[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
50
Parts 200 to 599
Revised as of October 1, 2001
Wildlife and Fisheries
Containing a codification of documents of general
applicability and future effect
As of October 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
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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 319
Chapter IV--Joint Regulations (United States Fish
and Wildlife Service, Department of the Interior and
National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations 379
Chapter V--Marine Mammal Commission 421
Finding Aids:
Material Approved for Incorporation by Reference........ 447
Table of CFR Titles and Chapters........................ 449
Alphabetical List of Agencies Appearing in the CFR...... 467
List of CFR Sections Affected........................... 477
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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
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evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
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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
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if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
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
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
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For a legal interpretation or explanation of any regulation in this
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2001.
[[Page ix]]
THIS TITLE
Title 50--Fish and Wildlife is composed of three volumes. The parts
in these volumes are arranged in the following order: Parts 1-199, parts
200-599 and part 600 to end. The first volume (parts 1-199) contains the
current regulations issued under chapter I--United States Fish and
Wildlife Service, Department of the Interior. The second volume (parts
200-599) contains the current regulations issued under chapter II--
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce; chapter III--International
Fishing and Related Activities, chapter IV--Joint Regulations (United
States Fish and Wildlife Service, Department of the Interior and
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce); Endangered Species Committee
regulations; and chapter V--Marine Mammal Commission. The third volume
(part 600 to end) contains the current regulations issued under chapter
VI--Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of October 1, 2001.
Alphabetical listings of endangered and threatened wildlife and
plants appear in part 17.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
[[Page x]]
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 200 to 599)
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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
Cross References: Commercial fishing on Red Lake Indian Reservation,
Bureau of Indian Affairs, Interior: 25 CFR part 242.
Disposal of certain wild animals in national parks, National Park
Service, Interior: 36 CFR part 10.
Exchanges of land for migratory bird or other wildlife refuges, Bureau
of Land Management, Interior: 43 CFR 2200.0-1--2272.1.
Fishing, hunting, trapping, and protection of wildlife in national
forests and wildlife refuges, Forest Service, USDA: 36 CFR part 241,
Secs. 261.8, 261.9.
Fishing, hunting, trapping, and protection of wildlife in national
parks, memorials, recreation areas, etc., National Park Service,
Interior: 36 CFR parts 2, 7, 20.
Fishing and hunting in reservoir areas, Corps of Engineers, Army, DoD:
36 CFR 327.8.
Free entry of animals, birds and products of American fisheries under
specified conditions, Customs Service, Treasury: 19 CFR 10.70--10.83.
Grazing areas for wildlife maintenance, Bureau of Land Management,
Interior: 43 CFR part 4110.
Making pictures, television production, or sound tracks on areas
administered by the United States Fish and Wildlife Service or the
National Park Service, Interior: 43 CFR 5.1.
[[Page 3]]
CHAPTER II--NATIONAL MARINE FISHERIES
SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION,
DEPARTMENT OF COMMERCE
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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
217-221 [Reserved]
222 General endangered and threatened marine
species................................. 77
223 Threatened marine and anadromous species.... 98
224 Endangered marine and anadromous species.... 171
225 [Reserved]
226 Designated critical habitat................. 176
228 Notice and hearing on section 103(d)
regulations............................. 218
229 Authorization for commercial fisheries under
the Marine Mammal Protection Act of 1972 225
SUBCHAPTER D--WHALING
230 Whaling provisions.......................... 255
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE
[RESERVED]
SUBCHAPTER F--AID TO FISHERIES
253 Fisheries assistance programs............... 258
259 Capital construction fund................... 267
SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF,
AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260 Inspection and certification................ 279
[[Page 4]]
261 United States Standards for Grades.......... 309
SUBCHAPTERS H-J [RESERVED]
SUBCHAPTER K--CONTINENTAL SHELF
296 Fishermen's Contingency Fund................ 311
[[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.
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.
216.47-216.49 [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 Submission of documentation.
216.94 Tracking and verification program.
216.95 False statements or endorsements.
216.96 Official mark for ``Dolphin-safe'' tuna products.
Subpart I--General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
216.101 Purpose.
216.102 Scope.
216.103 Definitions.
[[Page 6]]
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 of Ringed Seals Incidental to On-Ice Seismic
Activities
216.111 Specified activity and specified geographical region.
216.112 Effective dates.
216.113 Permissible methods.
216.114 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Renewal of Letters of Authorization.
216.118 Modifications to Letters of Authorization.
216.119 [Reserved]
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.
Subpart L--Taking of Marine Mammals Incidental to Power Plant Operations
216.130 Specified activity, specified geographical region, and
incidental take levels.
216.131 Effective dates.
216.132 Permissible methods of taking.
216.133 Prohibitions.
216.134 Mitigation requirements.
216.135 Monitoring and reporting.
216.136 Renewal of the Letter of Authorization.
216.137 Modifications to the Letter of Authorization.
216.138-216.140 [Reserved]
Subparts M--N [Reserved]
Subpart O--Taking of Marine Mammals Incidental to Shock Testing the USS
SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters
of the U.S. Atlantic Coast
216.161 Specified activity, geographical region, and incidental take
levels.
216.162 Effective dates.
216.163 Permissible methods of taking; mitigation.
216.164 Prohibitions.
216.165 Requirements for monitoring and reporting.
216.166 Modifications to the Letter of Authorization.
216.167-216.169 [Reserved]
Subpart P--Taking of Marine Mammals Incidental to Operating A Low
Frequency Acoustic Source by the North Pacific Acoustic Laboratory
216.170 Specified activity and specified geographical region.
216.171 Effective dates.
216.172 Permissible methods of taking.
216.173 Prohibitions.
216.174 Mitigation.
216.175 Requirements for monitoring and reporting.
216.176 Letter of authorization.
216.177 Renewal of a letter of authorization.
216.178 Modifications to a letter of authorization.
Subpart Q [Reserved]
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.
Note to part 216: See also 50 CFR parts 228 and 229 for regulations
governing certain incidental takings of marine mammals.
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
[[Page 7]]
Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.
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, Northeast Region means Administrator, Northeast
Region, National Marine Fisheries Service, One Blackburn Drive,
Gloucester, MA 01930-2298.
Administrator, Southeast Region means Administrator, Southeast
Region, National Marine Fisheries Service, 9721 Executive Center Drive,
St. Petersburg, FL 33702-2432.
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.
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
[[Page 8]]
limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. The formation of traditional native groups, such
as a cooperative, is permitted so long as no large scale mass production
results.
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 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).
[[Page 9]]
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 means NOAA Form 370, as described in
Sec. 216.24(f)(5).
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.
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
[[Page 10]]
agreement signed in La Jolla, California, in June 1992, as formalized,
modified, and enhanced in accordance with the Declaration of Panama and
the Agreement on the IDCP.
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.
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, whether alive or
dead, and any part thereof, including but not limited to, any raw,
dressed or dyed fur or skin: Cetacea (whales and porpoises), Pinnipedia,
other than walrus (seals and sea lions).
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
[[Page 11]]
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 Director, Southwest Region, NMFS, 501 W.
Ocean Blvd., Long Beach, CA 90802, or his/her designee.
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.
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
[[Page 12]]
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.
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.
Effective Date Notes: 1. At 63 FR 66076, Dec. 1, 1998, in
Sec. 216.3, the definition Administrator, Southeast Region was added,
effective Jan. 1, 1999 through Sept. 30, 2004.
2. At 64 FR 28120, May 25, 1999, in Sec. 216.3, the definition
Administrator, Northeast Region was added, effective July 1, 1999
through June 30, 2004.
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]
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
[[Page 13]]
such proceedings result in a finding that the person accused is not
guilty of a criminal violation of the MMPA, the Secretary may institute
proceedings for the assessment of a civil penalty under this part:
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.
(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
[[Page 14]]
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 Secs. 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:
(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
[[Page 15]]
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 Secs. 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.
(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.
[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]
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]
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:
[[Page 16]]
(1) Is accomplished in a humane manner;
(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.
[[Page 17]]
(5) Transfer without prior authorization. A person who salvages a
marine mammal specimen under this section 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:
[[Page 18]]
(i) It is being sent by an Alaskan Native directly or through a
registered agent to a tannery registered under paragraph (c) of this
section for the purpose of processing, and will be returned directly or
through a registered agent to the Alaskan Native; or
(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.
[[Page 19]]
(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 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.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64
FR 27927, May 24, 1999]
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 United States 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 United States purse
seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt))
carrying capacity or less to intentionally deploy a net on or to
encircle dolphins, or to carry more than two speedboats, if any part of
its fishing trip is in the ETP.
(ii) It is unlawful for any person using a United States purse seine
fishing vessel of greater than 400 short tons (362.8 mt) carrying
capacity that does not have a valid permit obtained under these
regulations to catch, possess, or land tuna if any part of the vessel's
fishing trip is in the ETP.
(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 a person subject to the jurisdiction of the
United States to intentionally deploy a purse seine net on, or to
encircle, dolphins from a vessel operating in the ETP when the DML
assigned to that vessel has been reached, or when there is not a DML
assigned to that vessel.
(3) Upon written request made in advance of entering the ETP, the
limitations in paragraphs (a)(2)(i) and
[[Page 20]]
(a)(2)(ii) of this section may be waived by the Administrator, Southwest
Region, for the purpose of allowing transit through the ETP. The waiver
will provide, in writing, the terms and conditions under which the
vessel must operate, including a requirement to report by radio to the
Administrator, Southwest Region, the vessel's date of exit from or
subsequent entry into the permit area.
(b) Permits--(1) Vessel permit. The owner or managing owner of a
United States purse seine fishing vessel of greater than 400 st (362.8
mt) carrying capacity that participates in commercial fishing operations
in the ETP must possess a valid vessel permit issued under this
paragraph (b) of this section. This permit is not transferable and must
be renewed annually. If a vessel permit holder surrenders his/her permit
to the Administrator, Southwest Region, the permit will not be returned
and a new permit will not be issued before the end of the calendar year.
Vessel permits are valid through December 31 of each year.
(2) Operator permit. The person in charge of and actually
controlling fishing operations (hereinafter referred to as the operator)
on a United States purse seine fishing vessel engaged in commercial
fishing operations under a vessel permit must possess a valid operator
permit issued under paragraph (b) of this section. Such permits are not
transferable and must be renewed annually. To receive a permit, the
operator must have satisfactorily completed all required training under
paragraph (c)(4) of this section. The operator's permit is valid only
when the permit holder is on a vessel with a valid vessel permit.
Operator permits will be valid through December 31 of each year.
(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, or to U.S. Coast Guard officers, or
to designated agents of NMFS or the IATTC (including observers). A
vessel owner or operator who is at sea on a fishing trip when his or her
permit expires and to whom a permit for the next year has been issued
may take marine mammals under the terms of the new permit without having
to display it on board the vessel until the vessel returns to port.
(4) Application for vessel permit. The owner or managing owner of a
purse seine vessel may apply for a vessel permit from the Administrator,
Southwest Region, allowing at least 45 days for processing. The
application must be signed by the applicant and contain:
(i) The name, official number, tonnage, carrying capacity in short
or metric tons, maximum speed in knots, processing equipment, and type
and quantity of gear, including an inventory of equipment required under
paragraph (c)(2) of this section if the application is for purse seining
involving the intentional taking of marine mammals, of the vessel that
is to be covered under the permit;
(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 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. A person wishing to operate a
purse seine vessel may apply for an operator permit from the
Administrator, Southwest Region, allowing at least 45 days for
processing. The application must be signed by the applicant or the
applicant's representative, if applicable, and contain:
(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 21]]
(iii) The name of the vessel(s) on which the applicant anticipates
serving as an operator; and
(iv) The date, location, and provider of any training for the
operator permit.
(6) Fees. (i) Vessel permit application fees. An application for a
permit under paragraph (b)(1) of this section must include a fee for
each vessel as specified on the application form. The Assistant
Administrator may change the amount of this fee at any time if a
different fee is determined in accordance with the NOAA Finance Handbook
and specified by the Administrator, Southwest Region, on the application
form.
(ii) Operator permit fee. There is no fee for a operator permit
under paragraph (b)(2) of this section. The Assistant Administrator may
impose a fee or change the amount of this fee at any time if a different
fee is determined in accordance with the NOAA Finance Handbook and
specified by the Administrator, Southwest Region, on the application
form.
(iii) Observer placement fee. The vessel permit holder must submit
the fee for the placement of observers, as established by the IATTC or
other approved observer program, to the Administrator, Southwest Region,
by September 1 of the year prior to the year in which the vessel will be
operated in the ETP. The Administrator, Southwest Region, will forward
all observer placement fees to the IATTC or to the applicable
international organization approved by the Administrator, Southwest
Region.
(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 international observer
program approved by the IDCP and 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 voyage to
allow for observer placement on every voyage.
(B) The vessel permit holder must notify the Administrator,
Southwest Region, or the IATTC contact designated by the Administrator,
Southwest Region, of any change of vessel operator at least 48 hours
prior to departing on a trip. In the case of a change in operator due to
an emergency, notification must be made within 72 hours of the change.
(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
[[Page 22]]
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 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)(8) 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 Marine Mammals. Except as otherwise authorized
by a specific permit, marine mammals incidentally taken must be
immediately returned to the ocean without further injury. The operator
of a purse seine vessel must take every precaution to refrain from
causing or permitting incidental mortality or serious injury of marine
mammals. Live marine mammals must not be brailed, sacked up, or hoisted
onto the deck during ortza retrieval.
(3) Gear and equipment required for valid permit. A vessel
possessing a vessel permit for purse seining involving the intentional
taking of marine mammals may not engage in fishing operations involving
the intentional deployment of the net on or encirclement of dolphins
unless it is equipped with a dolphin safety panel in its purse seine,
has the other required gear and equipment, and uses the required
procedures.
(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 centimeter (cm))
stretch mesh extending downward from the corkline and, if present, the
base of the dolphin apron to a minimum depth equivalent to two strips of
100 meshes of 4 1/4 inches (10.80 cm) stretch mesh webbing. In addition,
at least a 20-fathom length of corkline must be free from bunchlines at
the apex of the backdown channel.
(ii) Dolphin safety panel markers. Each end of the dolphin safety
panel and dolphin apron 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
are located, corkline hangings must be inspected by the vessel operator
following each trip. Hangings found to have loosened to the extent that
a cylindrical object with a 1 3/8 inch (3.50 cm) diameter can be
inserted between the cork and corkline hangings, must be tightened so as
not to allow the insertion of a cylindrical object with a 1 3/8 inch
(3.50 cm) diameter.
(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) Face mask and snorkel, or view box. At least two face masks
and snorkels or view boxes 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
[[Page 23]]
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)(2) must be made available for inspection and for a
trial set/net alignment by an authorized NMFS inspector or IATTC staff
as specified by the Administrator, Southwest Region, in order to obtain
a vessel permit.
(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) 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 proficiency sufficient to perform the procedures required
herein, and must attend and satisfactorily complete a formal training
session approved by the Administrator, Southwest Region, in order to
obtain his or her permit. At the training session an attendee will be
instructed on the relevant provisions and regulatory requirements of the
MMPA and the IDCP, and the fishing gear and techniques that are required
for, or will contribute to, reducing serious injury and mortality of
dolphin incidental to purse seining for tuna. Operators who have
received a written certificate of satisfactory completion of training
and who possess a current or previous calendar year permit will not be
required to attend additional formal training sessions unless there are
substantial changes in the relevant provisions or implementing
regulations of the MMPA or the IDCP, or in fishing gear and techniques.
Additional training may be required for any operator who is found by the
Administrator, Southwest Region, to lack proficiency in the required
fishing procedures or familiarity with the relevant provisions or
regulations of the MMPA or the IDCP.
(6) Marine mammal release requirements. All operators must use the
following procedures during all sets involving the incidental taking of
marine mammals in association with the capture and landing of tuna.
(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 crewman must be
deployed during backdown to aid in the release of dolphins. Thereafter,
other release procedures required will be continued so that all live
dolphins are released prior to the initiation of the sack-up procedure.
(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
[[Page 24]]
rescue dolphins is made, the International Review Panel of the IDCP may
recommend to the United States that in the view of the International
Review Panel, prosecution by the United States is not recommended. Any
such recommendation will be considered by the United States in
evaluating the appropriateness of prosecution in a particular
circumstance.
(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.
(i) A vessel permit holder may apply to the Administrator, Southwest
Region, for an experimental fishing operation waiver allowing for
processing no less than 90 days before the date the proposed operation
is intended to begin. An application must be signed by the permitted
operator and contain:
(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; and
(G) A statement of the qualifications of the individual or company
doing the analysis of the research.
(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 in the application and the comments received on it, will
either issue a waiver to conduct the experiment which includes
restrictions or conditions deemed appropriate, or deny the application,
giving the reasons for denial.
(iv) A waiver for an experimental fishing operation will be valid
only for the vessels and operators named in the permit, for the time
period and areas specified, for trips carrying an observer designated by
the Administrator, Southwest Region, when all the terms and conditions
of the permit are met.
(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 United States purse seine fishing vessel(s) of
carrying capacity
[[Page 25]]
greater than 400 st (362.8 mt) carrying capacity that the owner intends
to use to intentionally deploy purse seine fishing nets in the ETP to
encircle dolphins in an effort to capture tuna during the following
year. NMFS will forward the list of purse seine vessels to the Director
of the IATTC on or before October 1, or as otherwise required by the
IDCP, for assignment of a DML for the following year under the
provisions of Annex IV of the Agreement on the IDCP.
(ii) Each vessel permit holder that desires a DML only for the
period between July 1 to December 31 must provide the Administrator,
Southwest Region, by September 1 of the prior year, the name of the
United States purse seine fishing vessel(s) of greater than 400 st
(362.8 mt) carrying capacity that the owner intends to use to
intentionally deploy purse seine fishing nets in the ETP to encircle
dolphins in an effort to capture tuna during the period. NMFS will
forward the list of purse seine vessels to the Director of the IATTC on
or before October 1, or as otherwise required under the IDCP, for
possible assignment of a DML for the 6-month period July 1 to December
31. Under the IDCP, the DML will be calculated by the IDCP from any
unutilized pool of DMLs in accordance with the procedure described in
Annex IV of the Agreement on the IDCP and will not exceed one-third of
an unadjusted full-year DML as calculated by the IDCP.
(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) Within the requirements of Annex IV of the Agreement on the
IDCP, the Administrator, Southwest Region, may adjust a vessel's DML if
it will further scientific or technological advancement in the
protection of marine mammals in the fishery or if the past performance
of the vessel indicates that the protection or use of the yellowfin tuna
stocks or marine mammals is best served by the adjustment, within the
mandates of the MMPA. Experimental fishing operation waivers or
scientific research permits will be considered a basis for adjustments.
(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 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, and the owner of any vessel that has
been preliminarily determined to have left the fishery will be provided
notice of such preliminary determination and given the opportunity to
provide information on whether the vessel has left the fishery prior to
NMFS making a final determination
[[Page 26]]
under 15 CFR part 904 and notifying the IATTC.
(v) Any vessel that exceeds its assigned DML after any applicable
adjustment under paragraph (c)(8)(iii) of this section will have its DML
for the subsequent year reduced by 150 percent of the overage, unless
another adjustment is determined by the International Review Panel.
(vi) A vessel that is covered by a valid vessel permit and that does
not normally fish for tuna in the ETP but desires to participate in the
fishery on a limited basis may apply for a per-trip DML from the
Administrator, Southwest Region, at any time, allowing at least 60 days
for processing. The request must state the expected number of trips
involving sets on dolphins and the anticipated dates of the trip or
trips. The request will be forwarded to the Director of the IATTC for
processing in accordance with Annex IV of the Agreement on the IDCP. A
per-trip DML will be assigned if one is made available in accordance
with the terms of Annex IV of the IDCP. If a vessel assigned a per-trip
DML does not set on dolphins during that trip, the vessel will be
considered to have lost its DML unless this was a result of force
majeure or other extraordinary circumstances as determined by the
International Review Panel. After two consecutive losses of a DML, a
vessel will not be eligible to receive a DML for the next fishing year.
(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:
(A) When the applicable per-stock per-year dolphin mortality limit
for that stock of dolphins (or for that vessel, if so assigned) has been
reached or exceeded; or
(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) When the vessel's DML, as adjusted, is 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.
(xi) Sanctions recommended by the International Review Panel for any
violation of these rules will be considered by NMFS and NOAA in
enforcement actions brought under these regulations.
(xii) Intentionally deploying a purse seine net on, or to encircle,
dolphins after a vessel's DML, as adjusted, has been reached will
disqualify the vessel from consideration for a DML for the following
year. If already assigned, the DML for the following year will be
withdrawn, and the Director of the IATTC will be notified by NMFS that
the DML assigned to that vessel will be unutilized. Procedures found at
15 CFR part 904 apply to the withdrawal of the permit.
(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
[[Page 27]]
may take marine mammals provided that such taking is an accidental
occurrence in the course of normal commercial fishing operations and the
vessel does not intentionally deploy its net on, or to encircle,
dolphins; marine mammals taken incidental to such commercial fishing
operations must be immediately returned to the environment where
captured without further injury, using release procedures such as hand
rescue, and aborting the set at the earliest effective opportunity; the
use of one or more rafts and face masks or view boxes to aid in the
rescue of dolphins is recommended.
(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 way interfere with,
the research or observations being carried out. Masters must allow
observers to use vessel communication equipment to report information
concerning the take of marine mammals and other observer collected data
upon request of the observer.
(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 which has the purpose or effect of unreasonably interfering with
the observer's work performance, or which creates an intimidating,
hostile, or offensive environment. In determining whether conduct
constitutes harassment, the totality of the circumstances, including the
nature of the conduct and the context in which it occurred, will be
considered. The determination of the legality of a particular action
will be made from the facts on a case-by-case basis.
(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.
[[Page 28]]
(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 paragraphs (f)(7)
through (f)(9) 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 territory of the nation. For other purposes, ``import'' is
defined in Sec. 216.3.
(2)(i) HTS numbers requiring a Fisheries Certificate of Origin,
subject to yellowfin tuna embargo. The following U.S. Harmonized Tariff
Schedule (HTS) numbers identify yellowfin tuna or yellowfin tuna
products that are harvested in the ETP purse seine fishery and imported
into the United States. All shipments containing tuna or tuna products
imported into the United States under these HTS numbers must be
accompanied by a Fisheries Certificate of Origin (FCO), NOAA Form 370.
Yellowfin tuna identified by any of the following HTS numbers that was
harvested using a purse seine in the ETP may not be imported into the
United States unless both the nation with jurisdiction over the
harvesting vessel and the exporting nation (if different) have an
affirmative finding under paragraph (f)(9) of this section.
------------------------------------------------------------------------
------------------------------------------------------------------------
(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) Canned:
1604.14.1000 Tuna, non-specific, in
airtight containers, in
oil.
1604.14.2040 Tuna, other than albacore,
not over 7kg, in airtight
containers.
1604.14.3040 Tuna, other than albacore,
in airtight containers, not
in oil, over quota.
(C) Loins:
1604.14.4000 Tuna, not in airtight
containers, not in oil,
over 6.8kg.
1604.14.5000 Tuna, other, not in airtight
containers.
(D) Other (only if the product contains
tuna):
0304.10.4099 Other fish, fillets and
other fish meat, fresh or
chilled.
0304.20.2066 Other fish, fillets,
skinned, in blocks weighing
over 4.5kg, frozen.
0304.20.6096 Other fish, fillets, frozen.
0304.90.1089 Other fish meat, in bulk or
immediate containers, fresh
or chilled.
0304.90.9091 Other fish meat, fresh or
chilled.
------------------------------------------------------------------------
(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 tuna identified in
paragraph (f)(2)(i) of this section, known to be imported into the
United States. All shipments imported into the United States under these
HTS numbers must be accompanied by a FCO. The shipment may not be
imported into the United States if harvested by a large-scale driftnet
nation, unless accompanied by the official statement described in
paragraph (f)(5)(x) of this section.
------------------------------------------------------------------------
------------------------------------------------------------------------
(A) Frozen:
0303.41.0000 Albacore or longfinned
tunas, frozen.
0303.43.0000 Skipjack, frozen.
0303.49.0020 Bluefin, frozen.
0303.49.0040 Other tuna, frozen.
(B) Canned:
1604.14.2020 Albacore tuna, in airtight
containers, not in oil, not
over 7kg, in quota.
1604.14.3020 Albacore tuna, in airtight
containers, not in oil, not
in quota.
------------------------------------------------------------------------
(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, other
than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this
section, known to have been harvested using a large-scale driftnet and
imported into the United States. Shipments exported from a large-scale
driftnet nation and imported into the United States under any of the HTS
numbers listed in paragraph (f)(2) of this section must be accompanied
by an FCO and the official
[[Page 29]]
statement described in paragraph (f)(5)(x) of this section.
------------------------------------------------------------------------
------------------------------------------------------------------------
(A) Frozen:
0303.10.0012 Salmon, chinook, frozen.
0303.10.0022 Salmon, chum, frozen.
0303.10.0032 Salmon, pink, frozen.
0303.10.0042 Salmon, sockeye, frozen.
0303.10.0052 Salmon, coho, frozen.
0303.10.0062 Salmon, Pacific, non-
specific, frozen.
0303.21.0000 Trout, frozen.
0303.22.0000 Salmon, Atlantic and Danube,
frozen.
0303.29.0000 Salmonidae, other, frozen.
0303.70.4097 Fish, 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.
0304.20.2066 Fish, fillet, skinned, in
blocks frozen over 4.5kg.
0304.20.6008 Salmonidae, salmon fillet,
frozen.
0304.20.6096 Fish, fillet, 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.
1605.90.6055 Squid, loligo, prepared/
preserved.
(C) Other:
0304.10.4099 Other fish, fillets and
other fish meat, fresh or
chilled.
0304.20.2066 Other fish, fillets,
skinned, in blocks weighing
over 4.5kg, frozen.
0304.20.6098 Other fish, fillets, frozen.
0304.90.1089 Other fish, fillets and fish
meat, in bulk or in
immediate containers, fresh
or chilled.
0304.90.9092 Other fish meat, fresh or
chilled.
0305.30.6080 Fish, non-specific, fillet.
dried/salted/brine.
0305.49.4040 Fish, non-specific, smoked.
0305.59.2000 Shark fins.
0305.59.4000 Fish, non-specific, dried.
0305.69.4000 Salmon, non-specific,
salted.
0305.69.5000 Fish, non-specific, in
immediate containers,
salted, not over 6.8kg.
0305.69.6000 Fish, non-specific, salted,
other.
0307.49.0050 Squid, non-specific, frozen/
dried/salted/brine.
0307.49.0060 Squid, non-specific, &
cuttle fish frozen/dried/
salted/brine.
------------------------------------------------------------------------
(3) Imports requiring a Fisheries Certificate of Origin. Shipments
containing the following may not be imported into the United States
unless a completed FCO is filed with the Customs Service at the time of
importation:
(i) Tuna classified under an HTS number listed in paragraphs
(f)(2)(i) or (f)(2)(ii) of this section, or
(ii) Fish classified under an HTS number listed in paragraph (f)(2)
of this section that was harvested by a vessel of a large-scale driftnet
nation, as identified under paragraph (f)(8) of this section.
(4) Disposition of Fisheries Certificates of Origin. The FCO form
described in paragraph (f)(5) of this section may be obtained from the
Administrator, Southwest Region, or downloaded from the Internet at
http://swr.ucsd.edu/noaa370.htm. The FCO required under paragraph (f)(3)
of this section must accompany the tuna or tuna products from entry into
the United States, through final processing, and it must be endorsed at
each change in ownership. FCOs that require multiple endorsements must
be submitted to the Administrator, Southwest Region, by the last
endorser when all required endorsements are completed. An invoice must
accompany the shipment at the time of importation or, in the
alternative, must be made available within 30 days of a request by the
Secretary or the Administrator, Southwest Region, to produce the
invoice.
(5) Contents of Fisheries Certificate of Origin. An FCO, certified
to be accurate by the first exporter 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;
(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, 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);
[[Page 30]]
(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) If the shipment includes tuna or products harvested with a
purse seine net, the name of the harvesting vessel;
(xii) Dolphin safe condition of the shipment;
(xiv) For shipments harvested by vessels of a nation known to use
large-scale driftnets, as determined by the Secretary pursuant to
paragraph (f)(8) of this section, a statement must be included on the
Fisheries Certificate of Origin that is dated and signed by a
responsible government official of the harvesting nation, certifying
that the fish or fish products were harvested by a method other than
large-scale driftnet; and
(xii) If the shipment contains tuna harvested in the ETP by a purse
seine vessel of more than 400 st (362.8 mt) carrying capacity, each
importer or processor who takes custody of the shipment must sign and
date the form to certify that the form and attached documentation
accurately describe the shipment of fish that they accompany.
(6) 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.
(7) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin
tuna or yellowfin tuna products harvested using a purse seine in the ETP
identified by an HTS number listed in paragraph (f)(2)(i) of this
section may not be imported into the United States if such tuna or tuna
products were:
(A) Harvested on or after March 3, 1999, the effective date of
section 4 of the IDCPA, and harvested by, or exported from, a nation
that the Assistant Administrator has determined has purse seine vessels
of greater than 400 st (362.8 mt) carrying capacity harvesting tuna in
the ETP, unless the Assistant Administrator has made an affirmative
finding required for importation for that nation under paragraph (f)(9)
of this section;
(B) Exported from an intermediary nation, as defined in section 3 of
the MMPA, and a ban is currently in force prohibiting the importation
from that nation under paragraph (f)(9)(viii) of this section; or
(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 an item listed in
paragraph (f)(2) of this section may not be imported into the United
States if it:
(A) Was exported from or harvested on the high seas by any nation
determined by the Assistant Administrator to be engaged in large-scale
driftnet fishing, unless the FCO is accompanied by an original statement
by a responsible government official of the harvesting nation, signed
and dated by that official, certifying that the fish or fish products
were harvested by a method other than large-scale driftnet; or
(B) Is identified on the FCO as having been harvested by a large-
scale driftnet.
(8) 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.
(9) Affirmative finding procedure for nations harvesting yellowfin
tuna using a purse seine in the ETP. (i) The Assistant Administrator
will determine, on an
[[Page 31]]
annual basis, whether to make an affirmative finding based upon
documentary evidence provided by the government of the exporting nation,
by the government of the harvesting nation, if different, or by the IDCP
and the IATTC, and will publish the finding in the 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 needs to be submitted by the
harvesting nation for the first affirmative finding subsequent to the
effective date of this rule. The Assistant Administrator may require the
submission of supporting documentation or other verification of
statements made in connection with requests to allow importations. An
affirmative finding applies to tuna and tuna products that were
harvested by vessels of the nation after February 15, 1999. To make an
affirmative finding, the Assistant Administrator must find that:
(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) For calendar year 2000 and any subsequent years in which the
parties agree to a global allocation system for per-stock per-year
individual stock quotas, the nation responded to the notification from
the IATTC that an individual stock quota had been reached by prohibiting
any additional sets on the stock for which the quota had been reached;
(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 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.
(ii) Documentary Evidence and Compliance with the IDCP.--(A)
Documentary Evidence. The Assistant Administrator will make an
affirmative finding under paragraph (f)(9)(i) of this section only
[[Page 32]]
if the government of the harvesting nation provides directly to the
Assistant Administrator, or authorizes the IATTC to release to the
Assistant Administrator, complete, accurate, and timely information that
enables the Assistant Administrator to determine whether the harvesting
nation is meeting the obligations of the IDCP, and whether ETP-harvested
tuna imported from such nation comports with the tracking and
verification regulations of subpart H of this part.
(B) Revocation. After considering the information provided under
paragraph (f)(9)(ii)(A) of this section, each party's financial
obligations to the IATTC, and any other relevant information, including
information that a nation is consistently failing to take enforcement
actions on violations which diminish the effectiveness of the IDCP, the
Assistant Administrator, in consultation with the Secretary of State,
will revoke an affirmative finding issued to a nation that is not
meeting the obligations of the IDCP.
(iii) A harvesting nation may apply for an affirmative finding at
any time by providing to the Assistant Administrator the information and
authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of this
section, allowing at least 60 days from the submission of complete
information to NMFS for processing.
(iv) The Assistant Administrator will make or renew an affirmative
finding for the period from April 1 through March 31, or portion
thereof, if the harvesting nation has provided all the information and
authorizations required by paragraphs (f)(9)(i) and (f)(9)(ii) of this
section, and has met the requirements of paragraphs (f)(9)(i) and
(f)(9)(ii) of this section.
(v) 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)(9)(i) and (f)(9)(ii) of this section.
(vi) Intermediary nation. Except as authorized under this paragraph,
no tuna or tuna products classified under one of the HTS numbers listed
in paragraph (f)(2)(i) of this section may be imported into the United
States from any intermediary nation. An ``intermediary nation'' is a
nation that exports yellowfin tuna or yellowfin tuna products to the
United States and that imports yellowfin tuna or yellowfin tuna products
that are subject to a direct ban on importation into the United States
pursuant to section 101(a)(2)(B) of the MMPA, unless shown not to be
yellowfin tuna or yellowfin tuna products harvested using purse seine in
the ETP. The Assistant Administrator will publish in the 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, these import restrictions shall
apply. Shipments of yellowfin tuna or yellowfin tuna products shipped
through a nation on a through bill of lading or in another manner that
does not enter the shipments into that nation as an importation do not
make that nation an intermediary nation.
(A) Intermediary nation determination status. Imports from an
intermediary nation of tuna and tuna products classified under any of
the HTS numbers in paragraph (f)(2)(i) of this section may be imported
into the United States only if the Assistant Administrator determines
and publishes in the 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.
