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Code · REGISTER · 2010-01-14 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Presidential Documents

Presidential Documents. Final rule

102,300 words·~465 min read·/register/2010/01/14/2010-176

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Billing code 3195-W0-P 75 9 Thursday, January 14, 2010 Rules and Regulations Part II Department of Commerce National Oceanic and Atmospheric Administration 15 CFR Part 902; 50 CFR Parts 223 and 665 Western Pacific Fisheries; Regulatory Restructuring; Final Rule DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Parts 223 and 665 [Docket No. 071220872-91431-03] RIN 0648-AU71 Western Pacific Fisheries; Regulatory Restructuring AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule. SUMMARY: This final rule restructures western Pacific fishery regulations to be consistent with five new area-specific fishery ecosystem plans (FEP). This final rule also amends references to the Paperwork Reduction Act
(PRA)information collection requirements to reflect the restructuring. The purpose of this rule is to make the regulations easier for the public to use by organizing existing fishing regulations by geographic location. DATES: This final rule is effective February 16, 2010. ADDRESSES: Copies of the five FEPs (American Samoa, Hawaii, Mariana Archipelago, Pacific Remote Island Areas, and Western Pacific Pelagics), and the Final Programmatic Environmental Impact Statement
(PEIS)that was prepared for the FEPs and regulatory restructuring are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or *http://www.wpcouncil.org.* Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to William L. Robinson, NMFS PIR, 1601 Kapiolani Blvd. Suite 1110, Honolulu, HI 96814, and by e-mail to *David_Rostker@omb.eop.gov* or fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Brett Wiedoff, NMFS PIR, 808-944-2272. SUPPLEMENTARY INFORMATION: This **Federal Register** document is also accessible at *http://www.gpoaccess.gov/fr.* In December 2009, the Secretary of Commerce approved the five western Pacific FEPs. This final rule restructures western Pacific fishery regulations to be consistent with the FEP organization, making the regulations easier to use for fishermen, managers, and the general public. No substantive changes are made to the regulations. Several definitions are added to reference the FEPs, some sections are redesignated and revised to reflect each geographic area, several errors are corrected, and administrative titles and telephone numbers are updated. This final rule redesignates old subparts A (General) and B (Western Pacific Fisheries-General) of 50 CFR part 665 as new subpart A (General). Old Subpart C (Western Pacific Pelagic Fisheries) is redesignated as new subpart F (Western Pacific Pelagic Fisheries). Old subparts D (Western Pacific Crustacean Fisheries), E (Bottomfish and Seamount Groundfish Fisheries), F (Precious Coral Fisheries), and G (Western Pacific Coral Reef Ecosystem Fisheries) are redesignated as B (American Samoa Fisheries), C (Hawaii Fisheries), D (Mariana Archipelago Fisheries), and E (Pacific Remote Island Area Fisheries). Each of these new geographic subparts identifies the management unit species
(MUS)managed under the FEPs, as well as area restrictions within the management area. Each subpart is also organized by fishery. Fishery-specific regulations are redesignated and revised to reflect the correct cross-referenced sections and FEP naming conventions for the respective fishery sections in each of the four archipelagic ecosystem subparts. This final rule redesignates regulations that define the fishery management process as new section 50 CFR 665.18, Framework Measures, in subpart A. This rule also corrects inadvertent errors in 50 CFR part 665 relating to cross-referenced section citations, and it updates several administrative names and contact information. In a final rule published on December 12, 2008, (73 FR 75615) paragraphs
(o)through
(u)in old § 665.22 were redesignated as paragraphs
(m)through
(s)in § 665.15. That redesignation should also have included old § 665.22(n). This final rule corrects the error. This final rule also corrects an error related to sea turtle mitigation measures. On March 28, 2000, NMFS published a final rule that implemented several measures intended to mitigate injuries to sea turtles by the Hawaii pelagic longline fishery, including requirements to carry and use line clippers, dip nets, and dehookers (65 FR 16346). In a subsequent final rule published on November 15, 2005, relating to sea turtle mitigation measures (70 FR 69282), the regulations relating to line clippers in § 665.32 were inadvertently omitted. This final rule corrects the error in new § 665.812. In the definition of western Pacific pelagic MUS, the spelling of the scientific names for the pelagic thresher shark and yellowfin tuna are corrected, and the scientific name of the bigeye thresher shark is revised to include the species, which was inadvertently omitted from the definition. The scientific names of a Hawaii black coral and the pelagic armorhead are also updated. This final rule also corrects current regulations to reflect that certain provisions have been superseded. In old 50 CFR 665.22 (new § 668.802), paragraph
(gg)prohibits Hawaii shallow-set longline fishing north of the Equator with hooks other than offset circle hooks sized 18/0 or larger with a 10 degree offset. This paragraph is superseded by paragraph (jj), which prohibits such fishing from *any* western Pacific longline vessel. Similarly, in old 50 CFR 665.22, paragraph
(hh)prohibits Hawaii shallow-set longline fishing north of the Equator with bait other than mackerel-type bait. This provision is superseded by paragraph (kk), which prohibits such fishing from any western Pacific longline vessel. In old 50 CFR 665.22, paragraph
(dd)prohibits owning or operating any western Pacific longline vessel without having on board a valid protected species workshop certificate issued by NMFS; paragraph
(ll)applies that prohibition only to Hawaii longline operators, a subset of those covered in paragraph (dd). In old 50 CFR 665.22, paragraph
(aa)prohibits operating a vessel under a longline limited access permit for American Samoa or Hawaii without complying with sea turtle handling requirements. This paragraph is superseded by paragraph (ii), which requires a vessel registered for use under *any* pelagic fishing permit to comply with sea turtle handling requirements. Thus, paragraphs (aa), (gg), (hh), and
(ll)are removed. A technical clarification in old 50 CFR 665.72(d) (new § 665.211(d)) revises the exception to the possession of Hawaii Restricted Bottomfish Species after the total allowable catch limit is reached. This final rule adds or revises several definitions to be consistent with the FEPs and restructured regulations, corrects errors in cross referencing, removes duplicative text, adds geographic information, and corrects inadvertent omissions. A technical clarification at § 665.12 removes the definition for “Bottomfish management area” and “Lobster closed area” as these terms are artifacts from old regulations and are not currently used in part 665. This final rule removes a duplicate requirement for fishermen to complete a short-tailed albatross recovery data form. In old § 665.35(b), paragraph
(8)was inadvertently duplicated by paragraph (12). This final rule corrects the error by removing the redundant paragraph. In a previous regulatory restructuring (71 FR 17985, April 10, 2006), the regulations were redesignated section-by-section from old 50 CFR part 660 to new 50 CFR part 665. In the resulting regulations, artifact cross-references to part 660 remain, and these are corrected in this final rule. Also, in § 665.1(c), the cross-reference to 50 CFR part 600 subpart N was inadvertently changed to incorrectly reference 50 CFR part 665. This error is also corrected. The following table lists the distribution of the subparts and sections in 50 CFR part 665 in this restructuring: Old section New section Subpart A—General Subpart A—General § 665.1 Purpose and scope § 665.1 Purpose and scope. § 665.2 Relation to other laws § 665.2 Relation to other laws. § 665.3 Reporting and recordkeeping § 665.14 Reporting and recordkeeping. § 665.4 Licensing and registration § 665.3 Licensing and registration. Subpart B—Western Pacific Fisheries—General Subpart B—American Samoa Fisheries § 665.11 Purpose and scope § 665.1 Purpose and scope. § 665.12 Definitions § 665.12 Definitions. § 665.101 Definitions. (American Samoa) § 665.121 Definitions. (American Samoa) § 665.141 Definitions. (American Samoa) § 665.161 Definitions. (American Samoa) § 665.201 Definitions. (Hawaii) § 665.221 Definitions. (Hawaii) § 665.241 Definitions. (Hawaii) § 665.261 Definitions. (Hawaii) § 665.401 Definitions. (Marianas) § 665.421 Definitions. (Marianas) § 665.441 Definitions. (Marianas) § 665.461 Definitions. (Marianas) § 665.601 Definitions.
(PRIA)§ 665.621 Definitions.
(PRIA)§ 665.641 Definitions.
(PRIA)§ 665.661 Definitions.
(PRIA)§ 665.800 Definitions. (Western Pacific Pelagic) § 665.13 Permits and fees § 665.13 Permits and fees. § 665.14 Reporting and recordkeeping § 665.14 Reporting and recordkeeping. § 665.15 Prohibitions § 665.15 Prohibitions. § 665.16 Vessel identification § 665.16 Vessel identification. § 665.17 Experimental fishing § 665.17 Experimental fishing. § 665.18 Area restrictions § 665.99 Area restrictions. (American Samoa) § 665.199 Area restrictions. (Hawaii) § 665.399 Area restrictions. (Marianas) § 665.599 Area Restrictions.
(PRIA)§ 665.19 Vessel monitoring system § 665.19 Vessel monitoring system. Subpart C—Western Pacific Pelagic Fisheries Subpart C—Hawaii Fisheries § 665.21 Permits § 665.801 Permits. § 665.22 Prohibitions § 665.802 Prohibitions. § 665.23 Notifications § 665.803 Notifications. § 665.24 Gear identification § 665.804 Gear identification. § 665.26 Longline fishing prohibited area management § 665.806 Longline fishing prohibited area management. § 665.27 Exemptions for longline fishing prohibited areas; procedures § 665.807 Exemptions for longline fishing prohibited areas; procedures. § 665.28 Conditions for at-sea observer coverage § 665.808 Conditions for at-sea observer coverage. § 665.29 Port privileges and transiting for unpermitted U.S. longline vessels § 665.809 Port privileges and transiting for unpermitted U.S. longline vessels. § 665.30 Prohibition of drift gillnetting § 665.810 Prohibition of drift gillnetting. § 665.31 Framework adjustments to management measures § 665.18 Framework adjustments to management measures. § 665.32 Sea turtle take mitigation measures § 665.812 Sea turtle take mitigation measures. § 665.33 Western Pacific longline fishing restrictions § 665.813 Western Pacific longline fishing restrictions. § 665.34 Protected species workshop § 665.814 Protected species workshop. § 665.35 Pelagic longline seabird mitigation measures § 665.815 Pelagic longline seabird mitigation measures. § 665.36 American Samoa longline limited entry program § 665.816 American Samoa longline limited entry program. § 665.37 American Samoa pelagic fishery area management § 665.817 American Samoa pelagic fishery area management. § 665.38 Exemptions for American Samoa large vessel prohibited areas § 665.818 Exemptions for American Samoa large vessel prohibited areas. Subpart D—Western Pacific Crustacean Fisheries Subpart D—Mariana Archipelago Fisheries § 665.41 Permits § 665.142 Permits. (American Samoa) § 665.242 Permits. (Hawaii) § 665.442 Permits. (Marianas) § 665.642 Permits.
(PRIA)§ 665.42 Prohibitions § 665.143 Prohibitions. (American Samoa) § 665.243 Prohibitions. (Hawaii) § 665.443 Prohibitions. (Marianas) § 665.643 Prohibitions.
(PRIA)§ 665.43 Notifications § 665.144 Notifications. (American Samoa) § 665.244 Notifications. (Hawaii) § 665.444 Notifications. (Marianas) § 665.644 Notifications.
(PRIA)§ 665.44 Lobster size and condition restrictions—Permit Area 2 § 665.249 Lobster size and condition restrictions—Permit Area 2. § 665.45 Closed seasons § 665.250 Closed seasons. § 665.46 Closed areas § 665.251 Closed areas. § 665.47 Gear identification § 665.246 Gear identification. § 665.48 Gear restrictions § 665.245 Gear restrictions. § 665.49 At-sea observer coverage § 665.145 At-sea observer coverage. (American Samoa) § 665.247 At-sea observer coverage. (Hawaii) § 665.445 At-sea observer coverage. (Marianas) § 665.645 At-sea observer coverage.
