[Federal Register Volume 64, Number 55 (Tuesday, March 23, 1999)]
[Rules and Regulations]
[Pages 14052-14077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6626]
[[Page 14051]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Parts 217, et al.
Endangered and Threatened Species: Regulations Consolidation; Final
Rule
Federal Register / Vol. 64, No. 55 / Tuesday, March 23, 1999 / Rules
and Regulations
[[Page 14052]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 217, 220, 221, 222, 223, 224, 225, 226, 227, 648, 679,
and 697
[Docket No. 980113011-9049-02; I.D. 061896A]
RIN 0648-AK34
Endangered and Threatened Species; Regulations Consolidation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule consolidates and reorganizes existing
regulations regarding implementation of the Endangered Species Act
(Act) by NMFS. The action is part of the President's Regulatory
Reinvention Initiative (RRI).
DATES: Effective March 23, 1999, except that Secs. 222.205(c)(1) and
(2), 222.305(a), 223.206(d)(5), 223.207(a)(9)(ii)(A) and (B) will not
become effective until the Office of Management and Budget (OMB)
approves the information collection requirements contained in those
sections. NMFS will publish a document in the Federal Register
announcing the effective date for those sections.
ADDRESSES: Kevin Collins, Chief, Endangered Species Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East West
Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Therese Conant, Office of Protected
Resources, National Marine Fisheries Service, 1315 East West Highway,
Silver Spring, MD 20910, Phone: (301) 713-1401.
SUPPLEMENTARY INFORMATION: NMFS is responsible for implementing the Act
(16 U.S.C. 1531 et seq.) with respect to most marine species.
Regulations implemented by NMFS are currently codified at 50 CFR parts
217 through 227. These regulations outline agency procedures and
provide program administration information to other government
agencies, interested groups, and individuals. To improve regulations
under the President's RRI, NMFS is recodifying its Act regulations into
three basic sections:
Revised part 222 deals with general provisions of the Act,
including purpose, definitions, and other miscellaneous issues (subpart
A), certificates of exemption (subpart B), and permits (subpart C).
Revised part 223 deals exclusively with threatened species. Revised
part 224 deals exclusively with endangered species. Revised part 226
identifies critical habitat designated by the Secretary of Commerce.
The consolidated text is reorganized into a more logical and cohesive
order; duplicative and outdated provisions are eliminated; and
editorial changes are made for readability and clarity. This final rule
makes no substantive changes to the existing regulations. The purpose
of this rule is to make the regulations more concise, better organized,
and therefore easier for the public to use.
Specifically, regulations in part 217, concerning general
provisions of the Act, purpose and scope of the regulations,
definitions, and addresses, have been consolidated and are now codified
in part 222, subpart A. Definitions in the new Sec. 222.102 have been
consolidated from definitions previously found in parts 217, 225, and
227, and all addresses have been updated and included in the
definitions. Definitions for ``Skimmer trawl'', ``Wing net'', ``Pusher-
head trawl'', ``Summer flounder protection area'', and ``Leatherback
conservation zone'' have been revised, and definitions for ``Beam
trawl'' and ``Roller trawl'' have been added for clarity. In addition,
several terms are being deleted from the definitions because they are
no longer pertinent or because they are self-evident. Such terms
include ``North Carolina restricted area'', ``Ongoing project(s)'',
``Country of origin'', ``Country of exportation'', ``Sea turtles(s)'',
``United States'', ``Whoever'', ``Wildlife'', ``Soft TED'', ``Hard
TED'', ``Length'', and ``Plastron.''
Regulations in part 221, concerning designated ports of entry for
species listed in Appendix I or II to the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, are now codified
in Sec. 222.205(a).
Several components of part 225, concerning Federal/state
cooperation in the conservation of endangered and threatened species,
are being eliminated under the RRI, because they do not provide further
guidance or detail over the language contained in section 6 of the Act.
The remaining portions of part 225, concerning applications and program
evaluation procedures, are being recodified in Sec. 222.104. These
provisions have been clarified so that it is clear that NMFS may enter
into a Cooperative Agreement with a state pursuant to either sections
6(c)(1)(A) through (E) or sections 6(c)(1)(i) and (ii) of the Act.
Provisions relating to Certifications of Exemption for pre-Act
endangered species part permits have been streamlined and recodified in
subpart B of part 222. In addition, technical changes were made to the
existing provisions to make them consistent with the current provisions
of section 10 of the Act. Specifically, in 1988, Congress amended
section 10(f) to allow for one renewal of a Certificate of Exemption
that was renewed after October 13, 1982, and was in effect on March 31,
1988. Congress again amended section 10(f) to provide that any valid
Certificate of Exemption for pre-ESA scrimshaw products or raw material
for such products shall remain valid for up to a 5-year period
beginning April 30, 1994. These legislative amendments are now
reflected in new Sec. 222.202(a)(1) and (2).
Regulations in parts 217 and 220, concerning general permit
procedures, have been greatly streamlined and are now codified in
subpart C of part 222. Previously, general provisions relating to
permits were found in part 217, while specific procedures for permits
to take endangered species were found in part 220. Regulations relating
to permits to take threatened species previously found in part 227
referred to the provisions in parts 220 and 222. These cross-references
resulted in redundancy and some confusion in applicable regulations.
New subpart C of part 222 contains provisions relating to all types of
permits for endangered and threatened species for which section 9 of
the Act applies. General requirements for permits have been streamlined
and are provided in Secs. 222.301 through 222.306. Specific
requirements for incidental take permits are now found in Sec. 222.307,
and requirements for research and enhancement permits are now found in
Sec. 222.208.
In addition, the existing regulations had several inconsistencies
that have been addressed where appropriate. For example, Sec. 220.11
required a permit application to be submitted 90 days prior to the
effective date, and Sec. 222.23(b) recommended 45 days. The new
regulations change the 45 day requirement to 90 days to be consistent
with the general permit requirements.
Part 224 contains provisions relating to endangered species,
including special prohibitions. While part 223 contains regulations
relating to threatened species, including specified prohibitions and
exceptions to those prohibitions. The text has been reorganized into a
more logical and cohesive order; duplicative and outdated provisions
have been
[[Page 14053]]
eliminated; and editorial changes have been made for readability and
clarity.
Regulations found in Sec. 227.72 are now under two sections,
Secs. 223.206 and 223.207, and covers exceptions against prohibitions
relating to threatened species of sea turtles and technical
requirements for turtle excluder devices. Minor changes to these
regulations have been made to improve organization and readability. The
following sections of text have been eliminated because the provisions
are no longer applicable: 50 CFR 227.72(e)(3)(ii)(B) relating to the
North Carolina restricted area for sea turtles; 50 CFR 227.72(f)
relating to provisions relevant to the U.S. Trust Territories in the
Pacific, and 50 CFR 227.72(a)(2) relating to ongoing research within 90
days of when species of turtles were listed as threatened. In addition,
outdated provisions with sunset dates have been removed, and titles and
addresses of NMFS offices have been updated.