(B) Changing the status of intermediary nation determinations. 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
[[Page 33]]
proof'' means the submission to the Assistant Administrator by a
responsible government official from the nation of a document reflecting
the nation's customs records for the preceding 6 months, together with a
certification attesting that the document is accurate.
(vii) Pelly certification. After 6 months of an embargo being in
place against a nation under this section, that fact will be certified
to the President for purposes of certification under section 8(a) of the
Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as
the embargo remains in effect.
(viii) Coordination. The Assistant Administrator will promptly
advise the Department of State and the Department of the Treasury of
embargo decisions, actions and finding determinations.
(10) Fish refused entry. If fish is denied entry under paragraph
(f)(3) of this section, the District Director of Customs shall refuse to
release the fish for entry into the United States and shall issue a
notice of such refusal to the importer or consignee.
(11) Disposition of fish refused entry into the United States;
redelivered fish. Fish which is denied entry under paragraph (f)(3) of
this section and which is not exported under Customs supervision within
90 days from the date of notice of refusal of admission or date of
redelivery shall be disposed of under Customs laws and regulations.
Provided however, that any disposition shall not result in an
introduction into the United States of fish caught in violation of the
MMPA.
(12) Market Prohibitions. 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:
(i) Dolphin-safe under subpart H; or
(ii) harvested in compliance with the IDCP by vessels under the
jurisdiction of a nation that is a member of the IATTC or has initiated,
and within 6 months thereafter completes, all steps required by
applicant nations to become members of the IATTC.
(iii) For purposes of this section, tuna or tuna products are
``dolphin-safe'' if they are dolphin-safe under subpart H.
(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.
[65 FR 48, Jan 3, 2000]
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 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
[[Page 34]]
living marine mammal in the wild may be collected or imported for bona
fide scientific research and enhancement, provided that collection does
not involve the taking of a living marine mammal in the wild.
(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;
(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;
[[Page 35]]
(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 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
[[Page 36]]
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.
(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
[[Page 37]]
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 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
[[Page 38]]
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:
(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
[[Page 39]]
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;
(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
[[Page 40]]
which they may be imported, or to which they may be exported, as
applicable, and, for endangered or threatened marine mammal species to
be imported or exported, the port of entry or export;
(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, 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
[[Page 41]]
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.
(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]
[[Page 42]]
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 Secs. 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:
(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
[[Page 43]]
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 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
[[Page 44]]
(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 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
[[Page 45]]
days before commencement of such research, a letter of intent by
certified return/receipt mail to the Chief, Permits Division, F/PR1,
Office of Protected Resources, NMFS, 1335 East-West Highway, Silver
Spring, MD 20910-3226.
(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:
(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.
[[Page 46]]
(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 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,
[[Page 47]]
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]
Secs. 216.47-216.49 [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.
[[Page 48]]
(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 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
[[Page 49]]
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 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
[[Page 50]]
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 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.
Source: 61 FR 27794, June 3, 1996, unless otherwise noted.
Sec. 216.90 Purposes.
This subpart governs the requirements for using the official mark,
described in Sec. 216.96, or an alternative mark that refers to
dolphins, porpoises, or marine mammals, to label tuna or tuna products
offered for sale in or exported from the United States using the term
``dolphin-safe'' or suggesting the tuna were harvested in a manner not
injurious to dolphins.
[65 FR 56, Jan. 3, 2000]
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
Secs. 216.92 and 216.94 are met;
(ii) No dolphin were killed or seriously injured during the sets in
which the tuna were caught; or
(iii) If the Assistant Administrator publishes notification in the
Federal Register announcing a finding that the intentional deployment of
purse seine nets on or encirclement of dolphins is having a significant
adverse impact on any depleted stock:
(A) No tuna products were caught on a trip using a purse seine net
intentionally deployed on or to encircle dolphins; and
(B) No dolphins were killed or seriously injured during the sets in
which the tuna were caught.
(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
[[Page 51]]
regular and significant association occurs between dolphins and tuna
(similar to the association between dolphins and tuna in the ETP),
unless such products are accompanied by a written statement, executed by
the captain of the vessel and an observer participating in a national or
international program acceptable to the Assistant Administrator,
certifying that no purse seine net was intentionally deployed on or used
to encircle dolphins during the particular voyage on which the tuna were
caught and no dolphins were killed or seriously injured in the sets in
which the tuna were caught; or
(ii) In any other fishery unless the products are accompanied by a
written statement executed by the captain of the vessel certifying that
no purse seine net was intentionally deployed on or used to encircle
dolphins during the particular voyage on which the tuna was harvested;
(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. 216.96, may not be labeled with any other label or mark that
refers to dolphins, porpoises, or marine mammals.
[65 FR 57, Jan. 3, 2000]
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'' if the following
requirements are met:
(1) ``Dolphin-safe'' Tuna Tracking Forms certified by the vessel
captain and the observer are submitted to the Regional Administrator,
Southwest Region, at the end of the fishing trip during which the tuna
was harvested;
(2) The tuna has been processed by a U.S. tuna processor in a plant
located in one of the 50 states, Puerto Rico, or American Samoa that is
in compliance with the tuna tracking and verification requirements of
Sec. 216.94;
(3) The tuna or tuna products are accompanied by a properly
completed FCO;
(4) The tuna or tuna products meet the dolphin-safe labeling
standards under Sec. 216.91; and
(5) The FCO is properly endorsed by each processor certifying that,
to the best of his or her knowledge and belief, the FCO and attached
documentation are complete and accurate.
(b) Imported tuna. Tuna or tuna products harvested in the ETP by
purse seine vessels of greater than 400 st (362.8 mt) carrying capacity
and presented for import into the United States are dolphin safe if:
(1) The tuna was harvested by a U.S. vessel fishing in compliance
with the requirements of the IDCP and applicable U.S. law, or by a
vessel belonging to a nation that has obtained an affirmative finding of
Sec. 216.24(f)(9);
(2) The tuna or tuna products are accompanied by a properly
completed FCO;
(3) The tuna or tuna products are accompanied by valid documentation
signed by a representative of the appropriate IDCP member nation,
certifying that:
(i) There was an IDCP approved observer on board the vessel(s)
during the entire trip(s); and
(ii) The tuna contained in the shipment were caught according to the
dolphin-safe labeling standards of Sec. 216.91;
[[Page 52]]
(4) The documentation provided in paragraph(b)(3) of this section
includes a listing of vessel names and identifying numbers of the
associated Tuna Tracking Forms for each trip of which tuna in the
shipment originates; and
(5) The FCO is properly endorsed by each exporter, importer, and
processor certifying that, to the best of his or her knowledge and
belief, the FCO and attached documentation are complete and accurate.
[65 FR 57, Jan. 3, 2000]
Sec. 216.93 Submission of documentation.
(a) Requirements for the submission of documents concerning the
activities of U.S. flag vessels with greater than 400 st carrying
capacity fishing in the ETP are contained in Sec. 216.94.
(b) The import documents required by Secs. 216.91 and 216.92 must
accompany the tuna product whenever it is offered for sale or export,
except that these documents need not accompany the product when offered
for sale if:
(1) The documents do not require further endorsement by any importer
or processor and are submitted to officials of the U.S. Customs Service
at the time of import; or
(2) The documents are endorsed as required by Sec. 216.92(b)(4) and
the final processor delivers the endorsed documents to the
Administrator, Southwest Region, or to U.S. Customs as required.
[65 FR 57, Jan. 3, 2000]
Sec. 216.94 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. 216.91(a). The tracking program includes procedures and reports for
use when importing tuna into the U.S. and during U.S. purse seine
fishing, processing, and marketing in the U.S. and abroad. Verification
of tracking system operations is attained through the establishment of
audit and document review requirements. The tracking program is
consistent with the international tuna tracking and verification program
adopted by the Parties to the IDCP.
(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 the IATTC cruise
number assigned to that trip, are used by the observer to record every
set made during that trip. One TTF is used to record ``dolphin-safe''
sets and a second TTF is used to record ``non-dolphin-safe'' sets. The
information entered on the TTFs following each set includes date of
trip, set number, date of loading, name of the vessel, vessel Captain's
name, observer's name, well number, weights by species composition,
estimated tons loaded, and date of the set. The observer and the vessel
engineer initial the entry for each set, and the vessel Captain and
observer review and sign both TTFs at the end of the fishing trip
certifying that the information on the form is accurate. The captain's
and observer's certification of the TTF on which dolphin-safe sets are
recorded complies with 16 U.S.C. 1385(h).
(b) Tracking fishing operations. (1) During ETP fishing trips by
purse seine vessels, tuna caught in sets designated as ``dolphin-safe''
by the vessel observer must be stored separately from tuna caught in
``non-dolphin-safe'' sets from the time of capture through unloading,
except as provided in paragraph (b)(2) of this section. Vessel personnel
will decide into which wells tuna will be loaded. The observer will
initially designate whether each set is ``dolphin-safe'' or not, based
on his/her observation of the set. The observer will initially identify
a vessel fish well as ``dolphin-safe'' if the first tuna loaded into the
well during a trip was captured in a set in which no dolphin died or was
seriously injured. The observer will initially identify a vessel fish
well as ``non-dolphin-safe'' if the first tuna loaded into the well
during a trip was captured in a set in which a dolphin died or was
seriously injured. Any tuna loaded into a well previously designated
``non-dolphin-safe'' or ``mixed well'' is considered ``non-dolphin-
safe'' tuna. Except as provided for in paragraph (b)(2)(i) of this
section, the observer will change the designation of a ``dolphin-safe''
well to ``non-dolphin-safe'' if any tuna are loaded into the
[[Page 53]]
well that were captured in a set in which a dolphin died or was
seriously injured.
(2) Mixed wells. Only two acceptable conditions exist under which a
``mixed'' well can be created.
(i) In the event that a set has been designated ``dolphin-safe'' by
the observer, but during the loading process dolphin mortality or
serious injury is identified, the ``dolphin-safe'' designation of the
set will change to ``non-dolphin-safe.'' If one or more of the wells
into which the newly designated ``non-dolphin-safe'' tuna are loaded
already contains ``dolphin-safe'' tuna loaded during a previous set, the
observer will note in his or her trip records the well numbers and the
estimated weight of such ``non-dolphin-safe'' tuna and designate such
well(s) as ``mixed well(s).'' Once a well has been identified as ``non-
dolphin-safe'' or ``mixed'' all tuna subsequently loaded into that well
will be designated as ``non-dolphin-safe.'' When the contents of such a
``mixed well'' are received by a processor, the tuna will be weighed and
separated according to the observer's report of the estimated weight of
``dolphin-safe'' and ``non-dolphin-safe'' tuna contained in that well.
In addition, 15 percent of the ``dolphin-safe'' tuna unloaded from the
``mixed well'' will be designated as ``non-dolphin-safe.''
(ii) Near the end of an ETP fishing trip, if the only well space
available is in a ``non-dolphin-safe'' well, and there is an opportunity
to make one last set, ``dolphin-safe'' tuna caught in that set may be
loaded into the ``non-dolphin-safe'' well. The ``dolphin-safe'' tuna
must be kept physically separate from the ``non-dolphin-safe'' tuna
already in the well, using netting or other material.
(3) The captain, managing owner, or vessel agent of a U.S. purse
seine vessel returning to port from a trip, any part of which included
fishing in the ETP, must provide at least 48 hours notice of the
vessel's intended place of landing, arrival time, and schedule of
unloading to the Administrator, Southwest Region.
(4) If the trip terminates when the vessel enters port to unload
part or all of its catch, new TTFs will be assigned to the new trip, and
any information concerning tuna retained on the vessel will be recorded
as the first entry on the TTFs for the new trip. If the trip is not
terminated following a partial unloading, the vessel will retain the
original TTFs and submit a copy of those TTFs to the Administrator,
Southwest Region, within 5 working days. In either case, the species and
amount unloaded will be noted on the respective originals.
(5) Tuna offloaded to trucks, storage facilities or carrier vessels
must be loaded or stored in such a way as to maintain and safeguard the
identification of the ``dolphin-safe'' or ``non-dolphin-safe''
designation of the tuna as it left the fishing vessel.
(6)(i) When ETP caught tuna is to be offloaded from a U.S. purse
seiner directly to a U.S. canner within the 50 states, Puerto Rico, or
American Samoa, or in any port and subsequently loaded aboard a carrier
vessel for transport to a U.S. processing location, a NMFS
representative may meet the U.S. purse seiner to receive the TTFs from
the vessel observer and to monitor the handling of ``dolphin-safe'' and
``non-dolphin-safe'' tuna.
(ii) When ETP caught tuna is offloaded from an U.S. purse seiner in
any port and subsequently loaded aboard a carrier vessel for transport
to a cannery outside the jurisdiction of the United States, a NMFS
representative may meet the vessel to receive copies of the TTFs from
the observer and monitor the offloading. The U.S. caught tuna becomes
the tracking and verification responsibility of the foreign buyer when
it is offloaded from the U.S. vessel.
(iii) If a NMFS representative does not meet the vessel in port at
the time of arrival, the observer may take the signed TTFs to the IATTC
office and mail copies to the Administrator, Southwest Region, from that
location within 5 working days of the end of the trip.
(iv) When ETP caught tuna is offloaded from a U.S. purse seiner
directly to a processing facility located outside the jurisdiction of
the United States in a country that is a party to the IDCP, the national
authority in whose area of jurisdiction the tuna is
[[Page 54]]
to be processed will assume the responsibility for tracking and
verification of the tuna offloaded. A representative of the national
authority will receive copies of the TTFs from the observer, and copies
of the TTFs will be forwarded to the Administrator, Southwest Region.
(c) Tracking cannery operations. (1) Whenever a tuna canning company
in the 50 states, Puerto Rico, or American Samoa is scheduled to receive
a domestic or imported shipment of ETP caught tuna for processing, the
company must provide at least 48 hours notice of the location and
arrival date and time of such a shipment, to the Administrator,
Southwest Region, so that a NMFS representative can be present to
monitor delivery and verify that ``dolphin-safe'' and ``non-dolphin-
safe'' tuna are clearly identified and remain segregated.
(2) At the close of delivery activities, which may include weighing,
boxing or containerizing, and transfer to cold storage or processing,
the company must provide a copy of the processor's receiving report to
the NMFS representative, if present. If a NMFS representative is not
present, the company must submit a copy of the processor's receiving
report to the Administrator, Southwest Region, electronically, by mail,
or by fax within 5 working days. The processor's receiving report must
contain, at a minimum: date of delivery, catcher vessel name and flag,
trip number and dates, storage container number(s), ``dolphin-safe'' or
``non-dolphin-safe'' designation of each container, species, product
description, and weight of tuna in each container.
(3) Tuna canning companies will report on a monthly basis the
amounts of ETP-caught tuna that are removed from cold storage. This
report may be submitted in conjunction with the monthly report required
in paragraph (c)(5) of this section. This report must contain:
(i) The date of removal;
(ii) Storage container number(s) and ``dolphin-safe'' or ``non-
dolphin-safe'' designation of each container; 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 in its processing with any ``dolphin-
safe'' tuna or tuna products and may not share the same storage
containers, cookers, conveyers, tables, or other canning and labeling
machinery.
(5) Canned tuna processors must submit a report to the
Administrator, Southwest Region, of all tuna received at their
processing facilities in each calendar month whether or not the tuna is
actually canned or stored during that month. Monthly cannery receipt
reports must be submitted electronically or by mail before the last day
of the month following the month being reported. Monthly reports must
contain the following information:
(i) Domestic receipts: species, condition (round, loin, dressed,
gilled and gutted, other), weight in short tons to the fourth decimal,
ocean area of capture (eastern tropical Pacific, western Pacific,
Indian, eastern and western Atlantic, other), catcher vessel, trip
dates, carrier name, unloading dates, and location of unloading.
(ii) Import receipts: In addition to the information required in
paragraph (c)(5)(i) of this section, a copy of the FCO for each imported
receipt must be provided.
(d) 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).
(e) Verification requirements.--(1) Record maintenance. Any
exporter, transshipper, importer, or processor of any tuna or tuna
products containing tuna harvested in the ETP must maintain records
related to that tuna for at least 3 years. These records include, but
are not limited to: FCO and required certifications, any report required
in paragraph (a) and (b) of this section, invoices, other import
documents, and trip reports.
(2) Record submission. Within 30 days of receiving a written request
from the Administrator, Southwest Region, any exporter, transshipper,
importer, or processor of any tuna or tuna products containing tuna
harvested in the ETP must submit to the Administrator any record
required to be maintained under paragraph (e)(1) of this section.
[[Page 55]]
(3) Audits and spot-checks. Upon request of the Administrator,
Southwest Region, any such exporter, transshipper, importer, or
processor must provide the Administrator, Southwest Region, timely
access to all pertinent records and facilities to allow for audits and
spot-checks on caught, landed, and processed tuna.
(f) 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.''
[65 FR 57, Jan. 3, 2000]
Sec. 216.95 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.
Sec. 216.96 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 Secs. 216.91 through 216.94:
[[Page 56]]
[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]
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 marine mammal(s)
and will not have
[[Page 57]]
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 58]]
(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 59]]
(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 60]]
(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 61]]
holder and/or any individual who is operating under the authority of the
holder's incidental harassment authorization to penalties provided in
the MMPA.
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 62]]
holder of the authorization with an explanation of why the report is
being returned. If the authorization holder disagrees with the findings
of the Assistant Administrator, the holder may request an independent
peer review of the report. Failure to submit a complete and accurate
report may result in a delay in processing future authorization
requests.
(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 of Ringed Seals Incidental to On-Ice Seismic
Activities
Source: 63 FR 5283, Feb. 2, 1998, unless otherwise noted.
Effective Date Note: At 63 FR 5283, Feb. 2, 1998, subpart J was
revised, effective Feb. 2, 1998, to Dec. 31, 2002.
Sec. 216.111 Specified activity and specified geographical region.
Regulations in this subpart apply only to the incidental taking of
ringed seals (Phoca hispida) and bearded seals (Erignathus barbatus) by
U.S. citizens engaged in on-ice seismic exploratory and associated
activities over the Outer Continental Shelf of the Beaufort Sea of
Alaska, from the shore outward to 45 mi (72 km) and from Point Barrow
east to Demarcation Point, from January 1 through May 31 of any calendar
year.
Sec. 216.112 Effective dates.
Regulations in this subpart are effective from February 2, 1998
through December 31, 2002.
Sec. 216.113 Permissible methods.
The incidental, but not intentional, taking of ringed and bearded
seals from January 1 through May 31 by U.S. citizens holding a Letter of
Authorization, issued under Sec. 216.106, is permitted during the course
of the following activities:
(a) On-ice geophysical seismic activities involving vibrator-type,
airgun, or other energy source equipment shown to have similar or lesser
effects.
(b) Operation of transportation and camp facilities associated with
seismic activities.
Sec. 216.114 Mitigation.
(a) All activities identified in Sec. 216.113 must be conducted in a
manner that minimizes to the greatest extent practicable adverse effects
on ringed and bearded seals and their habitat.
(b) All activities identified in Sec. 216.113 must be conducted as
far as practicable from any observed ringed or bearded seal or ringed
seal lair. No energy source must be placed over an observed ringed seal
lair, whether or not any seal is present.
Sec. 216.115 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization are required to cooperate
with the National Marine Fisheries Service and any other Federal, state,
or local agency monitoring the impacts on ringed or bearded seals.
(b) Holders of Letters of Authorization must designate qualified on-
site individuals, as specified in the Letter of Authorization, to
observe and record the presence of ringed or bearded seals and ringed
seal lairs along shot lines and around camps, and the information
required in paragraph (d) of this section.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) An annual report must be submitted to the Assistant
Administrator for Fisheries within 90 days after completing each year's
activities and must include the following information:
(1) Location(s) of survey activities.
(2) Level of effort (e.g., duration, area surveyed, number of
surveys), methods used, and a description of habitat (e.g., ice
thickness, surface topography) for each location.
(3) Numbers of ringed seals, bearded seals, or other marine mammals
observed, proximity to seismic or associated activities, and any seal
reactions observed for each location.
[[Page 63]]
(4) Numbers of ringed seal lairs observed and proximity to seismic
or associated activities for each location.
(5) Other information as required in a Letter of Authorization.
Sec. 216.116 Applications for Letters of Authorization.
(a) To incidentally take ringed and bearded seals pursuant to these
regulations, each company conducting seismic operations between January
1 and May 31 in the geographical area described in Sec. 216.111, 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 90 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 company requesting the authorization;
(2) A description of the activity including method to be used
(vibroseis, airgun, watergun), the dates and duration of the activity,
the specific location of the activity and the estimated area that will
actually be affected by the exploratory activity;
(3) Any plans to monitor the behavior and effects of the activity on
marine mammals;
(4) A description of what measures the applicant has taken and/or
will take to ensure that proposed activities will not interfere with
subsistence sealing; and
(5) What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in the
operation.
(d) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental takings
of ringed and bearded seals.
Sec. 216.117 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 for the
activity identified in Sec. 216.111 will be renewed annually upon:
(1) Timely receipt of the reports required under Sec. 216.115(d),
which have been reviewed by the Assistant Administrator and determined
to be acceptable; and
(2) A determination that the mitigation measures required under
Sec. 216.114(b) and the Letter of Authorization have been undertaken.
(b) A notice of issuance of a Letter of Authorization or of a
renewal of a Letter of Authorization will be published in the Federal
Register within 30 days of issuance.
Sec. 216.118 Modifications to 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 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. 216.117, 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. 216.111, the Letter of
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to
this section may be substantively modified without prior notice and an
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
Sec. 216.119 [Reserved]
Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and Test
Flight Activities
Source: 64 FR 9930, Mar. 1, 1999, unless otherwise noted.
Effective Date Note: At 64 FR 9930, Mar. 1, 1999, subpart K was
added, effective Mar. 1, 1999, to Dec. 31, 2003.
[[Page 64]]
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 10 Minuteman and Peacekeeper missiles each year
from Vandenberg Air Force Base, for a total of up to 50 missiles over
the 5-year authorization period,
(2) Launching up to 20 rockets each year from Vandenberg Air Force
Base, for a total of up to 100 rocket launches over the 5-year
authorization period,
(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),
northern fur seals (Callorhinus ursinus), Guadalupe fur seals
(Arctocephalus townsendi), and Steller sea lions (Eumetopias jubatus).
Sec. 216.121 Effective dates.
Regulations in this subpart are effective from March 1, 1999,
through December 31, 2003.
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.
Notwithstanding takings authorized by Sec. 216.120 and by a Letter
of Authorization issued under Sec. 216.106, 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 possible, 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 haulouts and rookeries
(e.g., Point Sal, Purisima Point, Rocky Point), except in emergencies or
for real-time security incidents (e.g., search-and-rescue, fire-
fighting) which may require approaching pinniped rookeries closer than
1,000 ft (305 m).
(2) For missile and rocket launches, unless constrained by other
factors including, but not limited to, human safety, national security
or launch trajectories, in order to ensure minimum negligible impacts of
launches on harbor seals and other pinnipeds, holders of Letters of
Authorization must avoid, whenever possible, launches during the harbor
seal pupping season of February through May.
(3) For Titan IV launches only, the holder of that Letter of
Authorization must avoid launches, whenever possible, which predict a
sonic boom on the Northern Channel Islands during harbor seal, elephant
seal, and California sea lion pupping seasons.
(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
[[Page 65]]
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
Authorization.
(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, 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 and continue for a
period of time not less than 48 hours subsequent to launching,
(2) Monitor haulout sites on the Northern Channel Islands if it is
determined that a sonic boom could impact those areas (this
determination will be made in consultation with the National Marine
Fisheries Service),
(3) As required under a Letter of Authorization, investigate the
potential for spontaneous abortion, disruption of effective female-
neonate bonding, and other reproductive dysfunction,
(4) Supplement observations on Vandenberg and on the Northern
Channel Islands, if indicated, with video-recording of mother-pup seal
responses for daylight launches during the pupping season, and
(5) Conduct acoustic measurements of those launch vehicles not
having sound pressure level measurements made previously.
(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,
(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 noted that were likely the
result of launch noise or the sonic boom.
(e) An annual report must be submitted that describes any incidental
takings not reported under paragraph (d) of this section.
(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 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.
[[Page 66]]
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 (see definition
at Sec. 216.103) conducting the activity or the 30th Space Wing on
behalf of the U.S. citizen conducting the activity, must apply for and
obtain a Letter of Authorization in accordance with 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),
which have been reviewed by the Assistant Administrator and determined
to be acceptable;
(b) A determination that the mitigation measures required under
Sec. 216.124 and the Letter of Authorization have been undertaken; and
(c) A notice of issuance of a Letter of Authorization or a renewal
of a Letter of Authorization will be published in the Federal Register
within 30 days of issuance.
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 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. 216.120(b) or that
significantly and detrimentally alters the scheduling of launches, a
Letter of Authorization issued pursuant to Sec. 216.106 may be
substantively modified without a prior notice and an opportunity for
public comment. A notice will be published in the Federal Register
subsequent to the action.
Subpart L--Taking of Marine Mammals Incidental to Power Plant Operations
Source: 64 FR 28120, May 25, 1999, unless otherwise noted.
Effective Date Note: At 64 FR 28120, May 25, 1999, subpart L was
added, effective July 1, 1999 through June 30, 2004.
Sec. 216.130 Specified activity, specified geographical region, and incidental take levels.
(a) Regulations in this subpart apply only to the incidental taking
of harbor seals (Phoca vitulina), gray seals (Halichoerus grypus), harp
seals (Phoca groenlandica), and hooded seals (Cystophora cristata) by
U.S. citizens engaged in power plant operations at the Seabrook Station
nuclear power plant, Seabrook, NH.
(b) The incidental take of harbor, gray, harp, and hooded seals
under the activity identified in this section is limited to 20 harbor
seals and 4 of any combination of gray, harp, and hooded seals for each
year of the authorization.
Sec. 216.131 Effective dates.
Regulations in this subpart are effective from July 1, 1999 through
June 30, 2004.
[[Page 67]]
Sec. 216.132 Permissible methods of taking.
Under a Letter of Authorization issued to North Atlantic Energy
Services Corporation for Seabrook Station, the North Atlantic Energy
Services Corporation may incidentally, but not intentionally, take
marine mammals specified in Sec. 216.130 in the course of operating the
station's intake cooling water system.
Sec. 216.133 Prohibitions.
Notwithstanding takings authorized by Sec. 216.130(a) and by the
Letter of Authorization, issued under Sec. 216.106, the following
activities are prohibited:
(a) The taking of harbor seals, gray seals, harp seals, and hooded
seals that is other than incidental.
(b) The taking of any marine mammal not authorized in this
applicable subpart or by any other law or regulation.
(c) The violation of, or failure to comply with, the terms,
conditions, and requirements of this part or a Letter of Authorization
issued under Sec. 216.106.
Sec. 216.134 Mitigation requirements.
The holder of the Letter of Authorization is required to report,
within 6 months from the issuance of a final rule, to the Administrator,
Northeast Region, NMFS, on possible mitigation measures effecting the
least practicable adverse impact on the seals specified in Sec. 216.130.
The report shall also include a recommendation of which measures, if
any, the holder could feasibly implement. A description of any
mitigation measures that Seabrook Station has considered, but determined
would not be feasible, must be included as well. After submission of
such report, NMFS shall determine whether the holder of the Letter of
Authorization must implement measures to effect the least practicable
adverse impact on the seals. If NMFS determines that such measures must
be implemented then NMFS shall specify, after consultation with the
holder of the Letter of Authorization, the schedule and other conditions
for implementation of the measures. Implementation of such measures must
be completed no later than 42 months after the date of issuance of the
final rule. Failure of the holder of the Letter of Authorization to
implement such measures in accordance with the NMFS specifications may
be grounds to invalidate the Letter of Authorization.
Sec. 216.135 Monitoring and reporting.
(a) The holder of the Letter of Authorization is required to
cooperate with NMFS and any other Federal, state, or local agency
monitoring the impacts of the activity on harbor, gray, harp, or hooded
seals.
(b) The holder of the Letter of Authorization must designate a
qualified individual or individuals capable of identifying any seal or
seal parts or marine mammal or marine mammal parts, that occur in the
intake circulating system, including the intake transition structure,
both forebays, and any marine mammal or marine mammal parts observed as
a result of screen washings conducted.
(c) The holder of the Letter of Authorization must conduct at least
two daily visual inspections of the circulating water and service water
forebays during the period specified in the Letter of Authorization.
(d) The holder of the Letter of Authorization must conduct at least
daily inspections of the intake transition structure from April 1
through December, unless weather conditions prevent safe access to the
structure.
(e) The holder of the Letter of Authorization must conduct screen
washings at least daily during the months of higher incidents of
observed takes and this period will be specified in the Letter of
Authorization. During the months not specified in the LOA, screen
washings will be conducted twice a week. Examination of the debris must
be conducted to determine if any seal remains are present.
(f) The holder of the Letter of Authorization must report orally to
the Northeast Regional Administrator, NMFS, by telephone or other
acceptable means, any marine mammals or marine mammal parts found in the
locations specified in Sec. 216.135(b) through (e). Such oral reports
must be made by the close of the next business day following the finding
of any marine mammal or marine mammal parts.
[[Page 68]]
(g) The holder of the Letter of Authorization must arrange to have a
necropsy examination performed by qualified individuals on any marine
mammal or marine mammal parts recovered through monitoring as specified
under Sec. 216.135(b) through (e).
(h) The holder of the Letter of Authorization must also provide
written notification to the Administrator, Northeast Region, NMFS, of
such marine mammal or marine mammal parts found within 30 days from the
time of the discovery. This report must contain the results of any
examinations or necropsies of the marine mammals in addition to any
other information relating to the circumstances of the take.
(i) An annual report, identifying mitigation measures implemented to
effect the least practicable adverse impact on the seals and/or are
being considered for implementation pursuant to the requirements
specified at Sec. 216.134, must be submitted to the Administrator,
Northeast Region, NMFS, within 30 days prior to the expiration date of
the issuance of the Letter of Authorization.
Sec. 216.136 Renewal of the Letter of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 for the
activity identified in Sec. 216.130(a) may be renewed annually provided
the following conditions and requirements are satisfied:
(1) Timely receipt of the reports required under Sec. 216.135, which
have been reviewed by the Administrator, Northeast Region, NMFS, and
determined to be acceptable;
(2) A determination that the maximum incidental take authorizations
in Sec. 216.130(b) will not be exceeded; and
(3) A determination that research on mitigation measures required
under Sec. 216.134(a) and the Letter of Authorization have been
undertaken.
(b) If a species' annual incidental take authorization is exceeded,
NMFS will review the documentation submitted under Sec. 216.135, to
determine whether or not the taking is having more than a negligible
impact on the species or stock involved. The Letter of Authorization may
be renewed provided a negligible impact determination is made and other
conditions and requirements specified in Sec. 216.136(a) are satisfied,
and provided that any modifications of the Letter of Authorization that
may be required are done pursuant to Sec. 216.137.
(c) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register within 30 days of issuance.
Sec. 216.137 Modifications to the Letter 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 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. 216.136, without modification,
is not considered a substantive modification.
(b) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in Sec. 216.130, the Letter of Authorization issued
pursuant to this section may be substantively modified without prior
notice and an opportunity for public comment. Notification will be
published in the Federal Register subsequent to the action.
Secs. 216.138-216.140 [Reserved]
Subparts M--N [Reserved]
Subpart O--Taking of Marine Mammals Incidental to Shock Testing the USS
SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters
of the U.S. Atlantic Coast
Source: 63 FR 66076, Dec. 1, 1998, unless otherwise noted.
Effective Date Note: At 63 FR 66076, Dec. 1, 1998, subpart O was
added, effective Jan. 1, 1999 through Sept. 30, 2004.
[[Page 69]]
Sec. 216.161 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 the detonation of conventional military explosives
within the waters of the U.S. Atlantic Coast offshore Mayport, FL for
the purpose of shock testing the USS SEAWOLF.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to the following
species: Blue whale (Balaenoptera musculus); fin whale (B. physalus);
sei whale (B. borealis); Bryde's whale (B. edeni); minke whale (B.
acutorostrata); humpback whale (Megaptera novaeangliae); northern right
whale (Eubalaena glacialis); sperm whale (Physeter macrocephalus); dwarf
sperm whale (Kogia simus); pygmy sperm whale (K. breviceps); pilot
whales (Globicephala melas, G. macrorhynchus); Atlantic spotted dolphin
(Stenella frontalis); Pantropical spotted dolphin (S. attenuata);
striped dolphin (Stenella coeruleoalba); spinner dolphin (S.
longirostris); Clymene dolphin (S. clymene); bottlenose dolphin
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed
dolphin (Steno bredanensis); killer whale (Orcinus orca); false killer
whale (Pseudorca crassidens); pygmy killer whale (Feresa attenuata);
Fraser's dolphin (Lagenodelphis hosei); harbor porpoise (Phocoena
phocoena); melon-headed whale (Peponocephala electra); northern
bottlenose whale (Hyperoodon ampullatus); Cuvier's beaked whale (Ziphius
cavirostris), Blainville's beaked whale (Mesoplodon densirostris);
Gervais' beaked whale (M. europaeus); Sowerby's beaked whale (M.
bidens); True's beaked whale (M. mirus); common dolphin (Delphinus
delphis); and Atlantic white-sided dolphin (Lagenorhynchus acutus).
(c) The incidental take of marine mammals identified in paragraph
(b) of this section is limited to a total of 1 mortality, 5 injuries and
1,788 harassment takes for detonations in the area described in
paragraph (a) of this section, except that the taking by serious injury
or mortality for species listed in paragraph (b) of this section that
are also listed as threatened or endangered under Sec. 17.11 of this
title, is prohibited.
Sec. 216.162 Effective dates.