(PRIA)§ 665.50 Harvest limitation program § 665.252 Harvest limitation program. § 665.51 Monk seal protective measures § 665.52 Monk seal emergency protective measures. § 665.248 Monk seal protective measures. § 665.53 Framework procedures § 665.54 Five-year review § 665.18 Framework adjustments to management measures. Subpart E—Bottomfish and Seamount Groundfish Fisheries Subpart E—Pacific Remote Island Area Fisheries. § 665.61 Permits. § 665.203 Permits. (Hawaii) § 665.404 Permits. (Marianas) § 665.603 Permits.
(PRIA)§ 665.62 Prohibitions § 665.103 Prohibitions. (American Samoa) § 665.204 Prohibitions. (Hawaii) § 665.405 Prohibitions. (Marianas) § 665.604 Prohibitions.
(PRIA)§ 665.63 Notification § 665.205 Notification. (Hawaii) § 665.64 Gear restrictions § 665.104 Gear restrictions. (American Samoa) § 665.206 Gear Restrictions. (Hawaii) § 665.406 Gear restrictions. (Marianas) § 665.605 Gear restrictions.
(PRIA)§ 665.65 At-sea observer coverage § 665.105 At-sea observer coverage. (American Samoa) § 665.207 At-sea observer coverage. (Hawaii) § 665.407 At-sea observer coverage. (Marianas) § 665.606 At-sea observer coverage.
(PRIA)§ 665.66 Protected species conservation § 665.208 Protected species conservation. § 665.67 Framework for regulatory adjustments § 665.18 Framework adjustments to management measures. § 665.68 Fishing moratorium on Hancock Seamount § 665.209 Fishing moratorium on Hancock Seamount. § 665.69 Management subareas § 665.98 Management area. (American Samoa) § 665.198 Management areas. (Hawaii) § 665.202 Management subareas. (Hawaii) § 665.398 Management areas. (Marianas) § 665.402 Management subareas. (Marianas) § 665.598 Management area.
(PRIA)§ 665.70 Bottomfish fishery area management § 665.403 Bottomfish fishery area management. § 665.71 Hawaii restricted bottomfish species § 665.210 Hawaii restricted bottomfish species. § 665.72 Total Allowable Catch
(TAC)limit § 665.211 Total Allowable Catch
(TAC)limit. § 665.73 Non-commercial bag limits § 665.212 Non-commercial bag limits. Subpart F—Precious Corals Fisheries Subpart F—Western Pacific Pelagic Fisheries § 665.81 Permits § 665.162 Permits. (American Samoa) § 665.262 Permits. (Hawaii) § 665.462 Permits. (Marianas) § 665.662 Permits.
(PRIA)§ 665.82 Prohibitions § 665.163 Prohibitions. (American Samoa) § 665.263 Prohibitions. (Hawaii) § 665.463 Prohibitions. (Marianas) § 665.663 Prohibitions.
(PRIA)§ 665.83 Seasons § 665.168 Seasons. (American Samoa) § 665.267 Seasons. (Hawaii) § 665.468 Seasons. (Marianas) § 665.668 Seasons.
(PRIA)§ 665.84 Quotas § 665.167 Quotas. (American Samoa) § 665.269 Quotas. (Hawaii) § 665.467 Quotas. (Marianas) § 665.667 Quotas.
(PRIA)§ 665.85 Closures § 665.166 Closures. (American Samoa) § 665.268 Closures. (Hawaii) § 665.466 Closures. (Marianas) § 665.666 Closures.
(PRIA)§ 665.86 Size restrictions § 665.165 Size restrictions. (American Samoa) § 665.265 Size restrictions. (Hawaii) § 665.465 Size restrictions. (Marianas) § 665.665 Size restrictions.
(PRIA)§ 665.87 Area restrictions § 665.266 Area restrictions. (Hawaii) § 665.88 Gear restrictions § 665.164 Gear restrictions, (American Samoa) § 665.264 Gear restrictions. (Hawaii) § 665.464 Gear restrictions. (Marianas) § 665.664 Gear restrictions.
(PRIA)§ 665.89 Framework procedures § 665.18 Framework adjustments to management measures. § 665.90 Gold coral harvest moratorium § 665.169 Gold coral harvest moratorium. (American Samoa) § 665.270 Gold coral harvest moratorium. (Hawaii) § 665.469 Gold coral harvest moratorium. (Marianas) § 665.669 Gold coral harvest moratorium.
(PRIA)Subpart G—Western Pacific Coral Reef Ecosystem Fisheries None § 665.601 Relation to other laws § 665.123 Relation to other laws. (American Samoa) § 665.223 Relation to other laws. (Hawaii) § 665.423 Relation to other laws. (Marianas) § 665.623 Relation to other laws.
(PRIA)§ 665.602 Permits and fees § 665.124 Permits and Fees. (American Samoa) § 665.224 Permits and Fees. (Hawaii) § 665.424 Permits and Fees. (Marianas) § 665.624 Permits and Fees.
(PRIA)§ 665.603 Prohibitions § 665.125 Prohibitions. (American Samoa) § 665.225 Prohibitions. (Hawaii) § 665.425 Prohibitions. (Marianas) § 665.625 Prohibitions.
(PRIA)§ 665.604 Notifications § 665.126 Notifications. (American Samoa) § 665.226 Notifications. (Hawaii) § 665.426 Notifications. (Marianas) § 665.626 Notifications.
(PRIA)§ 665.605 Allowable gear and gear restrictions § 665.127 Allowable gear and gear restrictions. (American Samoa) § 665.227 Allowable gear and gear restrictions. (Hawaii) § 665.427 Allowable gear and gear restrictions. (Marianas) § 665.627 Allowable gear and gear restrictions.
(PRIA)§ 665.606 Gear identification § 665.128 Gear identification. (American Samoa) § 665.228 Gear identification. (Hawaii) § 665.428 Gear identification. (Marianas) § 665.628 Gear identification.
(PRIA)§ 665.607 Framework for regulatory adjustments § 665.18 Framework for regulatory adjustments. § 665.608 Regulatory area § 665.98 Management area. (American Samoa) § 665.222 Management area. (Hawaii) § 665.422 Management area. (Marianas) § 665.598 Management area.
(PRIA)§ 665.609 Annual reports § 665.18 Framework for regulatory adjustments. Table 1 to Part 665—Quotas for Precious Corals Permit Areas § 665.167 Quotas. (American Samoa) § 665.269 Quotas. (Hawaii) § 665.467 Quotas. (Marianas) § 665.667 Quotas.
(PRIA)Table 2 to Part 665—Currently Harvested Coral Reef Taxa § 665.121 Definitions. (American Samoa) § 665.221 Definitions. (Hawaii) § 665.421 Definitions. (Marianas) § 665.621 Definitions.
(PRIA)Table 3 to Part 665—Potentially Harvested Coral Reef Taxa § 665.121 Definitions. (American Samoa) § 665.221 Definitions. (Hawaii) § 665.421 Definitions. (Marianas) § 665.621 Definitions.
(PRIA)Figure 1 to Part 665—Carapace Length of Lobsters Figure 1 to Part 665—Carapace Length of Lobsters Figure 2 to Part 665—Length of Fishing Vessel Figure 2 to Part 665—Length of Fishing Vessel None Figure 3 to Part 665—Sample Fabricated Arceneaux Line Clipper None § 665.100 American Samoa Bottomfish and Seamount Groundfish Fisheries. § 665.120 American Samoa Coral Reef Ecosystem Fisheries. § 665.140 American Samoa Crustacean Fisheries. § 665.160 American Samoa Precious Coral Fisheries. None § 665.200 Hawaii Bottomfish and Seamount Groundfish Fisheries. § 665.220 Hawaii Coral Reef Ecosystem Fisheries. § 665.240 Hawaii Crustacean Fisheries. § 665.260 Hawaii Precious Coral Fisheries. None § 665.400 Mariana Bottomfish and Seamount Groundfish Fisheries. § 665.420 Mariana Coral Reef Ecosystem Fisheries. § 665.440 Mariana Crustacean Fisheries. § 665.460 Mariana Precious Coral Fisheries. None § 665.600 PRIA Bottomfish and Seamount Groundfish Fisheries. § 665.620 PRIA Coral Reef Ecosystem Fisheries. § 665.640 PRIA Crustacean Fisheries. § 665.660 PRIA Precious Coral Fisheries. None § 665.798 Management Area. (Western Pacific Pelagic) Revisions to Paperwork Reduction Act
(PRA)References Section 3507 of the PRA requires that agencies inventory and display a current control number assigned by the Director, OMB, for each agency information collection, and 15 CFR 902.1(b) identifies the location of NOAA regulations for which OMB approvals have been issued. Because this final rule codifies recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to correctly reference the new sections resulting from the reorganization. The following table lists the derivation of the NOAA PRA approvals for regulatory requirements in 50 CFR part 665: Old section New section OMB Control No. § 665.13 Permits and fees § 665.13 Permits and fees 0648-0463, -0490, -0577, -0584, -0586, and -0589. § 665.14 Reporting and recordkeeping § 665.14 Reporting and recordkeeping 0648-0214, -0462, -0577, -0584, -0586, and -0589. § 665.16 Vessel identification § 665.16 Vessel identification 0648-0361, -0584, -0586, and -0589. § 665.17 Experimental fishing § 665.17 Experimental fishing 0648-0214 and -0490. § 665.19 Vessel monitoring system § 665.19 Vessel monitoring system 0648-0441, -0519, and -0584. § 665.21(l) Permits; Hawaii longline limited access permit § 665.801 Permits 0648-0490. § 665.21(g) Permits; squid jig § 665.801(g) 0648-0589. § 665.23 Notifications § 665.803 Notifications 0648-0214. § 665.24 Gear identification § 665.804 Gear identification 0648-0360. § 665.27 Exemptions for longline fishing prohibited areas; procedures § 665.807 Exemptions for longline fishing prohibited areas; procedures 0648-0490. § 665.28 Conditions for at-sea observer coverage § 665.808 Conditions for at-sea observer coverage 0648-0214. § 665.35 Pelagic longline seabird mitigation measures § 665.815 Pelagic longline seabird mitigation measures 0648-0456. § 665.41 Permits § 665.142 Permits. § 665.242 Permits. § 665.442 Permits. § 665.642 Permits. 0648-0490 and -0586. § 665.43 Notifications § 665.144 Notifications § 665.244 Notifications. § 665.444 Notifications. § 665.644 Notifications. 0648-0214. § 665.47 Gear identification § 665.246 Gear identification 0648-0360. § 665.49 At-sea observer coverage § 665.145 At-sea observer coverage § 665.247 At-sea observer coverage. § 665.445 At-sea observer coverage. § 665.645 At-sea observer coverage 0648-0214. § 665.61 Permits § 665.203 Permits § 665.404 Permits. § 665.603 Permits. 0648-0490 and -0584. § 665.63 Notification § 665.205 Notification 0648-0214. § 665.65 At-sea observer coverage § 665.105 At-sea observer coverage § 665.207 At-sea observer coverage. § 665.407 At-sea observer coverage. § 665.606 At-sea observer coverage. 0648-0214. § 665.81 Permits § 665.162 Permits § 665.262 Permits. § 665.462 Permits. § 665.662 Permits. 0648-0490. § 665.602 Permits and Fees § 665.124 Permits and Fees § 665.224 Permits and Fees. § 665.424 Permits and Fees. § 665.624 Permits and Fees. 0648-0463. § 665.604 Notifications § 665.126 Notifications § 665.226 Notifications. § 665.426 Notifications. 0648-0462. § 665.606 Gear identification § 665.128 Gear identification § 665.228 Gear identification. § 665.428 Gear identification. § 665.628 Gear identification. 0648-0360. Under NOAA Administrative Order 205-11, dated December 17, 1990, the Under Secretary for Oceans and Atmosphere has delegated authority to sign material for publication in the **Federal Register** to the Assistant Administrator for Fisheries, NOAA. Additional background information on this final rule may be found in the preamble to the proposed rule, and is not repeated here. Comments and Responses On November 19, 2009, NMFS published a proposed rule and request for public comment (74 FR 60050). The public comment period ended on December 4, 2009. NMFS received no public comments. Changes From the Proposed Rule NMFS made several administrative changes to the final rule for consistency with changes implemented by a recent, separate rulemaking. On December 10, 2009, NMFS published a final rule that removed or revised several regulations for western Pacific longline fishing (74 FR 65460). In § 665.800, the definition of shallow-set certificate was removed. The prohibition against shallow-set fishing without certificates on board at § 665.802(bb) was also removed. The technical requirements for sea turtle dehookers were clarified at § 665.812(a)(7)(iii). The sea turtle mitigation requirements at § 665.812 were reorganized for clarity. Requirements of the annual shallow-set effort limitation program at § 665.813(a), (c), and
(e)were removed. The annual limit on sea turtle interactions and related administrative procedures at § 665.813(b) were revised. The circle hook specifications at § 665.813(f) were clarified. This final rule updates the regulatory text to be consistent with the above changes. In the proposed rule, NMFS indicated that it would make administrative clarifications in several cross-references to 50 CFR part 665 that are found in 50 CFR part 404 regarding the Northwestern Hawaiian Islands Marine National Monument. This is part of a joint chapter between NOAA and the U.S. Fish and Wildlife Service, and amendments to part 404 need to be issued in a rule signed by an official from both agencies. Thus, NOAA will address amendments to part 404 later in a jointly-issued rule. No changes are made to part 404 in this final rule. Classification The Regional Administrator, NMFS Pacific Islands Region, determined that the restructured regulations are necessary for the conservation and management of western Pacific fisheries and that they are consistent with FEPs, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws. A PEIS was prepared for the FEPs, and a Notice of Availability of the final PEIS was published on October 30, 2009 (74 FR 56194). The PEIS discusses impacts on target and non-target stocks, including bottomfish, pelagic fish, precious corals, coral reef ecosystem species, crustaceans, essential fish habitat and habitat areas of particular concern, protected species, fishery participants and communities, and administration and enforcement. This action is administrative in that it restructures existing western Pacific fishery regulations at 50 CFR part 665, and none of the alternatives, or the actions considered as part of the alternatives, change existing fisheries, or the impact of continuing activities under the respective FEPs. All of the current fisheries in the western Pacific that are managed under the FEPs have been reviewed for compliance with applicable laws. None of the actions considered result in irreversible or irretrievable commitments of resources and none results in significant or unavoidable adverse impacts. This final rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required, and none was prepared. This final rule contains collection-of-information requirements subject to the PRA that have been approved by OMB, as follows: 1. Approved under 0648-0214, 0648-0577, 0648-0584, 0648-0586, and 0649-0589.