Generally, the charts in part 226 depicting critical habitat areas
are being removed under the RRI in order to reduce the volume of
materials in the CFR. However, those charts providing clarification to
descriptions will remain, such as the rookery site charts in part 227.
Otherwise, these charts will continue to be available from the NMFS
Office of Protected Resources upon request (see ADDRESSES). The tables
and text containing specific boundaries of such areas will continue to
appear in 50 CFR part 226. NMFS is amending the table in 15 CFR part
902 to update OMB control numbers for compliance with the Paperwork
Reduction Act.
The following derivation table identifies the new parts and
sections with corresponding sections of the existing regulations. This
chart is intended to demonstrate the relationship of existing sections
to new sections and to facilitate the public's understanding of the
revisions. Several sections have been removed and are not identified in
the chart. The removed sections or paragraphs are 222.1, 222.2, 222.11-
9, 222.34, 225.2, 225.10, 225.11, 225.12, 225.13, 225.14, 227.72(a)(2)
and 227.72(f).
------------------------------------------------------------------------
New section Old section
------------------------------------------------------------------------
222.101(a)............................. 217.1, 217.2, 217.4, 227.1,
227.2(c)
222.101(b)............................. 217.3
222.102................................ 217.12, 217.21, 217.22, 217.23,
222.3, 225.3, 227.3
222.103(a)............................. 225.4, 225.5
222.103(b)............................. 225.5, 225.6, 225.8
222.103(c)............................. 225.7, 225.9
222.201(a)............................. 222.11-1, 222.13-4
222.201(b)............................. ...............................
222.201(c)............................. 222.11-8(a)
222.201(d)............................. 222.11-8(b)
222.202................................ 222.11-2, 222.11-3, 222.11-4
222.203(a)............................. 222.11-5
222.203(b)............................. 222.11-6
222.203(c)............................. 222.11-7
222.204(a)............................. 222.12
222.204(b)............................. 222.12-1
222.204(c)............................. 222.12-2, 222.12-3, 222.12-4
222.204(d)............................. 222.12-5
222.204(e)............................. 222.12-6
222.204(f)............................. 222.12-7
222.204(g)............................. 222.12-8
222.205(a)............................. 221.1
222.205(b)............................. 222.12-9
222.205(c)............................. 222.13, 222.13-1, 222.13-2,
222.13-3
222.301(a)............................. 220.2, 220.3, 220.4
222.301(b)............................. 220.22, 222.21
222.301(c)............................. 220.1
222.301(d)............................. 222.28
222.301(e)............................. 220.42
222.301(f)............................. 220.43
222.301(g)............................. 220.44
222.301(h)............................. 220.45
222.301(i)............................. 220.46
222.301(j)............................. 220.47
222.302(a)............................. 220.11
222.302(b)............................. 220.11
222.302(c)............................. 220.13, 222.22, 222.23
222.303(a)............................. 220.21(a)
222.303(b)............................. 222.24(a)
222.303(c)............................. 222.24(b)
222.303(d)............................. 222.24(c)
222.303(e)............................. 220.21(b)
222.303(f)............................. 222.24(d)
222.303(g)............................. 222.24(e)
222.304................................ 220.24
222.305(a)............................. 220.25(a), 220.26
222.305(b)............................. 220.25(b)
222.306(a)............................. 222.25
222.306(b)............................. 220.27, 220.28
222.306(c)............................. 222.26
222.306(d)............................. 220.31
222.306(e)............................. 222.27
222.307................................ 222.22
222.308................................ 222.23
222.309................................ 220.50, 220.51, 220.52, 220.53
223.101................................ 227.1, 227.2(a), 227.2(b)
223.102................................ 227.4
223.201................................ 227.11
223.202................................ 227.12
223.203................................ 227.21
223.204................................ 227.22
223.205................................ 227.71
223.206................................ 227.72
223.207................................ 227.72(e)(4)
224.101................................ 222.23(a)
224.102................................ 222.21
224.103(a) through (c)................. 222.31, 222.32, 222.33
224.104................................ 222.41, 222.42
226.101................................ 226.1, 226.2
226.201................................ 226.11
226.202................................ 226.12
226.203................................ 226.13
226.204................................ 226.21
226.205................................ 226.22
226.206................................ 226.23
226.207................................ 226.71
226.208................................ 226.72
226.209................................ 226.73
------------------------------------------------------------------------
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
This rule has been determined to be not significant for purposes of
E.O. 12866.
The Assistant Administrator for Fisheries, NOAA, under 5 U.S.C.
553(b)(B), finds for good cause to waive the requirement of a prior
notice and an opportunity for public comment as such procedures are
unnecessary. This rule does not make any substantive changes to
existing regulations that, when issued, complied with notice-and-
comment procedures. These changes are made solely to achieve greater
clarity and organization and to eliminate provisions that are no longer
necessary. Because this rule does not make any substantive changes to
the existing regulations, it is not subject to the requirement in 5
U.S.C. 553(d) that its effective date be delayed.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB control number.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 217
Endangered and threatened species, Exports, Fish, Imports, Marine
mammals, Reporting and recordkeeping requirements.
50 CFR Part 220
Endangered and threatened species, Exports, Fish, Imports, Marine
mammals, Reporting and recordkeeping requirements, Transportation.
50 CFR Part 221
Endangered and threatened species, Exports, Fish, Harbors, Imports,
Marine mammals.
[[Page 14054]]
50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
50 CFR Part 224
Administrative practices and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
50 CFR Part 225
Endangered and threatened species, Grant programs--natural
resources, Intergovernmental relations.
50 CFR Part 226
Endangered and threatened species.
50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Part 679
Alaska Fisheries, Reporting and recordkeeping requirements.
50 CFR Part 697
Administrative practice and procedure, Fisheries, Fishing.
Dated: March 15, 1999.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Services.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapters II and VI are amended as follows:
15 CFR, Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In 15 CFR 902.1, in paragraph (b), the table is amended by
removing, in the left column under 50 CFR, the entries ``222.11-2'',
``222.11-8'', ``222.12-7'', ``222.12-8'', ``222.22'', and ``227.72'',
and, in the right column, the corresponding control numbers; and by
adding, in numerical order, the following entries to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
requirement
with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
222.201(c) and (d)......................................... -0079
222.202.................................................... -0078
222.204(f) and (g)......................................... -0078
222.301(i)................................................. -0084
222.307.................................................... -0230
222.308.................................................... -0084
223.206(a)................................................. -0230
223.206(b) and (c)......................................... -0178
223.207(e)................................................. -0309
* * * * *
------------------------------------------------------------------------
50 CFR Chapter II
PARTS 217, 220, 221, and 225--[REMOVED AND RESERVED]
3. Under the authority of Endangered Species Act of 1973 sec.
11(f), 87 Stat. 884, Pub. L. 93-205; 16 U.S.C. 742a et seq., 1361 et
seq., and 1531-1544, parts 217, 220, 221, and 225 are removed and
reserved.