Regulations in this subpart are effective May 1 through September 30
of any single year between the years 2000 and 2004, inclusive.
Sec. 216.163 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 marine
mammals by harassment, injury or mortality in the course detonating five
4,536 kg (10,000 lb) conventional explosive charges within the area
described in Sec. 216.161(a), provided all terms, conditions, and
requirements of these regulations and such Letter of Authorization are
complied with.
(b) The activity identified in paragraph (a) of this section must be
conducted in a manner that minimizes, to the greatest extent possible,
adverse impacts on marine mammals and their habitat. When detonating
explosives, the following mitigation measures must be utilized:
(1) If marine mammals are observed within the designated safety zone
prescribed in the Letter of Authorization, or within the buffer zone
prescribed in the Letter of Authorization and on a course that will put
them within the safety zone prior to detonation, detonation must be
delayed until marine mammals are either no longer within the safety zone
or are on a course within the buffer zone that is taking them away from
the safety zone, except that no detonation will occur if a marine mammal
listed as threatened or endangered under Sec. 17.11 of this title is
detected within the buffer zone and subsequently cannot be detected
until such time as sighting and acoustic teams have searched the area
for 2.5 hours (approximately 3 times the typical large whale dive
duration). If a northern right whale is seen within the safety or buffer
zone, detonation must not occur until the animal is positively
reacquired outside the buffer zone and at least one additional aerial
monitoring of the safety range and buffer
[[Page 70]]
zone shows that no other right whales are present.
(2) If weather and/or sea conditions as described in the Letter of
Authorization preclude adequate aerial surveillance, detonation must be
delayed until conditions improve sufficiently for aerial surveillance to
be undertaken.
(3) If post-test surveys determine that an injurious or lethal take
of a marine mammal has occurred, or if any marine mammals are observed
in the safety range immediately after a detonation, the test procedure
and the monitoring methods must be reviewed by NMFS in consultation with
the Navy and appropriate changes made prior to conducting the next
detonation.
Sec. 216.164 Prohibitions.
Notwithstanding takings authorized by Sec. 216.161(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, 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 in this subpart.
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, state or local agency monitoring the impacts of the activity on
marine mammals. The holder must notify the Administrator, Southeast
Region at least 2 weeks prior to activities involving the detonation of
explosives in order to satisfy paragraph (g) of this section.
(b) The holder of the Letter of Authorization must designate
qualified on-site individuals, as specified in the Letter of
Authorization, to record the effects of explosives detonation on marine
mammals that inhabit the Atlantic Ocean test area.
(c) The Atlantic Ocean test area must be surveyed by marine mammal
biologists and other trained individuals, and the marine mammal
populations monitored, approximately 3 weeks prior to detonation, 48-72
hours prior to a scheduled detonation, on the day of detonation, and for
a period of time specified in the Letter of Authorization after each
detonation. Monitoring shall include, but not necessarily be limited to,
aerial, shipboard, and acoustic surveillance sufficient to ensure that
no marine mammals are within the designated safety zone nor are likely
to enter the designated safety zone immediately prior to, or at the time
of, detonation.
(d) Under the direction of a certified marine mammal veterinarian,
examination and recovery of any dead or injured marine mammals will be
conducted. Necropsies will be performed and tissue samples taken from
any dead animals. After completion of the necropsy, animals not retained
for shoreside examination will be tagged and returned to the sea. The
occurrence of live marine mammals will also be documented.
(e) The holder of the Letter of Authorization is required to measure
during the first detonation, and provide a report on, prior to the
second detonation, the attenuation of the sound pressure levels of the
HBX1 explosive charge. Measurements must be made at a number of
distances from the detonation sufficient to verify the model predictions
for the 3.7 km (2 nm) safety zone. Based upon the results of this test,
the monitoring and safety zones described in the Letter of
Authorization, may be modified accordingly.
(f) Activities related to the monitoring described in paragraphs (c)
and (d) of this section, or in the Letter of Authorization issued under
Sec. 216.106, including the retention of marine mammals, may be
conducted without the need for a separate scientific research permit.
The use of retained marine mammals for scientific research other than
shoreside examination must be authorized pursuant to subpart D of this
part.
(g) In coordination and compliance with appropriate Navy
regulations, at its discretion, the National Marine Fisheries Service
may place observer(s)
[[Page 71]]
on any ship or aircraft involved in marine mammal reconnaissance, or
monitoring either prior to, during, or after explosives detonation in
order to monitor the impact on marine mammals.
(h) A final report must be submitted to the Administrator, Southeast
Region, no later than 120 days after completion of shock testing the USS
SEAWOLF. This report must contain the following information:
(1) Date and time of all detonations conducted under the Letter of
Authorization.
(2) A description of all pre-detonation and post-detonation
activities related to mitigating and monitoring the effects of
explosives detonation on marine mammal populations.
(3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the
detonation and numbers that may have been harassed due to presence
within the designated safety zone.
(4) Results of coordination with coastal marine mammal/sea turtle
stranding networks.
(i) A final report on results of necropsies of stranded marine
mammals funded by the U.S. Navy must be submitted to the Director,
Office of Protected Resources, no later than 18 months after completion
of shock testing the USS SEAWOLF.
Sec. 216.166 Modifications to the Letter 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 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. 216.161(b), or that
significantly and detrimentally alters the scheduling of explosives
detonation within the area specified in Sec. 216.161(a), the Letter of
Authorization issued pursuant to Sec. 216.106 may be substantively
modified without prior notice and an opportunity for public comment. A
notice will be published in the Federal Register subsequent to the
action.
Secs. 216.167-216.169 [Reserved]
Subpart P--Taking of Marine Mammals Incidental to Operating A Low
Frequency Acoustic Source by the North Pacific Acoustic Laboratory
Source: 66 FR 43458, Aug. 17, 2001, unless otherwise noted.
Effective Date Note: At 66 FR 43458, Aug. 17, 2001, subpart P was
added, effective Sept. 17, 2001 to Sept. 17, 2006.
Sec. 216.170 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of small numbers of marine mammals specified in paragraph (b) of this
section by U.S. citizens engaged in conducting acoustic research using a
moored, low-frequency acoustic source by the North Pacific Acoustic
Laboratory off Kauai, Hawaii.
(b) The incidental harassment of marine mammals under the activity
identified in paragraph (a) of this section is limited to small numbers
of the following species: humpback whales (Megaptera novaengliae), fin
whales (Balaenoptera physalus), blue whales (B. musculus), Bryde's
whales (B. edeni), minke whales (B. acutorostrata), North Pacific right
whales (Balaena japonicus), sperm whales (Physeter macrocephalus),
short-finned pilot whales (Globicephala macrorhynchus), beaked whales
(Ziphius cavirostris, Berardius bairdi, and Mesoplodon spp.), spinner
dolphins (Stenella longirostris), spotted dolphins (Stenella attenuata),
striped dolphins (Stenella coeruleoalba), bottlenose dolphins (Tursiops
truncatus), rough-toothed dolphins (Steno bredanensis), pygmy sperm
whales (Kogia breviceps), dwarf sperm whales (Kogia simus), killer
whales (Orcinus orca), false killer whales (Pseudorca crassidens), pygmy
killer whales (Feresa attenuata), and melon-headed whales (Peponocephala
electra).
[[Page 72]]
and Hawaiian monk seals (Monachus schauinslandi).
Sec. 216.171 Effective dates.
Regulations in this subpart are effective from September 17, 2001,
through September 17, 2006.
Sec. 216.172 Permissible methods of taking.
(a) Under a Letter of Authorization issued pursuant to Secs.
216.106 and 216.176, the Holder of this Letter of Authorization may
incidentally, but not intentionally, take marine mammals by harassment
within the area described in Sec. 216.170(a), provided the activity is
in compliance with all terms, conditions, and requirements of these
regulations and the Letter of Authorization.
(b) The activities identified in Sec. 216.170(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
Sec. 216.173 Prohibitions.
Notwithstanding takings authorized by Sec. 216.170(b) and by a
Letter of Authorization issued under Secs. 216.106 and 216.176, no
person in connection with the activities described in Sec. 216.170(a)
shall:
(a) Take any marine mammal not specified in Sec. 216.170(b);
(b) Take any marine mammal specified in Sec. 216.170(b) other than
by incidental, unintentional harassment;
(c) Take any marine mammal specified in Sec. 216.170(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 Secs. 216.106 and 216.176.
Sec. 216.174 Mitigation.
As described in the Letter of Authorization issued under Secs.
216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic
source must:
(a) Operate at the minimum duty cycle necessary for conducting
large-scale acoustic thermometry and long-range propagation objectives.
(b) Not increase the duty cycle during the months of January through
April.
(c) Operate at the minimum power level necessary for conducting
large-scale acoustic thermometry and long-range propagation objectives,
but no more than 260 Watts.
(d) Precede all transmissions from the acoustic source by a 5-minute
ramp-up of the acoustic source's power.
Sec. 216.175 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. The holder must notify the Southwest Regional
Administrator at least 2 weeks prior to commencing monitoring
activities.
(b) The Holder of this Authorization must conduct a minimum of eight
surveys each year from February through early April in the area off the
north shore of Kauai, Hawaii, as specified in the Letter of
Authorization issued under Secs. 216.106 and 216.176.
(c) The Holder of this Authorization must, through coordination with
marine mammal stranding networks in Hawaii, monitor strandings of marine
mammals to detect long-term trends in stranding and the potential
relationship to the North Pacific Acoustic Laboratory acoustic source.
(d) Activities related to the monitoring described in paragraphs (b)
and (c) of this section, or in the Letter of Authorization issued under Secs.
216.106 and 216.176 may be conducted without the need for a separate
scientific research permit.
(e) In coordination and compliance with marine mammal researchers
operating under this subpart, at its discretion, the National Marine
Fisheries Service may place an observer on any aircraft involved in
marine mammal surveys in order to monitor the impact on marine mammals.
(f) The holder of a Letter of Authorization must annually submit a
report to the Director, Office of Protected Resources, National Marine
Fisheries Service, no later than 120 days after
[[Page 73]]
the conclusion of the humpback whale aerial survey monitoring program.
This report must contain all the information required by the Letter of
Authorization, including the results, if any, of coordination with
coastal marine mammal stranding networks.
(g) A final comprehensive report must be submitted to the Director,
Office of Protected Resources, National Marine Fisheries Service no
later than 240 days after completion of the final year of humpback whale
aerial survey monitoring conducted under Sec. 216.175. This report must
contain all the information required by the Letter of Authorization.
Sec. 216.176 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. 216.177.
(c) A Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized 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 number of marine mammals taken by the
activity, specified in Sec. 216.170(b), as a whole, will have no more
than a negligible impact on the species or stocks of affected marine
mammal(s).
(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. 216.177 Renewal of a letter of authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.176 for the activity identified in Sec. 216.170(a) 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. 216.176 will be undertaken and that there will not
be a substantial modification to the described work, mitigation, or
monitoring undertaken during the upcoming season;
(2) Timely receipt of the monitoring reports required under Sec.
216.175, which have been reviewed by the National Marine Fisheries
Service and determined to be acceptable;
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring, and reporting measures required under Secs.
216.174 and 216.175 and the Letter of Authorization were undertaken and
will be undertaken during the upcoming period of validity of a renewed
Letter of Authorization; and
(4) Renewal of a Letter of Authorization will be based on a
determination that the number of marine mammals taken by the activity
continues to be small and that the number of marine mammals taken by the
activity, specified in Sec. 216.170(b), will have no more than a
negligible impact on the species or stock of affected marine mammal(s).
(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. 216.178 Modifications to a letter of authorization.
(a) In addition to complying with the provisions of Secs. 216.106
and 216.176, except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization issued pursuant to Secs. 216.106 and 216.176
and subject to the provisions of this subpart shall be made by the
National Marine Fisheries Service until after a notification and an
opportunity for public comment has been provided. For purposes of this
paragraph, a renewal
[[Page 74]]
of a Letter of Authorization under Sec. 216.177 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. 216.170(b), a Letter of
Authorization issued pursuant to Secs. 216.106 and 216.176 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 Q [Reserved]
Subpart R--Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea
Source: 65 FR 34030, May 25, 2000, unless otherwise noted.
Effective Date Note: At 65 FR 34030, May 25, 2000, subpart R was
added, effective May 25, 2000, to May 25, 2005.
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 Secs. 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 harassment, injury 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 May 25, 2000, until
May 25, 2005.
Sec. 216.202 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Secs. 216.106
and 216.208, the Holder of the Letter of Authorization may incidentally,
but not intentionally, take marine mammals by harassment, injury, and
mortality within the area described in Sec. 216.200(a), provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations in this subpart and the appropriate Letter of
Authorization.
(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 authorized by Sec. 216.200 and by a Letter
of Authorization issued under Secs. 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 harassment, injury 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 the regulations in this subpart or a Letter of
Authorization issued under Sec. 216.106.
[[Page 75]]
Sec. 216.204 Mitigation.
The activity identified in Sec. 216.200(a) must be conducted in a
manner that minimizes, to the greatest extent possible, adverse impacts
on marine mammals and their habitats. When conducting operations
identified in Sec. 216.200, the mitigation measures contained in the
Letter of Authorization issued under Secs. 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
Secs. 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 interim reports to
the Director, Office of Protected Resources, National Marine Fisheries
Service, no later than 90 days after completion of the winter monitoring
season (approximately September 15th), and 90 days after the open water
monitoring season (approximately February 1st). This report
must contain all information required by the Letter of Authorization.
(e) A draft annual comprehensive report must be submitted by May
1st of the year following the issuance of a LOA;
(f) A final annual comprehensive report must be submitted within the
time period specified in the governing Letter of Authorization.
(g) A final comprehensive report on all marine mammal monitoring and
research conducted during the effective period of the regulations in
this subpart must be submitted to the Director, Office of Protected
Resources, National Marine Fisheries Service at least 240 days prior to
expiration of these regulations or 240 days after the expiration of
these regulations if renewal of the regulations will not be requested.
Sec. 216.207 Applications for Letters of Authorization.
(a) To incidentally take bowhead whales and other marine mammals
pursuant to the regulations in this subpart, 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
[[Page 76]]
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, in accordance with Administrative Procedure Act
requirements, a proposed amendment to Sec. 216.200(a). In conjunction
with amending Sec. 216.200(a), the National Marine Fisheries Service
will provide a minimum of 45 days for public comment on the application
for an initial Letter of Authorization.
(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, revoked or not
renewed, will be valid for a period of time not to exceed the period of
validity of this subpart, but must be renewed annually subject to annual
renewal conditions in 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 by the National Marine Fisheries Service and
determined to be acceptable, and 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 Secs. 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 Secs. 216.106 and 216.208 indicates that a substantial
modification to the described work, mitigation or monitoring undertaken
during the upcoming season will occur, the National Marine Fisheries
Service will provide the public a minimum of 30 days for review and
comment on the request. Review
[[Page 77]]
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 subpart 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) In addition to complying with the provisions of Secs. 216.106
and 216.208, except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by the National Marine Fisheries Service, issued
pursuant to Secs. 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 Secs. 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.
PARTS 217-221[RESERVED]
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.
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 U.S.C.
9701.
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 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
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species, respectively. Part 226 enumerates designated critical habitat
for endangered and threatened species. Certain of the endangered and
threatened marine species enumerated in Secs. 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.33'00.8" N. lat. (the line of the North Carolina/Virginia border)
and adjacent seas, other than waters of the Gulf Area, and all waters
shoreward thereof (including ports).
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.42'45.6" N. lat.) to the
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North Carolina-South Carolina border (defined as the line extending in a
direction of 135 deg.34'55" from true north from the North Carolina-
South Carolina land boundary, as marked by the border station on Bird
Island at 33 deg.51'07.9" N. lat., 078 deg.32'32.6" W. long.).
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the U.S. Coast
Guard;
(2) Any special agent or enforcement officer of the National Marine
Fisheries Service;
(3) Any officer designated by the head of a Federal or state agency
that has entered into an agreement with the Secretary or the Commandant
of the Coast Guard to enforce the provisions of the Act; or
(4) Any Coast Guard personnel accompanying and acting under the
direction of any person described in paragraph (1) of this definition.
Bait shrimper means a shrimp trawler that fishes for and retains its
shrimp catch alive for the purpose of selling it for use as bait.
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.
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.
Fishing, or to fish, means:
(1) The catching, taking, or harvesting of fish or wildlife;
(2) The attempted catching, taking, or harvesting of fish or
wildlife;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish or wildlife; or
(4) Any operations on any waters in support of, or in preparation
for, any activity described in paragraphs (1) through (3) of this
definition.
Footrope means a weighted rope or cable attached to the lower lip
(bottom edge) of the mouth of a trawl net along the 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
[[Page 80]]
side panels of webbing. The upper and lower edges of the side panels of
webbing are parallel over the entire length.
Four-seam, tapered-wing trawl means a design of shrimp trawl in
which the main body of the trawl is formed from a top panel, a bottom
panel, and two side panels of webbing. The upper and lower edges of the
side panels of webbing converge toward the rear of the trawl.
Gulf Area means all waters of the Gulf of Mexico west of 81 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' 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.
Leatherback conservation zone means that portion of the Atlantic
Area lying north of a line along 28 deg.24.6' N. lat. (Cape Canaveral,
FL).
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.
[[Page 81]]
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.
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 part 224 of this chapter, 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
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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.
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' N. lat.
(Cape Charles, VA) and bounded on the south by a line extending in a
direction of 135 deg.34'55" from true north from the North Carolina-
South Carolina land boundary, as marked by the border station on Bird
Island at 33 deg.51'07.9" N. lat., 078 deg.32'32.6" 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.
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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.
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]
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.
[[Page 84]]
(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 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.
[[Page 85]]
(d) Any purchaser of pre-Act endangered species parts included in a
valid Certificate of Exemption, unless an ultimate user, within 30 days
after the receipt of such parts, must submit a written report to the
address given in the certificate. The report must specify the quantity
of such parts or products received, the name and address of the seller,
a copy of the invoice or other document showing the serial numbers,
weight, and descriptions of the parts or products received, the date on
which such parts or products were received, and the intended use of such
parts by the purchaser. The term ``ultimate user'', for purposes of this
paragraph, means any person who acquired such endangered species part or
product for his or her own consumption or for other personal use
(including gifts) and not for resale.
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
[[Page 86]]
quantities declared in the original application for a Certificate of
Exemption.
(6) A Certification in the following language: I hereby certify that
the foregoing information is complete, true, and correct to the best of
my knowledge and belief. I understand that this information is submitted
for the purpose of obtaining a renewal of my Certificate of Exemption
under the Endangered Species Act, 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,
[[Page 87]]
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 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.
[[Page 88]]
(2) The exporter must send a copy of the Certificate of Exemption,
and any endorsements thereto, to the District Director of Customs at the
port of exportation, which must precede or accompany the shipment in
order to permit the appropriate inspection prior to lading. Upon
receipt, the District Director may order such inspection, as deemed
necessary; the District will clear the merchandise for export, prior to
the lading of the merchandise. If they are satisfied that the shipment
is proper and complies with the information contained in the certificate
and any endorsement thereto. The certificate, and any endorsements, will
be forwarded to the Chief of the Office of Enforcement for NMFS.
(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 (c)(2), which contain information collection
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,
[[Page 89]]
importation, exportation, or of any other act and during the period of
any transit incident to such taking, importation, exportation, or to any
other act.
(2) A duplicate copy of the issued permit must be physically
attached to the tank, container, package, enclosure, or other means of
containment, in which the animal is placed for purposes of storage,
transit, supervision, or care.
(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
[[Page 90]]
requirements of this part. The Assistant Administrator, however, may
waive any requirement for information or require any elaboration or
further information deemed necessary.
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
[[Page 91]]
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
(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) Permits issued pursuant to parts 222, 223, and 224 of this
chapter are not transferable or assignable. In the event that a permit
authorizes certain activities in connection with a business or
commercial enterprise, which is then subject to any subsequent lease,
sale or transfer, the successor to that enterprise must obtain a permit
prior to continuing the permitted activity, with the exceptions provided
in paragraph (a)(2) of this section.
(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.
(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.
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 requirements and
will not be effective until approval has been given by the Office of
Management and Budget.
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
[[Page 92]]
name for the business or activity specified in the permit. The permit
with the change of address or in trade name must be endorsed by the
Assistant Administrator, who shall provide an amended permit to the
person to whom it was issued.
(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 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;
[[Page 93]]
(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 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
[[Page 94]]
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. 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
[[Page 95]]
a private entity, from taking additional actions at his or her own
expense to protect or conserve a species included in a conservation
plan.
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 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
[[Page 96]]
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.
(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;
[[Page 97]]
(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 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
[[Page 98]]
and administrative expenses of the Department of Commerce. All such fees
will be deposited in the Treasury to the credit of the appropriation
which is current and chargeable for the cost of furnishing the service.
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.
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 Exceptions to prohibitions relating to anadromous fish.
223.205 Sea turtles.
223.206 Exceptions to prohibitions relating to sea turtles.
223.207 Approved TEDs.
223.209 Tribal plans.
Figure 1 to Part 223--NMFS TED
Figure 2 to Part 223--Cameron TED
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--Jones TED
Figure 12a to Part 223--Attachment of the Exit Hole Cover
Figure 12b to Part 223--Grid TED Leatherback Modification
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--Maximum Angle of Deflector Bars With Bars
Unattached to the Bottom of the Frame
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. 223.12 also issued
under 16 U.S.C. 1361 et seq.
Source: 43 FR 32809, July 28, 1978, unless otherwise noted.
Redesignated at 64 FR 14068, Mar. 23, 1999.
[[Page 99]]
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 of 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. (1) Snake River spring/summer
chinook salmon (Oncorhynchus tshawytscha). Includes all natural
population(s) of spring/summer chinook salmon in the mainstem Snake
River and any of the following subbasins: Tucannon River, Grande Ronde
River, Imnaha River, and Salmon River.
(2) Snake River fall chinook salmon (Oncorhynchus tshawytscha).
Includes all natural population(s) of fall chinook in the mainstem Snake
River and any of the following subbasins: Tucannon River, Grande Ronde
River, Imnaha River, Salmon River, and Clearwater River.
(3) Central California Coast Coho Salmon (Oncorhynchus kisutch).
Includes all coho salmon naturally reproduced in streams between Punta
Gorda in Humboldt County, CA, and the San Lorenzo River in Santa Cruz
County, CA.
(4) Southern Oregon/Northern California Coast coho salmon
(Oncorhynchus kisutch). Includes all coho salmon naturally reproduced in
streams between Cape Blanco in Curry County, OR, and Punta Gorda in
Humboldt County, CA.
(5) Central California Coast steelhead (Oncorhynchus mykiss).
Includes all naturally spawned populations of steelhead (and their
progeny) in streams from the Russian River to Aptos Creek, Santa Cruz
County, California (inclusive), and the drainages of San Francisco and
San Pablo Bays eastward to the Napa River (inclusive), Napa County,
California. Excludes the Sacramento-San Joaquin River Basin of the
Central Valley of California.
(6) South-Central California Coast steelhead (Oncorhynchus mykiss).
Includes all naturally spawned populations of steelhead (and their
progeny) in streams from the Pajaro River (inclusive), located in Santa
Cruz County, California, to (but not including) the Santa Maria River.
(7) Snake River Basin steelhead (Oncorhynchus mykiss). Includes all
naturally spawned populations of steelhead (and their progeny) in
streams in the Snake River Basin of southeast Washington, northeast
Oregon, and Idaho.
(8) Lower Columbia River steelhead (Oncorhynchus mykiss). Includes
all naturally spawned populations of steelhead (and their progeny) in
streams and tributaries to the Columbia River between the Cowlitz and
Wind Rivers, Washington, inclusive, and the Willamette and Hood Rivers,
Oregon, inclusive. Excluded are steelhead in the upper Willamette River
Basin above Willamette Falls and steelhead from the Little and Big White
Salmon Rivers in Washington;
(9) Central Valley, California steelhead (Oncorhynchus mykiss).
Includes all naturally spawned populations of steelhead (and their
progeny) in the Sacramento and San Joaquin Rivers and their tributaries.
Excluded are steelhead from San Francisco and San Pablo Bays and their
tributaries.
(10) Oregon Coast coho salmon (Oncorhynchus kisutch). Includes all
naturally spawned populations of coho
[[Page 100]]
salmon in streams south of the Columbia River and north of Cape Blanco
in Curry County, OR.
(11) Gulf sturgeon (Acipenser oxyrinchus desotoi).
(12) Hood Canal summer-run chum salmon (Oncorhynchus keta). Includes
all naturally spawned populations of summer-run chum salmon in Hood
Canal and its tributaries as well as populations in Olympic Peninsula
rivers between Hood Canal and Dungeness Bay, Washington;
(13) Columbia River chum salmon (Oncorhynchus keta). Includes all
naturally spawned populations of chum salmon in the Columbia River and
its tributaries in Washington and Oregon.
(14) Upper Willamette River steelhead (Oncorhynchus mykiss).
Includes all naturally spawned populations of winter-run steelhead in
the Willamette River, Oregon, and its tributaries upstream from
Willamette Falls to the Calapooia River, inclusive;
(15) Middle Columbia River steelhead (Oncorhynchus mykiss). Includes
all naturally spawned populations of steelhead in streams from above the
Wind River, Washington, and the Hood River, Oregon (exclusive), upstream
to, and including, the Yakima River, Washington. Excluded are steelhead
from the Snake River Basin.
(16) Puget sound chinook salmon (Oncorhynchus tshawytscha). Includes
all naturally spawned populations of chinook salmon from rivers and
streams flowing into Puget Sound including the Straits of Juan De Fuca
from the Elwha River eastward, including rivers and streams flowing into
Hood Canal, South Sound, North Sound and the Strait of Georgia in
Washington.
(17) Lower Columbia River chinook salmon (Oncorhynchus tshawytscha).
Includes all naturally spawned populations of chinook salmon from the
Columbia River and its tributaries from its mouth at the Pacific Ocean
upstream to a transitional point between Washington and Oregon east of
the Hood River and the White Salmon River, and includes the Willamette
River to Willamette Falls, Oregon, exclusive of spring-run chinook
salmon in the Clackamas River.
(18) Upper Willamette River chinook salmon (Oncorhynchus
tshawytscha). Includes all naturally spawned populations of spring-run
chinook salmon in the Clackamas River and in the Willamette River, and
its tributaries, above Willamette Falls, Oregon.
(19) Ozette Lake sockeye salmon (Oncorhynchus nerka). Includes all
naturally spawned populations of sockeye salmon in Ozette Lake and
streams and tributaries flowing into Ozette Lake, Washington.
(20) Central Valley spring-run chinook salmon (Oncorhynchus
tshawytscha). Includes all naturally spawned populations of spring-run
chinook salmon in the Sacramento River Basin, and its tributaries,
California.
(21) California coastal chinook salmon (Oncorhynchus tshawytscha).
Includes all naturally spawned populations of chinook salmon from
Redwood Creek (Humboldt County, California) through the Russian River
(Sonoma County, California).
(22) Northern California steelhead (Oncorhynchus mykiss). Includes
all naturally spawned populations of steelhead (and their progeny) in
coastal river basins ranging from Redwood Creek in Humboldt County,
California to the Gualala River, inclusive, in Mendocino County,
California.
(b) Marine plants. Johnson's seagrass (Halophila johnsonii).
(c) Marine mammals. Guadalupe fur seal (Arctocephalus townsendi);
Steller sea lion (Eumetopias jubatus), eastern population, which
consists of all Steller sea lions from breeding colonies located east of
144 deg. W. longitude.
(d) Sea turtles. Green turtle (Chelonia mydas) except for those
populations listed under Sec. 224.101(c) of this chapter; Loggerhead
turtle (Caretta caretta); Olive ridley turtle (Lepidochelys olivacea)
except for those populations listed under Sec. 224.101(c) of this
chapter.
Note to Sec. 223.201(d): 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.
[64 FR 14068, Mar. 23, 1999, as amended at 64 FR 14328, Mar. 24, 1999;
64 FR 14517, 14528, 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999;
65 FR 36094, June 7, 2000; 65 FR 60383, Oct. 11, 2000]
[[Page 101]]
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:
(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
[[Page 102]]
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
0N .5W .0N 1.5W 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.
0N .5W .5N 9.0W
21. Adak I....................... 51 deg.36. 176 deg.59 51 deg.38 176 deg.5 16460 SW Point, Lake
5N .0W .0N 9.5W 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.
5N .0E .5N 5.0E
27. Amchitka I................... 51 deg.32. 178 deg.49 ......... ......... 16440 Column Rocks.
5N .5E
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.
5N .5E .5N 1.5E
----------------------------------------------------------------------------------------------------------------
\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.
(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.
(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 the
threatened species of salmonids listed in Sec. 223.102(a)(1) through
(a)(10), and (a)(12) through (a)(19), except as provided in paragraph
(b) of this section and Sec. 223.209(a).
(b) Limits on the prohibitions. (1) The exceptions of section 10 of
the ESA (16 U.S.C. 1539) and other exceptions under the Act relating to
endangered species, including regulations in part 222 of this chapter II
implementing such exceptions, also apply to the threatened species of
salmonids listed in Sec. 223.102(a)(1)
[[Page 133]]
through (a)(10), and (a)(12) through (a)(19).
(2) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to activities
specified in an application for a permit for scientific purposes or to
enhance the conservation or survival of the species, provided that the
application has been received by the Assistant Administrator for
Fisheries, NOAA (AA), no later than October 10, 2000. The prohibitions
of paragraph (a) of this section apply to these activities upon the AA's
rejection of the application as insufficient, upon issuance or denial of
a permit, or March 7, 2001, whichever occurs earliest.
(3) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(4) through
(a)(10), and (a)(12) through (a)(19) do not apply to any employee or
designee of NMFS, the United States Fish and Wildlife Service, any
Federal land management agency, the Idaho Department of Fish and Game
(IDFG), Washington Department of Fish and Wildlife (WDFW), the Oregon
Department of Fish and Wildlife (ODFW), California Department of Fish
and Game (CDFG), or of any other governmental entity that has co-
management authority for the listed salmonids, when the employee or
designee, acting in the course of his or her official duties, takes a
threatened salmonid without a permit if such action is necessary to:
(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)(5) through
(a)(10), and (a)(12) through (a)(19) 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
[[Page 134]]
above the viable threshold must be designed to maintain the population
or management unit at or above that level. For populations shown with a
high degree of confidence to be above critical levels but not yet at
viable levels, harvest management must not appreciably slow the
population's achievement of viable function. Harvest actions impacting
populations that are functioning at or below critical threshold must not
be allowed to appreciably increase genetic and demographic risks facing
the population and must be designed to permit the population's
achievement of viable function, unless the plan demonstrates that the
likelihood of survival and recovery of the entire ESU in the wild would
not be appreciably reduced by greater risks to that individual
population.
(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
[[Page 135]]
intention to withdraw the limit for activities associated with that
FMEP. Such an announcement will provide for a comment period of not less
than 30 days, after which NMFS will make a final determination whether
to withdraw the limit so that the prohibitions would then apply to those
fishery harvest activities. A template for developing FMEPs is available
from NMFS Northwest Region's website (www.nwr.noaa.gov).
(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)(5) through
(a)(10), and (a)(12) through (a)(19) 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
[[Page 136]]
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 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)(7), (a)(8),
(a)(10), and (a)(12) through (a)(19) do not apply to actions undertaken
in compliance with a resource management plan developed jointly by the
States of Washington, Oregon and/or Idaho and the Tribes (joint plan)
within the continuing jurisdiction of 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 orUnited 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.
[[Page 137]]
(v) On a regular basis, NMFS will evaluate the effectiveness of the
joint plan in protecting and achieving a level of salmonid productivity
commensurate with conservation of the listed salmonids. If the plan is
not effective, then NMFS will identify to the jurisdiction ways in which
the joint plan needs to be altered or strengthened. If the responsible
agency does not make changes to respond adequately to the new
information, NMFS will publish notification in the 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)(5) through
(a)(10), and (a)(12) through (a)(19) 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)(5) through
(a)(10), and (a)(12), through (a)(19) do not apply to habitat
restoration activities, as defined in paragraph (b)(8)(iv) of this
section, provided that the activity is part of a watershed conservation
plan, and:
(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.
[[Page 138]]
(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 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)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to the physical
diversion of water from a stream or lake, provided that:
(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)(5) through
(a)(10), and (a)(12) through (a)(19) 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
[[Page 139]]
equivalent to the ODOT program, or of any amendments, shall be a written
approval by NMFS Northwest or Southwest Regional Administrator,
whichever is appropriate. Any jurisdiction desiring its routine road
maintenance activities to be within this limit must first commit in
writing to apply management practices that result in protections
equivalent to or better than those provided by the ODOT Guide, detailing
how it will assure adequate training, tracking, and reporting, and
describing in detail any dust abatement practices it requests to be
covered.
(ii) NMFS finds the routine road maintenance activities of any
state, city, county, or port to be consistent with the conservation of
listed salmonids' habitat when it contributes, as does the ODOT Guide,
to the attainment and maintenance of properly functioning condition
(PFC). NMFS defines PFC as the sustained presence of natural habitat-
forming processes that are necessary for the long-term survival of
salmonids through the full range of environmental variation. Actions
that affect salmonid habitat must not impair properly functioning
habitat, appreciably reduce the functioning of already impaired habitat,
or retard the long-term progress of impaired habitat toward PFC.