(a)Pacific Islands Region
(PIR)logbook family of forms estimated at 5 minutes
(min)per reporting action;
(b)pre-trip and post-landing notifications estimated at 5 min per reporting action;
(c)experimental fishing reports estimated at 4 hours
(hr)per reporting action;
(d)sales and transshipment reports estimated at 5 min per reporting action;
(e)report on gear left at sea estimated at 5 min per reporting action;
(f)claims for reimbursement for lost fishing time estimated at 4 hr per claim;
(g)request for pelagics area closure exemption estimated at 1 hr per request; and
(h)observer placement meetings estimated at 1 hr per reporting action. (§§ 665.14, 665.17, 665.105, 665.144, 665.145, 665.205, 665.207, 665.244, 665.247, 665.407, 665.444, 665.445, 665.606, 665.644, 665.645, 665.803, and 665.808.) 2. Approved under 0648-0360, 0648-0361, 0648-0584, 0648-0586, and 0648-0589. PIR gear and vessel and identification estimated at 45 min to 1 hr 15 min per vessel for vessel identification and 2 min for each gear marking. (§§ 665.16, 665.128, 665.228, 665.246, 665.428, 665.628, and 665.804.) 3. Approved under 0648-0441, 0648-0519, and 0648-0584. PIR vessel monitoring system
(a)installation, estimated at 4 hr per reporting action;
(b)repair and maintenance, estimated at 2 hr per reporting action; and
(c)hourly automated position reports, estimated at 24 sec per day. (§ 665.19.) 4. Approved under 0648-0456. PIR seabird interaction reporting
(a)at-sea notification, estimated at 1 hr per reporting action;
(b)reporting on recovery data form, estimated at 1 hr per reporting action; and
(c)specimen tagging, estimated at 0.5 hr per reporting action. (§ 665.815.) 5. Approved under 0648-0462. PIR coral reef logbook reporting
(a)at-sea notification, estimated at 3 min per reporting action;
(b)logbook reporting, estimated at 0.5 hr per reporting action; and
(c)transshipment reports, estimated at 15 min per reporting action. (§§ 665.14, 665.126, 665.226, and 665.426.) 6. Approved under 0648-0463. PIR coral reef special permit
(a)application, estimated at 2 hr per application; and
(b)special permit appeals, estimated at 3 hr per appeal. (§§ 665.124, 665.224, 665.424, and 665.624.) 7. Approved under 0648-0490, 0648-0577, 0648-0584, 0648-0586, and 0649-0589:
(a)PIR permit family of forms estimated at 0.5 hr per permit action;
(b)experimental fishing permits, estimated at 2 hr per application; and
(c)appeals from permit actions estimated at 2 hr per permit appeal. (§§ 665.13, 665.17, 665.142, 665.162, 665.203, 665.242, 665.262, 665.404, 665.442, 665.462, 665.603, 665.642, 665.662, 665.801, and 665.807.) Send comments regarding these burden estimates, or any other aspect of this data collection, including suggestions for reducing the burden, to William L. Robinson, NMFS PIR, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814, and by e-mail to *David_Rostker@omb.eop.gov* or fax to 202-395-7285. 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 PRA unless that collection displays a currently valid OMB control number. List of Subjects 15 CFR Part 902 Reporting and recordkeeping requirements. 50 CFR Part 223 Exports, Imports, Marine mammals, Transportation. 50 CFR Part 665 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaii, Hawaiian natives, Northern Mariana Islands, Pacific remote island areas, Reporting and recordkeeping requirements. Dated: December 23, 2009. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 15 CFR chapter IX, 50 CFR chapter II, 50 CFR chapter IV, and 50 CFR chapter 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. Amend the table in § 902.1(b) by: a. Removing the entries and corresponding OMB numbers under 50 CFR for §§ 665.21(k), 665.23, 665.24, 665.27, 665.28, 665.35, 665.41, 665.43, 665.48, 665.61, 665.63, 665.65, 665.81, 665.602, 665.604, and 665.606. b. Amending the table in § 902.1(b) by revising the entries for §§ 665.13, 665.14, 665.16, 665.17, and 665.19, and c. Adding new entries and corresponding OMB numbers under 50 CFR for §§ 665.105 through 665.815. The revisions and additions read as follows: § 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.
(b)*Display.* CFR part or section where the information collection requirement is located Current OMB control number (all numbers begin with 0648-) * * * * * * * 50 CFR * * * * * * * 665.13 -0463, -0490, -0577, -0584, -0586, and -0589. 665.14 -0214, -0462, -0577, -0584, -0586, and -0589. 665.16 -0361, -0584, -0586, and -0589. 665.17 -0214 and -0490. 665.19 -0441, -0519, and -0584. 665.105 -0214. 665.124 -0463. 665.126 -0462. 665.128 -0360. 665.142 -0490 and -0586. 665.144 -0214. 665.145 -0214. 665.162 -0490. 665.203 -0490 and -0577. 665.205 -0214. 665.207 -0214. 665.224 -0463. 665.226 -0462. 665.228 -0360. 665.242 -0490 and -0586. 665.244 -0214. 665.246 -0360. 665.247 -0214. 665.262 -0490. 665.404 -0490 and -0584. 665.407 -0214. 665.424 -0463. 665.426 -0462. 665.428 -0360. 665.442 -0490 and -0586. 665.444 -0214. 665.445 -0214. 665.462 -0490. 665.603 -0490. 665.606 -0214. 665.624 -0463. 665.628 -0360. 665.642 -0490 and -0586. 665.644 -0214. 665.445 -0214. 665.662 -0490. 665.801 -0490 and -0589. 665.803 -0214. 665.804 -0360. 665.807 -0490. 665.808 -0214. 665.815 -0456. * * * * * * * 50 CFR CHAPTER II PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 4. The authority citation for 50 CFR part 223 continues to read as follows: Authority: 16 U.S.C. 1531-1543 *et seq.* 5. In § 223.206, revise paragraph (d)(9) introductory text to read as follows: § 223.206 Exceptions to prohibitions relating to sea turtles.