4. Part 222 is revised to read as follows:
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
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.
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 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
[[Page 14055]]
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 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 side panels of webbing. The upper and lower edges of the
side panels of
[[Page 14056]]
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.
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.
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
[[Page 14057]]
substantial etching, engraving, or carving.
Secretary means the Secretary of Commerce or an authorized
representative.
Shrimp means any species of marine shrimp (Order Crustacea) found
in the Atlantic Area or the Gulf Area, including, but not limited to:
(1) Brown shrimp (Penaeus aztecus).
(2) White shrimp (Penaeus setiferus).
(3) Pink shrimp (Penaeus duorarum).
(4) Rock shrimp (Sicyonia brevirostris).
(5) Royal red shrimp (Hymenopenaeus robustus).
(6) Seabob shrimp (Xiphopenaeus kroyeri).
Shrimp trawler means any vessel that is equipped with one or more
trawl nets and that is capable of, or used for, fishing for shrimp, or
whose on-board or landed catch of shrimp is more than 1 percent, by
weight, of all fish comprising its on-board or landed catch.
Skimmer trawl means a trawl that is fished along the side of the
vessel and is held open by a rigid frame and a lead weight. On its
outboard side, the trawl is held open by one side of the frame
extending downward and, on its inboard side, by a lead weight attached
by cable or rope to the bow of the vessel.
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.
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.
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
[[Page 14058]]
sections 6(c)(1) (i) and (ii) of the Act have been satisfied.
(2) Following receipt of an application by a state for a
Cooperative Agreement with a copy of a proposed state program, and a
determination by the Assistant Administrator that the state program is
adequate and active, the Assistant Administrator shall enter into an
Agreement with the state.
(3) The Cooperative Agreement, as well as the Assistant
Administrator's finding upon which it is based, must be reconfirmed
annually to ensure that it reflects new laws, species lists, rules or
regulations, and programs and to demonstrate that it is still adequate
and active.
(b) Allocation and availability of funds. (1) The Assistant
Administrator shall allocate funds, appropriated for the purpose of
carrying out section 6 of the Act, to various states using the
following as the basis for the determination:
(i) The international commitments of the United States to protect
endangered or threatened species;
(ii) The readiness of a state to proceed with a conservation
program consistent with the objectives and purposes of the Act;
(iii) The number of federally listed endangered and threatened
species within a state;
(iv) The potential for restoring endangered and threatened species
within a state; and
(v) The relative urgency to initiate a program to restore and
protect an endangered or threatened species in terms of survival of the
species.
(2) Funds allocated to a state are available for obligation during
the fiscal year for which they are allocated and until the close of the
succeeding fiscal year. Obligation of allocated funds occurs when an
award or contract is signed by the Assistant Administrator.
(c) Financial assistance and payments. (1) A state must enter into
a Cooperative Agreement before financial assistance is approved by the
Assistant Administrator for endangered or threatened species projects.
Specifically, the Agreement must contain the actions that are to be
taken by the Assistant Administrator and/or by the state, the benefits
to listed species expected to be derived from these actions, and the
estimated cost of these actions.
(2) Subsequent to such Agreement, the Assistant Administrator may
further agree with a state to provide financial assistance in the
development and implementation of acceptable projects for the
conservation of endangered and threatened species. Documents to provide
financial assistance will consist of an application for Federal
assistance and an award or a contract. The availability of Federal
funds shall be contingent upon the continued existence of the
Cooperative Agreement and compliance with all applicable Federal
regulations for grant administration and cost accounting principles.
(3)(i) The payment of the Federal share of costs incurred when
conducting activities included under a contract or award shall not
exceed 75 percent of the program costs as stated in the agreement.
However, the Federal share may be increased to 90 percent when two or
more states having a common interest in one or more endangered or
threatened resident species, the conservation of which may be enhanced
by cooperation of such states, jointly enter into an agreement with the
Assistant Administrator.
(ii) The state share of program costs may be in the form of cash or
in-kind contributions, including real property, subject to applicable
Federal regulations.
(4) Payments of funds, including payment of such preliminary costs
and expenses as may be incurred in connection with projects, shall not
be made unless all necessary or required documents are first submitted
to and approved by the Assistant Administrator. Payments shall only be
made for expenditures reported and certified by the state agency.
Payments shall be made only to the state office or official designated
by the state agency and authorized under the laws of the state to
receive public funds for the state.
Subpart B--Certificates of Exemption for Pre-Act Endangered Species
Parts
Sec. 222.201 General requirements.
(a) The Assistant Administrator may exempt any pre-Act endangered
species part from the prohibitions of sections 9(a)(1)(A), 9(a)(1)(E),
or 9(a)(1)(F) of the Act.
(1) No person shall engage in any activities identified in such
sections of the Act that involve any pre-Act endangered species part
without a valid Certificate of Exemption issued pursuant to this
subpart B.
(2) No person may export, deliver, receive, carry, transport or
ship in interstate or foreign commerce in the course of a commercial
activity; or sell or offer for sale in interstate or foreign commerce
any pre-Act finished scrimshaw product unless that person has been
issued a valid Certificate of Exemption and the product or the raw
material for such product was held by such certificate holder on
October 13, 1982.
(3) Any person engaged in activities otherwise prohibited under the
Act or regulations shall bear the burden of proving that the exemption
or certificate is applicable, was granted, and was valid and in force
at the time of the otherwise prohibited activity.
(b) Certificates of Exemption issued under this subpart are no
longer available to new applicants. However, the Assistant
Administrator may renew or modify existing Certificates of Exemptions
as authorized by the provisions set forth in this subpart.
(c) Any person granted a Certificate of Exemption, including a
renewal, under this subpart, upon a sale of any exempted pre-Act
endangered species part, must provide the purchaser in writing with a
description (including full identification number) of the part sold and
must inform the purchaser in writing of the purchaser's obligation
under paragraph (b) of this section, including the address given in the
certificate to which the purchaser's report is to be sent.
(d) Any purchaser of pre-Act endangered species parts included in a
valid Certificate of Exemption, unless an ultimate user, within 30 days
after the 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
[[Page 14059]]
allowed for processing. When an application for a renewal has been
received and deemed sufficient, the Assistant Administrator shall issue
a Certificate of Renewal to the applicant as soon as practicable.
(c) The following information will be used as the basis for
determining whether an application for renewal of a Certificate of
Exemption is complete:
(1) Title: Application for Renewal of Certificate of Exemption.
(2) The date of application.
(3) The identity of the applicant, including complete name,
original Certificate of Exemption number, current address, and
telephone number. If the applicant is a corporation, partnership, or
association, set forth the details.
(4) The period of time for which a renewal of the Certificate of
Exemption is requested. However, no renewal of Certificate of
Exemption, or right claimed thereunder, shall be effective after the
close of the 5-year period beginning on the date of the expiration of
the previous renewal of the certificate of exemption.