Periodically, NMFS will evaluate an approved program for its
effectiveness in maintaining and achieving habitat function that
provides for conservation of the listed salmonids. Whenever warranted,
NMFS will identify to the jurisdiction ways in which the program needs
to be altered or strengthened. Changes may be identified if the program
is not protecting desired habitat functions, or where even with the
habitat characteristics and functions originally targeted, habitat is
not supporting population productivity levels needed to conserve the
ESU. If any jurisdiction within the limit does not make changes to
respond adequately to the new information in the shortest amount of time
feasible, but not longer than one year, NMFS will publish notification
in the 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)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to activities within
the City of Portland, Oregon Parks and Recreation Department's (PP&R)
Pest Management Program (March 1997), including its Waterways Pest
Management Policy updated December 1, 1999, provided that:
(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.
[[Page 140]]
(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 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)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to municipal,
residential, commercial, and industrial (MRCI) development (including
redevelopment) activities provided that:
(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
[[Page 141]]
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 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
[[Page 142]]
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)(12), (a)(13),
(a)(16), (a)(17), and (a) (19) do not apply to non-Federal forest
management activities conducted in the State of Washington provided
that:
(i) The action is in compliance with forest practice regulations
adopted and implemented by the Washington Forest Practices Board that
NMFS has found are at least as protective of habitat functions as are
the regulatory elements of the Forests and Fish Report dated April 29,
1999, and submitted to the Forest Practices Board by a consortium of
landowners, tribes, and state and Federal agencies.
(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)(5) through (a)(10), and (a)(12) through (a)(19), any person claiming
the benefit of any limit listed in paragraph (b) of this section or
[[Page 143]]
Sec. 223.209(a) shall have a defense where the person can demonstrate
that the limit is applicable and was in force, and that the person fully
complied with the limit at the time of the alleged violation. This
defense is an affirmative defense that must be raised, pleaded, and
proven by the proponent. If proven, this defense will be an absolute
defense to liability under section (a)(1)(G) of the ESA with respect to
the alleged violation.
(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.
[65 FR 42475, July 10, 2000]
Sec. 223.204 Exceptions to prohibitions relating to anadromous fish.
(a) The following exceptions to the prohibitions of Sec. 223.203(a)
of this part apply to the Southern Oregon/Northern California Coast
(SONCC) coho salmon.
(1) Take of SONCC coho salmon within 3 miles (approximately 5 km) of
the coast, and in the bay, estuarine or freshwater fisheries regulated
under the sole authority of the State of Oregon is not prohibited, if
the take results from a fisheries harvest program conducted in
accordance with the Oregon Coastal Salmon Restoration Initiative of
March 1997 (OCSRI). NMFS must have issued a written concurrence that the
fisheries regulations are consistent with the OCSRI, using information
provided through the April 1997 Memorandum of Agreement (MOA) between
the State of Oregon and NMFS.
(2) Incidental take of SONCC coho salmon in ocean fisheries within 3
miles (approximately 5 km) of the coast that are regulated under the
sole authority of the State of California is not prohibited, provided
that the ocean salmon fishing regulations adopted by the California Fish
and Game Commission and CDFG for recreational and commercial fisheries
within 3 miles (approximately 5 km) of the coast are consistent with the
Pacific Fishery Management Council's Fishery Management Plan for Ocean
Salmon Fisheries and the annual ocean salmon fishing regulations issued
by the Secretary of Commerce for the Federal EEZ.
(3) Take of SONCC coho salmon in a hatchery program regulated under
the sole authority of the State of Oregon is not prohibited, if the take
results from a hatchery program conducted in accordance with the OCSRI,
and the take is counted against the total allocation of harvest-related
mortality as specified in the OCSRI. NMFS must have issued a written
concurrence stating that the hatchery program is consistent with the
OCSRI including the hatchery and genetic management plan adopted
pursuant to the OCSRI, using information provided through the MOA.
(4) Take of SONCC coho salmon in fisheries research and monitoring
activities conducted in California and Oregon is not prohibited provided
that:
(i) Research and monitoring involving directed take of coho salmon
is conducted by CDFG personnel (in California) and ODFW personnel (in
Oregon);
(ii) The CDFG and ODFW, respectively, provide NMFS with a list of
all research and monitoring activities involving coho salmon directed
take planned for the coming year for NMFS' review and approval. This
report shall include an estimate of the total directed take that is
anticipated, a description of the study design, including a
justification for taking the species and a description of the techniques
to be used, and a point of contact;
(iii) The CDFG and ODFW, respectively, provide NMFS annually with
the results of research and monitoring studies directed at SONCC coho
salmon, including a report of the directed take resulting from the
studies;
(iv) The CDFG and ODFW, provide NMFS annually with a list of all
research and monitoring studies permitted that may allow incidental take
of listed coho salmon during the coming year and report the level of
incidental take of listed coho salmon from the previous year's research
and monitoring activities, for NMFS' review and approval.
[[Page 144]]
(v) The research and monitoring activities do not include the use of
electrofishing in any body of water known or suspected to contain coho
salmon.
(5) Incidental take of the SONCC coho salmon in Oregon resulting
from a habitat restoration activity is not prohibited, provided that:
(i) The activity is conducted pursuant to a watershed action or
restoration plan that has been affirmed by the state in writing as
consistent with NMFS' approved state watershed plan guidelines set forth
in Sec. 222.307(c) of this chapter. NMFS shall also concur in writing
that the plan is consistent with the state watershed plan guidelines; or
(ii) Until a watershed action or restoration plan is approved by
both Oregon and NMFS as described in paragraph (a)(5)(i) of this
section, or until August 18, 1999, whichever occurs first, the ODFW has
made a written finding that the activity is consistent with state
restoration activity guidelines that NMFS has agreed, in writing, meet
the standards set forth in Sec. 222.307(c) of this chapter.
(6) Incidental take of the SONCC coho salmon in California resulting
from a habitat restoration activity, as defined in paragraph (a)(6)(iii)
of this section, is not prohibited, provided that California has a
program in effect that NMFS finds will assure technically supported
watershed assessments and coordinated long-term monitoring strategies
for watershed protection plans and activities and:
(i) The activity is conducted pursuant to a watershed protection
plan that CDFG has affirmed, in writing, is consistent with NMFS'
approved state watershed plan guidelines set forth in Sec. 222.307(c) of
this chapter for California's Watershed Protection Program. NMFS must
concur, in writing, that the plan is consistent with those guidelines;
or
(ii) Until a watershed protection or restoration plan is certified
by the State of California and NMFS as described in paragraph (a)(6)(i)
of this section, or until August 18, 1999, whichever occurs first, when
NMFS has made a written finding that the activity is consistent with
State of California conservation guidelines previously found to meet the
standards set forth in Sec. 222.307(c) of this chapter by NMFS.
[64 FR 14069, Mar. 23, 1999]
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
[[Page 145]]
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; or
(15) 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 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]
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
[[Page 146]]
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 toward
such member) during fishing or scientific research activities, to the
extent that those involved are in compliance with all applicable
requirements of paragraphs (d)(1) through (d)(5) of this section, or in
compliance with the terms and conditions of an incidental take permit
issued pursuant to paragraph (a)(2) of this section.
(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 dead or actively moving must be released
over the stern of the boat. In addition, they must be released only when
trawls are not in use, when the engine gears are in neutral position,
and in areas where they are unlikely to be recaptured or injured by
vessels.
(B) Resuscitation must be attempted on sea turtles that are comatose
or inactive but not dead by:
(1) Placing the turtle on its back (carapace) and pumping its
breastplate (plastron) with hand or foot; or
(2) Placing the turtle on its breastplate (plastron) and elevating
its hindquarter several inches for a period of 1 up to 24 hours. The
amount of the elevation depends on the size of the turtle; greater
elevations are needed for larger turtles. Sea turtles being resuscitated
must be shaded and kept wet or moist. Those that revive and become
active must be released over the stern of the boat only when trawls are
not in use, when the engine gears are in neutral position, and in areas
where they are unlikely to be recaptured or injured by vessels.
Similarly, sea turtles that fail to move within several hours (up to 24,
if possible) must be returned to the water in the same manner.
(ii) Any specimen taken incidentally during the course of fishing or
scientific research activities must not be consumed, sold, landed,
offloaded, transshipped, or kept below deck.
(2) Gear requirements--(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);
(2) Is a bait shrimper that retains all live shrimp on board in a
container with a circulating seawater system, if
[[Page 147]]
it does not possess more than 32 pounds (14.5 kg) of dead shrimp on
board, and if it has on board a valid original state bait-shrimp license
(if in a state that requires such a license);
(3) Has only a pusher-head trawl, skimmer trawl, or wing net rigged
for fishing; and
(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.
(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 single test net (try net) with a headrope length of 12 ft (3.6
m) or less and with a footrope length of 15 ft (4.6 m) or less, if it is
either pulled immediately in front of another net or is not connected to
another net in any way, if no more than one test net is used at a time,
and if it is not towed as a primary net;
(2) 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
(3) 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' 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 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.
[[Page 148]]
(iv) Gear requirement--leatherback conservation zone--(A)
Leatherback surveys. From January 1 through June 30 of each year, weekly
aerial surveys will be conducted in the leatherback conservation zone by
NMFS or state agents, contingent upon weather conditions. If sighting
rates of greater than 10 leatherback turtles per 50 nautical miles (92.6
km) of trackline are observed, the aerial surveys of that area will be
replicated within 24 hours, or as soon as practicable thereafter.
(B) TED requirements and registration. If surveys pursuant to
paragraph (d)(2)(iv)(A) of this section indicate a sighting rate within
the leatherback conservation zone of greater than 10 leatherback sea
turtles per 50 nautical miles (92.6 km) of trackline, NMFS will close an
area of the leatherback conservation zone encompassing all, or a portion
of, inshore waters and offshore waters 10 nautical miles (18.5 km)
seaward of the COLREGS demarcation line, bounded by 1 deg. lat.
coinciding with the trackline, within the leatherback conservation zone.
This closure will be for a 2-week period. Within such a closed area,
fishing by any shrimp trawler required to have a NMFS-approved TED in
each net rigged for fishing is prohibited, unless the TED installed is
one described at Sec. 223.207(a)(7)(ii)(B) or Sec.
223.207(c)(1)(iv)(B), and the owner or operator of the shrimp trawl has
notified the Southeast Regional Administrator of his or her intention to
fish in that area, in accordance with the procedure provided in
paragraph (d)(5) of this section. If requested in writing from the
Southeast Regional Administrator, owners and operators of shrimp
trawlers in the leatherback conservation zone must carry NMFS-approved
observers aboard such vessel(s). A shrimp trawler in the leatherback
conservation zone must comply with the terms and conditions specified in
such written request, as well as provide information on trawling hours,
gear modifications, and turtle captures.
(C) Notification. NMFS will immediately announce specific area
closures on the NOAA weather radio channel, in newspapers, and other
media. Specific area closures will be effective upon filing for public
inspection at the Office of the Federal Register. Owners and operators
of shrimp trawl vessels in the leatherback conservation zone are
responsible for monitoring the NOAA weather radio channel for closure
announcements. Shrimp trawlers may also call the Southeast Regional
Office at (813) 570-5312 to receive updated area closure information.
(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
[[Page 149]]
tow-time restrictions apply, and any applicable conditions or
restrictions that the Assistant Administrator determines are necessary
or appropriate to protect sea turtles and ensure compliance, including,
but not limited to, a requirement to carry observers, to register
vessels in accordance with procedures at paragraph (d)(5) of this
section, or for all shrimp trawlers in the area to synchronize their tow
times so that all trawl gear remains out of the water during certain
times. A notification withdrawing tow-time restrictions will include
findings in support of that action.
(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 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
[[Page 150]]
use TEDs, registration of vessels in accordance with procedures at
paragraph (d)(5) of this section, and requirements to provide observers.
Notification of withdrawal or modification will include findings in
support of that action.
(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. 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) Registration. If the Assistant Administrator imposes
restrictions under paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), or
(d)(4)(ii) of this section, the Assistant Administrator may require the
owner and operator of a vessel to register before entering an area
where, and during the time when, the restrictions apply. If registration
is required, the vessel's owner and operator must submit the following
information to the NMFS Regional Office:
(i) The name and official number (or registration number) of the
vessel;
(ii) The names, mailing and street addresses, and telephone numbers
of the vessel owner and operator;
(iii) The permit number or other identification of relevant state or
Federal fishing permit(s);
(iv) Where and when the vessel intends to fish;
(v) Where and when the vessel will depart on any fishing trip, with
sufficient specificity to allow for an observer to embark on the trip;
and
(vi) Any changes in the information submitted under paragraphs
(d)(5)(i) through (d)(5)(v) of this section. Failure to do so
immediately will void the registration, rendering unlawful any
subsequent entry of the fishing vessel into the area where and during
the time when the restrictions apply.
(6) Restrictions applicable to the California/Oregon drift gillnet
fishery--(i) Pacific leatherback conservation area. No person may fish
with, set, or haul back drift gillnet gear in U.S. waters of the Pacific
Ocean from August 15 through November 15 in the area bounded by straight
lines connecting the following coordinates in the order listed:
(A) Point Sur (36 deg.18.5' N) to 34 deg.27' N 123 deg.35' W';
(B) 34 deg.27' N 123 deg.35' W to 34 deg.27' N 129 deg. W;
(C) 34 deg.27' N 129 deg. W to 45 deg. N 129 deg. W;
(D) 45 deg. N 129 deg. W to the point 45 deg. N intersects the
Oregon coast.
(ii) [Reserved]
[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]
Effective Date Note: At 64 FR 14070, Mar. 23, 1999, newly
redesignated Sec. 223.206 was revised. Paragraph (d)(5) contains
information collection requirements and will not become effective until
approval has been given by the Office of Management and Budget.
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,'' such as the NMFS and Cameron TEDs
(Figures 1 & 2 to this part), or ``single-grid hard TEDs,'' such as the
Matagorda and Georgia TEDs (Figures 3 & 4 to this part). Hard TEDs
complying with the following generic design criteria are approved TEDs:
(1) Construction materials. A hard TED must be constructed of one or
a combination of the following materials, with minimum dimensions as
follows:
(i) Solid steel rod with a minimum outside diameter of \1/4\ inch
(0.64 cm);
(ii) Fiberglass or aluminum rod with a minimum outside diameter of
\1/2\ inch (1.27 cm); or
(iii) Steel or aluminum tubing with a minimum outside diameter of
\1/2\ inch
[[Page 151]]
(1.27 cm) and a minimum wall thickness of \1/8\ inch (0.32 cm) (also
known as schedule 40 tubing).
(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:
(A) If the deflector bars that run from top to bottom are attached
to the bottom frame of the TED, the angle of the bottom-most 4 inches
(10.2 cm) of each deflector bar, measured along the bars, must not
exceed 45 deg. (Figures 14a and 14b to this part);
(B) If the deflector bars that run from top to bottom are not
attached to the bottom frame of the TED, the angle of the imaginary
lines connecting the bottom frame of the TED to the bottom end of each
deflector bar which runs from top to bottom must not exceed 45 deg.
(Figure 15 to this part).
(4) Space between bars. The space between deflector bars and between
the deflector bars and the 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.
(6) Position of escape opening. The entire width of the escape
opening from the trawl must be centered on and immediately forward of
the frame at either the top or bottom of the net when the net is in its
deployed position. The escape opening must be at the top of the net when
the slope of the deflector bars from forward to aft is upward, and must
be at the bottom when such slope is downward. For a single-grid TED, the
escape opening must be cut horizontally along the same plane as the TED,
and may not be cut in a fore-and-aft direction.
(7) Size of escape opening--(i) Hooped hard TED. On a hooped hard
TED, the escape opening must not be smaller than 25 inches by 25 inches
(63.5 cm by 63.5 cm) in the Gulf Area, or 30 inches by 30 inches (76.2
cm by 76.2 cm) in the Atlantic Area. A door frame may not be used over
the escape opening; however, a webbing flap may be used as provided in
paragraph (e)(4)(iv)(C) of this section.
(ii) Single-grid hard TED--(A) Escape opening for standard single-
grid hard TED. On a single-grid hard TED, the cut in the trawl webbing
for the escape opening cannot be narrower than the outside width of the
grid minus 4 inches (10.2 cm) on both sides of the grid, when measured
as a straight line width. (Figure 13 to this part illustrates the
dimensions of this cut.) The resulting escape opening in the net webbing
must measure at least 32 inches (81.3 cm) in horizontal taut length and,
simultaneously, 10 inches (25.4 cm) in vertical taut height in the Gulf
Area; or 35 inches (88.9 cm) in horizontal taut length and,
simultaneously, 12 inches (30.5 cm) in vertical taut height in the
Atlantic Area. The vertical measurement must be taken at the midpoint of
the horizontal measurement.
(B) Escape opening for leatherback turtles--(1) Standard leatherback
opening. A single-grid hard TED escape opening shall be enlarged to
allow leatherback turtles to escape by cutting an exit hole in the
extension forward of the TED frame 26 inches (66 cm) deep, on each side,
by 83 inches (211 cm) across (Figures 12a and 12b to this part). Excess
webbing is removed by cutting across \1/2\ mesh forward of the TED
frame. The exit hole cover is made by cutting a 133-inch (388 cm) by 58-
inch (148 cm) piece of webbing no smaller than 1\1/2\ inch (4 cm)
stretch mesh and no larger than 1 \5/8\ inch (4.2 cm) stretch mesh. The
133-inch (338 cm) edge of the cover is attached to the forward edge of
the opening (83-inch (211 cm) edge) with a sewing sequence of 3:2. The
cover must overlap 5 inches (13 cm) of the exit hole on each side. The
side of the
[[Page 152]]
cover is attached, maintaining the 5-inch (13 cm) overlap, to the side
of the opening by sewing 28 inches (71 cm) of the cover to 26 inches (66
cm) of the opening forward of the TED frame and by sewing 15 inches (38
cm) of the extension behind the TED frame. The cover may extend no more
than 24 inches (61 cm) behind the posterior edge of the TED frame. The
circumference of the exit opening must be 142 inches (361 cm) when
stretched. If an accelerator funnel is used with a single-grid hard TED,
modified as above, it must have a minimum circumference of 142 inches
(361 cm).
(2) Double cover flap TED opening. A single-grid hard TED escape
opening shall be enlarged to allow leatherback turtles to escape by
cutting an exit hole in the extension forward of the TED frame 20 inches
(51 cm) deep, on each side, by 56 inches (142 cm) across. Excess webbing
is removed by cutting across 1/2 mesh forward of the TED frame. The exit
hole cover is made by cutting two equal size rectangular panels of
webbing with mesh sizes no smaller than 1\1/2\ inch (4 cm) stretch mesh
and no larger than 1 \5/8\ inch (4.2 cm) stretch mesh. Each panel must
be no less than 58 inches (147 cm) wide. The 58-inch (147 cm) edges of
each panel are attached to the forward edge of the opening (56-inch (142
cm) edge) with a sewing sequence of 3:2. When both panels are attached,
they may overlap each other by no more than 15 inches (38 cm). The
panels may only be sewn together along the leading edge of the cut. The
panels may not overlap the escape hole cut by more than 3 meshes on
either side. The outer edges of the panels may be attached in the same
row of meshes forward and aft. The end of each panel may not extend more
than 6 inches (15 cm) past the posterior edge of the grid. Accelerator
funnels and chafing webbing may not be used with this TED. (Figure 16 of
this part illustrates the escape opening and flap dimensions for the
double cover flap TED.)
(8) Size of hoop or grid--(i) Hooped hard TED. (A) An oval front
hoop on a hard TED must have an inside horizontal measurement of at
least 32 inches (81.3 cm) and an inside vertical measurement of at least
20 inches (50.8 cm) in the Gulf Area, or an inside horizontal
measurement of at least 35 inches (88.9 cm) and an inside vertical
measurement of at least 30 inches (76.2 cm) in the Atlantic Area.
(B) A circular front hoop on a hard TED must have an inside diameter
of at least 32 inches (81.3 cm) in the Gulf Area or 35 inches (88.9 cm)
in the Atlantic Area.
(ii) Single-grid hard TED. A single-grid hard TED must have an
inside horizontal and vertical measurement of at least 28 inches (71.1
cm) in the Gulf Area or 30 inches (76.2 cm) in the Atlantic Area. The
required inside measurements must be at the mid-point of the deflector
grid.
(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
[[Page 153]]
smaller than 9.8 inches (25.0 cm) in diameter, or one expanded polyvinyl
chloride or expanded ethylene vinyl acetate float, no smaller than 6.75
inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length, must be
attached.
(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 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
paragraphs (a)(2), (a)(3), (a)(6), and (a)(7)(ii) of this section with
respect to the method of attachment, the angle of the deflector bars,
the position of the escape opening, and the
[[Page 154]]
size of the escape opening, except that the deflector bars must be
positioned in the net to deflect turtles to the escape opening in the
top of the trawl. This TED may not be configured with a bottom escape
opening. Installation of an accelerator funnel is not permitted with
this TED.
(2) Jones TED (Figure 11 to this part). The Jones TED must be
constructed of at least 1\1/4\ inch (3.2 cm) outside diameter aluminum
or steel pipe, and the pipe must have a wall thickness of at least \1/8\
inch (0.3 cm). It must be generally oval in shape with a flattened
bottom. The deflector bars must be attached to the frame at a 45 deg.
angle from the horizontal positioning downward and each bar must be
attached at only one end to the frame. The deflector bars must be
attached and lie in the same plane as the frame. The space between the
ends of the bottom deflector bars and the bottom frame bar must be no
more than 3 inches (7.6 cm). The spacing between the bottom three
deflector bars on each side must be no greater than 2\1/2\ inches (6.4
cm). The spacing between all other deflector bars must not exceed 3\1/2\
inches (8.9 cm) and spacing between ends of opposing deflector bars also
must not exceed 3\1/2\ inches (8.9 cm). This TED must comply with
paragraphs (a)(2), (a)(3), (a)(6), (a)(7)(ii), (a)(8)(ii), and (a)(9) of
this section with respect to the method of attachment, the angle of the
deflector bars, the position of the escape opening, the size of the
escape opening, the size of the grid, and flotation.
(c) Soft TEDs. Soft TEDs are TEDs with deflector panels made from
polypropylene or polyethylene netting. The following soft TEDs are
approved TEDs:
(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
[[Page 155]]
panel and half the height of each wing panel of the trawl. Every mesh of
the leading edge of the excluder panel must be evenly sewn to this row
of meshes; meshes may not be laced to the trawl. The row of meshes for
attachment to the trawl must contain the following number of meshes,
depending on the stretched mesh size used in the trawl:
(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;
(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) Longitudinal cut. 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) Leatherback escape 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
[[Page 156]]
paragraph meets the requirements of Sec. 223.206(d)(2)(iv)(B).
(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 not greater than 1\5/8\ inches (4.1 cm), if it has an inside
horizontal opening of at least 39 inches (99.1 cm) when measured in a
taut position, if it is inserted in the net immediately forward of the
TED, and if its rear edge does not extend past the bars of the TED. The
trailing edge of the accelerator funnel may be attached to the TED on
the side opposite the escape opening if not more than \1/3\ of the
circumference of the funnel is attached, and if the inside horizontal
opening of at least 39 inches (99.1 cm) is maintained. In a bottom-
opening TED, only the top \1/3\ of the circumference of the funnel may
be attached to the TED. In a top-opening TED, only the bottom \1/3\ of
the circumference of the funnel may be attached to the TED.
(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 (4.1 cm); it lies on
the outside of the trawl; it is attached along its entire forward edge
forward of the escape opening; it is not attached on the sides beyond
the row of meshes that lies 6 inches (15.2 cm) behind the posterior edge
of the grid; and it does not extend more than 24 inches (61.0 cm) beyond
the posterior edge of the grid, except for trawlers fishing in the Gulf
SFSTCA or Atlantic SFSTCA with a hard TED with the position of the
escape opening at the bottom of the net when the net is in its deployed
position, in which case the webbing flap must not extend beyond the
posterior edge of the grid.
(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 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
[[Page 157]]
or heavy twine passed through the center of the roller tubing. The
roller shall lie flush against the TED. The maximum outside diameter of
the roller shall be 3\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.
(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 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]
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
requirements and will not become effective until approved by the Office
of Management and Budget.
Sec. 223.209 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 Plan, the plan may be
developed and
[[Page 158]]
implemented within the ongoing Federal Court proceeding. In such
circumstances, compliance with the Tribal Plan's terms shall be
determined within that Federal Court proceeding.
(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]
[GRAPHIC] [TIFF OMITTED] TC01JY91.045
Figure 1 to Part 223--NMFS TED
[60 FR 15519, Mar. 24, 1995]
[GRAPHIC] [TIFF OMITTED] TC01JY91.046
[[Page 159]]
Figure 2 to Part 223--Cameron TED
[52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
[GRAPHIC] [TIFF OMITTED] TC01JY91.047
Figure 3 to Part 223--Matagorda TED
[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
[[Page 160]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.048
Figure 4 to Part 223--Georgia TED
[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
[[Page 161]]
[GRAPHIC] [TIFF OMITTED] TR13AP98.001
Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker
Soft TED
[63 FR 17958, Apr. 13, 1998]
[[Page 162]]
[GRAPHIC] [TIFF OMITTED] TR15OC99.001
Figure 6 to Part 223--TED Extension in Summer Flounder Trawl
[64 FR 55864, Oct. 15, 1999]
Figures 7-9b to Part 223 [Reserved]
[[Page 163]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.056
Figure 10 to Part 223--Flounder TED
[58 FR 54069, Oct. 20, 1993]
[[Page 164]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.057
Figure 11 to Part 223--Jones TED
[58 FR 54070, Oct. 20, 1993]
[[Page 165]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.058
Figure 12A to Part 223--Attachment of the Exit Hole Cover
[59 FR 25830, May 18, 1994]
[[Page 166]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.059
Figure 12B to Part 223--Grid TED Leatherback Modification
[59 FR 25831, May 18, 1994]
[[Page 167]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.060
Figure 13 to Part 223--Single Grid Hard TED Escape Opening
[60 FR 15520, Mar. 24, 1995]
[[Page 168]]
Figure 14A to Part 223--Maximum Angle of Deflector Bars With Straight
Bars Attached to the Bottom of the Frame
[GRAPHIC] [TIFF OMITTED] TR19DE96.002
Figure 14B to Part 223--Maximum Angle of Deflector Bars With Bent Bars
Attached to the Bottom of the Frame
[61 FR 66946, Dec. 19, 1996]
[[Page 169]]
[GRAPHIC] [TIFF OMITTED] TR19DE96.003
Figure 15 to Part 223--Maximum Angle of Deflector Bars With Bars
Unattached to the Bottom of the Frame
[61 FR 66947, Dec. 19, 1996]
[[Page 170]]
Figure 16 to Part 223--Escape Opening and Flap Dimensions
for the Double Cover Flap TED
[GRAPHIC] [TIFF OMITTED] TR14MY01.006
[66 FR 24289, May 14, 2001]
[[Page 171]]
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.
[[Page 172]]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Species\1\
------------------------------------------------------------------------------- Where listed When listed Critical habitat
Common name Scientific Name
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Shortnose sturgeon Acipenser brevirostrum U.S.A., northwestern Atlantic, in river 32 FR 4001, Mar. 11,1967 NA
systems from the Saint John River in
New Brunswick, Canada, to the St. Johns
River, Florida
Southern California steelhead Oncorhynchus mykiss U.S.A., CA, including all naturally 62 FR 43937, Aug. 18, 1997 64 FR 5740, Feb. 5, 1999
spawned populations of steelhead (and
their progeny) in streams from the
Santa Maria River, San Luis Obispo
County, California (inclusive) to
Malibu Creek, Los Angeles County,
California (inclusive)
Upper Columbia River steelhead Oncorhynchus mykiss U.S.A., WA, including the Wells Hatchery 62 FR 43937, Aug. 18, 1997 64 FR 5740, Feb. 5, 1999
stock and all naturally spawned
populations of steelhead (and their
progeny) in streams in the Columbia
River Basin upstream from the Yakima
River, Washington, to the U.S.--Canada
Border
Snake River sockeye salmon Oncorhynchus nerka U.S.A., ID, Snake River 56 FR 58619, Nov. 20, 1991 58 FR 68543, Dec. 28, 1993
Upper Columbia River spring-run Oncorhynchus tshawytscha U.S.A., WA, including all naturally 64 FR 14308, Mar. 24, 1999 65 FR 7764, Feb. 16, 2000
chinook salmon spawned populations of chinook salmon
in Columbia River tributaries upstream
of the Rock Island Dam and downstream
of Chief Joseph Dam in Washington
(excluding the Okanogan River), the
Columbia River from a straight line
connecting the west end of the Clatsop
jetty (south jetty, Oregon side) and
the west end of the Peacock jetty
(north jetty, Washington side) upstream
to Chief Joseph Dam in Washington, and
the Chiwawa River (spring run), Methow
River (spring run), Twisp River (spring
run), Chewuch River (spring run), White
River (spring run), and Nason Creek
(spring run) hatchery stocks (and their
progeny)
Sacramento River winter-run chinook Oncorhynchus tshawytscha U.S.A., CA, Sacramento River 59 FR 13836, Mar. 23, 1994 58 FR 33212, Jun. 16, 1993
salmon
[[Page 173]]
Salmon, Atlantic Salmo salar U.S.A., ME Gulf of Maine Atlantic Salmon NA
Distinct Population Segment, which
includes all naturally reproducing wild
populations and those river-specific
hatchery populations of Atlantic salmon
having historical, river-specific
characteristics found north of and
including tributaries of the lower
Kennebec River to, but not including,
the mouth of the St. Croix River at the
U.S.-Canada border. To date, the
Services have determined that these
populations are found in the Dennys,
East Machias, Machias, Pleasant,
Narraguagus, Sheepscot, and Ducktrap
Rivers and in Cove Brook, Maine.
Totoaba Cynoscion macdonaldi Mexico, Gulf of CA 44 FR 29480, May 21, 1979 NA
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\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)
[[Page 174]]
(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); Right whales (Eubalaena spp.); 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 Stellar 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]
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 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;
[[Page 175]]
(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 North Atlantic right whales--(1) Prohibitions.
Except as provided under paragraph (b)(3) of this section, it is
unlawful for any person subject to the jurisdiction of the United States
to commit, attempt to commit, to solicit another to commit, or cause to
be committed any of the following acts:
(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 (b)(2) of this section.
(2) Right whale avoidance measures. Except as provided under
paragraph (b)(3) of this section, the following avoidance measures must
be taken if within 500 yards (460 m) of a right whale:
(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 (b)(1) and (b)(2) of this section do not apply if a
right whale approach is authorized by the National Marine Fisheries
Service through a permit issued under part 222, subpart C, of this
chapter (General Permit Procedures) or through a similar authorization.
(ii) Paragraphs (b)(1) and (b)(2) of this section do not apply where
compliance would create an imminent and serious threat to a person,
vessel, or aircraft.
(iii) Paragraphs (b)(1) and (b)(2) of this section do not apply when
approaching to investigate a right whale entanglement or injury, or to
assist in the disentanglement or rescue of a right whale, provided that
permission
[[Page 176]]
is received from the National Marine Fisheries Service or designee prior
to the approach.
(iv) Paragraphs (b)(1) and (b)(2) of this section do not apply to an
aircraft unless the aircraft is conducting whale watch activities.
(v) Paragraph (b)(2) of this section does not apply to the extent
that a vessel is restricted in her ability to maneuver and, because of
the restriction, cannot comply with paragraph (b)(2) of this section.
(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]
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 leatherback sea turtles are
provided at Sec. 223.206 (d)(2)(iv) and Sec. 223.206 (d)(6) of this
chapter.
[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 44552, Aug. 24, 2001]
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.
226.206 [Reserved]
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).
226.212 Critical habitat designation for 19 evolutionary significant
units of salmon and steelhead in Washington, Oregon, Idaho,
and California.
226.213 Critical habitat for Johnson's seagrass.
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
Table 7 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Puget Sound Chinook Salmon, and Dams/Reservoirs
Representing the Upstream Extent of Critical Habitat.
Table 8 to Part 226 --Hydrologic Units and Counties Containing Critical
Habitat for Lower Columbia River Chinook Salmon, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 9 to Part 226 --Hydrologic Units and Counties Containing Critical
Habitat for Upper Willamette River Chinook Salmon, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
[[Page 177]]
Table 10 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Upper Columbia River Spring-run Chinook Salmon,
and Dams/Reservoirs Representing the Upstream Extent of
Critical Habitat.
Table 11 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Central Valley California Spring-run Chinook
Salmon, and Dams/Reservoirs Representing the Upstream Extent
of Critical Habitat.
Table 12 to Part 226 --Hydrologic Units and Counties Containing Critical
Habitat for California Coastal Chinook Salmon, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 13 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Hood Canal Summer-run Chum Salmon, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 14 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Columbia River Chum Salmon, and Dams/Reservoirs
Representing the Upstream Extent of Critical Habitat.
Table 15 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Oregon Coast Coho Salmon, and Dams/Reservoirs
Representing the Upstream Extent of Critical Habitat.
Table 16 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Southern California Steelhead, and Dams/Reservoirs
Representing the Upstream Extent of Critical Habitat.
Table 17 to Part 226.--Hydrologic Units and Counties Containing Critical
Habitat for South-Central California Coast Steelhead, and
Dams/Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 18 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Central California Coast Steelhead, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 19 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Central Valley Steelhead, and Dams/Reservoirs
Representing the Upstream Extent of Critical Habitat.
Table 20 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Upper Columbia River Steelhead, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 21 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Snake River Basin Steelhead, and Dams/Reservoirs
Representing the Upstream Extent of Critical Habitat.
Table 22 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Lower Columbia River Steelhead, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 23 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Upper Willamette River Steelhead, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
Table 24 to Part 226--Hydrologic Units and Counties Containing Critical
Habitat for Middle Columbia River Steelhead, and Dams/
Reservoirs Representing the Upstream Extent of Critical
Habitat.