(d)* * *
(9)*Restrictions applicable to Pacific pelagic longline vessels.* In addition to the general prohibitions specified in § 600.725 of chapter VI of this title, it is unlawful for any person who is not operating under a western Pacific longline permit under § 665.801 of this title to do any of the following on the high seas of the Pacific Ocean east of 150° W. long. and north of the Equator (0° N. lat.): 50 CFR CHAPTER VI PART 665—FISHERIES IN THE WESTERN PACIFIC 6. The authority citation for 50 CFR part 665 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 7. Revise part 665 to read as follows: PART 665—FISHERIES IN THE WESTERN PACIFIC Subpart A—General Sec. 665.1 Purpose and scope. 665.2 Relation to other laws. 665.3 Licensing and registration. 665.4-665.11 [ *Reserved* ] 665.12 Definitions. 665.13 Permits and fees. 665.14 Reporting and recordkeeping. 665.15 Prohibitions. 665.16 Vessel identification. 665.17 Experimental fishing. 665.18 Framework adjustments to management measures. 665.19 Vessel monitoring system. Subpart B—American Samoa Fisheries 665.98 Management area. 665.99 Area restrictions. 665.100 American Samoa bottomfish fisheries [ *Reserved* ]. 665.101 Definitions. 665.102 [ *Reserved* ] 665.103 Prohibitions. 665.104 Gear restrictions. 665.105 At-sea observer coverage. 665.106-665.119 [ *Reserved* ] 665.120 American Samoa coral reef ecosystem fisheries [ *Reserved* ]. 665.121 Definitions. 665.122 [ *Reserved* ] 665.123 Relation to other laws. 665.124 Permits and fees. 665.125 Prohibitions. 665.126 Notifications. 665.127 Allowable gear and gear restrictions. 665.128 Gear identification. 665.129-665.139 [ *Reserved* ] 665.140 American Samoa crustacean fisheries [ *Reserved* ]. 665.141 Definitions. 665.142 Permits. 665.143 Prohibitions. 665.144 Notifications. 665.145 At-sea observer coverage. 665.146-665.159 [ *Reserved* ] 665.160 American Samoa precious coral fisheries [ *Reserved* ]. 665.161 Definitions. 665.162 Permits. 665.163 Prohibitions. 665.164 Gear restrictions. 665.165 Size restrictions. 665.166 Closures. 665.167 Quotas. 665.168 Seasons. 665.169 Gold coral harvest moratorium. Subpart C—Hawaii Fisheries 665.198 Management areas. 665.199 Area restrictions [ *Reserved* ]. 665.200 Hawaii bottomfish and seamount groundfish fisheries [ *Reserved* ]. 665.201 Definitions. 665.202 Management subareas. 665.203 Permits. 665.204 Prohibitions. 665.205 Notification. 665.206 Gear restrictions. 665.207 At-sea observer coverage. 665.208 Protected species conservation. 665.209 Fishing moratorium on Hancock Seamount. 665.210 Hawaii restricted bottomfish species. 665.211 Total Allowable Catch
(TAC)limit. 665.212 Non-commercial bag limits. 665.213-665.219 [ *Reserved* ] 665.220 Hawaii coral reef ecosystem fisheries [ *Reserved* ]. 665.221 Definitions. 665.222 Management area. 665.223 Relation to other laws. 665.224 Permits and fees. 665.225 Prohibitions. 665.226 Notifications. 665.227 Allowable gear and gear restrictions. 665.228 Gear identification. 665.229-665.239 [ *Reserved* ] 665.240 Hawaii crustacean fisheries [ *Reserved* ]. 665.241 Definitions. 665.242 Permits. 665.243 Prohibitions. 665.244 Notifications. 665.245 Gear restrictions. 665.246 Gear identification. 665.247 At-sea observer coverage. 665.248 Monk seal protective measures. 665.249 Lobster size and condition restrictions in Permit Area 2. 665.250 Closed seasons. 665.251 Closed areas. 665.252 Harvest limitation program. 665.253-665.259 [ *Reserved* ] 665.260 Hawaii precious coral fisheries [ *Reserved* ]. 665.261 Definitions. 665.262 Permits. 665.263 Prohibitions. 665.264 Gear restrictions. 665.265 Size restrictions. 665.266 Area restrictions. 665.267 Seasons. 665.268 Closures. 665.269 Quotas. 665.270 Gold coral harvest moratorium. Subpart D—Mariana Archipelago Fisheries 665.398 Management areas. 665.399 Area restrictions. 665.400 Mariana bottomfish fisheries [ *Reserved* ]. 665.401 Definitions. 665.402 Management subareas. 665.403 Bottomfish fishery area management. 665.404 Permits. 665.405 Prohibitions. 665.406 Gear restrictions. 665.407 At-sea observer coverage. 665.418-665.419 [ *Reserved* ] 665.420 Mariana coral reef ecosystem fisheries [ *Reserved* ]. 665.421 Definitions. 665.422 Management area. 665.423 Relation to other laws. 665.424 Permits and fees. 665.425 Prohibitions. 665.426 Notifications. 665.427 Allowable gear and gear restrictions. 665.428 Gear identification. 665.429-665.439 [ *Reserved* ] 665.440 Mariana crustacean fisheries [ *Reserved* ]. 665.441 Definitions. 665.442 Permits. 665.443 Prohibitions. 665.444 Notifications. 665.445 At-sea observer coverage. 665.446-665.459 [ *Reserved* ] 665.460 Mariana precious coral fisheries [Reserved]. 665.461 Definitions. 665.462 Permits. 665.463 Prohibitions. 665.464 Gear restrictions. 665.465 Size restrictions. 665.466 Closures. 665.467 Quotas. 665.468 Seasons. 665.469 Gold coral harvest moratorium. Subpart E—Pacific Remote Island Area Fisheries 665.598 Management area. 665.599 Area Restrictions. 665.600 PRIA bottomfish fisheries [ *Reserved* ]. 665.601 Definitions. 665.602 [ *Reserved* ] 665.603 Permits. 665.604 Prohibitions. 665.605 Gear restrictions. 665.606 At-sea observer coverage. 665.607-665.619 [ *Reserved* ] 665.620 PRIA coral reef ecosystem fisheries [Reserved]. 665.621 Definitions. 665.622 [ *Reserved* ] 665.623 Relation to other laws. 665.624 Permits and fees. 665.625 Prohibitions. 665.626 Notifications. 665.627 Allowable gear and gear restrictions. 665.628 Gear identification. 665.640 PRIA crustacean fisheries. 665.629-665.639 [ *Reserved* ] 665.641 Definitions. 665.642 Permits. 665.643 Prohibitions. 665.644 Notifications 665.645 At-sea observer coverage. 665.646-665.659 [ *Reserved* ] 665.660 PRIA precious coral fisheries [Reserved]. 665.661 Definitions. 665.662 Permits. 665.663 Prohibitions. 665.664 Gear restrictions. 665.665 Size restrictions. 665.666 Closures. 665.667 Quotas. 665.668 Seasons. 665.669 Gold coral harvest moratorium. Subpart F—Western Pacific Pelagic Fisheries 665.798 Management area. 665.799 Area restrictions. 665.800 Definitions. 665.801 Permits. 665.802 Prohibitions. 665.803 Notifications. 665.804 Gear identification. 665.805 [ *Reserved* ] 665.806 Longline fishing prohibited area management. 665.807 Exemptions for longline fishing prohibited areas; procedures. 665.808 Conditions for at-sea observer coverage. 665.809 Port privileges and transiting for unpermitted U.S. longline vessels. 665.810 Prohibition of drift gillnetting. 665.811 [ *Reserved* ] 665.812 Sea turtle take mitigation measures. 665.813 Western Pacific longline fishing restrictions. 665.814 Protected species workshop. 665.815 Pelagic longline seabird mitigation measures. 665.816 American Samoa longline limited entry program. 665.817 American Samoa pelagic fishery area management. 665.818 Exemptions for American Samoa large vessel prohibited areas. FIGURE 1 TO PART 665. CARAPACE LENGTH OF LOBSTERS FIGURE 2 TO PART 665. LENGTH OF FISHING VESSELS FIGURE 3 TO PART 665. SAMPLE FABRICATED ARCENEAUX LINE CLIPPER Authority: 16 U.S.C. 1801 *et seq.* Subpart A—General § 665.1 Purpose and scope.
(a)The regulations in this part govern fishing for western Pacific fishery ecosystem MUS by vessels of the United States that operate or are based inside the outer boundary of the U.S. EEZ around American Samoa, Hawaii, Guam, the Northern Mariana Islands, Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, and Wake Island.
(b)General regulations governing fishing by all vessels of the United States and by fishing vessels other than vessels of the United States are contained in 50 CFR part 600.
(c)Regulations governing the harvest, possession, landing, purchase, and sale of shark fins are found in 50 CFR part 600 subpart N.
(d)This subpart contains regulations that are common to all western Pacific fisheries managed under Fishery Ecosystem Plans
(FEPs)prepared by the Western Pacific Fishery Management Council under the Magnuson-Stevens Act.
(e)Regulations specific to individual areas and fisheries are included in subparts B through F of this part.
(f)Nothing in subparts B through F of this part is intended to supersede any valid state or Federal regulations that are more restrictive than those published here. § 665.2 Relation to other laws. NMFS recognizes that any state law pertaining to vessels registered under the laws of that state while operating in the fisheries regulated under this part, that is consistent with this part and the FEPs implemented by this part, shall continue in effect with respect to fishing activities regulated under this part. § 665.3 Licensing and registration. Any person who is required to do so by applicable state law or regulation must comply with licensing and registration requirements in the exact manner required by applicable state law or regulation. §§ 665.4-665.11 [Reserved] § 665.12 Definitions. In addition to the definitions in the Magnuson-Stevens Act, § 600.10 of this chapter, and subparts B through F of this part, general definitions for western Pacific fisheries have the following meanings: *American Samoa FEP* means the Fishery Ecosystem Plan for American Samoa. *Bottomfish FMP* means the Fishery Management Plan for Bottomfish and Seamount Groundfish of the Western Pacific Region established in 1986 and replaced by FEPs. *Carapace length* means a measurement in a straight line from the ridge between the two largest spines above the eyes, back to the rear edge of the carapace of a spiny lobster (see Figure 1 to this part). *Circle hook* means a fishing hook with the point turned perpendicularly back towards the shank. *Commercial fishing* means fishing in which the fish harvested, either in whole or in part, are intended to enter commerce or enter commerce through sale, barter, or trade. All lobster fishing in Crustacean Permit Area 1 is considered commercial fishing. *Commonwealth of the Northern Mariana Islands (CNMI)* means the Northern Mariana Islands. *Coral Reef Ecosystems FMP* means the Fishery Management Plan for Coral Reef Ecosystems of the Western Pacific Region established in 2004 and replaced by FEPs. *Council* means the Western Pacific Fishery Management Council. *Crustacean receiving vessel* means a vessel of the United States to which lobsters taken in a crustacean management area are transferred from another vessel. *Crustaceans FMP* means the Fishery Management Plan for Crustacean Fisheries of the Western Pacific Region established in 1982 and replaced by FEPs. *Currently harvested coral reef taxa (CHCRT)* means coral reef associated species, families, or subfamilies, as defined in §§ 665.121, 665.221, 665.421, and 665.621, that have annual landings greater than 454.54 kg (1,000 lb) as reported on individual state, commonwealth, or territory catch reports or through creel surveys. Fisheries and research data from many of these species have been analyzed by regional management agencies. *Dead coral* means any precious coral that no longer has any live coral polyps or tissue. *EFP* means an experimental fishing permit. *First level buyer* means:
(1)The first person who purchases, with the intention to resell, management unit species, or portions thereof, that were harvested by a vessel that holds a permit or is otherwise regulated under crustacean fisheries in subparts B through E of this part; or
(2)A person who provides recordkeeping, purchase, or sales assistance in the first transaction involving MUS (such as the services provided by a wholesale auction facility). *Fishing gear,* as used in regulations for the American Samoa, CNMI, Hawaii, and PRIA bottomfish fisheries in subparts B through E of this part, includes:
(1)Bottom trawl, which means a trawl in which the otter boards or the footrope of the net are in contact with the sea bed;
(2)Gillnet, (see § 600.10);
(3)Hook-and-line, which means one or more hooks attached to one or more lines;
(4)Set net, which means a stationary, buoyed, and anchored gill net; and
(5)Trawl, (see § 600.10). *Fishing trip* means a period of time during which fishing is conducted, beginning when the vessel leaves port and ending when the vessel lands fish. *Fishing year* means the year beginning at 0001 local time on January 1 and ending at 2400 local time on December 31, with the exception of fishing for Hawaii Restricted Bottomfish Species and any precious coral MUS. *Freeboard* means the straight line vertical distance between a vessel's working deck and the sea surface. If the vessel does not have gunwale door or stern door that exposes the working deck, freeboard means the straight line vertical distance between the top of a vessel's railing and the sea surface. *Harvest guideline* means a specified numerical harvest objective. *Hawaiian Archipelago* means the Main and Northwestern Hawaiian Islands, including Midway Atoll. *Hawaii FEP* means the Fishery Ecosystem Plan for the Hawaiian Archipelago. *Hookah breather* means a tethered underwater breathing device that pumps air from the surface through one or more hoses to divers at depth. *Incidental catch or incidental species* means species caught while fishing for the primary purpose of catching a different species. *Land or landing* means offloading fish from a fishing vessel, arriving in port to begin offloading fish, or causing fish to be offloaded from a fishing vessel. *Large vessel* means, as used in this part, any vessel equal to or greater than 50 ft (15.2 m) in length overall. *Length overall