(5)(i) A complete and detailed updated inventory of all pre-Act
endangered species parts for which the applicant seeks exemption. Each
item on the inventory must be identified by the following information:
A unique serial number; the weight of the item to the nearest whole
gram; and a detailed description sufficient to permit ready
identification of the item. Small lots, not exceeding five pounds
(2,270 grams), of scraps or raw material, which may include or consist
of one or more whole raw whale teeth, may be identified by a single
serial number and total weight. All finished scrimshaw items
subsequently made from a given lot of scrap may be identified by the
lot serial number plus additional digits to signify the piece number of
the individual finished item. Identification numbers will be in the
following format: 00-000000-0000. The first two digits will be the last
two digits of the appropriate certificate of exemption number; the next
six digits, the serial number of the individual piece or lot of scrap
or raw material; and the last four digits, where applicable, the piece
number of an item made from a lot of scrap or raw material. The serial
numbers for each certificate holder's inventory must begin with 000001,
and piece numbers, where applicable, must begin with 0001 for each
separate lot.
(ii) Identification numbers may be affixed to inventory items by
any means, including, but not limited to, etching the number into the
item, attaching a label or tag bearing the number to the item, or
sealing the item in a plastic bag, wrapper or other container bearing
the number. The number must remain affixed to the item until the item
is sold to an ultimate user, as defined in Sec. 222.201(d).
(iii) No renewals will be issued for scrimshaw products in excess
of any quantities declared in the original application for a
Certificate of Exemption.
(6) A Certification in the following language: I hereby certify
that the foregoing information is complete, true, and correct to the
best of my knowledge and belief. I understand that this information is
submitted for the purpose of obtaining a renewal of my Certificate of
Exemption under the Endangered Species Act, as amended, and the
Department of Commerce regulations issued thereunder, and that any
false statement may subject me to the criminal penalties of 18 U.S.C.
1001, or to the penalties under the Act.
(7) Signature of the applicant.
(d) Upon receipt of an incomplete or improperly executed
application for renewal, the applicant shall be notified of the
deficiency in the application for renewal. If the application for
renewal is not corrected and received by the Assistant Administrator
within 30 days following the date of receipt of notification, the
application for renewal shall be considered abandoned.
Sec. 222.203 Modification, amendment, suspension, and revocation of
certificates.
(a) When circumstances have changed so that an applicant or
certificate holder desires to have any material, term, or condition of
the application or certificate modified, the applicant or certificate
holder must submit in writing full justification and supporting
information in conformance with the provisions of this part.
(b) All certificates are issued subject to the condition that the
Assistant Administrator reserves the right to amend the provisions of a
Certificate of Exemption for just cause at any time. Such amendments
take effect on the date of notification, unless otherwise specified.
(c) Any violation of the applicable provisions of parts 222, 223,
or 224 of this chapter, or of the Act, or of a condition of the
certificate may subject the certificate holder to penalties provided in
the Act and to suspension, revocation, or modification of the
Certificate of Exemption, as provided in subpart D of 15 CFR part 904.
Sec. 222.204 Administration of certificates.
(a) The Certificate of Exemption covers the business or activity
specified in the Certificate of Exemption at the address described
therein. No Certificate of Exemption is required to cover a separate
warehouse facility used by the certificate holder solely for storage of
pre-Act endangered species parts, if the records required by this
subpart are maintained at the address specified in the Certificate of
Exemption served by the warehouse or storage facility.
(b) Certificates of Exemption issued under this subpart are not
transferable. However, in the event of the lease, sale, or other
transfer of the operations or activity authorized by the Certificate of
Exemption, the successor is not required to obtain a new Certificate of
Exemption prior to commencing such operations or activity. In such
case, the successor will be treated as a purchaser and must comply with
the record and reporting requirements set forth in Sec. 222.201(d).
(c) The Certificate of Exemption holder must notify the Assistant
Administrator, in writing, of any change in address, in trade name of
the business, or in activity specified in the certificate. The
Assistant Administrator must be notified within 10 days of a change of
address, and within 30 days of a change in trade name. The certificate
with the change of address or in trade name must be endorsed by the
Assistant Administrator, who shall provide an amended certificate to
the person to whom it was issued. A certificate holder who seeks
amendment of a certificate may continue all authorized activities while
awaiting action by the Assistant Administrator.
(d) A Certificate of Exemption issued under this subpart confers no
right or privilege to conduct a business or an activity contrary to
state or other law. Similarly, compliance with the provisions of any
state or other law affords no immunity under any Federal laws or
regulations of any other Federal agency.
(e) Any person authorized to enforce the Act may enter the premises
of any Certificate of Exemption holder or of any purchaser during
business hours, including places of storage, for the purpose of
inspecting or of examining any records or documents and any endangered
species parts.
(f) The records pertaining to pre-Act endangered species parts
prescribed by this subpart shall be in permanent 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
[[Page 14060]]
dispose of otherwise. Purchasers of pre-Act endangered species parts,
unless ultimate users, as defined in Sec. 222.201(d), must similarly
maintain records of all such parts or products they receive.
(2) Such records referred to in paragraph (g)(1) of this section
may consist of invoices or other commercial records, which must be
filed in an orderly manner separate from other commercial records
maintained and be readily available for inspection. Such records must
show the name and address of the purchaser, seller, or other
transferor; show the type, quantity, and identity of the part or
product; show the date of such sale or transfer; and be retained, in
accordance with the requirements of this subpart, for a period of not
less than 3 years following the date of sale or transfer. Each pre-Act
endangered species part will be identified by its number on the updated
inventory required to renew a Certificate of Exemption.
(i) Each Certificate of Exemption holder must submit a quarterly
report (to the address given in the certificate) containing all record
information required by paragraph (g)(2) of this section, on all
transfers of pre-Act endangered species parts made in the previous
calendar quarter, or such other record information the Assistant
Administrator may specify from time to time.
(ii) Quarterly reports are due on January 15, April 15, July 15,
and October 15.
(3) The Assistant Administrator may authorize the record
information to be submitted in a manner other than that prescribed in
paragraph (g)(2) of this section when the record holder demonstrates
that an alternate method of reporting is reasonably necessary and will
not hinder the effective administration or enforcement of this subpart.
Sec. 222.205 Import and export requirements.
(a) Any fish and wildlife subject to the jurisdiction of the
National Marine Fisheries Service and is intended for importation into
or exportation from the United States, shall not be imported or
exported except at a port(s) designated by the Secretary of the
Interior. Shellfish and fishery products that are neither endangered
nor threatened species and that are imported for purposes of human or
animal consumption or taken in waters under the jurisdiction of the
United States or on the high seas for recreational purposes are
excluded from this requirement. The Secretary of the Interior may
permit the importation or exportation at nondesignated ports in the
interest of the health or safety of the species for other reasons if
the Secretary deems it appropriate and consistent with the purpose of
facilitating enforcement of the Act and reducing the costs thereof.