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' N, 178 deg.20' W)
[[Page 178]]
Midway Islands, except Sand Island and its harbor (28 deg.14' N,
177 deg.22' W)
Pearl and Hermes Reef (27 deg.55' N, 175 deg. W)
Lisianski Island (26 deg.46' N, 173 deg.58' W)
Laysan Island (25 deg.46' N, 171 deg.44' W)
Maro Reef (25 deg.25' N, 170 deg.35' W)
Gardner Pinnacles (25 deg.00' N, 168 deg.00' W)
French Frigate Shoals (23 deg.45' N, 166 deg.00' W)
Necker Island (23 deg.34' N, 164 deg.42' W)
Nihoa Island (23 deg.03.5' N, 161 deg.55.5' W).
[GRAPHIC] [TIFF OMITTED] TC01JY91.000
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[GRAPHIC] [TIFF OMITTED] TC01JY91.001
[[Page 180]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.002
[[Page 181]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.003
[[Page 182]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.004
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[GRAPHIC] [TIFF OMITTED] TC01JY91.005
[[Page 184]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.006
[[Page 185]]
[GRAPHIC] [TIFF OMITTED] TC01JY91.007
[53 FR 18990, May 26, 1988. Redesignated at 64 FR 14067, Mar. 23, 1999]
[[Page 186]]
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"/157 deg.27'W) and the southwestern
tip of Tugidak Island (56 deg.24'N/154 deg.41'W) and bounded in the east
by a line connecting Cape Douglas (58 deg.51'N/153 deg.15'W) and the
northernmost tip of Shuyak Island (58 deg.37'N/152 deg.22'W).
(2) Critical habitat includes the Bogoslof area in the Bering Sea
shelf and consists of the area between 170 deg.00'W and 164 deg.00'W,
south of straight lines connecting 55 deg.00'N/170 deg.00'W and
55 deg.00'N/168 deg.00'W; 55 deg.30'N/168 deg.00'W and 55 deg.30'N/
166 deg.00'W; 56 deg.00'N/166 deg.00'W and 56 deg.00'N/164 deg.00'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'N/169 deg.40.4'W
52 deg.49.8'N/169 deg.06.3'W
53 deg.23.8'N/167 deg.50.1'W
53 deg.18.7'N/167 deg.51.4'W
53 deg.59.0'N/166 deg.17.2'W
54 deg.02.9'N/166 deg.03.0'W
54 deg.07.7'N/165 deg.40.6'W
54 deg.08.9'N/165 deg.38.8'W
54 deg.11.9'N/165 deg.23.3'W
54 deg.23.9'N/164 deg.44.0'W
(3) Critical habitat includes the Seguam Pass area and consists of
the area between 52 deg.00'N and 53 deg.00'N and between 173 deg.30'W
and 172 deg.30'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.
Northern Right Whale (Eubalaena glacialis)
(a) Great South Channel. The area bounded by 41 deg.40' N/69 deg.45'
W; 41 deg.00' N/69 deg.05' W; 41 deg.38' N/68 deg.13' W; and 42 deg.10'
N/68 deg.31' W.
(b) Cape Cod Bay, Massachusetts. The area bounded by 42 deg.04.8' N/
70 deg.10' W; 42 deg.12' N/70 deg.15' W; 42 deg.12' N/70 deg.30' W;
41 deg.46.8' N/70 deg.30' 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' N and 30 deg.15' N from the coast out 15 nautical miles; and
the coastal waters between
[[Page 187]]
30 deg.15' N and 28 deg.00' 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]
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
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(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 188]]
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]
Sec. 226.206 [Reserved]
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.42'12" North and 64 deg.50'00" 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
[[Page 189]]
from the mean high water line seaward to 3 nautical miles (5.6 km).
These waters include Culebra's outlying Keys including Cayo Norte, Cayo
Ballena, Cayos Geniqui, Isla Culebrita, Arrecife Culebrita, Cayo de Luis
Pena, 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, and the following DOI, USGS, 1:500,000 scale
hydrologic unit maps: State of Oregon, 1974 and State of California,
1978 which are incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS
publication and maps may be obtained from the USGS, Map Sales, Box
25286, Denver, CO 80225. Copies may be inspected at NMFS, Protected
Resources Division, 525 NE Oregon Street--Suite 500, Portland, OR 97232-
2737, or NMFS, Office of Protected Resources, 1315 East-West Highway,
Silver Spring, MD 20910, or at the Office of the Federal Register, 800
North Capitol Street, NW., Suite 700, Washington, DC.
(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
[[Page 190]]
above longstanding, naturally impassable barriers (i.e., natural
waterfalls in existence for at least several hundred years).
[64 FR 24061, May 5, 1999]
Sec. 226.212 Critical habitat designation for 19 evolutionary significant units of salmon and steelhead in Washington, Oregon, Idaho, and California.
Critical habitat is designated to include all river reaches
accessible to listed salmon or steelhead within the range of the ESUs
listed, except for reaches on Indian lands. Critical habitat consists of
the water, substrate, and adjacent riparian zone of estuarine and
riverine reaches in hydrologic units and counties identified in Tables 7
through 24 to this part for all of the salmon and steelhead ESUs listed
in this section. Accessible reaches are those within the historical
range of the ESUs that can still be occupied by any life stage of salmon
or steelhead. Inaccessible reaches are those above longstanding,
naturally impassable barriers (i.e., natural waterfalls in existence for
at least several hundred years) and specific dams within the historical
range of each ESU identified in Tables 7 through 24 to this part.
Hydrologic units are those defined by the Department of the Interior
(DOI), U.S. Geological Survey (USGS) publication, ``Hydrologic Unit
Maps,'' Water Supply Paper 2294, 1987, and the following DOI, USGS,
1:500,000 Scale Hydrologic Unit Maps: State of Oregon (1974), State of
Washington (1974), State of California (1978), and State of Idaho
(1981), which are incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS
publicaion and maps may be obtained from the USGS, Map Sales, Box 25286,
Denver, CO 80225. Copies may be inspected at NMFS, Protected Resources
Division, 525 NE Oregon Street-Suite 500, Portland, OR 97232-2737, or
NMFS, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, or at the Office of the Federal Register, 800 North
Capitol Street, NW., Suite 700, Washington, DC.
(a) Puget Sound Chinook Salmon (Oncorhynchus tshawytscha) geographic
boundaries. Critical habitat is designated to include all marine,
estuarine and river reaches accessible to listed chinook salmon in Puget
Sound. Puget Sound marine areas include South Sound, Hood Canal, and
North Sound to the international boundary at the outer extent of the
Strait of Georgia, Haro Strait, and the Strait of Juan De Fuca to a
straight line extending north from the west end of Freshwater Bay,
inclusive. Excluded are areas above specific dams identified in Table 7
to this part or above longstanding, naturally impassable barriers (i.e.,
natural waterfalls in existence for at least several hundred years).
(b) Lower Columbia River Chinook Salmon (Oncorhynchus tshawytscha)
geographic boundaries. Critical habitat is designated to include all
river reaches accessible to listed chinook salmon in Columbia River
tributaries between the Grays and White Salmon Rivers in Washington and
the Willamette and Hood Rivers in Oregon, inclusive. Also included are
river reaches and estuarine areas in the Columbia River from a straight
line connecting the west end of the Clatsop jetty (south jetty, Oregon
side) and the west end of the Peacock jetty (north jetty, Washington
side) upstream to the Dalles Dam. Excluded are areas above specific dams
identified in Table 8 to this part or above longstanding, naturally
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(c) Upper Willamette River chinook salmon (Oncorhynchus tshawytscha)
geographic boundaries. Critical habitat is designated to include all
river reaches accessible to listed chinook salmon in the Clackamas River
and the Willamette River and its tributaries above Willamette Falls.
Also included are river reaches and estuarine areas in the Columbia
River from a straight line connecting the west end of the Clatsop jetty
(south jetty, Oregon side) and the west end of the Peacock jetty (north
jetty, Washington side) upstream to, and including, the Willamette River
in Oregon. Excluded are areas above specific dams identified in Table 9
to this part or above longstanding, naturally
[[Page 191]]
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(d) Upper Columbia River Spring-run Chinook salmon (Oncorhynchus
tshawytscha) geographic boundaries. Critical habitat is designated to
include all river reaches accessible to listed chinook salmon in
Columbia River tributaries upstream of the Rock Island Dam and
downstream of Chief Joseph Dam in Washington, excluding the Okanogan
River. Also included are river reaches and estuarine areas in the
Columbia River from a straight line connecting the west end of the
Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock
jetty (north jetty, Washington side) upstream to Chief Joseph Dam in
Washington. Excluded are areas above specific dams identified in Table
10 to this part or above longstanding, naturally impassable barriers
(i.e., natural waterfalls in existence for at least several hundred
years).
(e) Central Valley Spring-run chinook salmon (Oncorhynchus
tshawytscha) geographic boundaries. Critical habitat is designated to
include all river reaches accessible to listed chinook salmon in the
Sacramento River and its tributaries in California. Also included are
river reaches and estuarine areas of the Sacramento-San Joaquin Delta,
all waters from Chipps Island westward to Carquinez Bridge, including
Honker Bay, Grizzly Bay, Suisun Bay, and Carquinez Strait, all waters of
San Pablo Bay westward of the Carquinez Bridge, and all waters of San
Francisco Bay (north of the San Francisco/Oakland Bay Bridge) from San
Pablo Bay to the Golden Gate Bridge. Excluded are areas above specific
dams identified in Table 11 to this part or above longstanding,
naturally impassable barriers (i.e., natural waterfalls in existence for
at least several hundred years).
(f) California Coastal Chinook Salmon (Oncorhynchus tshawytscha)
geographic boundaries. Critical habitat is designated to include all
river reaches and estuarine areas accessible to listed chinook salmon
from Redwood Creek (Humboldt County, California) to the Russian River
(Sonoma County, California), inclusive. Excluded are areas above
specific dams identified in Table 12 to this part or above longstanding,
naturally impassable barriers (i.e., natural waterfalls in existence for
at least several hundred years).
(g) Hood Canal Summer-run Chum Salmon (Oncorhynchus keta) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed chum salmon (including estuarine areas and
tributaries) draining into Hood Canal as well as Olympic Peninsula
rivers between and including Hood Canal and Dungeness Bay, Washington.
Also included are estuarine/marine areas of Hood Canal, Admiralty Inlet,
and the Straits of Juan De Fuca to the international boundary and as far
west as a straight line extending north from Dungeness Bay. Excluded are
areas above specific dams identified in Table 13 to this part or above
longstanding, naturally impassable barriers (i.e., natural waterfalls in
existence for at least several hundred years).
(h) Columbia River Chum Salmon (Oncorhynchus keta) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed chum salmon (including estuarine areas and
tributaries) in the Columbia River downstream from Bonneville Dam,
excluding Oregon tributaries upstream of Milton Creek at river km 144
near the town of St. Helens. Excluded are areas above specific dams
identified in Table 14 to this part or above longstanding, naturally
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(i) Ozette Lake Sockeye Salmon (Oncorhynchus nerka) geographic
boundaries. Critical habitat is designated to include all lake areas and
river reaches accessible to listed sockeye salmon in Ozette Lake,
located in Clallam County, Washington. Excluded are areas above
longstanding, naturally impassable barriers (i.e., natural waterfalls in
existence for at least several hundred years).
(j) Oregon Coast coho salmon (Oncorhynchus kisutch) geographic
boundaries. Critical habitat is designated to include all river reaches
and estuarine areas accessible to listed coho salmon from coastal
streams south of the Columbia River and north
[[Page 192]]
of Cape Blanco, Oregon. Excluded are areas above specific dams
identified in Table 15 to this part or above longstanding, naturally
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(k) Southern California steelhead (Oncorhynchus mykiss) geographic
boundaries. Critical habitat is designated to include all river reaches
and estuarine areas accessible to listed steelhead in coastal river
basins from the Santa Maria River to Malibu Creek, California
(inclusive). Excluded are areas above specific dams identified in Table
16 to this part or above longstanding, naturally impassable barriers
(i.e., natural waterfalls in existence for at least several hundred
years).
(l) South-Central California Coast steelhead (Oncorhynchus mykiss)
geographic boundaries. Critical habitat is designated to include all
river reaches and estuarine areas accessible to listed steelhead in
coastal river basins from the Pajaro River (inclusive) to, but not
including, the Santa Maria River, California. Excluded are areas above
specific dams identified in Table 17 to this part or above longstanding,
naturally impassable barriers (i.e., natural waterfalls in existence for
at least several hundred years).
(m) Central California Coast steelhead (Oncorhynchus mykiss)
geographic boundaries. Critical habitat is designated to include all
river reaches and estuarine areas accessible to listed steelhead in
coastal river basins from the Russian River to Aptos Creek, California
(inclusive), and the drainages of San Francisco and San Pablo Bays. Also
included are all waters of San Pablo Bay westward of the Carquinez
Bridge and all waters of San Francisco Bay from San Pablo Bay to the
Golden Gate Bridge. Excluded is the Sacramento-San Joaquin River Basin
of the California Central Valley as well as areas above specific dams
identified in Table 18 to this part or above longstanding, naturally
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(n) Central Valley steelhead (Oncorhynchus mykiss) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed steelhead in the Sacramento and San Joaquin Rivers
and their tributaries in California. Also included are river reaches and
estuarine areas of the Sacramento-San Joaquin Delta, all waters from
Chipps Island westward to Carquinez Bridge, including Honker Bay,
Grizzly Bay, Suisun Bay, and Carquinez Strait, all waters of San Pablo
Bay westward of the Carquinez Bridge, and all waters of San Francisco
Bay (north of the San Francisco/Oakland Bay Bridge) from San Pablo Bay
to the Golden Gate Bridge. Excluded are areas of the San Joaquin River
upstream of the Merced River confluence and areas above specific dams
identified in Table 19 to this part or above longstanding, naturally
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(o) Upper Columbia River steelhead (Oncorhynchus mykiss) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed steelhead in Columbia River tributaries upstream of
the Yakima River, Washington, and downstream of Chief Joseph Dam. Also
included are river reaches and estuarine areas in the Columbia River
from a straight line connecting the west end of the Clatsop jetty (south
jetty, Oregon side) and the west end of the Peacock jetty (north jetty,
Washington side) upstream to Chief Joseph Dam in Washington. Excluded
are areas above specific dams identified in Table 20 to this part or
above longstanding, naturally impassable barriers (i.e., natural
waterfalls in existence for at least several hundred years).
(p) Snake River Basin steelhead (Oncorhynchus mykiss) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed steelhead in the Snake River and its tributaries in
Idaho, Oregon, and Washington. Also included are river reaches and
estuarine areas in the Columbia River from a straight line connecting
the west end of the Clatsop jetty (south jetty, Oregon side) and the
west end of the Peacock jetty (north jetty, Washington side) upstream to
the confluence with the Snake River. Excluded are areas above specific
dams identified in Table 21 to this part or above longstanding,
[[Page 193]]
naturally impassable barriers (i.e., Napias Creek Falls and other
natural waterfalls in existence for at least several hundred years).
(q) Lower Columbia River steelhead (Oncorhynchus mykiss) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed steelhead in Columbia River tributaries between the
Cowlitz and Wind Rivers in Washington and the Willamette and Hood Rivers
in Oregon, inclusive. Also included are river reaches and estuarine
areas in the Columbia River from a straight line connecting the west end
of the Clatsop jetty (south jetty, Oregon side) and the west end of the
Peacock jetty (north jetty, Washington side) upstream to the Hood River
in Oregon. Excluded are areas above specific dams identified in Table 22
to this part or above longstanding, naturally impassable barriers (i.e.,
natural waterfalls in existence for at least several hundred years).
(r) Upper Willamette River steelhead (Oncorhynchus mykiss)
geographic boundaries. Critical habitat is designated to include all
river reaches accessible to listed steelhead in the Willamette River and
its tributaries above Willamette Falls upstream to, and including, the
Calapooia River. Also included are river reaches and estuarine areas in
the Columbia River from a straight line connecting the west end of the
Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock
jetty (north jetty, Washington side) upstream to, and including, the
Willamette River in Oregon. Excluded are areas above specific dams
identified in Table 23 to this part or above longstanding, naturally
impassable barriers (i.e., natural waterfalls in existence for at least
several hundred years).
(s) Middle Columbia River steelhead (Oncorhynchus mykiss) geographic
boundaries. Critical habitat is designated to include all river reaches
accessible to listed steelhead in Columbia River tributaries (except the
Snake River) between Mosier Creek in Oregon and the Yakima River in
Washington (inclusive). Also included are river reaches and estuarine
areas in the Columbia River from a straight line connecting the west end
of the Clatsop jetty (south jetty, Oregon side) and the west end of the
Peacock jetty (north jetty, Washington side) upstream to the Yakima
River in Washington. Excluded are areas above specific dams identified
in Table 24 to this part or above longstanding, naturally impassable
barriers (i.e., natural waterfalls in existence for at least several
hundred years).
[65 FR 7777, Feb. 16, 2000]
Sec. 226.213 Critical habitat for Johnson's seagrass.
Critical habitat is designated to include substrate and water in the
following ten portions of the Indian River Lagoon and Biscayne Bay
within the current range of Johnson's seagrass.
(a) A portion of the Indian River, Florida, north of Sebastian Inlet
Channel, defined by the following coordinates:
Northwest corner: 27 deg.51'15.03"N, 80 deg.27'55.49"W
Northeast corner: 27 deg.51'16.57"N, 80 deg.27'53.05"W
Southwest corner: 27 deg.51'08.85"N, 80 deg.27'50.48"W
Southeast corner: 27 deg.51'11.58"N, 80 deg.27'47.35"W
(b) A portion of the Indian River, Florida, south of the Sebastian
Inlet Channel, defined by the following coordinates:
Northwest corner: 27 deg.51'01.32"N, 80 deg.27'46.10"W
Northeast corner: 27 deg.51'02.69"N, 80 deg.27'45.27"W
Southwest corner: 27 deg.50'59.08"N, 80 deg.27'41.84"W
Southeast corner: 27 deg.51'01.07"N, 80 deg.27'40.50"W
(c) A portion of the Indian River Lagoon in the vicinity of the Fort
Pierce Inlet. This site is located on the north side of the entrance
channel just west of a small mangrove vegetated island where the main
entrance channel bifurcates to the north. The area is defined by the
following coordinates:
Northwest corner: 27 deg.28'06.00"N, 80 deg.18'48.89"W
Northeast corner: 27 deg.28'04.43"N, 80 deg.18'42.25"W
Southwest corner: 27 deg.28'02.86"N, 80 deg.18'49.06"W
Southeast corner: 27 deg.28'01.46"N, 80 deg.18'42.42"W
(d) A portion of the Indian River Lagoon, Florida, north of the St.
Lucie Inlet, from South Nettles Island to the
[[Page 194]]
Florida Oceanographic Institute, defined by the following coordinates
and excluding the Federally-marked navigation channel of the
Intracoastal Waterway (ICW):
Northwest corner: 27 deg.16'44.04"N, 80 deg.14'00.00"W
Northeast corner: 27 deg.16'44.04"N, 80 deg.12'51.33"W
Southwest corner: 27 deg.12'49.70"N, 80 deg.11'46.80"W
Southeast corner: 27 deg.12'49.70"N, 80 deg.11'02.50"W
(e) Hobe Sound beginning at State Road 708 (27 deg.03'49.90"N,
80 deg.07'20.57"W) and extending south to 27 deg.00'00.00"N,
80 deg.05'32.54"W and excluding the federally-marked navigation channel
of the ICW.
(f) Jupiter Inlet at a site located just west of the entrance to
Zeek's Marina on the south side of Jupiter Inlet and defined by the
following coordinates (note a south central point was included to better
define the shape of the southern boundary):
Northwest corner: 26 deg.56'43.34"N, 80 deg.04'47.84"W
Northeast corner: 26 deg.56'40.93"N, 80 deg.04'42.61"W
Southwest corner: 26 deg.56'40.73"N, 80 deg.04'48.65"W
South central point: 26 deg.56'38.11"N, 80 deg.04'45.83"W
Southeast corner: 26 deg.56'38.31"N, 80 deg.04'42.41"W
(g) A portion of Lake Worth, Florida, just north of Bingham Island
defined by the following coordinates and excluding the Federally-marked
navigation channel of the ICW:
Northwest corner: 26 deg.40'44.00"N, 80 deg.02'39.00"W
Northeast corner: 26 deg.40'40.00"N, 80 deg.02'34.00"W
Southwest corner: 26 deg.40'32.00"N, 80 deg.02'44.00"W
Southeast corner: 26 deg.40'33.00"N, 80 deg.02'35.00"W
(h) A portion of Lake Worth Lagoon, Florida, located just north of
the Boynton Inlet, on the west side of the ICW, defined by the following
coordinates and excluding the Federally-marked navigation channel of the
ICW:
Northwest corner: 26 deg.33'28.00"N, 80 deg.02'54.00"W
Northeast corner: 26 deg.33'30.00"N, 80 deg.03'04.00"W
Southwest corner: 26 deg.32'50.00"N, 80 deg.03'11.00"W
Southeast corner: 26 deg.32'50.00"N, 80 deg.02'58.00"W
(i) A portion of northeast Lake Wyman, Boca Raton, Florida, defined
by the following coordinates and excluding the Federally-marked
navigation channel of the ICW:
Northwest corner: 26 deg.22'27.00"N, 80 deg.04'23.00"W
Northeast corner: 26 deg.22'27.00"N, 80 deg.04'18.00"W
Southwest corner: 26 deg.22'05.00"N, 80 deg.04'16.00"W
Southeast corner: 26 deg.22'05.00"N, 80 deg.04'18.00"W
(j) A portion of Northern Biscayne Bay, Florida, defined by the
following: The northern boundary of Biscayne Bay Aquatic Preserve, NE
163rd Street, and including all parts of the Biscayne Bay Aquatics
Preserve as defined in 18-18.002 of the Florida Administrative Code
(F.A.C.) excluding the Oleta River, Miami River and Little River beyond
their mouths, the federally-marked navigation channel of the ICW, and
all existing federally authorized navigation channels, basins, and
berths at the Port of Miami to the currently documented southernmost
range of Johnson's seagrass, Central Key Biscayne (25 deg.45'N).
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[65 FR 17795, Apr. 5, 2000]
Table 1 to Part 226--Major Stellar Sea Lion Rookery Sites
Major Steller sea lion rookery sites are identified in the following
table. Where two sets of coordinates are given, the baseline extends in
a clockwise direction from the first set of geographic coordinates along
the shoreline at mean lower-low water to the second set of coordinates.
Where only one set of coordinates is listed, that location is the base
point.
[[Page 204]]
----------------------------------------------------------------------------------------------------------------
Boundaries to--
State/region/site -------------------------------------------------------------------------------
Latitude Longitude Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
Western Aleutians:
Agattu I.:
Cape Sabak \1\...... 52 23.5N.......... 173 43.5E......... 52 22.0N.......... 173 41.0E
Gillon Point \1\.... 52 24.0N.......... 173 21.5E.........
Attu I.\1\.............. 52 54.5N.......... 172 28.5E......... 52 57.5N.......... 172 31.5E
Buldir I.\1\............ 52 20.5N.......... 175 57.0E......... 52 23.5N.......... 172 51.0E
Central Aleutians:
Adak I.\1\.............. 51 36.5N.......... 176 59.0W......... 51 38.0N.......... 176 59.5W
Agligadak I.\1\......... 52 06.5N.......... 172 54.0W.........
Amchitka I.:\1\
Column Rock \1\..... 51 32.5N.......... 178 49.5E.........
East Cape \1\....... 51 22.5N.......... 179 28.0E......... 51 21.5N.......... 179 25.0E
Ayugadak I.\1\.......... 51 45.5N.......... 178 24.5E.........
Gramp Rock \1\.......... 51 29.0N.......... 178 20.5W.........
Kasatochi I.\1\......... 52 10.0N.......... 175 31.5W......... 52 10.5N.......... 175 29.0W
Kiska I.:
Lief Cove \1\....... 51 57.5N.......... 177 21.0E......... 51 56.5N.......... 177 20.0E
Cape St. Stephen \1\ 51 52.5N.......... 177 13.0E......... 51 53.5N.......... 177 12.0E
Seguam I./Saddleridge 52 21.0N.......... 172 35.0W......... 52 21.0N.......... 172 33.0W
\1\.
Semisopochnoi I.:
Pochnoi Pt \1\...... 51 58.5N.......... 179 45.5E......... 51 57.0N.......... 179 46.0E
Petrel Pt \1\....... 52 01.5N.......... 179 37.5E......... 52 01.5E.......... 179 39.0E
Tag I.\1\............... 51 33.5N.......... 178 34.5W.........
Ulak I.\1\.............. 51 20.0N.......... 178 57.0W......... 51 18.5N.......... 178 59.5W
Yunaska I.\1\........... 52 42.0N.......... 170 38.5W......... 52 41.0N.......... 170 34.5W
Eastern Aleutian:
Adugak I.\1\............ 52 55.0N.......... 169 10.5W.........
Akun I./Billings Head 54 18.0N.......... 165 32.5W......... 54 18.0N.......... 165 31.5W
\1\.
Akutan I./Cape Morgan 54 03.5N.......... 166 00.0W......... 54 05.5N.......... 166 05.0W
\1\.
Bogoslof I.\1\ \2\...... 53 56.0N.......... 168 02.0W.........
Ogchul I.\1\............ 53 00.0N.......... 168 24.0W.........
Sea Lion Rocks. (Amak) 55 28.0N.......... 163 12.0W.........
\1\.
Ugamak I.\1\............ 54 14.0N.......... 164 48.0W......... 54 13.0N.......... 164 48.0W
Bering Sea:
Walrus I.\1\............ 57 11.0N.......... 169 56.0W.........
Western Gulf of Alaska:
Atkins I.\1\............ 55 03.5N.......... 159 18.5W.........
Chernabura I.\1\........ 54 47.5N.......... 159 31.0W......... 54 45.5N.......... 159 33.5W
Clubbing Rocks (N) \1\.. 54 43.0N.......... 162 26.5W.........
Clubbing Rocks (S) \1\.. 54 42.0N.......... 162 26.5W.........
Pinnacle Rock \1\....... 54 46.0N.......... 161 46.0W.........
Central Gulf of Alaska:
Chirikof I.\1\.......... 55 46.5N.......... 155 39.5W......... 55 46.5N.......... 155 43.0W
Chowiet I.\1\........... 56 00.5N.......... 156 41.5W......... 56 00.5N.......... 156 42.0W
Marmot I.\1\............ 58 14.5N.......... 151 47.5W......... 58 10.0N.......... 151 51.0W
Outer I.\1\............. 59 20.5N.......... 150 23.0W......... 59 21.0N.......... 150 24.5W
Sugarloaf I.\1\......... 58 53.0N.......... 152 02.0W.........
Eastern Gulf of Alaska:
Seal Rocks \1\.......... 60 10.0N.......... 146 50.0W.........
Fish I.\1\.............. 59 53.0N.......... 147 20.5W.........
Southeast Alaska:
Forrester I............. 54 51.0N.......... 133 32.0W......... 54 52.5N.......... 133 35.5W
Hazy I.................. 55 52.0N.......... 134 34.0W......... 55 51.5N.......... 134 35.0W
White Sisters........... 57 38.0N.......... 136 15.5W.........
Oregon:
Rogue Reef: Pyramid Rock.... 42 26.4N.......... 124 28.1W.........
Orford Reef:
Long Brown Rock......... 42 47.3N.......... 124 36.2W.........
Seal Rock............... 42 47.1N.......... 124 35.4W.........
California:
Ano Nuevo I................. 37 06.3N.......... 122 20.3W.........
Southeast Farallon I........ 37 41.3N.......... 123 00.1W.........
Sugarloaf I. & Cape 40 26.0N.......... 124 24.0W ........
Mendocino.
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.
[58 FR 45278, Aug. 27, 1993]
[[Page 205]]
Table 2 to Part 226--Major Stellar Sea Lion Haulout Sites in Alaska
Major Steller sea lion haulout sites in Alaska are identified in the
following table. Where two sets of coordinates are given, the baseline
extends in a clockwise direction from the first set of geographic
coordinates along the shoreline at mean lower-low water to the second
set of coordinates. Where only one set of coordinates is listed, that
location is the basepoint.
----------------------------------------------------------------------------------------------------------------
Boundaries to--
State/region/site -------------------------------------------------------------------------------
Latitude Longitude Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
Western Aleutians:
Alaid I.\1\............. 52 45.0N.......... 173 56.5E......... 52 46.5N.......... 173 51.5E
Attu/Chirikof Pt.\1\.... 52 30.0N.......... 173 26.7E......... .................. ..................
Shemya I.\1\............ 52 44.0N.......... 174 09.0E......... .................. ..................
Central Aleutians:
Amatignak I.\1\......... 51 13.0N.......... 179 08.0E......... .................. ..................
Amlia I:
East \1\............ 52 05.0N.......... 172 58.5W......... 52 06.0N.......... 172 57.0W
Sviech. Harbor \1\.. 52 02.0N.......... 173 23.0W......... .................. ..................
Amukta I. & Rocks \1\... 52 31.5N.......... 171 16.5W......... 52 26.5N.......... 171 16.5W
Anagaksik I.\1\......... 51 51.0N.......... 175 53.5W......... .................. ..................
Atka I.\1\.............. 52 23.5N.......... 174 17.0W......... 52 24.5N.......... 174 07.5W
Bobrof I.\1\............ 51 54.0N.......... 177 27.0W......... .................. ..................
Chagulak I.\1\.......... 52 34.0N.......... 171 10.5W......... .................. ..................
Chuginadak I.\1\........ 52 46.5N.......... 169 44.5W......... 52 46.5N.......... 169 42.0W
Great Sitkin I.\1\...... 52 06.0N.......... 176 10.5W......... 52 07.0N.......... 176 08.5W
Kagamil I.\1\........... 53 02.5N.......... 169 41.0W......... .................. ..................
Kanaga I:
North Cape \1\...... 51 56.5N.......... 177 09.0W......... .................. ..................
Ship Rock \1\....... 51 47.0N.......... 177 22.5W......... .................. ..................
Kavalga I.\1\........... 51 34.5N.......... 178 51.5W......... 51 34.5N.......... 178 49.5W
Kiska I./Sirius Pt.\1\.. 52 08.5N.......... 177 36.5E......... .................. ..................
Kiska I./Sobaka & Vega 51 50.0N.......... 177 20.0E......... 51 48.5N.......... 177 20.5E
\1\.
Little Sitkin I.\1\..... 51 59.5N.......... 178 30.0E......... .................. ..................
Little Tanaga I.\1\..... 51 50.5N.......... 176 13.0W......... 51 49.0N.......... 176 13.0W
Sagigik I.\1\........... 52 00.5N.......... 173 08.0W......... .................. ..................
Seguam I:
South \1\........... 52 19.5N.......... 172 18.0W......... 52 15.0N.......... 172 37.0W
Finch Pt.\1\........ 52 23.5N.......... 172 25.5W......... 52 23.5N.......... 172 24.0W
Segula I.\1\............ 52 00.0N.......... 178 06.5E......... 52 03.5N.......... 178 09.0E
Tanaga I.\1\............ 51 55.0N.......... 177 58.5W......... 51 55.0N.......... 177 57.0W
Tanadak I. (Amlia) \1\.. 52 04.5N.......... 172 57.0W......... .................. ..................
Tanadak I. (Kiska) \1\.. 51 57.0N.......... 177 47.0E......... .................. ..................
Ugidak I.\1\............ 51 35.0N.......... 178 30.5W......... .................. ..................
Uliaga I.\1\............ 53 04.0N.......... 169 47.0W......... 53 05.0N.......... 169 46.0W
Unalga & Dinkum Rocks 51 34.0N.......... 179 04.0W......... 51 34.5N.......... 179 03.0W
\1\.
Eastern Aleutians:
Akutan I./Reef-Lava \1\. 54 10.5N.......... 166 04.5W......... 54 07.5N.......... 166 06.5W
Amak I.\1\.............. 55 24.0N.......... 163 07.0W......... 55 26.0N.......... 163 10.0W
Cape Sedanka & Island 53 50.5N.......... 166 05.0W......... .................. ..................
\1\.
Emerald I.\1\........... 53 17.5N.......... 167 51.5W......... .................. ..................
Old Man Rocks \1\....... 53 52.0N.......... 166 05.0W......... .................. ..................
Polivnoi Rock \1\....... 53 16.0N.......... 167 58.0W......... .................. ..................
Tanginak I.\1\.......... 54 13.0N.......... 165 19.5W......... .................. ..................
Tigalda I.\1\........... 54 08.5N.......... 164 58.5W......... .................. ..................
Umnak I./Cape Aslik \1\. 53 25.0N.......... 168 24.5W......... .................. ..................
Bering Sea:
Cape Newenham \1\....... 58 39.0N.......... 162 10.5W......... .................. ..................
Hall I.\1\.............. 60 37.0N.......... 173 00.0W......... .................. ..................
Round I.\1\............. 58 36.0N.......... 159 58.0W......... .................. ..................
St. Paul I:
Northeast Point \1\. 57 15.0N.......... 170 06.5W......... .................. ..................
Sea Lion Rock \1\... 57 06.0N.......... 170 17.5W......... .................. ..................
St. George I:
S Rookery \1\....... 56 33.5N.......... 169 40.0W......... .................. ..................
Dalnoi Point \1\.... 56 36.0N.......... 169 46.0W......... .................. ..................
St. Lawrence I:
S Punuk I.\1\....... 64 04.0N.......... 168 51.0W......... .................. ..................
SW Cape \1\......... 63 18.0N.......... 171 26.0W......... .................. ..................
Western Gulf of Alaska:
Bird I. \1\............. 54 40.5N.......... 163 18.0W......... ................