(LOA)or length* of a vessel as used in this part, means the horizontal distance, rounded to the nearest foot (with any 0.5 foot or 0.15 meter fraction rounded upward), between the foremost part of the stem and the aftermost part of the stern, excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments (see Figure 2 to this part). “Stem” is the foremost part of the vessel, consisting of a section of timber or fiberglass, or cast forged or rolled metal, to which the sides of the vessel are united at the fore end, with the lower end united to the keel, and with the bowsprit, if one is present, resting on the upper end. “Stern” is the aftermost part of the vessel. *Live coral* means any precious coral that has live coral polyps or tissue. *Live rock* means any natural, hard substrate, including dead coral or rock, to which is attached, or which supports, any living marine life form associated with coral reefs. *Low-use marine protected area (MPA)* means an area of the U.S. EEZ where fishing operations have specific restrictions in order to protect the coral reef ecosystem, as specified under area restrictions in subparts B through F of this part. *Main Hawaiian Islands (MHI)* means the islands of the Hawaii Archipelago lying to the east of 161° W. long. *Mariana Archipelago* means Guam and the Northern Mariana Islands. *Mariana FEP* means the Fishery Ecosystem Plan for the Mariana Archipelago. *Medium vessel,* as used in this part, means any vessel equal to or more than 40 ft (12.2 m) and less than 50 ft (15.2 m) LOA. *Non-commercial fishing* means fishing that does not meet the definition of commercial fishing. *Non-precious coral* means any species of coral other than those listed under the definitions for precious coral in §§ 665.161, 665.261, 665.461, and 665.661. *Non-selective gear* means any gear used for harvesting coral that cannot discriminate or differentiate between types, size, quality, or characteristics of living or dead coral. *Northwestern Hawaiian Islands (NWHI)* means the islands of the Hawaiian Archipelago lying to the west of 161° W. long. *No-take MPA* means an area of the U.S. EEZ that is closed to fishing for or harvesting of any MUS, as defined in subparts B through F of this part. *Offload* means to remove MUS from a vessel. *Offset circle hook* means a circle hook in which the barbed end of the hook is displaced relative to the parallel plane of the eyed end, or shank, of the hook when laid on its side. *Owner,* as used in the regulations for the crustacean fisheries in subparts B through E of this part and § 665.203(i) and (j), means a person who is identified as the current owner of the vessel as described in the Certificate of Documentation (Form CG-1270) issued by the United States Coast Guard
(USCG)for a documented vessel, or in a registration certificate issued by a state, a territory, or the USCG for an undocumented vessel. As used in the regulations for the precious coral fisheries in subparts B through E of this part and § 665.203(c) through (h), the definition of “owner” in § 600.10 of this chapter continues to apply. *Pacific Islands Regional Office (PIRO)* means the headquarters of the Pacific Islands Region, NMFS, located at 1601 Kapiolani Blvd., Suite 1110, Honolulu, Hawaii 96814; telephone number 808-944-2200. *Pacific remote island areas (PRIA, or U.S. island possessions in the Pacific Ocean)* means Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, Wake Island, and Midway Atoll. *Pelagics FEP* means the Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region. *Pelagics FMP* means the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region that was established in 1987 and replaced by the western Pacific pelagic FEP. *Potentially harvested coral reef taxa (PHCRT)* means coral reef associated species, families, or subfamilies, as defined in §§ 665.121, 665.221, 665.421, and 665.621, for which little or no information is available beyond general taxonomic and distribution descriptions. These species have either not been caught in the past or have been harvested annually in amounts less than 454.54 kg (1,000 lb). *Precious Corals FMP* means the Fishery Management Plan for Precious Corals of the Western Pacific Region established in 1983 and replaced by fishery ecosystem plans (FEPs). *PRIA FEP* means the Fishery Ecosystem Plan for the Pacific Remote Island Areas of Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, and Wake Island. *Protected species* means an animal protected under the MMPA, as amended, listed under the ESA, as amended, or subject to the Migratory Bird Treaty Act, as amended. *Receiving vessel* means a vessel that receives fish or fish products from a fishing vessel, and with regard to a vessel holding a permit under § 665.801(e), that also lands western Pacific pelagic MUS taken by other vessels using longline gear. *Regional Administrator* means Regional Administrator, Pacific Islands Region, NMFS (see Table 1 of § 600.502 of this chapter for address). *Selective gear* means any gear used for harvesting coral that can discriminate or differentiate between type, size, quality, or characteristics of living or dead coral. *Special Agent-In-Charge (SAC)* means the Special Agent-In-Charge, NMFS, Pacific Islands Enforcement Division, or a designee of the SAC, located at 1601 Kapiolani Blvd., Suite 950, Honolulu, HI 96814, telephone number 808-203-2500. *Special permit* means a permit issued to allow fishing for coral reef ecosystem MUS in low-use MPAs or to fish for any PHCRT. *State of Hawaii commercial marine license* means the license required by the State of Hawaii for anyone to take marine life for commercial purposes (also known as the commercial fishing license). *Transship* means to offload or otherwise transfer MUS or products thereof to a receiving vessel. *Trap* means a box-like device used for catching and holding lobsters or fish. *U.S. harvested coral* means coral caught, taken, or harvested by vessels of the United States within any fishery for which an FMP or FEP has been implemented under the Magnuson-Stevens Act. *Vessel monitoring system unit (VMS unit)* means the hardware and software owned by NMFS, installed on vessels by NMFS, and required to track and transmit the positions of certain vessels. *Western Pacific fishery management area* means those waters shoreward of the outer boundary of the EEZ around American Samoa, Guam, Hawaii, CNMI, Midway, Johnston and Palmyra Atolls, Kingman Reef, and Wake, Jarvis, Baker, and Howland Islands. § 665.13 Permits and fees.
(a)*Applicability.* The requirements for permits for specific Western Pacific fisheries are set forth in subparts B through F of this part.
(b)*Validity.* Each permit is valid for fishing only in the specific fishery management areas identified on the permit.
(c)*Application.*
(1)A Western Pacific Federal fisheries permit application may be obtained from NMFS PIRO to apply for a permit or permits to operate in any of the fisheries regulated under subparts B through F of this part. The completed application must be submitted to PIRO. In no case shall PIRO accept an application that is not on the Western Pacific Federal fisheries permit application form.
(2)A minimum of 15 days after the day PIRO receives a complete application should be allowed for processing a permit application for fisheries under subparts B through F of this part. If an incomplete or improperly completed application is filed, the applicant will be sent a letter of notice of deficiency. If the applicant fails to correct the deficiency within 30 days following the date of the letter of notification of deficiency, the application will be considered abandoned.
(d)*Change in application information.* Any change in the permit application information or vessel documentation, submitted under paragraph
(c)of this section, must be reported to PIRO in writing within 15 days of the change to avoid a delay in processing the permit application. A minimum of 10 days from the day the information is received by PIRO should be given for PIRO to record any change in information from the permit application submitted under paragraph
(c)of this section. Failure to report such changes may result in a delay in processing an application, permit holders failing to receive important notifications, or sanctions pursuant to the Magnuson-Stevens Act at 16 U.S.C. 1858(g) or 15 CFR part 904, subpart D.
(e)*Issuance.* After receiving a complete application submitted under paragraph
(c)of this section, the Regional Administrator will issue a permit to an applicant who is eligible under this part, as appropriate.
(f)*Fees.*
(1)PIRO will not charge a fee for a permit issued under §§ 665.142, 665.162, 665.242, 665.262, 665.442, 665.462, 665.642, or 665.662 of this part, for a Ho'omalu limited access permit issued under § 665.203, or for a Guam bottomfish permit issued under § 665.404.
(2)PIRO will charge a non-refundable processing fee for each application (including transfers and renewals) for the permits listed in paragraphs (f)(2)(i) through
(viii)of this section. The amount of the fee is calculated in accordance with the procedures of the NOAA Finance Handbook, for determining the administrative costs of each special product or service incurred in processing the permit. The fee may not exceed such costs and is specified with each application form. The appropriate fee must accompany each application. Failure to pay the fee will preclude the issuance, transfer or renewal of any of these permits:
(i)Hawaii longline limited access permit.
(ii)Mau Zone limited access permit.
(iii)Coral reef ecosystem special permit.
(iv)American Samoa longline limited access permit.
(v)MHI non-commercial bottomfish permit.
(vi)Western Pacific squid jig permit.
(vii)Crustacean permit.
(viii)CNMI commercial bottomfish permit.
(g)*Expiration.* Permits issued under subparts B through F of this part are valid for the period specified on the permit unless revoked, suspended, transferred, or modified under 15 CFR part 904.
(h)*Replacement.* Replacement permits may be issued, without charge, to replace lost or mutilated permits. An application for a replacement permit is not considered a new application.
(i)*Transfer.* An application for a permit transfer under §§ 665.203(d), 665.242(e), or 665.801(k), or for registration of a permit for use with a replacement vessel under § 665.203(i), must be submitted to PIRO as described in paragraph
(c)of this section.
(j)*Alteration.* Any permit that has been altered, erased, or mutilated is invalid.
(k)*Display.* Any permit issued under this subpart, or a facsimile of such permit, must be on board the vessel at all times while the vessel is fishing for, taking, retaining, possessing, or landing MUS shoreward of the outer boundary of the fishery management area. Any permit issued under this section must be displayed for inspection upon request of an authorized officer.
(l)*Sanctions.* Procedures governing sanctions and denials are found at subpart D of 15 CFR part 904.
(m)*Permit appeals.* Procedures for appeals of permitting and administrative actions are specified in the relevant subparts of this part. § 665.14 Reporting and recordkeeping.
(a)Except for precious coral and crustacean fisheries, any person who is required to do so by applicable state law or regulation must make and/or file all reports of MUS landings containing all data and in the exact manner required by applicable state law or regulation.
(b)*Fishing record forms* —(1) *Applicability.*
(i)The operator of any fishing vessel subject to the requirements of §§ 665.124, 665.142, 665.162, 665.203(a)(2), 665.224, 665.242, 665.262, 665.404, 665.424, 665.442, 665.462, 665.603, 665.624, 665.642, 665.662, or 665.801 must maintain on board the vessel an accurate and complete record of catch, effort, and other data on paper report forms provided by the Regional Administrator, or electronically as specified and approved by the Regional Administrator, except as allowed in paragraph (b)(1)(iii) of this section.
(ii)All information specified by the Regional Administrator must be recorded on paper or electronically within 24 hours after the completion of each fishing day. The logbook information, reported on paper or electronically, for each day of the fishing trip must be signed and dated or otherwise authenticated by the vessel operator in the manner determined by the Regional Administrator, and be submitted or transmitted via an approved method as specified by the Regional Administrator, and as required by this paragraph (b).
(iii)In lieu of the requirements in paragraph (a)(1)(i) of this section, the operator of a fishing vessel registered for use under a Western Pacific squid jig permit pursuant to the requirements of § 665.801(g) may participate in a state reporting system. If participating in a state reporting system, all required information must be recorded and submitted in the exact manner required by applicable state law or regulation.
(2)*Timeliness of submission.*
(i)If fishing was authorized under a permit pursuant to §§ 665.142, 665.242, 665.442, 665.404, 665.162, 665.262, 665.462, 665.662, or 665.801, the vessel operator must submit the original logbook information for each day of the fishing trip to the Regional Administrator within 72 hours of the end of each fishing trip, except as allowed in paragraph
(iii)of this section.
(ii)If fishing was authorized under a permit pursuant to § 665.203(a)(2), the vessel operator or vessel owner must submit the original logbook form for each day of the fishing trip to the Regional Administrator within 72 hours of the end of each fishing trip.
(iii)If fishing was authorized under a PRIA bottomfish permit pursuant to § 665.603(a), PRIA pelagic troll and handline permit pursuant to § 665.801(f), crustacean fishing permit for the PRIA (Permit Area 4) pursuant to § 665.642(a), or a precious coral fishing permit for Permit Area X-P-PI pursuant to § 665.662, the original logbook form for each day of fishing within EEZ waters around the PRIA must be submitted to the Regional Administrator within 30 days of the end of each fishing trip.
(iv)If fishing was authorized under a permit pursuant to §§ 665.124, 665.224, 665.424, or 665.624, the original logbook information for each day of fishing must be submitted to the Regional Administrator within 30 days of the end of each fishing trip.