Importers and exporters are advised to see 50 CFR part 14 for
importation and exportation requirements and information.
(b) No pre-Act endangered species part shall be imported into the
United States. A Certificate of Exemption issued in accordance with the
provisions of this subpart confers no right or privilege to import into
the United States any such part.
(c)(1) Any person exporting from the United States any pre-Act
endangered species part must possess a valid Certificate of Exemption
issued in accordance with the provisions of this subpart. In addition,
the exporter must provide to the Assistant Administrator, in writing,
not less than 10 days prior to shipment, the following information: The
name and address of the foreign consignee, the intended port of
exportation, and a complete description of the parts to be exported. No
shipment may be made until these requirements are met by the exporter.
(2) The exporter must send a copy of the Certificate of Exemption,
and any endorsements thereto, to the District Director of Customs at
the port of exportation, which must precede or accompany the shipment
in order to permit the appropriate inspection prior to 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.
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
[[Page 14061]]
must be in possession of a permit during the time of the authorized
taking, importation, exportation, or of any other act and during the
period of any transit incident to such taking, importation,
exportation, or to any other act.
(2) A duplicate copy of the issued permit must be physically
attached to the tank, container, package, enclosure, or other means of
containment, in which the animal is placed for purposes of storage,
transit, supervision, or care.
(e) The authorizations on the face of a permit setting forth
specific times, dates, places, methods of taking, numbers and kinds of
fish or wildlife, location of activity, authorize certain circumscribed
transactions, or otherwise permit a specifically limited matter, are to
be strictly construed and shall not be interpreted to permit similar or
related matters outside the scope of strict construction.
(f) Permits shall not be altered, erased, or mutilated, and any
permit which has been altered, erased, or mutilated shall immediately
become invalid.
(g) Any permit issued under parts 222, 223, and 224 of this chapter
shall be displayed for inspection, upon request, to an authorized
officer, or to any other person relying upon its existence.
(h) Permittees may be required to file reports of the activities
conducted under the permit. Any such reports shall be filed not later
than March 31 for the preceding calendar year ending December 31, or
any portion thereof, during which a permit was in force, unless the
regulations of parts 222, 223, or 224 of this chapter or the provisions
of the permit set forth other reporting requirements.
(i) From the date of issuance of the permit, the permittee shall
maintain complete and accurate records of any taking, possession,
transportation, sale, purchase, barter, exportation, or importation of
fish or wildlife pursuant to such permit. Such records shall be kept
current and shall include the names and addresses of persons with whom
any fish or wildlife has been purchased, sold, bartered, or otherwise
transferred, and the date of such transaction, and such other
information as may be required or appropriate. Such records, unless
otherwise specified, shall be entered in books, legibly written in the
English language. Such records shall be retained for 5 years from the
date of issuance of the permit.
(j) Any person holding a permit pursuant to parts 222, 223, and 224
of this chapter shall allow the Assistant Administrator to enter the
permit holder's premises at any reasonable hour to inspect any fish or
wildlife held or to inspect, audit, or copy any permits, books, or
records required to be kept by these regulations or by the Act. Such
person shall display any permit issued pursuant to these regulations or
to the Act upon request by an authorized officer or by any other person
relying on its existence.
Sec. 222.302 Procedure for obtaining permits.
(a) Applications must be submitted to the Assistant Administrator,
by letter containing all necessary information, attachments,
certification, and signature, as specified by the regulations in parts
222, 223, and 224 of this chapter, or by the Act. In no case, other
than for emergencies pursuant to Sec. 222.301(a)(2), will applications
be accepted either orally or by telephone.
(b) Applications must be received by the Assistant Administrator at
least 90 calendar days prior to the date on which the applicant desires
to have the permit made effective, unless otherwise specified in the
regulations or guidelines pertaining to a particular permit. The
National Marine Fisheries Service will attempt to process applications
deemed sufficient in the shortest possible time, but does not guarantee
that the permit will be issued 90 days after notice of receipt of the
application is published in the Federal Register.
(c)(1) Upon receipt of an insufficiently or improperly executed
application, the applicant shall be notified of the deficiency in the
application. If the applicant fails to supply the deficient information
or otherwise fails to correct the deficiency within 60 days following
the date of notification, the application shall be considered
abandoned.
(2) The sufficiency of the application shall be determined by the
Assistant Administrator in accordance with the requirements of this
part. The Assistant Administrator, however, may waive any requirement
for information or require any elaboration or further information
deemed necessary.
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;
[[Page 14062]]
(iii) The applicant has failed to demonstrate a valid justification
for the permit or a showing of responsibility;
(iv) The authorization requested potentially threatens a fish or
wildlife population; or
(v) The Assistant Administrator finds through further inquiry or
investigation, or otherwise, that the applicant is not qualified.
(2) The applicant shall be notified in writing of the denial of any
permit request, and the reasons thereof. If authorized in the notice of
denial, the applicant may submit further information or reasons why the
permit should not be denied. Such further information shall not be
considered a new application. The final action by the Assistant
Administrator shall be considered the final administrative decision of
the Department of Commerce.
(f) If a permit is issued under Sec. 222.308, the Assistant
Administrator shall publish notice thereof in the Federal Register,
including the Assistant Administrator's finding that such permit--
(1) Was applied for in good faith;
(2) Will not operate to the disadvantage of such endangered
species; and
(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.
Sec. 222.306 Modification, amendment, suspension, cancellation, and
revocation of permits.
(a) When circumstances have changed so that an applicant or a
permittee desires to have any term or condition of the application or
permit modified, the applicant or permittee must submit in writing full
justification and supporting information in conformance with the
provisions of this part and the part under which the permit has been
issued or requested. Such applications for modification are subject to
the same issuance criteria as original applications.
(b) Notwithstanding the requirements of paragraph (a) of this
section, a permittee may change the mailing address or trade name under
which business is conducted without obtaining a new permit or being
subject to the same issuance criteria as original permits. The
permittee must notify the Assistant Administrator, in writing within 30
days, of any change in address or of any change in the trade name for
the business or activity specified in the permit. The permit with the
change of address or in trade name must be endorsed by the Assistant
Administrator, who shall provide an amended permit to the person to
whom it was issued.
(c) All permits are issued subject to the condition that the
National Marine Fisheries Service reserves the right to amend the
provisions of a permit for just cause at any time during its term. Such
amendments take effect on the date of notification, unless otherwise
specified.
(d) When any permittee discontinues the permitted activity, the
permittee shall, within 30 days thereof, mail the permit and a request
for cancellation to the issuing officer, and the permit shall be deemed
void upon receipt. No refund of any part of an amount paid as a permit
fee shall be made when the operations of the permittee are, for any
reason, discontinued during the tenure of an issued permit.