Castle Rock \1\......... 55 17.0N.......... 159 30.0W......... .................. ..................
[[Page 206]]
Caton I.\1\............. 54 23.5N.......... 162 25.5W......... .................. ..................
Jude I.\1\.............. 55 16.0N.......... 161 06.0W......... .................. ..................
Lighthouse Rocks \1\.... 55 47.5N.......... 157 24.0W......... .................. ..................
Nagai I.\1\............. 54 52.5N.......... 160 14.0W......... 54 56.0N.......... 160 15.0W
Nagai Rocks \1\......... 55 50.0N.......... 155 46.0W......... .................. ..................
Sea Lion Rocks (Unga) 55 04.5N.......... 160 31.0W......... .................. ..................
\1\.
South Rock \1\.......... 54 18.0N.......... 162 43.5W......... .................. ..................
Spitz I.\1\............. 55 47.0N.......... 158 54.0W......... .................. ..................
The Whaleback \1\....... 55 16.5N.......... 160 06.0W......... .................. ..................
Central Gulf of Alaska:
Cape Barnabas \1\....... 57 10.0N.......... 152 55.0W......... 57 07.5N.......... 152 55.0W
Cape Chiniak \1\........ 57 35.0N.......... 152 09.0W......... 57 37.5N.......... 152 09.0W
Cape Gull \1\ \2\....... 58 13.5N.......... 154 09.5W......... 58 12.5N.......... 154 10.5W
Cape Ikolik \1\ \2\..... 57 17.0N.......... 154 47.5W......... .................. ..................
Cape Kuliak \1\ \2\..... 58 08.0N.......... 154 12.5W......... .................. ..................
Cape Sitkinak \1\....... 56 32.0N.......... 153 52.0W......... .................. ..................
Cape Ugat \1\ \2\....... 57 52.0N.......... 153 51.0W......... .................. ..................
Gore Point \1\.......... 59 12.0N.......... 150 58.0W......... .................. ..................
Gull Point \1\.......... 57 21.5N.......... 152 36.5W......... 57 24.5N.......... 152 39.0W
Latax Rocks \1\......... 58 42.0N.......... 152 28.5W......... 58 40.5N.......... 152 30.0W
Long I.\1\.............. 57 45.5N.......... 152 16.0W......... .................. ..................
Nagahut Rocks \1\....... 59 06.0N.......... 151 46.0W......... .................. ..................
Puale Bay \1\ \2\....... 57 41.0N.......... 155 23.0W......... .................. ..................
Sea Lion Rocks (Marmot) 58 21.0N.......... 151 48.5W......... .................. ..................
\1\.
Sea Otter I.\1\......... 58 31.5N.......... 152 13.0W......... .................. ..................
Shakun Rock \1\ \2\..... 58 33.0N.......... 153 41.5W......... .................. ..................
Sud I.\1\............... 58 54.0N.......... 152 12.5W......... .................. ..................
Sutwik I.\1\............ 56 32.0N.......... 157 14.0W......... 56 32.0N.......... 157 20.0W
Takli I. \1\ \2\........ 58 03.0N.......... 154 27.5W......... 58 03.0N.......... 154 30.0W
Two-headed I.\1\........ 56 54.5N.......... 153 33.0W......... 56 53.5N.......... 153 35.5W
Ugak I.\1\.............. 57 23.0N.......... 152 15.5W......... 57 22.0N.......... 152 19.0W
Ushagat I. \1\.......... 58 55.0N.......... 152 22.0W......... ................
Eastern Gulf of Alaska:
Cape Fairweather........ 58 47.5N.......... 137 56.3W......... ................
Cape St. Elias \1\...... 59 48.0N.......... 144 36.0W......... .................. ..................
Chiswell Islands \1\.... 59 36.0N.......... 149 34.0W......... .................. ..................
Graves Rock............. 58 14.5N.......... 136 45.5W.........
Hook Point \1\.......... 60 20.0N.......... 146 15.5W......... .................. ..................
Middleton I.\1\......... 59 26.5N.......... 146 20.0W......... .................. ..................
Perry I.\1\............. 60 39.5N.......... 147 56.0W......... .................. ..................
Point Eleanor \1\....... 60 35.0N.......... 147 34.0W......... .................. ..................
Point Elrington \1\..... 59 56.0N.......... 148 13.5W......... .................. ..................
Seal Rocks \1\.......... 60 10.0N.......... 146 50.0W......... .................. ..................
The Needle \1\.......... 60 07.0N.......... 147 37.0W......... .................. ..................
Southeast Alaska:
Benjamin I.............. 58 33.5N.......... 134 54.5W......... .................. ..................
Biali Rock.............. 56 43.0N.......... 135 20.5W......... .................. ..................
Biorka I................ 56 50.0N.......... 135 34.0W......... ................
Cape Addington.......... 55 26.5N.......... 133 49.5W......... ................
Cape Cross.............. 57 55.0N.......... 136 34.0W.........
Cape Ommaney............ 56 10.5N.......... 134 42.5W.........
Coronation I............ 55 56.0N.......... 134 17.0W.........
Gran Point.............. 59 08.0N.......... 135 14.5W.........
Lull Point.............. 57 18.5N.......... 134 48.5W.........
Sunset I................ 57 30.5N.......... 133 35.0W......... .................. ..................
Timbered I.............. 55 42.0N.......... 133 48.0W......... .................. ..................
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas.
[58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]
Table 3 to Part 226--Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and Snake River
Spring/Summer and Fall Chinook Salmon
----------------------------------------------------------------------------------------------------------------
Hydrologic unit number
-----------------------------------------------------------------------------
Hydrologic unit name Spring/summer chinook
Sockeye salmon salmon Fall chinook salmon
----------------------------------------------------------------------------------------------------------------
Hells Canyon...................... ........................ 17060101 17060101
[[Page 207]]
Imnaha............................ ........................ 17060102 17060102
Lower Snake--Asotin............... 17060103 17060103 17060103
Upper Grande Ronde................ ........................ 17060104 ........................
Wallowa........................... ........................ 17060105 ........................
Lower Grande Ronde................ ........................ 17060106 17060106
Lower Snake--Tucannon............. 17060107 17060107 17060107
Palouse........................... ........................ ........................ 17060108
Lower Snake....................... 17060110 17060110 17060110
Upper Salmon...................... 17060201 17060201 ........................
Pahsimeroi........................ ........................ 17060202 ........................
Middle Salmon--Panther............ 17060203 17060203 ........................
Lemhi............................. ........................ 17060204 ........................
Upper Middle Fork Salmon.......... ........................ 17060205 ........................
Lower Middle Fork Salmon.......... ........................ 17060206 ........................
Middle Salmon--Chamberlain........ 17060207 17060207 ........................
South Fork Salmon................. ........................ 17060208 ........................
Lower Salmon...................... 17060209 17060209 17060209
Little Salmon..................... ........................ 17060210 ........................
Clearwater........................ ........................ ........................ 17060306
Lower North Fork Clearwater....... ........................ ........................ 17060308
----------------------------------------------------------------------------------------------------------------
\1\ Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS);
State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974.
[58 FR 68552, Dec. 28, 1993]
Table 4 [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
----------------------------------------------------------------------------------------------------------------
Counties and tribal lands
Hydrologic contained in hydrologic unit
Hydrologic unit name unit No. and within the range of ESU1 Dams (reservoirs)
2
----------------------------------------------------------------------------------------------------------------
San Lorenzo-Soquel................... 18060001 Santa Cruz (CA), San Mateo Newell Dam (Loch Lomond).
(CA).
San Francisco Coastal South.......... 18050006 San Mateo (CA)...............
San Pablo Bay........................ 18050002 Marin (CA), Napa (CA)........ Phoenix Dam (Phoenix Lake).
Tomales-Drake Bays................... 18050005 Marin (CA), Sonoma (CA)...... Peters Dam (Kent Lake);
Seeger Dam (Nicasio
Reservoir).
Bodega Bay........................... 18010111 Marin (CA), Sonoma (CA)......
Russian.............................. 18010110 Sonoma (CA), Mendocino (CA)-- Warm Springs Dam (Lake
Cloverdale Rancheria; Coyote Sonoma); Coyote Dam (Lake
Valley Rancheria; Dry Creek Mendocino).
Rancheria; Guidiville
Rancheria; Hopland
Rancheria; Lytton Rancheria;
Pinoleville Rancheria;
Stewarts Point Rancheria.
Gualala-Salmon....................... 18010109 Sonoma (CA), Mendocino (CA)..
Big-Navarro-Garcia................... 18010108 Mendocino (CA)--Manchester/
Point Arena Rancheria;.
----------------------------------------------------------------------------------------------------------------
1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical
habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and
basin boundaries.
2 Tribal lands are specifically excluded from critical habitat for this ESU.
[64 FR 24061, May 5, 1999]
[[Page 208]]
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
----------------------------------------------------------------------------------------------------------------
Counties and tribal lands
Hydrologic contained in hydrologic unit
Hydrologic unit name unit No. and within the range of ESU1 Dams (reservoirs)
2
----------------------------------------------------------------------------------------------------------------
Mattole.............................. 18010107 Humboldt (CA), Mendocino (CA)
South Fork Eel....................... 18010106 Mendocino (CA), Humboldt
(CA)--Laytonville Rancheria;
Sherwood Valley Rancheria.
Lower Eel............................ 18010105 Mendocino (CA), Humboldt
(CA), Trinity (CA).
Middle Fork Eel...................... 18010104 Mendocino (CA), Trinity (CA),
Glenn (CA), Lake (CA)--Round
Valley Reservation.
Upper Eel............................ 18010103 Mendocino (CA), Glenn (CA), Scott Dam (Lake Pillsbury).
Lake (CA).
Mad-Redwood.......................... 18010102 Humboldt (CA), Trinity (CA)--
Big Lagoon Rancheria; Blue
Lake Rancheria.
Smith................................ 18010101 Del Norte (CA), Curry (OR)--
Elk Valley Rancheria; Smith
River Rancheria.
South Fork Trinity................... 18010212 Humboldt (CA), Trinity (CA)..
Trinity.............................. 18010211 Humboldt (CA), Trinity (CA)-- Lewiston Dam (Lewiston
Hoopa Valley Reservation. Reservoir).
Salmon............................... 18010210 Siskiyou (CA)................
Lower Klamath........................ 18010209 Del Norte (CA), Humboldt
(CA), Siskiyou (CA)--Karuk
Reservation; Resighini
Rancheria; Yurok Reservation.
Scott................................ 18010208 Siskiyou (CA)--Quartz Valley
Reservation.
Shasta............................... 18010207 Siskiyou (CA)................ Dwinnell Dam (Dwinnell
Reservoir).
Upper Klamath........................ 18010206 Siskiyou (CA), Jackson (OR).. Irongate Dam (Irongate
Reservoir).
Chetco............................... 17100312 Curry (OR), Del Norte (CA)...
Illinois............................. 17100311 Curry (OR), Josephine (OR), Selmac Lake Dam (Lake
Del Norte (CA). Selmac).
Lower Rogue.......................... 17100310 Curry (OR), Josephine (OR),
Jackson (OR).
Applegate............................ 17100309 Josephine (OR), Jackson (OR), Applegate Dam (Applegate
Siskiyou (CA). Reservoir).
Middle Rogue......................... 17100308 Josephine (OR), Jackson (OR). Emigrant Lake Dam (Emigrant
Lake).
Upper Rogue.......................... 17100307 Jackson (OR), Klamath (OR), Agate Lake Dam (Agate Lake);
Douglas (OR). Fish Lake Dam (Fish Lake);
Willow Lake Dam (Willow
Lake); Lost Creek Dam (Lost
Creek Reservoir).
Sixes................................ 17100306 Curry (OR)...................
----------------------------------------------------------------------------------------------------------------
1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical
habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and
basin boundaries.
2 Tribal lands are specifically excluded from critical habitat for this ESU.
[64 FR 24061, May 5, 1999]
Table 7 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Puget Sound Chinook Salmon,
and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Strait of Georgia........................ 17110002 Skagit (WA), Whatcom (WA)..
Sand Juan Islands........................ 17110003 San Juan (WA)..............
Nooksack................................. 17110004 Skagit (WA), Whatcom (WA)..
Upper Skagit............................. 17110005 Skagit (WA), Whatcom (WA)..
Sauk..................................... 17110006 Snohomish (WA), Skagit (WA)
Lower Skagit............................. 17110007 Skagit (WA), Snohomish (WA)
Stillaguamish............................ 17110008 Snohomish (WA), Skagit (WA)
Skykomish................................ 17110009 King (WA), Snohomish (WA)..
Snoqualmie............................... 17110010 King (WA), Snohomish (WA).. Tolt Dam
Snohomish................................ 17110011 Snohomish (WA).............
Lake Washington.......................... 17110012 King (WA), Snohomish (WA).. Landsburg Diversion
Duwamish................................. 17110013 King (WA)..................
Puyallup................................. 17110014 King (WA), Pierce (WA).....
Nisqually................................ 17110015 Pierce (WA), Thurston (WA). Alder Dam
Deschutes................................ 17110016 Lewis (WA), Thurston (WA)..
[[Page 209]]
Skokomish................................ 17110017 Grays Harbor (WA),
Jefferson (WA), Mason (WA).
Hood Canal............................... 17110018 Clallam (WA), Jefferson
(WA), Kitsap (WA), Mason
(WA).
Puget Sound.............................. 17110019 Island (WA), Jefferson
(WA), King (WA), Kitsap
(WA), Mason (WA), Pierce
(WA), Skagit (WA),
Snohomish (WA), Thurston
(WA).
Dungeness-Elwha.......................... 17110020 Clallam (WA), Jefferson Elwha Dam
(WA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7779, Feb. 16, 2000]
Table 8 to Part 226 --Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River Chinook
Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Middle Columbia-Hood..................... 17070105 Hood River (OR), Klickitat Condit Dam, The Dalles Dam
(WA), Skamania (WA), Wasco
(OR).
Lower Columbia-Sandy..................... 17080001 Clackamas (OR), Clark (WA), Bull Run Dam 2
Multnomah (OR), Skamania
(WA).
Lewis.................................... 17080002 Clark (WA), Cowlitz (WA), Merwin Dam
Skamania (WA).
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(OR), Cowlitz (WA), Lewis
(WA), Skamania (WA),
Wahkiakum (WA).
Upper Cowlitz............................ 17080004 Lewis (WA), Pierce (WA),
Skamania (WA), Yakima (WA).
Lower Cowlitz............................ 17080005 Cowlitz (WA), Lewis (WA),
Skamania (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Clackamas................................ 17090011 Clackamas (OR), Marion (OR)
Lower Willamette......................... 17090012 Clackamas (OR), Columbia
(OR), Multnomah (OR),
Washington (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7780, Feb. 16, 2000]
Table 9 to Part 226 --Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River
Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Lower Columbia-Sandy..................... 17080001 Clark (WA).................
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(OR), Cowlitz (WA),
Wahkiakum (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Middle Fork Willamette................... 17090001 Douglas (OR), Lane (OR)....
Coast Fork Willamette.................... 17090002 Douglas (OR), Lane (OR).... Cottage Grove Dam, Dorena
Dam
Upper Willamette......................... 17090003 Benton (OR), Lane (OR), Fern Ridge Dam
Lincoln (OR), Linn (OR),
Polk (OR).
McKenzie................................. 17090004 Lane (OR), Linn (OR)....... Blue River Dam
[[Page 210]]
North Santiam............................ 17090005 Clackamas (OR), Linn (OR) Big Cliff Dam
Marion (OR).
South Santiam............................ 17090006 Linn (OR).................. Green Peter Dam
Middle Willamette........................ 17090007 Clackamas (OR), Marion
(OR), Polk (OR),
Washington (OR), Yamhill
(OR).
Yamhill.................................. 17090008 Lincoln (OR), Polk (OR),
Tillamook (OR), Yamhill
(OR).
Molalla-Pudding.......................... 17090009 Clackamas (OR), Marion (OR)
Tualatin................................. 17090010 Clackamas (OR), Columbia
(OR), Multnomah (OR),
Tillamook (OR), Washington
(OR), Yamhill (OR).
Clackamas................................ 17090011 Clackamas (OR), Marion (OR)
Lower Willamette......................... 17090012 Clackamas (OR), Columbia
(OR), Multnomah (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7780, Feb. 16, 2000]
Table 10 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River Spring-
run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Chief Joseph............................. 17020005 Chelan (WA), Douglas (WA), Chief Joseph
Okanogan (WA).
Similkameen.............................. 17020007 Okanogan (WA)..............
Methow................................... 17020008 Okanogan (WA)..............
Upper Columbia-Entiat.................... 17020010 Chelan (WA), Douglas (WA),
Grant (WA), Kittitas (WA).
Wenatchee................................ 17020011 Chelan (WA)................
Upper Columbia-Priest Rapids............. 17020016 Benton (WA), Grant (WA),
Franklin (WA), Kittitas
(WA), Yakima (WA).
Middle Columbia-Lake Wallula............. 17070101 Benton (WA), Gilliam (OR),
Klickitat (WA), Morrow
(OR), Sherman (OR),
Umatilla (OR), Walla Walla
(WA).
Middle Columbia-Hood..................... 17070105 Hood River (OR), Klickitat
(WA), Sherman (OR),
Skamania (WA), Wasco (OR).
Lower Columbia-Sandy..................... 17080001 Clark (WA), Multnomah (OR),
Skamania (WA).
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(OR), Cowlitz (WA),
Wahkiakum (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Lower Willamette......................... 17090012 Columbia (OR), Multnomah
(OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7781, Feb. 16, 2000]
Table 11 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central Valley California
Spring-run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Sacramento-Lower Cow-Lower Clear......... 18020101 Shasta (CA), Tehama (CA)...
[[Page 211]]
Lower Cottonwood......................... 18020102 Shasta (CA), Tehama (CA)...
Sacramento-Lower Thomes.................. 18020103 Butte (CA), Glenn (CA), Black Butte Dam
Tehama (CA).
Sacramento-Stone Corral.................. 18020104 Butte (CA), Colusa (CA),
Glenn (CA), Sutter (CA),
Yolo (CA).
Lower Butte.............................. 18020105 Butte (CA), Colusa (CA), Centerville Dam
Glenn (CA), Sutter (CA).
Lower Feather............................ 18020106 Butte (CA), Sutter (CA), Oroville Dam
Yuba (CA).
Lower Yuba............................... 18020107 Yuba (CA)..................
Lower Bear............................... 18020108 Placer (CA), Sutter (CA), Camp Far West Dam
Yuba (CA).
Lower Sacramento......................... 18020109 Sacramento (CA), Solano
(CA), Sutter (CA), Placer
(CA), Yolo (CA).
Sacramento-Upper Clear................... 18020112 Shasta (CA)................ Keswick Dam, Whiskeytown
Dam
Upper Elder-Upper Thomes................. 18020114 Tehama (CA)................
Upper Cow-Battle......................... 18020118 Shasta (CA), Tehama (CA)...
Mill-Big Chico........................... 18020119 Butte (CA), Shasta (CA),
Tehama (CA).
Upper Butte.............................. 18020120 Butte (CA), Tehama (CA)....
Upper Yuba............................... 18020125 Nevada (CA), Yuba (CA)..... Englebright Dam
Suisun Bay............................... 18050001 Contra Costa (CA), Napa
(CA), Solano (CA).
San Pablo Bay............................ 18050002 Alameda (CA), Contra Costa
(CA), Marin (CA), Napa
(CA), San Mateo (CA),
Solano (CA), Sonoma (CA).
San Francisco Bay........................ 18050004 Alameda (CA), Contra Costa
(CA), Marin (CA), San
Francisco (CA), San Mateo
(CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7781, Feb. 16, 2000]
Table 12 to Part 226 --Hydrologic Units and Counties Containing Critical Habitat for California Coastal Chinook
Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Mad-Redwood.............................. 18010102 Humboldt (CA), Trinity (CA)
Upper Eel................................ 18010103 Glenn (CA), Lake (CA), Scott Dam
Mendocino (CA), Trinity
(CA).
Middle Fork Eel.......................... 18010104 Humboldt (CA), Mendocino
(CA), Trinity (CA).
Lower Eel................................ 18010105 Humboldt (CA), Mendocino
(CA).
South Fork Eel........................... 18010106 Humboldt (CA), Mendocino
(CA).
Mattole.................................. 18010107 Humboldt (CA), Mendocino
(CA).
Big-Navarro-Garcia....................... 18010108 Mendocino (CA).............
Gualala-Salmon........................... 18010109 Mendocino (CA), Sonoma (CA)
Russian.................................. 18010110 Mendocino (CA), Sonoma (CA) Coyote Dam, Warm Springs
Dam
Bodega Bay............................... 18010111 Marin (CA), Sonoma (CA)....
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7782, Feb. 16, 2000]
[[Page 212]]
Table 13 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Hood Canal Summer-run Chum
Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Skokomish................................ 17110017 Mason (WA)................. Cushman Dam
Hood Canal............................... 17110018 Clallam (WA), Jefferson
(WA), Kitsap (WA), Mason
(WA).
Puget Sound.............................. 17110019 Island (WA), Jefferson
(WA), Kitsap (WA).
Dungeness-Elwha.......................... 17110020 Clallam (WA), Jefferson
(WA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7782, Feb. 16, 2000]
Table 14 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Columbia River Chum Salmon,
and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Lower Columbia - Sandy................... 17080001 Clark (WA), Skamania (WA), Bonneville Dam
Multnomah (OR).
Lewis.................................... 17080002 Cowlitz (WA), Clark (WA), Merwin Dam
Skamania (WA).
Lower Columbia - Clatskanie.............. 17080003 Wahkiakum (WA), Lewis (WA),
Cowlitz (WA), Skamania
(WA), Clatsop (OR),
Columbia (OR).
Lower Cowlitz............................ 17080005 Cowlitz (WA), Lewis (WA),
Skamania (WA).
Lower Columbia........................... 17080006 Pacific (WA), Wahkiakum
(WA), Lewis (WA), Clatsop
(OR).
Lower Willamette......................... 17090012 Columbia (OR), Multnomah
(OR), Washington (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7782, Feb. 16, 2000]
Table 15 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Oregon Coast Coho Salmon,
and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within the range Dams/Reservoirs
Unit number of ESUX
----------------------------------------------------------------------------------------------------------------
Necanicum................................ 17100201 Clatsop (OR), Tillamook
(OR).
Nehalem.................................. 17100202 Clatsop (OR), Columbia
(OR), Tillamook (OR),
Washington (OR).
Wilson-Trask-Nestucca.................... 17100203 Lincoln (OR), Polk (OR), McGuire Dam
Tillamook (OR), Washington
(OR), Yamhill (OR).
Siletz-Yaquina........................... 17100204 Benton (OR), Lincoln (OR),
Polk (OR), Tillamook (OR).
Alsea.................................... 17100205 Benton (OR), Lane (OR),
Lincoln (OR).
Siuslaw.................................. 17100206 Benton (OR), Douglas (OR),
Lane (OR).
Siltcoos................................. 17100207 Douglas (OR), Lane (OR)....
North Umpqua............................. 17100301 Douglas (OR), Lane (OR).... Cooper Creek Dam, Soda
Springs Dam
South Umpqua............................. 17100302 Coos (OR), Douglas (OR), Ben Irving Dam, Galesville
Josephine (OR). Dam, Win Walker Reservoir
Umpqua................................... 17100303 Coos (OR), Douglas (OR),
Lane (OR).
Coos..................................... 17100304 Coos (OR), Douglas (OR).... Lower Pony Creek Dam
[[Page 213]]
Coquille................................. 17100305 Coos (OR), Curry (OR),
Douglas (OR).
Sixes.................................... 17100306 Coos (OR), Curry (OR)......
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7782, Feb. 16, 2000]
Table 16 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Southern California
Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Cuyama................................... 18060007 San Luis Obispo (CA), Santa
Barbara (CA).
Santa Maria.............................. 18060008 San Luis Obispo (CA), Santa Vaquero Dam
Barbara (CA).
San Antonio.............................. 18060009 Santa Barbara (CA).........
Santa Ynez............................... 18060010 Santa Barbara (CA)......... Bradbury Dam
Santa Barbara Coastal.................... 18060013 Santa Barbara (CA), Ventura
(CA).
Ventura.................................. 18070101 Santa Barbara (CA), Ventura Casitas Dam, Robles Dam
(CA).
Santa Clara.............................. 18070102 Los Angeles (CA), Santa Santa Felicia Dam
Barbara (CA), Ventura (CA).
Santa Monica Bay......................... 18070104 Los Angeles (CA), Ventura Rindge Dam
(CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7783, Feb. 16, 2000]
Table 17 to Part 226.--Hydrologic Units and Counties Containing Critical Habitat for South-Central California
Coast Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Pajaro................................... 18060002 Monterey (CA), San Benito Chesbro Reservoir, North
(CA), Santa Clara (CA), Fork Pacheco Reservoir
Santa Cruz (CA).
Estrella................................. 18060004 Monterey (CA), San Luis
Obispo (CA).
Salinas.................................. 18060005 Monterey (CA), San Benito Nacimiento Reservoir,
(CA), San Luis Obispo (CA). Salinas Dam, San Antonio
Reservoir
Central Coastal.......................... 18060006 Monterey (CA), San Luis Lopez Dam, Whale Rock
Obispo (CA). Reservoir
Alisal-Elkhorn Sloughs................... 18060011 Monterey (CA), San Benito
(CA).
Carmel................................... 18060012 Monterey (CA)..............
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7783, Feb. 16, 2000]
[[Page 214]]
Table 18 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central California Coast
Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Russian.................................. 18010110 Mendocino (CA), Sonoma (CA) Coyote Dam, Warm Springs
Dam
Bodega Bay............................... 18010111 Marin (CA), Sonoma (CA)....
Suisun Bay............................... 18050001 Contra Costa (CA), Napa
(CA), Solano (CA).
San Pablo Bay............................ 18050002 Alameda (CA), Contra Costa Phoenix Dam, San Pablo Dam
(CA), Marin (CA), Napa
(CA), San Francisco (CA),
Solano (CA), Sonoma (CA).
Coyote................................... 18050003 Alameda (CA), San Mateo Almaden Reservoir, Anderson
(CA), Santa Clara (CA). Reservoir, Calero
Reservoir, Guadalupe
Reservoir, Searsville
Lake, Stevens Creek
Reservoir, Vasona
Reservoir
San Francisco Bay........................ 18050004 Alameda (CA), Contra Costa Calaveras Reservoir, Chabot
(CA), San Francisco (CA), Dam, Crystal Springs
San Mateo (CA), Santa Reservoir, Del Valle
Clara (CA). Reservoir, San Antonio
Reservoir
Tomales-Drake Bays....................... 18050005 Marin (CA), Sonoma (CA).... Peters Dam, Seeger Dam,
Soulejule Dam
San Francisco Coastal South.............. 18050006 San Mateo (CA)............. Pilarcitos Dam
San Lorenzo-Soquel....................... 18060001 San Mateo (CA), Santa Cruz Newell Dam
(CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7783, Feb. 16, 2000]
Table 19 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central Valley Steelhead,
and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Sacramento-Lower Cow-Lower Clear......... 18020101 Shasta (CA), Tehama (CA)...
Lower Cottonwood......................... 18020102 Shasta (CA), Tehama (CA)...
Sacramento-Lower Thomes.................. 18020103 Butte (CA), Glenn (CA), Black Butte Dam
Tehama (CA).
Sacramento-Stone Corral.................. 18020104 Butte (CA), Colusa (CA),
Glenn (CA), Sutter (CA),
Yolo (CA).
Lower Butte.............................. 18020105 Butte (CA), Colusa (CA), Centerville Dam
Glenn (CA), Sutter (CA).
Lower Feather............................ 18020106 Butte (CA), Sutter (CA), Oroville Dam
Yuba (CA).
Lower Yuba............................... 18020107 Yuba (CA)..................
Lower Bear............................... 18020108 Placer (CA), Sutter (CA), Camp Far West Dam
Yuba (CA).
Lower Sacramento......................... 18020109 Placer (CA), Sacramento Monticello Dam
(CA), Solano (CA), Sutter
(CA), Yolo (CA).
Lower Cache.............................. 18020110 Yolo (CA)..................
Lower American........................... 18020111 Placer (CA), Sacramento Nimbus Dam
(CA), Sutter (CA).
Sacramento-Upper Clear................... 18020112 Shasta (CA)................ Keswick Dam, Whiskeytown
Dam
Cottonwood Headwaters.................... 18020113 Shasta (CA), Tehama (CA)...
Upper Elder-Upper Thomes................. 18020114 Tehama (CA)................
Upper Cow-Battle......................... 18020118 Shasta (CA), Tehama (CA)...
Mill-Big Chico........................... 18020119 Butte (CA), Shasta (CA),
Tehama (CA).
Upper Butte.............................. 18020120 Butte (CA), Tehama (CA)....
Honcut Headwaters........................ 18020124 Butte (CA), Yuba (CA)......
Upper Yuba............................... 18020125 Yuba (CA), Nevada (CA)..... Englebright Dam
Upper Coon-Upper Auburn.................. 18020127 Placer (CA)................
Middle San Joaquin-Lower Merced-Lower 18040002 Calaveras (CA), Merced Crocker Diversion Dam, La
Stanislaus. (CA), San Joaquin (CA), Grange Dam
Stanislaus (CA).
San Joaquin Delta........................ 18040003 Alameda (CA), Contra Costa
(CA), Sacramento (CA), San
Joaquin (CA).
Lower Calaveras-Mormon Slough............ 18040004 Calaveras (CA), San Joaquin
(CA), Stanislaus (CA).
[[Page 215]]
Lower Consumnes-Lower Mokelumne.......... 18040005 Amador (CA), Sacramento Comanche Dam
(CA), San Joaquin (CA).
Upper Stanislaus......................... 18040010 Calaveras (CA), San Joaquin Goodwin Dam
(CA), Tuolumne (CA).
Upper Calaveras.......................... 18040011 Calaveras (CA)............. New Hogan Dam
Panoche-San Luis Reservoir............... 18040014 San Joaquin (CA),
Stanislaus (CA).
Suisun Bay............................... 18050001 Contra Costa (CA), Solano
(CA).
San Pablo Bay............................ 18050002 Contra Costa (CA), Marin
(CA), San Francisco (CA),
Solano (CA), Sonoma (CA).
San Francisco Bay........................ 18050004 Alameda (CA), Contra Costa
(CA), San Francisco (CA),
San Mateo (CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7784, Feb. 16, 2000]
Table 20 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River
Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Chief Joseph............................. 17020005 Chelan (WA), Douglas (WA), Chief Joseph Dam
Okanogan (WA).
Okanogan................................. 17020006 Okanogan (WA)..............
Similkameen.............................. 17020007 Okanogan (WA)..............
Methow................................... 17020008 Okanogan (WA)..............
Upper Columbia-Entiat.................... 17020010 Chelan (WA), Douglas (WA),
Grant (WA), Kittitas (WA).
Wenatchee................................ 17020011 Chelan (WA)................
Moses Coulee............................. 17020012 Douglas (WA), Grant (WA)...
Upper Columbia-Priest Rapids............. 17020016 Benton (WA), Franklin (WA),
Grant (WA), Kittitas (WA),
Yakima (WA).
Middle Columbia-Lake Wallula............. 17070101 Benton (WA), Gilliam (OR),
Klickitat (WA), Morrow
(OR), Sherman (OR),
Umatilla (OR), Walla Walla
(WA).
Middle Columbia-Hood..................... 17070105 Hood River (OR), Klickitat
(WA), Sherman (OR),
Skamania (WA), Wasco (OR).
Lower Columbia-Sandy..................... 17080001 Clark (WA), Multnomah (OR),
Skamania (WA).
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(WA), Cowlitz (WA),
Wahkiakum (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Lower Willamette......................... 17090012 Columbia (OR), Multnomah
(OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7784, Feb. 16, 2000]
[[Page 216]]
Table 21 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Snake River Basin Steelhead,
and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Hells Canyon............................. 17060101 Adams (ID), Idaho (ID), Hells Canyon Dam
Wallowa (OR).
Imnaha................................... 17060102 Baker (OR), Union (OR),
Wallowa (OR).
Lower Snake-Asotin....................... 17060103 Asotin (WA), Garfield (WA),
Nez Perce (ID), Wallowa
(OR).
Upper Grande Ronde....................... 17060104 Umatilla (OR), Union (OR),
Wallowa (OR).
Wallowa.................................. 17060105 Union (OR), Wallowa (OR)...
Lower Grande Ronde....................... 17060106 Asotin (WA), Columbia (WA),
Garfield (WA), Union (OR),
Wallowa (OR).
Lower Snake-Tucannon..................... 17060107 Asotin (WA), Columbia (WA),
Garfield (WA), Whitman
(WA).
Palouse.................................. 17060108 Franklin (WA), Whitman (WA)
Lower Snake.............................. 17060110 Columbia (WA), Franklin
(WA), Walla Walla (WA).
Upper Salmon............................. 17060201 Blaine (ID), Custer (ID),
Lemhi (ID).
Pahsimeroi............................... 17060202 Custer (ID), Lemhi (ID)....
Middle Salmon-Panther.................... 17060203 Custer (ID), Lemhi (ID)....
Lemhi.................................... 17060204 Lemhi (ID).................
Upper Middle Fork Salmon................. 17060205 Boise (ID), Custer (ID),
Lemhi (ID), Valley (ID).
Lower Middle Fork Salmon................. 17060206 Idaho (ID), Lemhi (ID),
Valley (ID).
Middle Salmon-Chamberlain................ 17060207 Idaho (ID), Lemhi (ID),
Valley (ID).
South Fork Salmon........................ 17060208 Idaho (ID), Valley (ID)....
Lower Salmon............................. 17060209 Idaho (ID), Lewis (ID), Nez
Perce (ID).