(c)*Transshipment logbooks.* Any person subject to the requirements of §§ 665.124(a)(2), 665.224(a)(2), 665.424(a)(2), 665.624(a)(2), or 665.801(e) must maintain on board the vessel an accurate and complete NMFS transshipment logbook containing report forms provided by the Regional Administrator. All information specified on the forms must be recorded on the forms within 24 hours after the day of transshipment. Each form must be signed and dated by the receiving vessel operator. The original logbook for each day of transshipment activity must be submitted to the Regional Administrator within 72 hours of each landing of western Pacific pelagic MUS. The original logbook for each day of transshipment activity must be submitted to the Regional Administrator within 7 days of each landing of coral reef ecosystem MUS.
(d)*Sales report.* The operator of any fishing vessel subject to the requirements of §§ 665.142, 665.242, 665.442, or 665.642, or the owner of a medium or large fishing vessel subject to the requirements of § 665.404(a)(2) must submit to the Regional Administrator, within 72 hours of offloading of crustacean MUS, an accurate and complete sales report on a form provided by the Regional Administrator. The form must be signed and dated by the fishing vessel operator.
(e)*Packing or weigh-out slips.* The operator of any fishing vessel subject to the requirements of §§ 665.142, 665.242, 665.442, or 665.642 must attach packing or weighout slips provided to the operator by the first-level buyer(s), unless the packing or weighout slips have not been provided in time by the buyer(s).
(f)*Modification of reporting and recordkeeping requirements.* The Regional Administrator may, after consultation with the Council, initiate rulemaking to modify the information to be provided on the fishing record forms, transshipment logbook, and sales report forms and timeliness by which the information is to be provided, including the submission of packing or weighout slips.
(g)*Availability of records for inspection.*
(1)Western Pacific pelagic MUS. Upon request, any fish dealer must immediately provide an authorized officer access to inspect and copy all records of purchases, sales, or other transactions involving western Pacific pelagic MUS taken or handled by longline vessels that have permits issued under this subpart or that are otherwise subject to subpart F of this part, including, but not limited to, information concerning:
(i)The name of the vessel involved in each transaction and the owner and operator of the vessel.
(ii)The weight, number, and size of each species of fish involved in each transaction.
(iii)Prices paid by the buyer and proceeds to the seller in each transaction.
(2)*Crustacean MUS.* Upon request, any first-level buyer must immediately allow an authorized officer and any employee of NMFS designated by the Regional Administrator, to access, inspect, and copy all records relating to the harvest, sale, or transfer of crustacean MUS taken by vessels that have permits issued under this subpart or §§ 665.140 through 665.145, 665.240 through 665.252, 665.440 through 665.445, or 665.640 through 665.645 of this part. This requirement may be met by furnishing the information on a worksheet provided by the Regional Administrator. The information must include, but is not limited to:
(i)The name of the vessel involved in each transaction and the owner or operator of the vessel.
(ii)The amount, number, and size of each MUS involved in each transaction.
(iii)Prices paid by the buyer and proceeds to the seller in each transaction.
(3)Bottomfish and seamount groundfish MUS. Any person who is required by state laws and regulations to maintain records of landings and sales for vessels regulated by this subpart and by §§ 665.100 through 665.105, 665.200 through 665.212, 665.400 through 665.407, and 665.600 through 665.606 of this part must make those records immediately available for Federal inspection and copying upon request by an authorized officer.
(4)*Coral reef ecosystem MUS.* Any person who has a special permit and who is required by state laws and regulations to maintain and submit records of catch and effort, landings and sales for coral reef ecosystem MUS by this subpart and §§ 665.120 through 665.128, 665.220 through 665.228, 665.420 through 665.428, or 665.620 through 665.628 of this part must make those records immediately available for Federal inspection and copying upon request by an authorized officer as defined in § 600.10 of this chapter.
(h)*State reporting.* Any person who has a permit under §§ 665.124, 665.203, 665.224, 665.404, 665.424, 665.603, or 665.624 and who is regulated by state laws and regulations to maintain and submit records of catch and effort, landings and sales for vessels regulated by subparts B through F of this part must maintain and submit those records in the exact manner required by state laws and regulations. § 665.15 Prohibitions. In addition to the prohibitions in § 600.725 of this chapter, it is unlawful for any person to:
(a)Engage in fishing without a valid permit or facsimile of a valid permit on board the vessel and available for inspection by an authorized officer, when a permit is required under §§ 665.13 or 665.17, unless the vessel was at sea when the permit was issued under § 665.13, in which case the permit must be on board the vessel before its next trip.
(b)File false information on any application for a fishing permit under § 665.13 or an EFP under § 665.17.
(c)Fail to file reports in the exact manner required by any state law or regulation, as required in § 665.14.
(d)Falsify or fail to make, keep, maintain, or submit any logbook or logbook form or other record or report required under §§ 665.14 and 665.17.
(e)Refuse to make available to an authorized officer or a designee of the Regional Administrator for inspection or copying, any records that must be made available in accordance with § 665.14.
(f)Fail to affix or maintain vessel or gear markings, as required by §§ 665.16, 665.128, 665.228, 665.246, 665.428, 665.628, or 665.804.
(g)Violate a term or condition of an EFP issued under § 665.17.
(h)Fail to report any take of or interaction with protected species as required by § 665.17(k).
(i)Fish without an observer on board the vessel after the owner or agent of the owner has been directed by NMFS to make accommodations available for an observer under §§ 665.17, 665.105, 665.145, 665.207, 665.247, 665.407, 665.445, 665.606, 665.645, or 665.808.
(j)Refuse to make accommodations available for an observer when so directed by the Regional Administrator under §§ 665.105, 665.145, 665.207, 665.247, 665.407, 665.445, 665.606, 665.645, or 665.808, or under any provision in an EFP issued under § 665.17.
(k)Fail to notify officials as required in §§ 665.126, 665.144, 665.205, 665.226, 665.244, 665.426, 665.444, 665.626, 665.644, 665.803, or 665.808.
(l)Fish for, take or retain within a no-take MPA, defined in §§ 665.99, 665.199, 665.399, or 665.599, any bottomfish MUS, crustacean MUS, western Pacific pelagic MUS, precious coral, seamount groundfish or coral reef ecosystem MUS.
(m)Fail to comply with a term or condition governing the vessel monitoring system in violation of § 665.19.
(n)Fish for, catch, or harvest MUS without an operational VMS unit on board the vessel after installation of the VMS unit by NMFS, in violation of § 665.19(e)(2).
(o)Possess MUS, that were harvested after NMFS has installed the VMS unit on the vessel, on board that vessel without an operational VMS unit, in violation of § 665.19(e)(2).
(p)Interfere with, tamper with, alter, damage, disable, or impede the operation of a VMS unit or attempt any of the same; or move or remove a VMS unit without the prior permission of the SAC in violation of § 665.19(e)(3).
(q)Make a false statement, oral or written, to an authorized officer, regarding the use, operation, or maintenance of a VMS unit, in violation of § 665.19(e).
(r)Interfere with, impede, delay, or prevent the installation, maintenance, repair, inspection, or removal of a VMS unit, in violation of § 665.19(e).
(s)Interfere with, impede, delay, or prevent access to a VMS unit by a NMFS observer, in violation of § 665.808(f)(4).
(t)Connect or leave connected additional equipment to a VMS unit without the prior approval of the SAC, in violation of § 665.19(f). § 665.16 Vessel identification.
(a)Each fishing vessel subject to this subpart, except those identified in paragraph
(e)of this section, must display its official number on the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck, so as to be visible from enforcement vessels and aircraft.
(b)The official number must be affixed to each vessel subject to this part in block Arabic numerals at least 18 inches (45.7 cm) in height for fishing and receiving vessels of 65 ft (19.8 m) LOA or longer, and at least 10 inches (25.4 cm) in height for all other vessels, except that vessels in precious coral fisheries and 65 ft (19.8 m) LOA or longer must be marked in block Arabic numerals at least 14 inches (35.6 cm) in height. Marking must be legible and of a color that contrasts with the background.
(c)The vessel operator must ensure that the official number is clearly legible and in good repair.
(d)The vessel operator must ensure that no part of the vessel, its rigging, or its fishing gear obstructs the view of the official number from an enforcement vessel or aircraft.
(e)The following fishing vessels are exempt from the vessel identification requirements in this section:
(1)A vessel registered for use under a MHI non-commercial bottomfish permit that is in compliance with State of Hawaii bottomfish vessel registration and marking requirements.
(2)A vessel less than 40 ft (12.2 m) LOA registered for use under a CNMI commercial bottomfish permit that is in compliance with CNMI bottomfish vessel registration and marking requirements. § 665.17 Experimental fishing.
(a)*General.* The Regional Administrator may authorize, for limited purposes, the direct or incidental harvest of MUS that would otherwise be prohibited by this part. No experimental fishing may be conducted unless authorized by an EFP issued by the Regional Administrator in accordance with the criteria and procedures specified in this section. EFPs will be issued without charge.
(b)*Observers.* No experimental fishing for crustacean MUS may be conducted unless a NMFS observer is aboard the vessel.
(c)*Application.* An applicant for an EFP must submit to the Regional Administrator at least 60 days before the desired date of the EFP a written application including, but not limited to, the following information:
(1)The date of the application.
(2)The applicant's name, mailing address, and telephone number.
(3)A statement of the purposes and goals of the experiment for which an EFP is needed, including a general description of the arrangements for disposition of all species harvested under the EFP.
(4)A statement of whether the proposed experimental fishing has broader significance than the applicant's individual goals.
(5)For each vessel to be covered by the EFP:
(i)Vessel name.
(ii)Name, address, and telephone number of owner and operator.
(iii)USCG documentation, state license, or registration number.
(iv)Home port.
(v)Length of vessel.
(vi)Net tonnage.
(vii)Gross tonnage.
(6)A description of the species (directed and incidental) to be harvested under the EFP and the amount of such harvest necessary to conduct the experiment.
(7)For each vessel covered by the EFP, the approximate times and places fishing will take place, and the type, size, and amount of gear to be used.
(8)The signature of the applicant.
(d)*Incomplete applications.* The Regional Administrator may request from an applicant additional information necessary to make the determinations required under this section. An applicant will be notified of an incomplete application within 10 working days of receipt of the application. An incomplete application will not be considered until corrected in writing.
(e)*Issuance.*
(1)If an application contains all of the required information, NMFS will publish a notice of receipt of the application in the **Federal Register** with a brief description of the proposal and will give interested persons an opportunity to comment. The Regional Administrator will also forward copies of the application to the Council, the USCG, and the fishery management agency of the affected state, accompanied by the following information:
(i)The current utilization of domestic annual harvesting and processing capacity (including existing experimental harvesting, if any) of the directed and incidental species for which an EFP is being requested.
(ii)A citation of the regulation or regulations that, without the EFP, would prohibit the proposed activity.
(iii)Biological information relevant to the proposal.
(2)At a Council meeting following receipt of a complete application, the Regional Administrator will consult with the Council and the Director of the affected state fishery management agency concerning the permit application. The applicant will be notified in advance of the meeting at which the application will be considered, and invited to appear in support of the application, if the applicant desires.
(3)Within 5 working days after the consultation in paragraph (e)(2) of this section, or as soon as practicable thereafter, NMFS will notify the applicant in writing of the decision to grant or deny the EFP and, if denied, the reasons for the denial. Grounds for denial of an EFP include, but are not limited to, the following:
(i)The applicant has failed to disclose material information required, or has made false statements as to any material fact, in connection with his or her application.
(ii)According to the best scientific information available, the harvest to be conducted under the permit would detrimentally affect any species of fish in a significant way.
(iii)Issuance of the EFP would inequitably allocate fishing privileges among domestic fishermen or would have economic allocation as its sole purpose.
(iv)Activities to be conducted under the EFP would be inconsistent with the intent of this section or the management objectives of the FEP.
(v)The applicant has failed to demonstrate a valid justification for the permit.
(vi)The activity proposed under the EFP would create a significant enforcement problem.