(e) Any violation of the applicable provisions of parts 222, 223,
or 224 of this chapter, or of the Act, or of a term or condition of the
permit may subject the permittee to both the penalties provided in the
Act and suspension, revocation, or amendment of the permit, as provided
in subpart D to 15 CFR part 904.
Sec. 222.307 Permits for incidental taking of species.
(a) Scope. (1) The Assistant Administrator may issue permits to
take endangered and threatened species incidentally to an otherwise
lawful activity under section 10(a)(1)(B) of the Act. The regulations
in this section apply to all endangered species, and those threatened
species for which the prohibitions of section 9(a)(1) of the Act, under
the jurisdiction of the Secretary of Commerce, apply.
(2) If the applicant represents an individual or a single entity,
such as a corporation, the Assistant Administrator will issue an
individual incidental take permit. If the applicant represents a group
or organization whose members conduct the same or a similar activity in
the same geographical area with similar impacts on listed species for
which a permit is required, the Assistant Administrator will issue a
general incidental take permit. To be covered by a general incidental
take permit, each individual conducting the activity must have a
certificate of inclusion issued under paragraph (f) of this section.
(b) Permit application procedures. Applications should be sent to
the Assistant Administrator. The Assistant Administrator shall
determine the
[[Page 14063]]
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;
(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 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
[[Page 14064]]
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 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 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
[[Page 14065]]
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;
(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;
[[Page 14066]]
(7) The sale or other disposition of the species, its progeny, or
the species product; and
(8) A reasonable fee covering the costs of issuance of such permit,
including reasonable inspections and an appropriate apportionment of
overhead and administrative expenses of the Department of Commerce. All
such fees will be deposited in the Treasury to the credit of the
appropriation which is current and chargeable for the cost of
furnishing the service.
Sec. 222.309 Permits for listed species of sea turtles involving the
Fish and Wildlife Service.
(a) This section establishes specific procedures for issuance of
the following permits: scientific purposes or to enhance the
propagation or survival of endangered or threatened species of sea
turtles; zoological exhibition or educational purposes for threatened
species of sea turtles; and permits that requires coordination with the
Fish and Wildlife Service. The National Marine Fisheries Service
maintains jurisdiction for such species in the marine environment. The
Fish and Wildlife Service maintains jurisdiction for such species of
sea turtles in the land environment.
(b) For permits relating to any activity in the marine environment
exclusively, permit applicants and permittees must comply with the
regulations in parts 222, 223, and 224 of this chapter.
(c) For permits relating to any activity in the land environment
exclusively, permit applicants must submit applications to the Wildlife
Permit Office (WPO) of the U.S. Fish and Wildlife Service in accordance
with either 50 CFR 17.22(a), if the species is endangered, or 50 CFR
17.32(a), if the species is threatened.
(d) For permits relating to any activity in both the land and
marine environments, applicants must submit applications to the WPO.
WPO will forward the application to NMFS for review and processing of
those activities under its jurisdiction. Based on this review and
processing, WPO will issue either a permit or a letter of denial in
accordance with its own regulations.
(e) For permits relating to any activity in a marine environment
and that also requires a permit under the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) (TIAS 8249,
July 1, 1975) (50 CFR part 23), applicants must submit applications to
the WPO. WPO will forward the application to NMFS for review and
processing, after which WPO will issue a combination ESA/CITES permit
or a letter of denial.
5. Part 224 is added to read as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
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 Incidental capture of endangered sea turtles.
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
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. Shortnose sturgeon (Acipenser
brevirostrum); Totoaba (Cynoscion macdonaldi), Snake River sockeye
salmon (Oncorhynchus nerka), Umpqua River cutthroat trout (Oncorhynchus
clarki clarki); Southern California steelhead (Oncorhynchus mykiss),
including all naturally spawned populations of steelhead (and their
progeny) in streams from the Santa Maria River, San Luis Obispo County,
California (inclusive) to Malibu Creek, Los Angeles County, California
(inclusive); Upper Columbia River steelhead (Oncorhynchus mykiss),
including the Wells Hatchery stock and all naturally spawned
populations of steelhead (and their progeny) in streams in the Columbia
River Basin upstream from the Yakima River, Washington, to the United
States-Canada Border; Sacramento River winter-run chinook salmon
(Oncorhynchus tshawytscha).
(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.
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
[[Page 14067]]
or human observer by tail swishing or by other protective movement; or
the abandonment of a previously frequented area.
(b) 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 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.
(c) 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.
Sec. 224.104 Incidental capture of 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) of this chapter.
PART 226--DESIGNATED CRITICAL HABITAT
6. The authority citation for part 226 continues to read as
follows:
Authority: 16 U.S.C. 1533.
PART 226--[AMENDED]
7. Subpart headings A through D, Secs. 226.1 and 226.2, and Figures
1 through 9 to part 226 are removed.
Secs. 226.11, 226.12, 226.13, 226.21, 226.22, 226.23, 226.71, 226.72
and 226.73 [Redesignated as Secs. 226.201 through 226.209]
8. Sections 226.11 through 226.13, 226.21, 226.22, 226.23, 226.71,
226.72, and 226.73 are redesignated as Secs. 226.201 through 226.209,
respectively.
9. Section 226.101 is added to read as follows:
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'').
10. The section headings and table headings to part 226 are revised
to read as follows:
PART 226--DESIGNATED CRITICAL HABITAT
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 Critical habitat for Umpqua River cutthroat trout.
226.207 Critical habitat for leatherback turtle.
226.208 Critical habitat for green turtle.
226.209 Critical habitat for hawksbill turtle.
Tables to Part 226
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--Hydrologic Units Containing Critical Habitat
for Endangered Umpqua River Cutthroat Trout and Counties Contained
in Each Hydrologic Unit
Sec. 226.202 [Amended]
11. In newly redesignated Sec. 226.202, in the first sentence of
paragraph (c)(1), the phrase ``which is identified in Figure 2'' is
removed; in the first sentence of paragraph (c)(2), the phrase ``which
is identified in Figure 3'' is removed; and in paragraph (c)(3), the
phrase ``which is identified in Figure 4'' is removed.
Sec. 226.203 [Amended]
12. In newly redesignated Sec. 226.203, in paragraph (a), the
reference ``(Figure 6 to part 226)'' and, in paragraph (b), the
reference ``(Figure 7 to part 226)'' are removed.
Sec. 226.205 [Amended]
13. In newly redesignated Sec. 226.205, in the introductory text,
the third and fourth sentences are removed.
[[Page 14068]]
Sec. 226.206 [Amended]
14. In newly redesignated Sec. 226.206, in paragraph (a), the third
and fourth sentences are removed.
PART 227 [REDESIGNATED AS PART 223 AND AMENDED]
15. Part 227 is redesignated as part 223.
16. The heading for part 223 is revised to read as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
17. The authority citation for part 223 is revised to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31
U.S.C. 9701.
PART 223--[AMENDED]
18. Sections 223.1 through 223.4 and subpart headings C and D are
removed.