Little Salmon............................ 17060210 Adams (ID), Idaho (ID).....
Upper Selway............................. 17060301 Idaho (ID).................
Lower Selway............................. 17060302 Idaho (ID).................
Lochsa................................... 17060303 Clearwater (ID), Idaho (ID)
Middle Fork Clearwater................... 17060304 Idaho (ID).................
South Fork Clearwater.................... 17060305 Idaho (ID).................
Clearwater............................... 17060306 Clearwater (ID), Idaho
(ID), Latah (ID), Lewis
(ID), Nez Perce (ID),
Whitman (WA).
Lower North Fork Clearwater.............. 17060308 Clearwater (ID)............ Dworshak Dam
Middle Columbia-Lake Wallula............. 17070101 Benton (WA), Gilliam (OR),
Klickitat (WA), Morrow
(OR), Sherman (OR),
Umatilla (OR), Walla Walla
(WA).
Middle Columbia-Hood..................... 17070105 Hood River (OR), Klickitat
(WA), Sherman (OR),
Skamania (WA), Wasco (OR).
Lower Columbia-Sandy..................... 17080001 Clark (WA), Multnomah (OR),
Skamania (WA).
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(WA), Cowlitz (WA),
Wahkiakum (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Lower Willamette......................... 17090012 Columbia (OR), Multnomah
(OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7785, Feb. 16, 2000]
Table 22 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River
Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Middle Columbia-Hood..................... 17070105 Hood River (OR), Skamania
(WA).
[[Page 217]]
Lower Columbia-Sandy..................... 17080001 Clackamas (OR), Clark (WA), Bull Run Dam 2
Multnomah (OR), Skamania
(WA).
Lewis.................................... 17080002 Clark (WA), Cowlitz (WA), Merwin Dam
Skamania (WA).
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(OR), Cowlitz (WA),
Skamania (WA), Wahkiakum
(WA).
Lower Cowlitz............................ 17080005 Cowlitz (WA), Lewis (WA),
Skamania (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Clackamas................................ 17090011 Clackamas (OR), Marion (OR)
Lower Willamette......................... 17090012 Clackamas (OR), Columbia
(OR), Multnomah (OR),
Washington (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7786, Feb. 16, 2000]
Table 23 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River
Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Lower Columbia-Sandy..................... 17080001 Clark (WA).................
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(WA), Cowlitz (WA),
Wahkiakum (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Upper Willamette......................... 17090003 Benton (OR), Linn (OR),
Polk (OR).
North Santiam............................ 17090005 Clackamas (OR), Linn (OR), Big Cliff Dam
Marion (OR).
South Santiam............................ 17090006 Linn (OR).................. Green Peter Dam
Middle Willamette........................ 17090007 Clackamas (OR), Marion
(OR), Polk (OR),
Washington (OR), Yamhill
(OR).
Yamhill.................................. 17090008 Lincoln (OR), Polk (OR),
Tillamook (OR), Yamhill
(OR).
Molalla-Pudding.......................... 17090009 Clackamas (OR), Marion (OR)
Tualatin................................. 17090010 Clackamas (OR), Columbia
(OR), Multnomah (OR),
Tillamook (OR), Washington
(OR), Yamhill (OR).
Lower Willamette......................... 17090012 Clackamas (OR), Columbia
(OR), Multnomah (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7786, Feb. 16, 2000]
Table 24 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Middle Columbia River
Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
Counties1 within Hydrologic
Hydrologic Unit name Hydrologic Unit and within range of Dams/Reservoirs
Unit number ESU
----------------------------------------------------------------------------------------------------------------
Upper Columbia-Priest Rapids............. 17020016 Benton (WA), Franklin (WA).
Upper Yakima............................. 17030001 Kittitas (WA), Yakima (WA).
Naches................................... 17030002 Kittitas (WA), Yakima (WA).
[[Page 218]]
Lower Yakima............................. 17030003 Benton (WA), Klickitat
(WA), Yakima (WA).
Middle Columbia-Lake Wallula............. 17070101 Gilliam (OR), Morrow (OR),
Umatilla (OR), Benton
(WA), Klickitat (WA),
Sherman (OR), Walla Walla
(WA), Yakima (WA).
Walla Walla.............................. 17070102 Umatilla (OR), Wallowa
(OR), Columbia (WA), Walla
Walla (WA).
Umatilla................................. 17070103 Morrow (OR), Umatilla (OR),
Union (OR).
Willow................................... 17070104 Morrow (OR), Gilliam (OR)..
Middle Columbia-Hood..................... 17070105 Hood River (OR), Sherman Condit Dam
(OR), Wasco (OR),
Klickitat (WA), Skamania
(WA).
Klickitat................................ 17070106 Klickitat (WA), Yakima (WA)
Upper John Day........................... 17070201 Crook (OR), Grant (OR),
Harney (OR), Wheeler (OR),.
North Fork John Day...................... 17070202 Grant (OR), Morrow (OR),
Umatilla (OR), Union (OR),
Wheeler (OR).
Middle Fork John Day..................... 17070203 Grant (OR).................
Lower John Day........................... 17070204 Crook (OR), Gilliam (OR),
Grant (OR), Jefferson
(OR), Morrow (OR), Sherman
(OR), Wasco (OR), Wheeler
(OR).
Lower Deschutes.......................... 17070306 Hood River (OR), Jefferson Pelton Dam
(OR), Sherman (OR), Wasco
(OR).
Trout.................................... 17070307 Crook (OR), Jefferson (OR),
Wasco (OR).
Lower Columbia-Sandy..................... 17080001 Multnomah (OR), Clark (WA),
Skamania (WA).
Lower Columbia-Clatskanie................ 17080003 Clatsop (OR), Columbia
(WA), Cowlitz (WA),
Wahkiakum (WA).
Lower Columbia........................... 17080006 Clatsop (OR), Pacific (WA),
Wahkiakum (WA).
Lower Willamette......................... 17090012 Columbia (OR), Multnomah
(OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
county and basin boundaries.
[65 FR 7786, Feb. 16, 2000]
PART 228--NOTICE AND HEARING ON SECTION 103(d) REGULATIONS--Table of Contents
Sec.
228.1 Basis and purpose.
228.2 Definitions.
228.3 Scope of regulations.
228.4 Notice of hearing.
228.5 Notification by interested persons.
228.6 Presiding officer.
228.7 Direct testimony submitted as written documents.
228.8 Mailing address.
228.9 Inspection and copying of documents.
228.10 Ex parte communications.
228.11 Prehearing conference.
228.12 Final agenda of the hearing.
228.13 Determination to cancel the hearing.
228.14 Rebuttal testimony and new issues of fact in final agenda.
228.15 Waiver of right to participate.
228.16 Conduct of the hearing.
228.17 Direct testimony.
228.18 Cross-examination.
228.19 Oral and written arguments.
228.20 Recommended decision, certification of the transcript and
submission of comments on the recommended decision.
228.21 Assistant Administrator's decision.
Authority: 16 U.S.C. 1361 et seq.
Source: 65 FR 39560, June 27, 2000, unless otherwise noted.
Sec. 228.1 Basis and purpose.
(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine
Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and
1371(b)) and these regulations authorize the Assistant Administrator of
the National Marine Fisheries Service, to:
[[Page 219]]
(1) Impose regulations governing the taking of marine mammals
incidental to commercial fishing operations;
(2) Waive the moratorium and to adopt regulations with respect to
the taking and importing of animals from each species of marine mammals
under the Assistant Administrator's jurisdiction;
(3) Prescribe regulations governing the taking of depleted marine
mammals by any Indian, Aleut or Eskimo, respectively. In prescribing
regulations to carry out the provisions of said sections, the Act refers
the Assistant Administrator to section 103 (16 U.S.C. 1373). In
accordance with section 103(d), regulations must be made on the record
after opportunity for an agency hearing on such regulations and, in the
case of a waiver, on the determination by the Assistant Administrator to
waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16
U.S.C. 1371(a)(3)(A)).
(b) The purpose of this part is to establish rules of practice and
procedure for all hearings conducted pursuant to section 103(d) of the
Act.
Sec. 228.2 Definitions.
(a) Party means, for the purposes of this subpart:
(1) The Assistant Administrator or the Assistant Administrator's
representative;
(2) A person who has notified the Assistant Administrator by
specified dates of his or her intent to participate in the hearing
pursuant to Secs. 228.5 and 228.14(b).
(b) Witness means, for the purpose of this part, any person who
submits written direct testimony on the proposed regulations. A person
may be both a party and a witness.
Sec. 228.3 Scope of regulations.
The procedural regulations in this part govern the practice and
procedure in hearings held under section 103(d) of the Act. These
hearings will be governed by the provisions of 5 U.S.C. 556 and section
557 of the Administrative Procedure Act. The regulations shall be
construed to secure the just, speedy and inexpensive determination of
all issues raised with respect to any waiver or regulation proposed
pursuant to section 103(d) of the Act with full protection for the
rights of all persons affected thereby.
Sec. 228.4 Notice of hearing.
(a) A notice of hearing on any proposed regulations shall be
published in the Federal Register, together with the Assistant
Administrator's proposed determination to waive the moratorium pursuant
to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where
applicable.
(b) The notice shall state:
(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less
than 60 days after publication of notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) The proposed regulations and waiver, where applicable, and a
summary of the statements required by section 103(d) of the Act (16
U.S.C. 1373(d));
(5) Issues of fact which may be involved in the hearing;
(6) If a draft Environmental Impact Statement is required, the date
of publication of the draft and the place(s) where the draft and
comments thereon may be viewed and copied;
(7) Any written advice received from the Marine Mammal Commission;
(8) The place(s) where records and submitted direct testimony will
be kept for public inspection;
(9) The final date for filing with the Assistant Administrator a
notice of intent to participate in the hearing pursuant to Sec. 228.5;
(10) The final date for submission of direct testimony on the
proposed regulations and waiver, if applicable, and the number of copies
required;
(11) The docket number assigned to the case which shall be used in
all subsequent proceedings; and
(12) The place and date of the pre-hearing conference.
Sec. 228.5 Notification by interested persons.
Any person desiring to participate as a party shall notify the
Assistant Administrator, by certified mail, on or before the date
specified in the notice.
[[Page 220]]
Sec. 228.6 Presiding officer.
(a) Upon publication of the notice of hearing pursuant to
Sec. 228.4, the Assistant Administrator shall appoint a presiding
officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of
interest, financial or otherwise, shall serve as presiding officer in
such proceeding.
(b) The presiding officer, in any proceeding under this subpart,
shall have power to:
(1) Change the time and place of the hearing and adjourn the
hearing;
(2) Evaluate direct testimony submitted pursuant to these
regulations, make a preliminary determination of the issues, conduct a
prehearing conference to determine the issues for the hearing agenda,
and cause to be published in the Federal Register a final hearing
agenda;
(3) Rule upon motions, requests and admissibility of direct
testimony;
(4) Administer oaths and affirmations, question witnesses and direct
witnesses to testify;
(5) Modify or waive any rule (after notice) when determining that no
party will be prejudiced;
(6) Receive written comments and hear oral arguments;
(7) Render a recommended decision; and
(8) Do all acts and take all measures, including regulation of media
coverage, for the maintenance of order at and the efficient conduct of
the proceeding.
(c) In case of the absence of the original presiding officer or the
original presiding officer's inability to act, the powers and duties to
be performed by the original presiding officer under this subpart in
connection with a proceeding may, without abatement of the proceeding,
be assigned to any other presiding officer unless otherwise ordered by
the Assistant Administrator.
(d) The presiding officer may upon the presiding officer's own
motion withdraw as presiding officer in a proceeding if the presiding
officer deems himself or herself to be disqualified.
(e) A presiding officer may be requested to withdraw at any time
prior to the recommended decision. Upon the filing by an interested
person in good faith of a timely and sufficient affidavit alleging the
presiding officer's personal bias, malice, conflict of interest or other
basis which might result in prejudice to a party, the hearing shall
recess. The Assistant Administrator shall immediately determine the
matter as a part of the record and decision in the proceeding, after
making such investigation or holding such hearings, or both, as the
Assistant Administrator may deem appropriate in the circumstances.
Sec. 228.7 Direct testimony submitted as written documents.
(a) Unless otherwise specified, all direct testimony, including
accompanying exhibits, must be submitted to the presiding officer in
writing no later than the dates specified in the notice of the hearing
(Sec. 228.4), the final hearing agenda (Sec. 228.12), or within 15 days
after the conclusion of the prehearing conference (Sec. 228.14) as the
case may be. All direct testimony shall be in affidavit form and
exhibits constituting part of such testimony, referred to in the
affidavit and made a part thereof, must be attached to the affidavit.
Direct testimony submitted with exhibits must state the issue to which
the exhibit relates; if no such statement is made, the presiding officer
shall determine the relevance of the exhibit to the issues published in
the Federal Register.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding
and his position regarding the issues presented. If the direct testimony
is presented by a witness who is not a party, the witness shall state
the witness' relationship to the party; and
(2) Facts that are relevant and material.
(c) The direct testimony may propose issues of fact not defined in
the notice of the hearing and the reason(s) why such issues should be
considered at the hearing.
(d) Ten copies of all direct testimony must be submitted unless the
notice of the hearing specifies otherwise.
(e) Upon receipt, direct testimony shall be assigned a number and
stamped with that number and the docket number.
[[Page 221]]
(f) Contemporaneous with the publication of the notice of hearing,
the Assistant Administrator's direct testimony in support of the
proposed regulations and waiver, where applicable, shall be available
for public inspection as specified in the notice of hearing. The
Assistant Administrator may submit additional direct testimony during
the time periods allowed for submission of such testimony by witnesses.
Sec. 228.8 Mailing address.
Unless otherwise specified in the notice of hearing, all direct
testimony shall be addressed to the Presiding Officer, c/o Assistant
Administrator, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910. All affidavits and exhibits shall be
clearly marked with the docket number of the proceedings.
Sec. 228.9 Inspection and copying of documents.
Any document in a file pertaining to any hearing authorized by this
subpart or any document forming part of the record of such a hearing may
be inspected and/or copied in the Office of the Assistant Administrator,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910-unless the file is in the care and custody of the
presiding officer, in which case the presiding officer shall notify the
parties as to where and when the record may be inspected.
Sec. 228.10 Ex parte communications.
(a) After notice of a hearing is published in the Federal Register,
all communications, whether oral or written, involving any substantive
or procedural issue and directed either to the presiding officer or to
the Assistant Administrator, Deputy Assistant Administrator, or Chief of
the Marine Mammal Division, National Marine Fisheries Service, without
reference to these rules of procedure, shall be deemed ex parte
communications and are not to be considered part of the record for
decision.
(b) A record of oral conversations shall be made by the persons who
are contacted. All communications shall be available for public viewing
at the place(s) specified in the notice of hearing.
(c) The presiding office shall not consult any person or party on
any fact in issue or on the merits of the matter unless notice and
opportunity is given for all parties to participate.
Sec. 228.11 Prehearing conference.
(a) After an examination of all the direct testimony submitted
pursuant to Sec. 228.7, the presiding officer shall make a preliminary
determination of issues of fact which may be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made
available at the place or places provided in the notice of the hearing
(Sec. 228.4(b)(8)) at least 5 days before the prehearing conference.
(c) The purpose of the prehearing conference shall be to enable the
presiding officer to determine, on the basis of the direct testimony
submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of
issues of fact for the hearing has omitted any significant issues;
(2) What facts are not in dispute;
(3) Which witnesses may appear at the hearing; and
(4) The nature of the interest of each party and which parties'
interests are adverse.
(d) Only parties may participate in the hearing conference and a
party may appear in person or be represented by counsel.
(e) Parties who do not appear at the prehearing conference shall be
bound by the conference's determinations.
Sec. 228.12 Final agenda of the hearing.
(a) After the prehearing conference, the presiding officer shall
prepare a final agenda which shall be published in the Federal Register
within 10 days after the conclusion of the conference. A copy of the
final agenda shall be mailed to all parties.
(b) The final agenda shall list:
(1) All the issues which the hearing shall address, the order in
which those issues shall be presented, and the direct testimony
submitted which bears on the issues; and
[[Page 222]]
(2) A final date for submission of direct testimony on issues of
fact not included in the notice of hearing if such issues are presented.
The final agenda may also specify a final date for submission of direct
testimony to rebut testimony previously submitted during the time
specified in the notice of the hearing.
(c) The presiding officer shall publish with the final agenda a list
of witnesses who may appear at the hearing, a list of parties, the
nature of the interest of each party, and which parties' interests are
adverse on the issues presented.
Sec. 228.13 Determination to cancel the hearing.
(a) If the presiding officer concludes that no issues of fact are
presented by the direct testimony submitted, the presiding officer shall
publish such conclusion and notice in the Federal Register that a
hearing shall not be held and shall also publish a date for filing
written comments on the proposed regulations. Written comments may
include proposed findings and conclusions, arguments or briefs.
(b) A person need not be a party to submit any written comments.
(c) Promptly after expiration of the period for receiving written
comments, the presiding officer shall make a recommended decision based
on the record, which in this case shall consist of the direct testimony
and written comments submitted. He shall transfer to the Assistant
Administrator his recommended decision, the record and a certificate
stating that the record contains all the written direct testimony and
comments submitted. The Assistant Administrator shall then make a final
decision in accordance with these regulations (Sec. 228.21).
Sec. 228.14 Rebuttal testimony and new issues of fact in final agenda.
(a) Direct testimony to rebut testimony offered during the time
period specified in the notice of hearing may be submitted pursuant to
these regulations within fifteen days after the conclusion of the
prehearing conference unless the presiding officer otherwise specifies
in the final agenda.
(b) If the final agenda presents issues not included in the notice
of the hearing published pursuant to Sec. 228.4:
(1) Any person interested in participating at the hearing on such
issues presented shall notify the Assistant Administrator by certified
mail of an intent to participate not later than 10 days after
publication of the final agenda. Such person may present direct
testimony or cross-examine witnesses only on such issues presented
unless that person previously notified the Assistant Administrator
pursuant to Sec. 228.5; and
(2) Additional written direct testimony concerning such issues may
be submitted within the time provided in the final agenda. Such direct
testimony will comply with the requirements of Sec. 228.7.
Sec. 228.15 Waiver of right to participate.
Persons who fail to notify the Assistant Administrator pursuant to
Secs. 228.5 and 228.14 shall be deemed to have waived their right to
participate as parties in any part of the hearing.
Sec. 228.16 Conduct of the hearing.
(a) The hearing shall be held at the time and place fixed in the
notice of the hearing, unless the presiding officer changes the time or
place. If a change occurs, the presiding officer shall publish the
change in the Federal Register and shall expeditiously notify all
parties by telephone or by mail: Provided, that if that change in time
or place of hearing is made less than 5 days before the date previously
fixed for the hearing, the presiding officer shall also announce, or
cause to be announced, the change at the time and place previously fixed
for the hearing.
(b) The presiding officer shall, at the commencement of the hearing,
introduce into the record: the notice of hearing as published in the
Federal Register; all subsequent documents published in the Federal
Register; the draft Environmental Impact Statement if it is required and
the comments thereon and agency responses to the comments; and a list of
all parties. Direct testimony shall then be received with respect to the
matters specified in the final agenda in such order as the presiding
officer shall announce. With
[[Page 223]]
respect to direct testimony submitted as rebuttal testimony or in
response to new issues presented by the prehearing conference, the
presiding officer shall determine the relevancy of such testimony.
(c) The hearing shall be publicly conducted and reported verbatim by
an official reporter.
(d) If a party objects to the admission or rejection of any direct
testimony or to any other ruling of the presiding officer during the
hearing, he or she shall state briefly the grounds of such objection,
whereupon an automatic exception will follow if the objection is
overruled by the presiding officer. The transcript shall not include
argument or debate thereon except as ordered by the presiding officer.
The ruling by the presiding officer on any objection shall be a part of
the transcript and shall be subject to review at the same time and in
the same manner as the Assistant Administrator's final decision. Only
objections made before the presiding officer may subsequently be relied
upon in the proceedings.
(e) All motions and requests shall be addressed to, and ruled on by,
the presiding officer, if made prior to his certification of the
transcript or by the Assistant Administrator if made thereafter.
Sec. 228.17 Direct testimony.
(a) Only direct testimony submitted by affidavit as provided in
these regulations and introduced at the hearing by a witness shall be
considered part of the record. Such direct testimony shall not be read
into evidence but shall become a part of the record subject to exclusion
of irrelevant and immaterial parts thereof;
(b) The witness introducing direct testimony shall:
(1) State his or her name, address and occupation;
(2) State qualifications for introducing the direct testimony. If an
expert, the witness shall briefly state the scientific or technical
training which qualifies the witness as an expert;
(3) Identify the direct testimony previously submitted in accordance
with these regulations; and
(4) Submit to appropriate cross and direct examination. Cross-
examination shall be by a party whose interests are adverse on the issue
presented, to the witness', if the witness is a party, or to the
interests of the party who presented the witness.
(c) A party shall be deemed to have waived the right to introduce
direct testimony if such party fails to present a witness to introduce
the direct testimony.
(d) Official notice may be taken of such matters as are judicially
noticed by the courts of the United States: Provided, that parties shall
be given adequate notice, by the presiding officer, at the hearing, of
matters so noticed and shall be given adequate opportunity to show that
such facts are inaccurate or are erroneously noticed.
Sec. 228.18 Cross-examination.
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the
cross-examination;
(2) Prohibit parties from cross-examining witnesses unless the
presiding officer has determined that the cross-examiner has an adverse
interest on the facts at issue to the party-witness or the party
presenting the witness. For the purposes of this subsection, the
Assistant Administrator's or his or her representative's interest shall
be considered adverse to all parties;
(3) Limit the number of times any party or parties having a common
interest may cross-examine an ``adverse'' witness on the same matter;
and
(4) Exclude cross-examination questions that are immaterial,
irrelevant or unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or
counsel shall state his or her name, address and occupation. If counsel
cross-examines the witness, counsel shall state for the record the
authority to act as counsel. Cross-examiners shall be assumed to be
familiar with the direct testimony.
(c) Any party or party's counsel who fails to appear at the hearing
to cross-examine an ``adverse'' witness shall be deemed to have waived
the right to cross-examine that witness.
[[Page 224]]
(d) Scientific, technical or commercial publications may only be
utilized for the limited purposes of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance
with these regulations.
Sec. 228.19 Oral and written arguments.
(a) The presiding officer may, in his or her discretion, provide for
oral argument at the end of the hearing. Such argument, when permitted,
may be limited by the presiding officer to the extent necessary for the
expeditious disposition of the proceeding.
(b) The presiding officer shall announce at the hearing a reasonable
period of time within which any interested person may file with the
presiding officer any written comments on the proposed regulations and
waiver, including proposed findings and conclusions and written
arguments or briefs, which are based upon the record and citing where
practicable the relevant page or pages of the transcript. If a party
filing a brief desires the presiding officer to reconsider any objection
made by such party to a ruling of the presiding officer, the party shall
specifically identify such rulings by reference to the pertinent pages
of the transcript and shall state their arguments thereon as a part of
the brief.
(c) Oral or written arguments shall be limited to issues arising
from direct testimony on the record.
Sec. 228.20 Recommended decision, certification of the transcript and submission of comments on the recommended decision.
(a) Promptly after expiration of the period for receiving written
briefs, the presiding officer shall make a recommended decision based on
the record and transmit the decision to the Assistant Administrator. The
recommended decision shall include:
(1) A statement containing a description of the history of the
proceedings;
(2) Findings on the issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(b) The presiding officer shall also transmit to the Assistant
Administrator the transcript of the hearing, the original and all copies
of the direct testimony, and written comments. The presiding officer
shall attach to the original transcript of the hearing a certificate
stating that, to the best of his knowledge and belief, the transcript is
a true transcript of the testimony given at the hearing except in such
particulars as are specified.
(c) Immediately after receipt of the recommended decision, the
Assistant Administrator shall give notice thereof in the Federal
Register, send copies of the recommended decision to all parties, and
provide opportunity for the submission of comments. The recommended
decision may be reviewed and/or copied in the office of the Assistant
Administrator, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910.
(d) Within 20 days after the notice of receipt of the recommended
decision has been published in the Federal Register, any interested
person may file with the Assistant Administrator any written comments on
the recommended decision. All comments, including recommendations from
or consultation with the Marine Mammal Commission, must be submitted
during the 20-day period to the Assistant Administrator at the
previously mentioned address.
Sec. 228.21 Assistant Administrator's decision.
(a) Upon receipt of the recommended decision and transcript and
after the 20-day period for receiving written comments on the
recommended decision has passed, the Assistant Administrator shall make
a final decision on the proposed regulations and waiver, where
applicable. The Assistant Administrator's decision may affirm, modify,
or set aside, in whole or in part, the recommended findings, conclusions
and decision of the presiding officer. The Assistant Administrator may
also remand the hearing record to the presiding officer for a fuller
development of the record.
(b) The Assistant Administrator's decision shall include:
(1) A statement containing a description of the history of the
proceeding;
(2) Findings on the issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
[[Page 225]]
(4) The Assistant Administrator's decision shall be published in the
Federal Register. If the waiver is approved, the final adopted
regulations shall be promulgated with the decision.
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972--Table of Contents
Subpart A--General Provisions
Sec.
229.1 Purpose and scope.
229.2 Definitions.
229.3 Prohibitions.
229.4 Requirements for Category I and II fisheries.
229.5 Requirements for Category III fisheries.
229.6 Reporting requirements.
229.7 Monitoring of incidental mortalities and serious injuries.
229.8 Publication of List of Fisheries.
229.9 Emergency regulations.
229.10 Penalties.
229.11 Confidential fisheries data.
229.12 Consultation with the Secretary of the Interior.
Subpart B--Takes of Endangered and Threatened Marine Mammals
229.20 Issuance of permits.
Subpart C--Take Reduction Plan Regulations and Emergency Regulations
229.30 Basis.
229.31 Pacific Offshore Cetacean Take Reduction Plan.
229.32 Atlantic large whale take reduction plan regulations.
229.33 Harbor Porpoise Take Reduction Plan Implementing Regulations--
Gulf of Maine.
229.34 Harbor Porpoise Take Reduction Plan--Mid-Atlantic.
Figure 1 to Part 229--Drift Gillnet Pinger Configuration and Extender
Requirements
Authority: 16 U.S.C. 1361 et seq.
Source: 60 FR 45100, Aug. 30, 1995, unless otherwise noted.
Subpart A--General Provisions
Sec. 229.1 Purpose and scope.
(a) The regulations in this part implement sections 101(a)(5)(E) and
118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C.
1371(a)(5)(E) and 1387) that provide for exceptions for the taking of
marine mammals incidental to certain commercial fishing operations from
the Act's general moratorium on the taking of marine mammals.
(b) Section 118 of the Act, rather than sections 103 and 104,
governs the incidental taking of marine mammals in the course of
commercial fishing operations by persons using vessels of the United
States, other than vessels fishing for yellowfin tuna in the eastern
tropical Pacific Ocean purse seine fishery, and vessels that have valid
fishing permits issued in accordance with section 204(b) of the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1824(b)).
(c) The regulations of Subpart B also govern the incidental taking
by commercial fishers of marine mammals from species or stocks
designated under the Act as depleted on the basis of their listing as
threatened species or endangered species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).
(d) The regulations of this part do not apply to the incidental
taking of California sea otters or to Northwest treaty Indian tribal
members exercising treaty fishing rights.
(e) Authorizations under subpart A of this part are exemptions only
from the taking prohibitions under the Act and not those under the
Endangered Species Act of 1973. To be exempt from the taking
prohibitions under the Endangered Species Act, specific authorization
under subpart B of this part is required.
(f) Authorizations under this part do not apply to the intentional
lethal taking of marine mammals in the course of commercial fishing
operations except as provided for under Secs. 229.4(k) and 229.5(f).
(g) The purposes of the regulations in this part are to:
(1) Reduce the incidental mortality or serious injury of marine
mammals occurring in the course of commercial fishing operations below
the potential biological removal level for a particular stock, and
(2) Reduce the incidental mortality or serious injury of marine
mammals occurring in the course of commercial
[[Page 226]]
fishing operations to insignificant levels approaching a zero mortality
and serious injury rate by the statutory deadline of April 30, 2001.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9086, Feb. 24, 1999]
Sec. 229.2 Definitions.
In addition to the definitions contained in the Act and Sec. 216.3
of this chapter, and unless the context otherwise requires, in this part
229:
Act or MMPA means the Marine Mammal Protection Act of 1972, as
amended (16 U.S.C. 1361 et seq.).
American lobster or lobster means Homarus americanus.
Anchored gillnet means any gillnet gear, including a sink gillnet or
stab net, that is set anywhere in the water column and which is
anchored, secured or weighted to the bottom of the sea. Also called a
set gillnet.
Assistant Administrator means the Assistant Administrator for
Fisheries of the National Oceanic and Atmospheric Administration.
Authorization Certificate means a document issued by the Assistant
Administrator, or designee, under the authority of section 118 of the
Act that authorizes the incidental, but not intentional, taking of
marine mammals in Category I or II fisheries.
Breaking strength means the highest tensile force which an object
can withstand before breaking.
Bridle means the lines connecting a gillnet to an anchor or buoy
line.
Buoy line means a line connecting fishing gear in the water to a
buoy at the surface of the water.
Category I fishery means a commercial fishery determined by the
Assistant Administrator to have frequent incidental mortality and
serious injury of marine mammals. A commercial fishery that frequently
causes mortality or serious injury of marine mammals is one that is by
itself responsible for the annual removal of 50 percent or more of any
stock's potential biological removal level.
Category II fishery means a commercial fishery determined by the
Assistant Administrator to have occasional incidental mortality and
serious injury of marine mammals. A commercial fishery that occasionally
causes mortality or serious injury of marine mammals is one that,
collectively with other fisheries, is responsible for the annual removal
of more than 10 percent of any marine mammal stock's potential
biological removal level and that is by itself responsible for the
annual removal of between 1 and 50 percent, exclusive, of any stock's
potential biological removal level. In the absence of reliable
information indicating the frequency of incidental mortality and serious
injury of marine mammals by a commercial fishery, the Assistant
Administrator will determine whether the incidental serious injury or
mortality is ``occasional'' by evaluating other factors such as fishing
techniques, gear used, methods used to deter marine mammals, target
species, seasons and areas fished, qualitative data from logbooks or
fisher reports, stranding data, and the species and distribution of
marine mammals in the area, or at the discretion of the Assistant
Administrator. Eligible commercial fisheries not specifically identified
in the list of fisheries are deemed to be Category II fisheries until
the next list of fisheries is published.
Category III fishery means a commercial fishery determined by the
Assistant Administrator to have a remote likelihood of, or no known
incidental mortality and serious injury of marine mammals. A commercial
fishery that has a remote likelihood of causing incidental mortality and
serious injury of marine mammals is one that collectively with other
fisheries is responsible for the annual removal of:
(1) Ten percent or less of any marine mammal stock's potential
biological removal level, or
(2) More than 10 percent of any marine mammal stock's potential
biological removal level, yet that fishery by itself is responsible for
the annual removal of 1 percent or less of that stock's potential
biological removal level. In the absence of reliable information
indicating the frequency of incidental mortality and serious injury of
marine mammals by a commercial fishery, the Assistant Administrator will
determine whether the incidental serious injury or mortality is
``remote'' by evaluating other factors such as fishing techniques, gear
used, methods
[[Page 227]]
used to deter marine mammals, target species, seasons and areas fished,
qualitative data from logbooks or fisher reports, stranding data, and
the species and distribution of marine mammals in the area or at the
discretion of the Assistant Administrator.
Commercial fishing operation means the catching, taking, or
harvesting of fish from the marine environment (or other areas where
marine mammals occur) that results in the sale or barter of all or part
of the fish harvested. The term includes licensed commercial passenger
fishing vessel (as defined in Sec. 216.3 of this chapter) activities and
aquaculture activities.
Depleted species means any species or population that has been
designated as depleted under the Act and is listed in Sec. 216.15 of
this chapter or part 18, subpart E of this title, or any endangered or
threatened species of marine mammal.
Driftnet, drift gillnet, or drift entanglement gear means a gillnet
or gillnets that is/are unattached to the ocean bottom and not anchored,
secured or weighted to the bottom, regardless of whether attached to a
vessel.
Fisher or fisherman means the vessel owner or operator, or the owner
or operator of gear in a nonvessel fishery.
Fishery has the same meaning as in section 3 of the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1802).
Fishing trip means any time spent away from port actively engaged in
commercial fishing operations. The end of a fishing trip will be the
time of a fishing vessel's return to port or the return of a fisher from
tending gear in a nonvessel fishery.
Fishing vessel or vessel means any vessel, boat, ship, or other
craft that is used for, equipped to be used for, or of a type normally
used for, fishing.
Float-line means the rope at the top of a gillnet from which the
mesh portion of the net is hung.
Gillnet means fishing gear consisting of a wall of webbing (meshes)
or nets, designed or configured so that the webbing (meshes) or nets are
placed in the water column, usually held approximately vertically, and
are designed to capture fish by entanglement, gilling, or wedging. The
term ``gillnet'' includes gillnets of all types, including but not
limited to sink gillnets, other anchored gillnets (e.g. stab and set
nets), and drift gillnets. Gillnets may or may not be attached to a
vessel.
Groundline, with reference to lobster trap gear, means a line
connecting lobster traps in a lobster trap trawl, and, with reference to
gillnet gear, means a line connecting a gillnet or gillnet bridle to an
anchor or buoy line.
Incidental means, with respect to an act, a non-intentional or
accidental act that results from, but is not the purpose of, carrying
out an otherwise lawful action.