(4)The decision to grant or deny an EFP is final and unappealable. If the permit is granted, NMFS will publish a notice in the **Federal Register** describing the experimental fishing to be conducted under the EFP. The Regional Administrator may attach terms and conditions to the EFP consistent with the purpose of the experiment including, but not limited to:
(i)The maximum amount of each species that can be harvested and landed during the term of the EFP, including trip limits, where appropriate.
(ii)The number, sizes, names, and identification numbers of the vessels authorized to conduct fishing activities under the EFP.
(iii)The times and places where experimental fishing may be conducted.
(iv)The type, size, and amount of gear which may be used by each vessel operated under the EFP.
(v)The condition that observers be carried aboard vessels operating under an EFP.
(vi)Data reporting requirements.
(vii)Such other conditions as may be necessary to assure compliance with the purposes of the EFP consistent with the objectives of the FEP.
(f)*Duration.* Unless otherwise specified in the EFP or a superseding notice or regulation, an EFP is effective for no longer than one
(1)year from the date of issuance, unless revoked, suspended, or modified. EFPs may be renewed following the application procedures in this section.
(g)*Alteration.* Any EFP that has been altered, erased, or mutilated is invalid.
(h)*Transfer.* EFPs issued under subparts B through F of this part are not transferable or assignable. An EFP is valid only for the vessel(s) for which it is issued.
(i)*Inspection.* Any EFP issued under subparts B through F of this part must be carried aboard the vessel(s) for which it was issued. The EFP must be presented for inspection upon request of any authorized officer.
(j)*Sanctions.* Failure of the holder of an EFP to comply with the terms and conditions of an EFP, the provisions of subparts A through F of this part, any other applicable provision of this part, the Magnuson-Stevens Act, or any other regulation promulgated thereunder, is grounds for revocation, suspension, or modification of the EFP with respect to all persons and vessels conducting activities under the EFP. Any action taken to revoke, suspend, or modify an EFP will be governed by 15 CFR part 904 subpart D. Other sanctions available under the statute will be applicable.
(k)*Protected species.* Persons fishing under an EFP must report any incidental take or fisheries interaction with protected species on a form provided for that purpose. Reports must be submitted to the Regional Administrator within 3 days of arriving in port. § 665.18 Framework adjustments to management measures. Framework measures described below for each specific fishery are valid for all management areas, except where specifically noted in this section.
(a)*Pelagic measures* —(1) *Introduction.* Adjustments in management measures may be made through rulemaking if new information demonstrates that there are biological, social, or economic concerns in the fishery. The following framework process authorizes the implementation of measures that may affect the operation of the fisheries, gear, harvest guidelines, or changes in catch and/or effort.
(2)*Annual report.* By June 30 of each year, the Council-appointed pelagics monitoring team will prepare an annual report on the fisheries in the management area. The report shall contain, among other things, recommendations for Council action and an assessment of the urgency and effects of such action(s).
(3)*Procedure for established measures.*
(i)Established measures are regulations for which the impacts have been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council may recommend to the Regional Administrator that established measures be modified, removed, or reinstituted. Such recommendation shall include supporting rationale and analysis, and shall be made after advance public notice, public discussion, and consideration of public comment. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(4)*Procedure for new measures.*
(i)New measures are regulations for which the impacts have not been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council will publicize, including by **Federal Register** notice, and solicit public comment on, any proposed new management measure. After a Council meeting at which the measure is discussed, the Council will consider recommendations and prepare a **Federal Register** notice summarizing the Council's deliberations, rationale, and analysis for the preferred action, and the time and place for any subsequent Council meeting(s) to consider the new measure. At subsequent public meeting(s), the Council will consider public comments and other information received to make a recommendation to the Regional Administrator about any new measure. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(b)*Crustacean measures* —(1) *Introduction.* New management measures may be added through rulemaking if new information demonstrates that there are biological, social, or economic concerns in Permit Areas 1, 2, or 3. The following framework process authorizes the implementation of measures that may affect the operation of the fisheries, gear, harvest guidelines, or changes in catch and/or effort.
(2)*Annual report.* By June 30 of each year, the Council-appointed team will prepare an annual report on the fisheries in the management area. The report shall contain, among other things, recommendations for Council action and an assessment of the urgency and effects of such action(s).
(3)*Procedure for established measures.*
(i)Established measures are regulations for which the impacts have been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council may recommend to the Regional Administrator that established measures be modified, removed, or reinstituted. Such recommendation shall include supporting rationale and analysis, and shall be made after advance public notice, public discussion, and consideration of public comment. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(4)*Procedure for new measures.*
(i)New measures are regulations for which the impacts have not been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council will publicize, including by a **Federal Register** document, and solicit public comment on, any proposed new management measure. After a Council meeting at which the measure is discussed, the Council will consider recommendations and prepare a **Federal Register** document summarizing the Council's deliberations, rationale, and analysis for the preferred action, and the time and place for any subsequent Council meeting(s) to consider the new measure. At subsequent public meeting(s), the Council will consider public comments and other information received to make a recommendation to the Regional Administrator about any new measure. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(c)*Bottomfish measures—*
(1)*Annual reports.* By June 30 of each year, a Council-appointed bottomfish monitoring team will prepare an annual report on the fishery by area covering the following topics:
(i)Fishery performance data.
(ii)Summary of recent research and survey results.
(iii)Habitat conditions and recent alterations.
(iv)Enforcement activities and problems.
(v)Administrative actions ( *e.g.,* data collection and reporting, permits).
(vi)State and territorial management actions.
(vii)Assessment of need for Council action (including biological, economic, social, enforcement, administrative, and state/Federal needs, problems, and trends). Indications of potential problems warranting further investigation may be signaled by the following indicator criteria:
(A)Mean size of the catch of any species in any area is a pre-reproductive size.
(B)Ratio of fishing mortality to natural mortality for any species.
(C)Harvest capacity of the existing fleet and/or annual landings exceed best estimate of MSY in any area.
(D)Significant decline (50 percent or more) in bottomfish catch per unit of effort from baseline levels.
(E)Substantial decline in ex-vessel revenue relative to baseline levels.
(F)Significant shift in the relative proportions of gear in any one area.
(G)Significant change in the frozen/fresh components of the bottomfish catch.
(H)Entry/exit of fishermen in any area.
(I)Per-trip costs for bottomfish fishing exceed per-trip revenues for a significant percentage of trips.
(J)Significant decline or increase in total bottomfish landings in any area.
(K)Change in species composition of the bottomfish catch in any area.
(L)Research results.
(M)Habitat degradation or environmental problems.
(N)Reported interactions between bottomfish fishing operations and protected species in the NWHI.
(viii)Recommendations for Council action.
(ix)Estimated impacts of recommended action.
(2)*Recommendation of management action.*
(i)The team may present management recommendations to the Council at any time. Recommendations may cover actions suggested for Federal regulations, state/territorial action, enforcement or administrative elements, and research and data collection. Recommendations will include an assessment of urgency and the effects of not taking action.
(ii)The Council will evaluate the team's reports and recommendations, and the indicators of concern. The Council will assess the need for one or more of the following types of management action: Catch limits, size limits, closures, effort limitations, access limitations, or other measures.
(iii)The Council may recommend management action by either the state/territorial governments or by Federal regulation.
(3)*Federal management action.*
(i)If the Council believes that management action should be considered, it will make specific recommendations to the Regional Administrator after requesting and considering the views of its Scientific and Statistical Committee and Bottomfish Advisory Panel and obtaining public comments at a public hearing.
(ii)The Regional Administrator will consider the Council's recommendation and accompanying data, and, if he or she concurs with the Council's recommendation, will propose regulations to carry out the action. If the Regional Administrator rejects the Council's proposed action, a written explanation for the denial will be provided to the Council within 2 weeks of the decision.
(iii)The Council may appeal a denial by writing to the Assistant Administrator, who must respond in writing within 30 days.
(iv)The Regional Administrator and the Assistant Administrator will make their decisions in accord with the Magnuson-Stevens Act, other applicable law, and the bottomfish measures of the FEPs.
(v)To minimize conflicts between the Federal and state management systems, the Council will use the procedures in paragraph (c)(2) of this section to respond to state/territorial management actions. Council consideration of action would normally begin with a representative of the state or territorial government bringing a potential or actual management conflict or need to the Council's attention.
(4)*Access limitation procedures.*
(i)Access limitation may be adopted under this paragraph (c)(4) only for the NWHI, American Samoa, and Guam.
(ii)If access limitation is proposed for adoption or subsequent modification through the process described in this paragraph (c)(4), the following requirements must be met:
(A)The bottomfish monitoring team must consider and report to the Council on present participation in the fishery; historical fishing practices in, and dependence on, the fishery; economics of the fishery; capability of fishing vessels used in the fishery to engage in other fisheries; cultural and social framework relevant to the fishery; and any other relevant considerations.
(B)Public hearings must be held specifically addressing the limited access proposals.
(C)A specific advisory subpanel of persons experienced in the fishing industry will be created to advise the Council and the Regional Administrator on administrative decisions.
(D)The Council's recommendation to the Regional Administrator must be approved by a two-thirds majority of the voting members.
(5)*Five-year review.* The Council will conduct a comprehensive review on the effectiveness of the Mau Zone limited access program 5 years following implementation of the program. The Council will consider the extent to which the FEP objectives have been met and verify that the target number of vessels established for the fishery is appropriate for current fishing activity levels, catch rates, and biological condition of the stocks. The Council may establish a new target number based on the 5-year review.
(d)*Precious coral measures* —(1) *Introduction.* Established management measures may be revised and new management measures may be established and/or revised through rulemaking if new information demonstrates that there are biological, social, or economic concerns in a precious coral permit area. The following framework process authorizes the implementation of measures that may affect the operation of the fisheries, gear, quotas, season, or levels of catch and/or in effort.
(2)*Annual report.* By June 30 of each year, the Council-appointed precious coral team will prepare an annual report on the fisheries in the management area. The report will contain, among other things, recommendations for Council action and an assessment of the urgency and effects of such action(s).
(3)*Procedure for established measures.*
(i)Established measures are regulations for which the impacts have been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council may recommend to the Regional Administrator that established measures be modified, removed, or reinstituted. Such recommendation will include supporting rationale and analysis and will be made after advance public notice, public discussion, and consideration of public comment. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(4)*Procedure for new measures.*
(i)New measures are regulations for which the impacts have not been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council will publicize, including by a **Federal Register** document, and solicit public comment on, any proposed new management measure. After a Council meeting at which the measure is discussed, the Council will consider recommendations and prepare a **Federal Register** document summarizing the Council's deliberations, rationale, and analysis for the preferred action and the time and place for any subsequent Council meeting(s) to consider the new measure. At a subsequent public meeting, the Council will consider public comments and other information received before making a recommendation to the Regional Administrator about any new measure. If approved by the Regional Administrator, NMFS may implement the Council's recommendation by rulemaking.
(e)*Coral reef ecosystem measures—*
(1)*Procedure for established measures.*
(i)Established measures are regulations for which the impacts have been evaluated in Council or NMFS documents in the context of current conditions.
(ii)The Council may recommend to the Regional Administrator that established measures be modified, removed, or reinstituted. Such recommendation shall include supporting rationale and analysis, and shall be made after advance public notice, public discussion and consideration of public comment. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(2)*Procedure for new measures.*
(i)New measures are regulations for which the impacts have not been evaluated in Council or NMFS documents in the context of current conditions. New measures include, but are not limited to, catch limits, resource size limits, closures, effort limitations, reporting and recordkeeping requirements.
(ii)The Regional Administrator will publicize, including by **Federal Register** notice, and solicit public comment on, any proposed new management measure. After a Council meeting at which the measure is discussed, the Council will consider recommendations and prepare a document summarizing the Council's deliberations, rationale, and analysis for the preferred action, and the time and place for any subsequent Council meeting(s) to consider the new measure. At subsequent public meeting(s), the Council will consider public comments and other information received to make a recommendation to the Regional Administrator about any new measure. NMFS may implement the Council's recommendation by rulemaking if approved by the Regional Administrator.