Secs. 223.11, 223.12, 223.21, 223.22, and 223.71 [Redesignated as
Secs. 223.201 through 223.205]
19-20. Sections 223.11, 223.12, 223.21, 223.22, and 223.71 are
redesignated as Secs. 223.201 through 223.205, respectively.
Sec. 223.72 [Redesignated as Sec. 223.206]
21. Section 223.72 is redesignated Sec. 223.206.
22. Subpart B heading is revised to read as follows:
Subpart B--Restrictions Applicable to Threatened Marine and
Anadromous Species
Secs. 223.203, 223.204 and 223.205 [Amended]
23. Under subpart B, Secs. 223.203, 223.204, and 223.205 headings
are revised to read as: ``Anadromous fish,'' ``Exceptions to
prohibitions relating to anadromous fish,'' and ``Sea turtles,''
respectively.
24. Sections 223.101 and 223.102 are added to subpart A to read as
follows:
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.
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 salmon in streams south of the
Columbia River and north of Cape Blanco in Curry County, OR.
(11) Gulf sturgeon (Acipenser oxyrinchus desotoi).
(b) Marine plants. Johnson's seagrass (Halophila johnsonii).
(c) Marine mammals. Guadalupe fur seal (Arctocephalus townsendi);
Steller sea lion, eastern population (Eumetopias jubatus), which
consists of all Stellar sea lions from breeding colonies located east
of 114 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.
Sec. 223.201 [Amended]
25. In newly redesignated Sec. 223.201, in paragraph (b)(1), the
phrase ``part 222 subpart C--Endangered Fish or Wildlife Permits.'' is
removed and replaced with ``part 222 subpart C--General Permit
Procedures,'' and in paragraph (b)(2)(iv), the phrase ``Director,
Southwest Region, National Marine Fisheries Service, 300
[[Page 14069]]
S. Ferry Street, Terminal Island, CA 90731.'' is removed and replaced
with ``Regional Administrator, Southwest Region, National Marine
Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA
90802.''
Sec. 223.202 [Amended]
26. In newly redesignated Sec. 223.202, in paragraph (b)(1), the
phrase ``50 CFR part 222 subpart C--Endangered Fish or Wildlife
Permits.'' is removed and replaced with ``part 222 subpart C--General
Permit Procedures.'' and in Sec. 223.202, in Table 1, the table title
is revised to read ``Table 1 to Sec. 223.202--Listed Steller Sea Lion
Rookery Sites/1/''.
Sec. 223.203 [Amended]
27. In newly redesignated Sec. 223.203, in paragraph (a), the text
``227.4 (f), (g), (h), and (i)'' is removed and replaced with
``223.102(a)(1) through (a)(4)''; and the last sentence ``These
prohibitions shall become effective for the threatened species of
salmon listed in Sec. 227.4(i) on August 18, 1997.'' is removed.
28. In newly redesignated Sec. 223.203, paragraph (b)(1), the text
``in part 222 of this chapter II'' is added after the word
``regulations''; the text ``Sec. 227.4 (f), (g), (h), and (i)'' is
replaced with ``Sec. 223.102(a)(1) through (a)(4)''; and the second
sentence of paragraph (b)(1) is removed.
29. In newly redesignated Sec. 223.203, paragraph (b)(2), the
reference ``Sec. 227.4(i)'' is replaced with ``Sec. 223.102(a)(4)''.
30. In newly redesignated Sec. 223.203, paragraph (b)(3), the
reference ``Sec. 227.4(i)'' is replaced with ``Sec. 223.102(a)(4)''.
31. Newly redesignated Sec. 223.204 is revised to read as follows:
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.
(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.
32. Newly redesignated Sec. 223.205 is revised to read as follows:
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
[[Page 14070]]
species of sea turtle, except as provided in Sec. 223.206.
(b) Except as provided in Sec. 223.206, it is unlawful for any
person subject to the jurisdiction of the United States to do any of
the following:
(1) Own, operate, or be on board a vessel, except if that vessel is
in compliance with all applicable provisions of Sec. 223.206(d);
(2) Fish for, catch, take, harvest, or possess, fish or wildlife
while on board a vessel, except if that vessel is in compliance with
all applicable provisions of Sec. 223.206(d);
(3) Fish for, catch, take, harvest, or possess, fish or wildlife
contrary to any notice of tow-time or other restriction specified in,
or issued under, Sec. 223.206(d)(3) or (d)(4);
(4) Possess fish or wildlife taken in violation of paragraph (b) of
this section;
(5) Fail to follow any of the sea turtle handling and resuscitation
requirements specified in Sec. 223.206(d)(1);
(6) Possess a sea turtle in any manner contrary to the handling and
resuscitation requirements of Sec. 223.206(d)(1);
(7) Fail to comply immediately, in the manner specified at
Sec. 600.730 (b) through (d) of this Title, with instructions and
signals specified therein issued by an authorized officer, including
instructions and signals to haul back a net for inspection;
(8) Refuse to allow an authorized officer to board a vessel, or to
enter an area where fish or wildlife may be found, for the purpose of
conducting a boarding, search, inspection, seizure, investigation, or
arrest in connection with enforcement of this section;
(9) Destroy, stave, damage, or dispose of in any manner, fish or
wildlife, gear, cargo, or any other matter after a communication or
signal from an authorized officer, or upon the approach of such an
officer or of an enforcement vessel or aircraft, before the officer has
an opportunity to inspect same, or in contravention of directions from
the officer;
(10) Assault, resist, oppose, impede, intimidate, threaten,
obstruct, delay, prevent, or interfere with an authorized officer in
the conduct of any boarding, search, inspection, seizure,
investigation, or arrest in connection with enforcement of this
section;
(11) Interfere with, delay, or prevent by any means, the
apprehension of another person, knowing that such person committed an
act prohibited by this section;
(12) Resist a lawful arrest for an act prohibited by this section;
(13) Make a false statement, oral or written, to an authorized
officer or to the agency concerning the fishing for, catching, taking,
harvesting, landing, purchasing, selling, or transferring fish or
wildlife, or concerning any other matter subject to investigation under
this section by such officer, or required to be submitted under this
part 223;
(14) Sell, barter, trade or offer to sell, barter, or trade, a TED
that is not an approved TED; 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.
33. Newly redesignated Sec. 223.206 is revised to read as follows:
Sec. 223.206 Exceptions to prohibitions relating to sea turtles.
(a) Permits--(1) Scientific research, education, zoological
exhibition, or species enhancement permits. The Assistant Administrator
may issue permits authorizing activities which would otherwise be
prohibited under Sec. 223.205(a) for scientific or educational
purposes, for zoological exhibition, or to enhance the propagation or
survival of threatened species of sea turtles, in accordance with and
subject to the conditions of part 222, subpart C--General Permit
Procedures.
