[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