Injury means a wound or other physical harm. Signs of injury to a
marine mammal include, but are not limited to, visible blood flow, loss
of or damage to an appendage or jaw, inability to use one or more
appendages, asymmetry in the shape of the body or body position,
noticeable swelling or hemorrhage, laceration, puncture or rupture of
eyeball, listless appearance or inability to defend itself, inability to
swim or dive upon release from fishing gear, or signs of equilibrium
imbalance. Any animal that ingests fishing gear, or any animal that is
released with fishing gear entangling, trailing or perforating any part
of the body will be considered injured regardless of the absence of any
wound or other evidence of an injury.
Interaction means coming in contact with fishing gear or catch. An
interaction may be characterized by a marine mammal entangled, hooked,
or otherwise trapped in fishing gear, regardless of whether injury or
mortality occurs, or situations where marine mammals are preying on
catch. Catch means fish or shellfish that has been hooked, entangled,
snagged, trapped or otherwise captured by commercial fishing gear.
Large mesh gillnet means a gillnet constructed with a mesh size of 7
inches (17.78 cm) to 18 inches (45.72 cm).
Lead-line means the rope, weighted or otherwise, to which the bottom
edge of a gillnet is attached.
List of Fisheries means the most recent final list of commercial
fisheries published in the Federal Register by the Assistant
Administrator, categorized according to the likelihood of incidental
mortality and serious injury
[[Page 228]]
of marine mammals during commercial fishing operations.
Lobster trap means any trap, pot or other similar type of enclosure
that is placed on the ocean bottom and is designed to or is capable of
catching lobsters. This definition includes but is not limited to
lobster pots, black sea bass pots and scup pots.
Lobster trap trawl means two or more lobster traps attached to a
single groundline.
Mesh size means the distance between inside knot to inside knot.
Mesh size is measured as described in Sec. 648.80(f)(1) of this title.
Mid-Atlantic coastal waters means waters bounded by the line defined
by the following points: The southern shoreline of Long Island, New York
at 72 deg.30'W, then due south to 33 deg.51'N lat., thence west to the
North Carolina/South Carolina border.
Minimum population estimate means an estimate of the number of
animals in a stock that:
(1) Is based on the best available scientific information on
abundance, incorporating the precision and variability associated with
such information; and
(2) Provides reasonable assurance that the stock size is equal to or
greater than the estimate.
Mudhole means waters off New Jersey bounded as follows: From the
point 40 deg.30' N. latitude where it intersects with the shoreline of
New Jersey east to its intersection with 73 deg.20' W. longitude, then
south to its intersection with 40 deg.05' N. latitude, then west to its
intersection with the shoreline of New Jersey.
Negligible impact has the same meaning as in Sec. 228.3 of this
chapter.
Net productivity rate means the annual per capita rate of increase
in a stock resulting from additions due to reproduction, less losses due
to mortality.
Night means any time between one half hour before sunset and one
half hour after sunrise.
NMFS means the National Marine Fisheries Service.
Nonvessel fishery means a commercial fishing operation that uses
fixed or other gear without a vessel, such as gear used in set gillnet,
trap, beach seine, weir, ranch, and pen fisheries.
Observer means an individual authorized by NMFS, or a designated
contractor, to record information on marine mammal interactions, fishing
operations, marine mammal life history information, and other scientific
data, and collect biological specimens during commercial fishing
activities.
Operator, with respect to any vessel, means the master, captain, or
other individual in charge of that vessel.
Potential biological removal level means the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population. The potential biological removal level
is the product of the following factors:
(1) The minimum population estimate of the stock;
(2) One-half the maximum theoretical or estimated net productivity
rate of the stock at a small population size; and
(3) A recovery factor of between 0.1 and 1.0.
Regional Fishery Management Council means a regional fishery
management council established under section 302 of the Magnuson Fishery
Conservation and Management Act.
Serious injury means any injury that will likely result in
mortality.
Shark gillnetting means to fish a gillnet in waters south of the
South Carolina/Georgia border with webbing of 5 inches or greater
stretched mesh.
Sink gillnet or stab net means any gillnet, anchored or otherwise,
that is designed to be, or is fished on or near the bottom in the lower
third of the water column.
Sinking line means rope that sinks and does not float at any point
in the water column. Polypropylene rope is not sinking line unless it
contains a lead core.
Small mesh gillnet means a gillnet constructed with a mesh size of
greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).
Southern Mid-Atlantic waters means all state and Federal waters off
the States of Delaware, Maryland, Virginia, and North Carolina, bounded
on
[[Page 229]]
the north by a line extending eastward from the northern shoreline of
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with
Cape Henlopen, DE), east to its intersection with 72 deg.30' W.
longitude, south to the 33 deg.51' N. latitude (the latitude that
corresponds with the North Carolina/South Carolina border), and then
west to its intersection with the shoreline of the North Carolina/South
Carolina border.
Spotter plane means a plane that is deployed for the purpose of
locating schools of target fish for a fishing vessel that intends to set
fishing gear on them.
Stowed means nets that are unavailable for use and that are stored
in accordance with the regulations found in Sec. 648.81(e) of this
title.
Strategic stock means a marine mammal stock:
(1) For which the level of direct human-caused mortality exceeds the
potential biological removal level;
(2) Which, based on the best available scientific information, is
declining and is likely to be listed as a threatened species under the
Endangered Species Act of 1973 within the foreseeable future;
(3) Which is listed as a threatened species or endangered species
under the Endangered Species Act of 1973; or
(4) Which is designated as depleted under the Marine Mammal
Protection Act of 1972, as amended.
Strikenet or to fish with strikenet gear means a gillnet that is
designed so that, when it is deployed, it encircles or encloses an area
of water either with the net or by utilizing the shoreline to complete
encirclement, or to fish with such a net and method.
Take Reduction Plan means a plan developed to reduce the incidental
mortality and serious injury of marine mammals during commercial fishing
operations in accordance with section 118 of the Marine Mammal
Protection Act of 1972, as amended.
Take Reduction Team means a team established to recommend methods of
reducing the incidental mortality and serious injury of marine mammals
due to commercial fishing operations, in accordance with section 118 of
the Marine Mammal Protection Act of 1972, as amended.
Tended gear or tend means fishing gear that is physically attached
to a vessel in a way that is capable of harvesting fish, or to fish with
gear attached to the vessel.
Tie-down refers to twine used between the floatline and the lead
line as a way to create a pocket or bag of netting to trap fish alive.
To strikenet for sharks means to fish with strikenet gear in waters
south of the South Carolina/Georgia border with webbing of 5 inches or
greater stretched mesh.
U.S. waters means both state and Federal waters to the outer
boundaries of the U.S. exclusive economic zone along the east coast of
the United States from the Canadian/U.S. border southward to a line
extending eastward from the southernmost tip of Florida on the Florida
shore.
Vessel owner or operator means the owner or operator of:
(1) A fishing vessel that engages in a commercial fishing operation;
or
(2) Fixed or other commercial fishing gear that is used in a
nonvessel fishery.
Vessel of the United States has the same meaning as in section 3 of
the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).
Waters off New Jersey means all state and Federal waters off New
Jersey, bounded on the north by a line extending eastward from the
southern shoreline of Long Island, NY at 40 deg.40' N. latitude, on the
south by a line extending eastward from the northern shoreline of
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with
Cape Henlopen, DE), and on the east by the 72 deg.30' W. longitude. This
area includes the Mudhole.
Weak link means a breakable component of gear that will part when
subject to a certain tension load.
[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39183, July 22, 1997;
63 FR 66487, Dec. 2, 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb.
24, 1999; 65 FR 80377, Dec. 21, 2000]
Sec. 229.3 Prohibitions.
(a) It is prohibited to take any marine mammal incidental to
commercial fishing operations except as otherwise provided in part 216
of this chapter or in this part 229.
[[Page 230]]
(b) It is prohibited to assault, harm, harass (including sexually
harass), oppose, impede, intimidate, impair, or in any way influence or
interfere with an observer, or attempt the same. This prohibition
includes, but is not limited to, any action that interferes with an
observer's responsibilities, or that creates an intimidating, hostile,
or offensive environment.
(c) It is prohibited to provide false information when registering
for an Authorization Certificate, applying for renewal of the
Authorization Certificate, reporting the injury or mortality of any
marine mammal, or providing information to any observer.
(d) It is prohibited to tamper with or destroy observer equipment in
any way.
(e) It is prohibited to retain any marine mammal incidentally taken
in commercial fishing operations unless authorized by NMFS personnel, by
designated contractors or an official observer, or by a scientific
research permit that is in the possession of the vessel operator.
(f) It is prohibited to intentionally lethally take any marine
mammal in the course of commercial fishing operations unless imminently
necessary in self-defense or to save the life of a person in immediate
danger, and such taking is reported in accordance with the requirements
of Sec. 229.6.
(g) It is prohibited to violate any regulation in this part or any
provision of section 118 of the Act.
(h) It is prohibited to fish with lobster trap gear in the areas and
for the times specified in Sec. 229.32 (b)(2) and (c)(2) through (c)(8)
unless the lobster trap gear complies with the closures, marking
requirements, modifications, and restrictions specified in Sec. 229.32
(b)(3)(i), (b)(3)(ii), and (c)(1) through (c)(9).
(i) It is prohibited to fish with anchored gillnet gear in the areas
and for the times specified in Sec. 229.32(b)(2) and (d)(2)
through(d)(7) unless that gillnet gear complies with the closures,
marking requirements, modifications, and restrictions specified in
Sec. 229.32(b)(3)(i), (b)(3)(ii), and (d)(1) through (d)(8).
(j) It is prohibited to fish with drift gillnet gear in the areas
and for the times specified in Sec. 229.32 (d)(7) and (e)(1) unless the
drift gillnet gear complies with the restrictions specified in
Sec. 229.32 (e)(1).
(k) It is prohibited to fish with shark gillnet gear in the areas
and for the times specified in Sec. 229.32(b)(2), (f)(1)(i), and
(f)(1)(ii) unless the gear complies with the closures, marking
requirements, modifications, and other restrictions specified in
Sec. 229.32(b)(3)(i), (b)(3)(ii), and (f)(2) through (f)(3)(iii)(D).
(l) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed, or fail to remove sink gillnet gear or gillnet
gear capable of catching multispecies, from the areas and for the times
specified in Sec. 229.33 (a)(1) through (a)(6), except with the use of
pingers as provided in Sec. 229.33 (d)(1) through (d)(4). This
prohibition does not apply to the use of a single pelagic gillnet (as
described and used as set forth in Sec. 648.81(f)(2)(ii) of this title).
(m) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed, or fail to remove any gillnet gear from the
areas and for the times as specified in Sec. 229.34 (b)(1) (ii) or (iii)
or (b)(2)(ii).
(n) It is prohibited to fish with, set, haul back, possess on board
a vessel unless stowed, or fail to remove any large mesh or small mesh
gillnet gear from the areas and for the times specified in Sec. 229.34
(c)(1) through (c)(4) unless the gear complies with the specified gear
restrictions set forth in those provisions.
(o) Beginning on January 1, 1999, it is prohibited to fish with,
set, or haul back sink gillnets or gillnet gear, or leave such gear in
closed areas where pingers are required, as specified under Sec. 229.33
(c)(1) through (c)(4), unless a person on board the vessel during
fishing operations possesses a valid pinger certification training
certificate issued by NMFS.
(p) Beginning on January 1, 2000, it is prohibited to fish with,
set, haul back, or possess any large mesh or small mesh gillnet gear in
Mid-Atlantic waters in the areas and during the times specified under
Sec. 229.34(d), unless the gear is properly tagged in compliance with
that provision and unless a net tag certificate is on board the vessel.
It is prohibited to refuse to produce a net
[[Page 231]]
tag certificate or net tags upon the request of an authorized officer.
(q) Net tag requirement. Beginning on January 1, 2000, all gillnets
fished, hauled, possessed, or deployed during the times and areas
specified below must have one tag per net, with one tag secured to every
other bridle of every net and with one tag secured to every other bridle
of every net within a string of nets. This applies to small mesh and
large mesh gillnet gear in New Jersey waters from January 1 through
April 30 or in southern Mid-Atlantic waters from February 1 through
April 30. The owner or operator of fishing vessels must indicate to NMFS
the number of gillnet tags that they are requesting up to the maximum
number of nets allowed in those paragraphs and must include a check for
the cost of the tags. Vessel owners and operators will be given notice
with instructions informing them of the costs associated with this
tagging requirement and directions for obtaining tags. Tag numbers will
be unique for each vessel and recorded on a certificate. The vessel
operator must produce the certificate and all net tags upon request by
an authorized officer.
[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997;
63 FR 66487, Dec. 2, 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb.
24, 1999; 65 FR 80377, Dec. 21, 2000]
Sec. 229.4 Requirements for Category I and II fisheries.
(a) General. (1) For a vessel owner or crew members to lawfully
incidentally take marine mammals in the course of a commercial fishing
operation in a Category I or II fishery, the owner or authorized
representative of a fishing vessel or nonvessel fishing gear must have
in possession a valid Certificate of Authorization. The owner of a
fishing vessel or nonvessel fishing gear is responsible for obtaining a
Certificate of Authorization.
(2) The granting and administration of Authorization Certificates
under this part will be integrated and coordinated with existing fishery
license, registration, or permit systems and related programs wherever
possible. These programs may include, but are not limited to, state or
interjurisdictional fisheries programs. If the administration of
Authorization Certificates is integrated into a program, NMFS will
publish a notice in the Federal Register announcing the integrated
program and summarizing how an owner or authorized representative of a
fishing vessel or non-fishing gear may register under that program or
how registration will be achieved if no action is required on the part
of the affected fisher. NMFS will make additional efforts to contact
participants in the affected fishery via other appropriate means of
notification.
(b) Registration. (1) The owner of a vessel, or for nonvessel gear
fisheries, the owner of gear, who participates in a Category I or II
fishery is required to be registered for a Certificate of Authorization.
(2) Unless a notice is published in the Federal Register announcing
an integrated registration program, the owner of a vessel, or for
nonvessel fishery, the owner of the gear must register for and receive
an Authorization Certificate. To register, owners must submit the
following information using the format specified by NMFS:
(i) Name, address, and phone number of owner.
(ii) Name, address, and phone number of operator, if different from
owner, unless the name of the operator is not known or has not been
established at the time the registration is submitted.
(iii) For a vessel fishery, vessel name, length, home port; U.S.
Coast Guard documentation number or state registration number, and if
applicable; state commercial vessel license number and for a nonvessel
fishery, a description of the gear and state commercial license number,
if applicable.
(iv) A list of all Category I and II fisheries in which the fisher
may actively engage during the calendar year.
(v) A certification signed and dated by the owner of an authorized
representative of the owner as follows: ``I hereby certify that I am the
owner of the vessel, that I have reviewed all information contained on
this document, and that it is true and complete to the best of my
knowledge.''
(vi) A check or money order made payable to NMFS in the amount
specified in the notice of the final List of
[[Page 232]]
Fisheries must accompany each registration submitted to NMFS. The amount
of this fee will be based on recovering the administrative costs
incurred in granting an authorization. The Assistant Administrator may
waive the fee requirement for good cause upon the recommendation of the
Regional Director.
(3) If a notice is published in the Federal Register announcing an
integrated registration program, the owner of a vessel, or for nonvessel
fishery, the owner of the gear may register by following the directions
provided in that notice. If a person receives a registration to which he
or she is not entitled or if the registration contains incorrect,
inaccurate or incomplete information, the person shall notify NMFS
within 10 days following receipt. If a fisher participating in a
Category I or II fishery who expects to receive automatic registration
does not receive that registration within the time specified in the
notice announcing the integrated registration program, the person shall
notify NMFS as directed in the notice or may apply for registration by
submitting the information required under paragraph (b)(1)(i) through
(b)(1)(vi) of this section.
(c) Address. Unless the granting and administration of
authorizations under this part 229 is integrated and coordinated with
existing fishery licenses, registrations, or related programs pursuant
to paragraph (a) of this section, requests for registration forms and
completed registration and renewal forms should be sent to the NMFS
Regional Offices as follows:
(1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street,
Juneau, AK 99802; telephone: 907-586-7235;
(2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA
98115-0070; telephone: 206-526-4353;
(3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long
Beach, CA 90802-4213; telephone: 562-980-4001;
(4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930;
telephone: 978-281-9254; or
(5) Southeast Region, NMFS, 9721 Executive Center Drive North, St.
Petersburg, FL 33702; telephone: 727-570-5312.
(d) Issuance. (1) For integrated fisheries, an Authorization
Certificate or other proof of registration will be issued annually to
each fisher registered for that fishery.
(2) For all other fisheries (i.e., non-integrated fisheries), NMFS
will issue an Authorization Certificate and, if necessary, a decal to an
owner or authorized representative who:
(i) Submits a completed registration form and the required fee.
(ii) Has complied with the requirements of this section and
Secs. 229.6 and 229.7
(iii) Has submitted updated registration or renewal registration
which includes a statement (yes/no) whether any marine mammals were
killed or injured during the current or previous calender year.
(3) If a person receives a renewed Authorization Certificate or a
decal to which he or she is not entitled, the person shall notify NMFS
within 10 days following receipt.
(e) Authorization Certificate and decal requirements. (1) If a decal
has been issued under the conditions specified in paragraph (e)(2) of
this section, the decal must be attached to the vessel on the port side
of the cabin or, in the absence of a cabin, on the forward port side of
the hull, and must be free of obstruction and in good condition. The
decal must be attached to the Authorization Certificate for nonvessel
fisheries.
(2) The Authorization Certificate, or a copy, must be on board the
vessel while it is operating in a Category I or II fishery, or, in the
case of nonvessel fisheries, the Authorization Certificate with decal
attached, or copy must be in the possession of the person in charge of
the fishing operation. The Authorization Certificate, or copy, must be
made available upon request to any state or Federal enforcement agent
authorized to enforce the Act, any designated agent of NMFS, or any
contractor providing observer services to NMFS.
(3) Authorization Certificates and decals are not transferable. In
the event of the sale or change in ownership of the vessel, the
Authorization Certificate is void and the new owner must
[[Page 233]]
register for an Authorization Certificate and decal.
(4) An Authorization Certificate holder must notify the issuing
office in writing:
(i) If the vessel or nonvessel fishing gear will engage in any
Category I or II fishery not listed on the initial registration form at
least 30 days prior to engaging in that fishery; and,
(ii) If there are any changes in the mailing address or vessel
ownership within 30 days of such change.
(f) Reporting. Any Authorization Certificate holders must comply
with the reporting requirements specified under Sec. 229.6.
(g) Disposition of marine mammals. Any marine mammal incidentally
taken must be immediately returned to the sea with a minimum of further
injury, unless directed otherwise by NMFS personnel, a designated
contractor or an official observer, or authorized otherwise by a
scientific research permit that is in the possession of the operator.
(h) Monitoring. Authorization Certificate holders must comply with
the observer or other monitoring requirements specified under
Sec. 229.7.
(i) Deterrence. When necessary to deter a marine mammal from
damaging fishing gear, catch, or other private property, or from
endangering personal safety, vessel owners and crew members engaged in a
Category I or II fishery must comply with all deterrence provisions set
forth in the Act and all guidelines and prohibitions published
thereunder.
(j) Self defense. When imminently necessary in self-defense or to
save the life of a person in immediate danger, a marine mammal may be
lethally taken if such taking is reported to NMFS in accordance with the
requirements of Sec. 229.6.
(k) Take reduction plans and emergency regulations. Authorization
Certificate holders must comply with any applicable take reduction plans
and emergency regulations.
(l) Expiration. Authorization Certificates expire at the end of each
calendar year.
[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997; 64 FR
9086, Feb. 24, 1999]
Sec. 229.5 Requirements for Category III fisheries.
(a) General. Vessel owners and crew members of such vessels engaged
only in Category III fisheries may incidentally take marine mammals
without registering for or receiving an Authorization Certificate.
(b) Reporting. Vessel owners engaged in a Category III fishery must
comply with the reporting requirements specified in Sec. 229.6.
(c) Disposition of marine mammals. Any marine mammal incidentally
taken must be immediately returned to the sea with a minimum of further
injury unless directed otherwise by NMFS personnel, a designated
contractor, or an official observer, or authorized otherwise by a
scientific research permit in the possession of the operator.
(d) Monitoring. Vessel owners engaged in a Category III fishery must
comply with the observer requirements specified under Sec. 229.7(d).
(e) Deterrence. When necessary to deter a marine mammal from
damaging fishing gear, catch, or other private property, or from
endangering personal safety, vessel owners and crew members engaged in
commercial fishing operations must comply with all deterrence provisions
set forth in the Act and all guidelines and prohibitions published
thereunder.
(f) Self-defense. When imminently necessary in self-defense or to
save the life of a person in immediate danger, a marine mammal may be
lethally taken if such taking is reported to NMFS in accordance with the
requirements of Sec. 229.6.
(g) Emergency regulations. Vessel owners engaged in a Category III
fishery must comply with any applicable emergency regulations.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.6 Reporting requirements.
(a) Vessel owners or operators engaged in any commercial fishery
must report all incidental mortality and injury of marine mammals in the
course of commercial fishing operations to the Assistant Administrator,
or appropriate Regional Office, by mail or other means, such as fax or
overnight mail
[[Page 234]]
specified by the Assistant Administrator. Reports must be sent within 48
hours after the end of each fishing trip during which the incidental
mortality or injury occurred, or, for nonvessel fisheries, within 48
hours of an occurrence of an incidental mortality or injury. Reports
must be submitted on a standard postage-paid form as provided by the
Assistant Administrator. The vessel owner or operator must provide the
following information on this form:
(1) The vessel name, and Federal, state, or tribal registration
numbers of the registered vessel;
(2) The name and address of the vessel owner or operator;
(3) The name and description of the fishery, including gear type and
target species; and
(4) The species and number of each marine mammal incidentally killed
or injured, and the date, time, and approximate geographic location of
such occurrence. A description of the animal(s) killed or injured must
be provided if the species is unknown.
(b) Participants in nonvessel fisheries must provide all of the
information in paragraphs (a)(1) through (a)(4) of this section except,
instead of providing the vessel name and vessel registration number,
participants in nonvessel fisheries must provide the gear permit number.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.7 Monitoring of incidental mortalities and serious injuries.
(a) Purpose. The Assistant Administrator will establish a program to
monitor incidental mortality and serious injury of marine mammals during
the course of commercial fishing operations in order to:
(1) Obtain statistically reliable estimates of incidental mortality
and serious injury;
(2) Determine the reliability of reports of incidental mortality and
injury under Sec. 229.6; and
(3) Identify changes in fishing methods or technology that may
increase or decrease incidental mortality and serious injury.
(b) Observer program. Pursuant to paragraph (a) of this section, the
Assistant Administrator may observe Category I and II vessels as
necessary. Observers may, among other tasks:
(1) Record incidental mortality and injury, and bycatch of other
nontarget species;
(2) Record numbers of marine mammals sighted; and
(3) Perform other scientific investigations, which may include, but
are not limited to, sampling and photographing incidental mortalities
and serious injuries.
(c) Observer requirements for participants in Category I and II
fisheries. (1) If requested by NMFS or by a designated contractor
providing observer services to NMFS, a vessel owner/operator must take
aboard an observer to accompany the vessel on fishing trips.
(2) After being notified by NMFS, or by a designated contractor
providing observer services to NMFS, that the vessel is required to
carry an observer, the vessel owner/operator must comply with the
notification by providing information requested within the specified
time on scheduled or anticipated fishing trips.
(3) NMFS, or a designated contractor providing observer services to
NMFS, may waive the observer requirement based on a finding that the
facilities for housing the observer or for carrying out observer
functions are so inadequate or unsafe that the health or safety of the
observer or the safe operation of the vessel would be jeopardized.
(4) The vessel owner/operator and crew must cooperate with the
observer in the performance of the observer's duties including:
(i) Providing, at no cost to the observer, the United States
government, or the designated observer provider, food, toilet, bathing,
sleeping accommodations, and other amenities that are equivalent to
those provided to the crew, unless other arrangements are approved in
advance by the Regional Administrator;
(ii) Allowing for the embarking and debarking of the observer as
specified by NMFS personnel or designated contractors. The operator of a
vessel must ensure that transfers of observers at sea are accomplished
in a safe manner, via small boat or raft, during daylight hours if
feasible, as weather and sea
[[Page 235]]
conditions allow, and with the agreement of the observer involved;
(iii) Allowing the observer access to all areas of the vessel
necessary to conduct observer duties;
(iv) Allowing the observer access to communications equipment and
navigation equipment, when available on the vessel, as necessary to
perform observer duties;
(v) Providing true vessel locations by latitude and longitude,
accurate to the minute, or by loran coordinates, upon request by the
observer;
(vi) Sampling, retaining, and storing of marine mammal specimens,
other protected species specimens, or target or non-target catch
specimens, upon request by NMFS personnel, designated contractors, or
the observer, if adequate facilities are available and if feasible;
(vii) Notifying the observer in a timely fashion of when all
commercial fishing operations are to begin and end;
(viii) Not impairing or in any way interfering with the research or
observations being carried out; and
(ix) Complying with other guidelines or regulations that NMFS may
develop to ensure the effective deployment and use of observers.
(5) Marine mammals or other specimens identified in paragraph
(c)(4)(vi) of this section, which are readily accessible to crew
members, must be brought on board the vessel and retained for the
purposes of scientific research if feasible and requested by NMFS
personnel, designated contractors, or the observer. Specimens so
collected and retained must, upon request by NMFS personnel, designated
contractors, or the observer, be retained in cold storage on board the
vessel, if feasible, until removed at the request of NMFS personnel,
designated contractors, or the observer, retrieved by authorized
personnel of NMFS, or released by the observer for return to the ocean.
These biological specimens may be transported on board the vessel during
the fishing trip and back to port under this authorization.
(d) Observer requirements for participants in Category III
fisheries. (1) The Assistant Administrator may place observers on
Category III vessels if the Assistant Administrator:
(i) Believes that the incidental mortality and serious injury of
marine mammals from such fishery may be contributing to the immediate
and significant adverse impact on a species or stock listed as a
threatened species or endangered species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.); and
(ii) Has complied with Sec. 229.9(a)(3)(i) and (ii); or
(iii) Has the consent of the vessel owner.
(2) If an observer is placed on a Category III vessel, the vessel
owner and/or operator must comply with the requirements of
Sec. 229.7(c).
(e) Alternative observer program. The Assistant Administrator may
establish an alternative observer program to provide statistically
reliable information on the species and number of marine mammals
incidentally taken in the course of commercial fishing operations. The
alternative observer program may include direct observation of fishing
activities from vessels, airplanes, or points on shore.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.8 Publication of List of Fisheries.
(a) The Assistant Administrator will publish in the Federal Register
a proposed revised List of Fisheries on or about July 1 of each year for
the purpose of receiving public comment. Each year, on or about October
1, the Assistant Administrator will publish a final revised List of
Fisheries, which will become effective January 1 of the next calendar
year.
(b) The proposed and final revised List of Fisheries will:
(1) Categorize each commercial fishery based on the definitions of
Category I, II, and III fisheries set forth in Sec. 229.2; and
(2) List the marine mammals that have been incidentally injured or
killed by commercial fishing operations and the estimated number of
vessels or persons involved in each commercial fishery.
(c) The Assistant Administrator may publish a revised List of
Fisheries at other times, after notification and opportunity for public
comment.
[[Page 236]]
(d) The revised final List of Fisheries will become effective no
sooner than 30 days after publication in the Federal Register.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.9 Emergency regulations.
(a) If the Assistant Administrator finds that the incidental
mortality or serious injury of marine mammals from commercial fisheries
is having, or is likely to have, an immediate and significant adverse
impact on a stock or species, the Assistant Administrator will:
(1) In the case of a stock or species for which a take reduction
plan is in effect--
(i) Prescribe emergency regulations that, consistent with such plan
to the maximum extent practicable, reduce incidental mortality and
serious injury in that fishery; and
(ii) Approve and implement on an expedited basis, any amendments to
such plan that are recommended by the Take Reduction Team to address
such adverse impact;
(2) In the case of a stock or species for which a take reduction
plan is being developed--
(i) Prescribe emergency regulations to reduce such incidental
mortality and serious injury in that fishery; and
(ii) Approve and implement, on an expedited basis, such plan, which
will provide methods to address such adverse impact if still necessary;
(3) In the case of a stock or species for which a take reduction
plan does not exist and is not being developed, or in the case of a
Category III fishery that the Assistant Administrator believes may be
contributing to such adverse impact,
(i) Prescribe emergency regulations to reduce such incidental
mortality and serious injury in that fishery, to the extent necessary to
mitigate such adverse impact;
(ii) Immediately review the stock assessment for such stock or
species and the classification of such commercial fishery under this
section to determine if a take reduction team should be established and
if recategorization of the fishery is warranted; and
(iii) Where necessary to address such adverse impact on a species or
stock listed as a threatened species or endangered species under the
Endangered Species Act (16 U.S.C. 1531 et seq.), place observers on
vessels in a Category III fishery if the Assistant Administrator has
reason to believe such vessels may be causing the incidental mortality
and serious injury to marine mammals from such stock.
(b) Prior to taking any action under Sec. 229.9(a)(1) through (3),
the Assistant Administrator will consult with the Marine Mammal
Commission, all appropriate Regional Fishery Management Councils, state
fishery managers, and the appropriate take reduction team, if
established.
(c) Any emergency regulations issued under this section:
(1) Shall be published in the Federal Register and will remain in
effect for no more than 180 days or until the end of the applicable
commercial fishing season, whichever is earlier, except as provided in
paragraph (d) of this section; and
(2) May be terminated by notification in the Federal Register at an
earlier date if the Assistant Administrator determines that the reasons
for the emergency regulations no longer exist.
(d) If the Assistant Administrator finds that incidental mortality
and serious injury of marine mammals in a commercial fishery is
continuing to have an immediate and significant adverse impact on a
stock or species, the Assistant Administrator may extend the emergency
regulations for an additional period of not more than 90 days or until
reasons for the emergency regulations no longer exist, whichever is
earlier.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]
Sec. 229.10 Penalties.
(a) Except as provided for in paragraphs (b) and (c) of this
section, any person who violates any regulation under this part or any
provision of section 118 of the MMPA shall be subject to all penalties
set forth in the Act.
(b) The owner or master of a vessel that fails to comply with a take
reduction plan shall be subject to the penalties of sections 105 and 107
of the Act,
[[Page 237]]
and may be subject to the penalties of section 106 of the Act.
(c) The owner of a vessel engaged in a Category I or II fishery who
fails to ensure that a decal, or other physical evidence of such
authorization issued by NMFS, is displayed on the vessel or is in
possession of the operator of the vessel shall be subject to a penalty
of not more than $100.
(d) Failure to comply with take reduction plans or emergency
regulations issued under this part may result in suspension or
revocation of an Authorization Certificate, and failure to comply with a
take reduction plan or emergency regulation is also subject to the
penalties of sections 105 and 107 of the Act, and may be subject to the
penalties of section 106 of the Act.
(e) For fishers operating in Category I or II fisheries, failure to
report all incidental injuries and mortalities within 48 hours of the
end of each fishing trip, or failure to comply with requirements to
carry an observer, will subject such persons to the penalties of
sections 105 and 107 and may subject them to the penalties of section
106 of the Act, which will result in suspension, revocation, or denial
of an Authorization Certificate until such requirements have been
fulfilled.
(f) For fishers operating in Category III fisheries, failure to
report all incidental injuries and mortalities within 48 hours of the
end of each fishing trip will subject such persons to the penalties of
sections 105 and 107, and may subject them to section 106, of the Act.
(g) Suspension, revocation or denial of Authorization Certificates.
(1) Until the Authorization Certificate holder complies with the
regulations under this part, the Assistant Administrator shall suspend
or revoke an Authorization Certificate or deny an annual renewal of an
Authorization Certificate in accordance with the provisions in 15 CFR
part 904 if the Authorization Certificate holder fails to report all
incidental mortality and injury of marine mammals as required under
Sec. 229.6; or fails to take aboard an observer if requested by NMFS or
its designated contractors.
(2) The Assistant Administrator may suspend or revoke an
Authorization Certificate or deny an annual renewal of an Authorization
Certificate in accordance with the provisions in 15 CFR part 904 if the
Authorization Certificate holder fails to comply with any applicable
take reduction plan, take reduction regulations, or emergency
regulations developed under this subpart or subparts B and C of this
part or if the Authorization Certificate holder fails to comply with
other requirements of these regulations;
(3) A suspended Authorization Certificate may be reinstated at any
time at the discretion of the Assistant Administrator provided the
Assistant Administrator has determined that the reasons for the
suspension no longer apply or corrective actions have been taken.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]
Sec. 229.11 Confidential fisheries data.
(a) Proprietary information collected under this part is
confidential and includes information, the unauthorized disclosure of
which could be prejudicial or harmful, such as information or data that
are identifiable with an individual fisher. Proprietary information
obtained under part 229 will not be disclosed, in accordance with NOAA
Administrative Order 216-100, except:
(1) To Federal employees whose duties require access to such
information;
(2) To state employees under an agreement with NMFS that prevents
public disclosure of the identity or business of any person;
(3) When required by court order; or
(4) In the case of scientific information involving fisheries, to
employees of Regional Fishery Management Councils who are responsible
for fishery management plan development and monitoring.
(5) To other individuals or organizations authorized by the
Assistant Administrator to analyze this information, so long as the
confidentiality of individual fishers is not revealed.
(b) Information will be made available to the public in aggregate,
summary, or other such form that does not disclose the identity or
business of any person in accordance with NOAA Administrative Order 216-
100. Aggregate
[[Page 238]]
or summary form means data structured so that the identity of the
submitter cannot be determined either from the present release of the
data or in combination with other releases.
[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]