(2) Incidental-take permits. The Assistant Administrator may issue
permits authorizing activities that would otherwise be prohibited under
Sec. 223.205(a) in accordance with section 10(a)(1)(B) of the Act (16
U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to, the
implementing regulations in part 222 of this chapter. Such permits may
be issued for the incidental taking of threatened and endangered
species of sea turtles.
(b) Exception for injured, dead, or stranded specimens. If any
member of any threatened species of sea turtle is found injured, dead,
or stranded, any agent or employee of the National Marine Fisheries
Service, the Fish and Wildlife Service, the U.S. Coast Guard, or any
other Federal land or water management agency, or any agent or employee
of a state agency responsible for fish and wildlife who is designated
by his or her agency for such purposes, may, when acting in the course
of his or her official duties, take such specimens without a permit if
such taking is necessary to aid a sick, injured, or stranded specimen
or dispose of a dead specimen or salvage a dead specimen which may be
useful for scientific study. Whenever possible, live specimens shall be
returned to their aquatic environment as soon as possible. Every action
shall be reported in writing to the Assistant Administrator within 30
days, and reports of further occurrence shall be made as deemed
appropriate by the Assistant Administrator until the specimen is either
returned to its environment or disposed of. Reports shall be mailed by
registered or certified mail, return receipt requested, to the
Assistant Administrator and shall contain the following information:
(1) Name and position of the official or employee involved;
(2) Description of the specimen(s) involved;
(3) Date and location of disposal;
(4) Circumstances requiring the action;
(5) Method of disposal;
(6) Disposition of the specimen(s), including, where the
specimen(s) has been retained in captivity, a description of the place
and means of confinement, and the measures taken for its maintenance
and care; and
(7) Such other information as the Assistant Administrator may
require.
(c) Exception for research or conservation. Any employee or agent
of the National Marine Fisheries Service, the Fish and Wildlife
Service, or a state fish and wildlife agency operating a conservation
program pursuant to the terms of a Cooperative Agreement with the
National Marine Fisheries Service or the Fish and Wildlife Service in
accordance with section 6(c) of the Act, designated by his or her
agency for such purposes, may, when acting in the course of his or her
official duties, take any threatened species to carry out scientific
research or conservation programs. All such takings shall be reported
within 30 days of the taking to the Assistant Administrator who may
request additional reports of the taking and research at the Assistant
Administrator's discretion.
(d) Exception for incidental taking. The prohibitions against
taking in Sec. 223.205(a) do not apply to the incidental take of any
member of a threatened species of sea turtle (i.e., a take not directed
toward such member) during fishing or scientific research activities,
to the extent that those involved are in compliance with all applicable
requirements of paragraphs
[[Page 14071]]
(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 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. 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.
(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.
(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
[[Page 14072]]
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 closed area, fishing by any shrimp
trawler required to have a NMFS-approved TED installed in each net
rigged for fishing is prohibited, unless the TED installed is one
described at Sec. 223.207(a)(7)(ii)(B) or, prior to October 13, 1999,
Sec. 223.207(c)(1)(iv)(B), and the owner or operator of the shrimp
trawler 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 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,
[[Page 14073]]
but are not limited to, limitations on the types of fishing gear that
may be used, tow-time restrictions, alteration or extension of the
periods of time during which particular tow-time requirements apply,
requirements to use TEDs, registration of vessels in accordance with
procedures at paragraph (d)(5) of this section, and requirements to
provide observers. Notification of withdrawal or modification will
include findings in support of that action.
(iv) Procedures. The Assistant Administrator will consult with the
appropriate fisheries officials (state or Federal) where the fishing
activities are located in issuing notification of a determination
concerning unauthorized takings or notification concerning the
restriction of fishing activities. An emergency notification will be
effective for a period of up to 30 days and may be renewed for
additional periods of up to 30 days each. 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.
34. Section 223.207 is added to subpart B to read as follows:
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 (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. 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 (338-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
[[Page 14074]]
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 should overlap 5 inches (13 cm) of the exit
hole on each side. The side of the 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 cover to 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 also have a minimum circumference of
142 inches (361 cm).
(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 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 size of the escape opening,
[[Page 14075]]
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. Prior to October 13, 1999, 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
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
[[Page 14076]]
the other side of the deflector panel to the trawl must be made in a
single row of meshes across the top of the trawl and measure at least
96 inches (244 cm) in taut width. All trawl webbing above the deflector
panel between the 96-inch (244-cm) cut and edges of the deflector panel
must be removed. A rectangular flap of nylon webbing not larger than 2-
inch (5.1-cm) stretched mesh may be sewn to the forward edge of the
escape opening. The width of the flap must not be larger than the width
of the forward edge of the escape opening. The flap must not extend
more than 12 inches (30.4 cm) beyond the rear point of the escape
opening. The sides of the flap may be attached to the top of the trawl
but must not be attached farther aft than the row of meshes through the
rear point of the escape opening. One row of steel chain not larger
than \3/16\ inch (4.76 mm) may be sewn evenly to the back edge of the
flap. The stretched length of the chain must not exceed 96 inches (244
cm). A Parker TED using the escape opening described in this paragraph
meets the requirements of Sec. 223.206(d)(2)(iv)(B).
(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 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'').
[[Page 14077]]
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
35. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 648.106 [Amended]
36. In Sec. 648.106, introductory text, remove the text, ``parts
217 222, 227'' and add in its place, ``parts 222 and 223''.
37. In Sec. 648.106(a), remove the text, ``Sec. 227.72(e)(1)(i) and
(ii)'' and add in its place, ``Sec. 223.206(d)(1)''.
38. In Sec. 648.106(c), remove the text, ``Sec. 227.72(e)(4)'' and
add in its place, ``Sec. 223.207(b)(1)'' and remove the text from the
last sentence, '', and bounded on the east by a line 7 nm from the
shoreward boundary of the EEZ.''.
Sec. 648.126 [Amended]
39. In Sec. 648.126, remove the text, ``217 and 227'' and add in
its place, ``222 and 223''.
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
40. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
Sec. 679.2 [Amended]
41. In Sec. 679.2, in the definition for ``Steller Sea Lion
Protection Areas,'' remove the text, ``227.12'' and add in its place,
``223.202''.
Sec. 679.22 [Amended]
42. In Tables 4, 5, 6 to part 679 in the caption, remove the text,
``227.12(a)(2)'' and add in its place, ``223.202''.
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
43. The authority citation for part 697 continues to read as
follows:
Authority: 16 U.S.C. 1851 note; 16 U.S.C. 5101 et seq.
Sec. 697.2 [Amended]
44. In Sec. 697.2, the definition ``Approved TED'', remove the
text, ``217.12,'' and add in its place, ``222.102,''.
45. In Sec. 697.2, in the definition for ``Flynets'', remove the
text, ``227.72(e)(2)'' and add in its place, ``223.206'', wherever it
occurs.
[FR Doc. 99-6626 Filed 3-22-99; 8:45 am]
BILLING CODE 3510-22-P
