big 
Creek (46.1847, -123.5943); Blind Slough (46.2011, -123.5822); John Day 
River (46.1820, -123.7392) upstream to endpoint(s) in: Bear Creek 
(46.1181, -123.6388); Big Creek (46.1475, -123.5819); Gnat Creek 
(46.1614, -123.4813); John Day River (46.1763, -123.7474).
    (ii) Grays Bay Watershed 1708000603. Outlet(s) = Crooked Creek (Lat 
46.2962, Long -123.6795); Deep River (46.3035, -123.7092); Grays River 
(46.3035, -123.6867); Sisson Creek (46.3011, -123.7237); Unnamed 
(46.3042, -123.6870) upstream to endpoint(s) in: Crooked Creek (46.3033, 
-123.6222); East Fork Grays River (46.4425, -123.4081); Fossil Creek 
(46.3628, -123.5530); Grays River (46.4910, -123.4334); Hull Creek 
(46.3725, -123.5866); Johnson Canyon (46.3699, -123.6659); Klints Creek 
(46.3562, -123.5675); Malone Creek (46.3280, -123.6545); Mitchell Creek 
(46.4512, -123.4371) South Fork Grays River (46.3813, -123.4581); 
Sweigiler Creek (46.4195, -123.5375); Unnamed (46.3283, -123.7376); 
Unnamed (46.3651, -123.6839); Unnamed (46.4701, -123.4515); West Fork 
Grays River (46.4195, -123.5530).
    (8) Clackamas Subbasin 17090011--(i) Lower Clackamas River Watershed 
1709001106. Outlet(s) = Clackamas River (Lat 45.3719, Long -122.6071) 
upstream to endpoint(s) in: Clackamas River (45.2440, -122.2798); Clear 
Creek (45.3568, -122.4781); Deep Creek (45.3916, -122.4028); Richardson 
Creek (45.3971,

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-122.4712); Rock Creek (45.4128, -122.5043).
    (ii) [Reserved]
    (9) Lower Willamette Subbasin 17090012--(i) Johnson Creek Watershed 
1709001201. Outlet(s) = Willamette River (Lat 45.4423, Long -122.6453) 
upstream to endpoint(s) in: Crystal Springs Creek (45.4770, -122.6403); 
Kellogg Creek (45.4344, -122.6314); Tryon Creek (45.4239, -122.6595); 
Unnamed (45.4002, -122.6423); Willamette River (45.3719, -122.6071).
    (ii) Scappoose Creek Watershed 1709001202. Outlet(s) = Multnomah 
Channel (Lat 45.8577, Long -122.7919) upstream to endpoint(s) in: 
Cunningham Slough (45.8250, -122.8069); Multnomah Channel (45.6188, -
122.7921); North Scappoose Creek (45.8014, -122.9340).
    (iii) Columbia Slough/Willamette River Watershed 1709001203. 
Outlet(s) = Willamette River (Lat 45.6530, Long -122.7646) upstream to 
endpoint(s) in: Bybee/Smith Lakes (45.6189, -122.7333); Columbia Slough 
(45.5979, -122.7137); Willamette River (45.4423, -122.6453).
    (10) Lower Columbia River Corridor--Lower Columbia River Corridor. 
Outlet(s) = Columbia River (Lat 46.2485, Long -124.0782) upstream to 
endpoint(s) in: Columbia River (45.5709, -122.4021).
    (11) Maps of critical habitat for the Lower Columbia River chinook 
salmon ESU follow:

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    (k) Upper Willamette River Chinook Salmon (Oncorhynchus 
tshawytscha). Critical habitat is to include the areas defined in the 
following subbasins:
    (1) Middle Fork Willamette Subbasin 17090001--(i) Upper Middle Fork 
Willamette River Watershed 1709000101. Outlet(s) = Middle Fork 
Willamette River (Lat 43.4961, Long -122.3989) upstream to

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endpoint(s) in: Echo Creek (43.4670, -122.3172); Found Creek (43.5048, -
122.2831); Middle Fork Willamette River (43.4801, -122.2534); Noisy 
Creek (43.5083, -122.3016); Simpson Creek (43.5031, -122.3801); Skunk 
Creek (43.5069, -122.2866); Staley Creek (43.4527, -122.3650); Swift 
Creek (43.5438, -122.2431); Tumblebug Creek (43.4740, -122.2549); 
Unnamed (43.4967, -122.2645); Unnamed (43.4986, -122.2686); Unnamed 
(43.5020, -122.2764).
    (ii) Hills Creek Watershed 1709000102. Outlet(s) = Hills Creek (Lat 
43.7071, Long -122.4195) upstream to endpoint(s) in: Hills Creek 
(43.6718, -122.3502).
    (iii) Salt Creek/Willamette River Watershed 1709000103. Outlet(s) = 
Salt Creek (Lat 43.7261, Long -122.4381) upstream to endpoint(s) in: 
Coyote Creek (43.6682, -122.2378); Eagle Creek (43.6795, -122.2293); 
Salt Creek (43.6204, -122.1413); South Fork Salt Creek (43.6518, -
122.2261).
    (iv) Hills Creek Reservoir Watershed 1709000105. Outlet(s) = Middle 
Fork Willamette River (Lat 43.7589, Long -122.5242) upstream to 
endpoint(s) in: Big Willow Creek (43.6341, -122.4139); Buck Creek 
(43.5945, -122.4272); Bull Creek (43.6598, -122.4014); Coal Creek 
(43.4882, -122.4246); Coffeepot Creek (43.6182, -122.4160); Gold Creek 
(43.5860, -122.4768); Indian Creek (43.5034, -122.4638); Larison Creek 
(43.6851, -122.4760); Middle Fork Willamette River (43.4961, -122.3989); 
Packard Creek (43.6516, -122.4904); Snake Creek (43.5388, -122.4554) 
Snow Creek (43.6061, -122.4585); Windfall Creek (43.5984, -122.4638).
    (v) North Fork of Middle Fork Willamette River Watershed 1709000106. 
Outlet(s) = North Fork Middle Fork Willamette River (Lat 43.7589, Long -
122.5242) upstream to endpoint(s) in: Cayuse Creek (43.8651, -122.1856); 
Chalk Creek (43.8750, -122.4044); Christy Creek (43.9079, -122.3796); 
Fisher Creek (43.8699, -122.1551); North Fork Middle Fork Willamette 
River (43.8671, -122.0711).
    (vi) Middle Fork Willamette/Lookout Point Watershed 1709000107. 
Outlet(s) = Middle Fork Willamette River (Lat 43.9495, Long -122.8471) 
upstream to endpoint(s) in: Anthony Creek (43.8799, -122.8498); 
Bannister Creek (43.8743, -122.6538); Buckhead Creek (43.7753, -
122.5253); Burnt Bridge Creek (43.7900, -122.5334); Carr Creek (43.8558, 
-122.8177); Deception Creek (43.7551, -122.5541); East Fork Minnow Creek 
(43.8902, -122.7342); Goodman Creek (43.8309, -122.6940); Gosage Creek 
(43.8446, -122.8129); Guiley Creek (43.8419, -122.7962); Hazel Creek 
(43.8637, -122.6891); Lost Creek (43.8427, -122.7781); Middle Creek 
(43.8624, -122.8323); Middle Fork Willamette River (4