(A)The Regional Administrator will consider the Council's recommendation and supporting rationale and analysis, and, if the Regional Administrator concurs with the Council's recommendation, will propose regulations to carry out the action. If the Regional Administrator rejects the Council's proposed action, the Regional Administrator will provide a written explanation for the denial within 2 weeks of the decision.
(B)The Council may appeal a denial by writing to the Assistant Administrator, who must respond in writing within 30 days.
(C)The Regional Administrator and the Assistant Administrator will make their decisions in accordance with the Magnuson-Stevens Act, other applicable laws, and the FEPs.
(D)To minimize conflicts between the Federal and state/territorial/commonwealth management systems, the Council will use the procedures in this paragraph (e)(2)(ii) to respond to state/territorial/commonwealth management actions. The Council's consideration of action would normally begin with a representative of the state, territorial or commonwealth government bringing a potential or actual management conflict or need to the Council's attention.
(3)*Annual report.* By July 31 of each year, a Council-appointed coral reef ecosystem monitoring team will prepare an annual report on coral reef fisheries of the western Pacific region. The report will contain, among other things:
(i)Fishery performance data, summaries of new information and assessments of need for Council action.
(ii)Recommendation for Council action. The Council will evaluate the annual report and advisory body recommendations and may recommend management action by either the state/territorial/commonwealth governments or by Federal regulation.
(iii)If the Council believes that management action should be considered, it will make specific recommendations to the Regional Administrator after considering the views of its advisory bodies. § 665.19 Vessel monitoring system.
(a)*Applicability.* The holder of any of the following permits is subject to the vessel monitoring system requirements in this part:
(1)Hawaii longline limited access permit issued pursuant to § 665.801(b);
(2)American Samoa longline limited entry permit, for vessel size Class C or D, issued pursuant to § 665.801(c);
(3)Vessels permitted to fish in Crustacean Permit Area 1 VMS Subarea; or
(4)CNMI commercial bottomfish permit, if the vessel is a medium or large bottomfish vessel, issued pursuant to § 665.404(a)(2).
(b)*VMS unit.* Only a VMS unit owned by NMFS and installed by NMFS complies with the requirement of this subpart.
(c)*Notification.* After a permit holder subject to § 665.19(a) has been notified by the SAC of a specific date for installation of a VMS unit on the permit holder's vessel, the vessel must carry and operate the VMS unit after the date scheduled for installation.
(d)*Fees and charges.* During the experimental VMS program, the holder of a permit subject to § 665.19(a) shall not be assessed any fee or other charges to obtain and use a VMS unit, including the communication charges related directed to requirements under this section. Communication charges related to any additional equipment attached to the VMS unit by the owner or operator shall be the responsibility of the owner or operator and not NMFS.
(e)*Permit holder duties.* The holder of a permit subject to § 665.19(a) and master of the vessel must:
(1)Provide opportunity for the SAC to install and make operational a VMS unit after notification.
(2)Carry and continuously operate the VMS unit on board whenever the vessel is at sea.
(3)Not remove, relocate, or make non-operational the VMS unit without prior approval from the SAC.
(f)*Authorization by the SAC.* The SAC has authority over the installation and operation of the VMS unit. The SAC may authorize the connection or order the disconnection of additional equipment, including a computer, to any VMS unit when deemed appropriate by the SAC. Subpart B—American Samoa Fisheries § 665.98 Management area. The American Samoa fishery management area is the EEZ seaward of the Territory of American Samoa with the inner boundary coterminous with the seaward boundaries of the Territory of American Samoa and the outer boundary designated as a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured, or is coterminous with adjacent international maritime boundaries. § 665.99 Area restrictions. Fishing is prohibited in all no-take MPAs. The following U.S. EEZ waters around American Samoa are no-take MPAs: Landward of the 50 fm (91.5 m) curve around Rose Atoll, as depicted on National Ocean Survey Chart Number 83484. § 665.100 American Samoa bottomfish fisheries [Reserved]. § 665.101 Definitions. As used in §§ 665.100 through 665.119: * American Samoa bottomfish management unit species (American Samoa bottomfish MUS) * means the following fish: Samoan name English common name Scientific name palu-gutusiliva red snapper, silvermouth *Aphareus rutilans.* asoama gray snapper, jobfish *Aprion virescens.* sapoanae giant trevally, jack *Caranx ignobilis.* tafauli black trevally, jack *Caranx lugubris.* fausi blacktip grouper *Epinephelus fasciatus.* papa, velo lunartail grouper *Variola louti.* palu malau red snapper *Etelis carbunculus.* palu-loa red snapper *Etelis coruscans.* filoa-gutumumu Ambon emperor *Lethrinus amboinensis.* filoa-paomumu redgill emperor *Lethrinus rubrioperculatus.* savane blueline snapper *Lutjanus kasmira.* palu-i'usama yellowtail snapper *Pristipomoides auricilla.* palu-`ena'ena pink snapper *Pristipomoides filamentosus.* palu-sina yelloweye snapper *Pristipomoides flavipinnis.* palu pink snapper *Pristipomoides seiboldii.* palu-ula, palu-sega snapper *Pristipomoides zonatus.* malauli amberjack *Seriola dumerili.* § 665.102 [Reserved] § 665.103 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person to fish for American Samoa bottomfish MUS using gear prohibited under § 665.104. § 665.104 Gear restrictions.
(a)*Bottom trawls and bottom set gillnets.* Fishing for American Samoa bottomfish MUS with bottom trawls and bottom set gillnets is prohibited.
(b)*Possession of gear.* The possession of a bottom trawl or bottom set gillnet within the American Samoa fishery management area is prohibited.
(c)*Poisons and explosives.* The possession or use of any poisons, explosives, or intoxicating substances for the purpose of harvesting bottomfish is prohibited. § 665.105 At-sea observer coverage. All fishing vessels subject to §§ 665.100 through 665.105 must carry an observer when directed to do so by the Regional Administrator. §§ 665.106-665.119 [Reserved] § 665.120 American Samoa coral reef ecosystem fisheries [Reserved]. § 665.121 Definitions. As used in §§ 665.120 through 665.139: *American Samoa coral reef ecosystem management unit species (American Samoa coral reef ecosystem MUS)* means all of the Currently Harvested Coral Reef Taxa and Potentially Harvested Coral Reef Taxa listed in this section and which spend the majority of their non-pelagic (post-settlement) life stages within waters less than or equal to 50 fathoms in total depth. American Samoa Currently Harvested Coral Reef Taxa: Family name Samoan name English common name Scientific name Acanthuridae (Surgeonfishes) afinamea orange-spot surgeonfish *Acanthurus olivaceus* . yellowfin surgeonfish *Acanthurus xanthopterus* . Aanini convict tang *Acanthurus triostegus* . eye-striped surgeonfish *Acanthurus dussumieri* . ponepone, gaitolama blue-lined surgeon *Acanthurus nigroris* . Alogo blue-banded surgeonfish *Acanthurus lineatus* . pone-i'usama blackstreak surgeonfish *Acanthurus nigricauda* . laulama, whitecheek surgeonfish *Acanthurus nigricans* . Maogo white-spotted surgeonfish *Acanthurus guttatus* . ringtail surgeonfish *Acanthurus blochii* . ponepone brown surgeonfish *Acanthurus nigrofuscus* . elongate surgeonfish *Acanthurus mata* . mimic surgeonfish *Acanthurus pyroferus* . Pone yellow-eyed surgeonfish *Ctenochaetus strigosus* . pone, pala'ia, logoulia striped bristletooth *Ctenochaetus striatus* . two-spot bristletooth *Ctenochaetus binotatus* . ume-isu bluespine unicornfish *Naso unicornus* . ili'ilia, umelei orangespine unicornfish *Naso lituratus* . black tongue unicornfish *Naso hexacanthus* . ume-masimasi bignose unicornfish *Naso vlamingii* . whitemargin unicornfish *Naso annulatus* . ume-ulutao spotted unicornfish *Naso brevirostris* . barred unicornfish *Naso thynnoides* . Balistidae (Triggerfishes) sumu, sumu-laulau titan triggerfish *Balistoides viridescens* . orangestriped triggerfish *Balistapus undulatus* . sumu-`apa'apasina, sumu-si'umumu pinktail triggerfish *Melichthys vidua* . sumu-uli black triggerfish *Melichthys niger* . sumu-laulau blue triggerfish *Pseudobalistes fuscus* . sumu-uo'uo, sumu-aloalo picassofish *Rhinecanthus aculeatus* . sumu-gase'ele'ele bridled triggerfish *Sufflamen fraenatum* . Atule bigeye scad *Selar crumenophthalmus* . atuleau, namuauli mackerel scad *Decapterus macarellus* . Carcharhinidae (Sharks) malie-aloalo grey reef shark *Carcharhinus amblyrhynchos* . Aso silvertip shark *Carcharhinus albimarginatus* . Malie Galapagos shark *Carcharhinus galapagensis* . apeape, malie-alamata blacktip reef shark *Carcharhinus melanopterus* . Malu whitetip reef shark *Triaenodon obesus* . Holocentridae (Soldierfish, squirrelfish malau-ugatele, malau-va'ava'a bigscale soldierfish *Myripristis berndti* . malau-tui bronze soldierfish *Myripristis adusta* . blotcheye soldierfish *Myripristis murdjan* . brick soldierfish *Myripristis amaena* . malau-mamo, malau-va'ava'a scarlet soldierfish *Myripristis pralinia* . malau-tuauli violet soldierfish *Myripristis violacea* . whitetip soldierfish *Myripristis vittata* . yellowfin soldierfish *Myripristis chryseres* . malau-pu'u pearly soldierfish *Myripristis kuntee* . double tooth squirrelfish *Myripristis hexagona* . blackspot squirrelfish *Sargocentron melanospilos* . malau-tianiu file-lined squirrelfish *Sargocentron microstoma* . pink squirrelfish *Sargocentron tiereoides* . malau-tui, malau-talapu'u, malau-tusitusi, malau-pauli crown squirrelfish *Sargocentron diadema* . peppered squirrelfish *Sargocentron punctatissimum* . blue-lined squirrelfish *Sargocentron tiere* . tamalu, mu-malau, malau-toa saber or long jaw squirrelfish *Sargocentron spiniferum* . spotfin squirrelfish *Neoniphon* spp. Kuhliidae (Flagtails) Safole, inato barred flag-tail *Kuhlia mugil* . Kyphosidae (Rudderfish) nanue, mata-mutu, mutumutu rudderfish *Kyphosus cinerascens Kyphosus biggibus* . Nanue rudderfish *Kyphosus vaigienses* . Labridae (Wrasses) lalafi, tagafa malakea napoleon wrasse *Cheilinus undulatus* . Lalafi-matamumu triple-tail wrasse *Cheilinus trilobatus* . lalafi-matapua'a floral wrasse *Cheilinus chlorourus* . lalafi-pulepule harlequin tuskfish *Cheilinus fasciatus* . sugale bandcheek wrasse *Oxycheilinus diagrammus* . sugale arenatus wrasse *Oxycheilinus arenatus* . sugale-tatanu whitepatch wrasse *Xyrichtys aneitensis* . sugale-mo'o cigar wrasse *Cheilio inermis* . sugale-laugutu, sugale-uli, sugale-aloa, sugale-lupe blackeye thicklip *Hemigymnus melapterus* sugale-gutumafia barred thicklip *Hemigymnus fasciatus* . lape, sugale-pagota three-spot wrasse *Halichoeres trimaculatus* . sugale-a'au, sugale-pagota, ifigi checkerboard wrasse *Halichoeres hortulanus* . sugale-uluvela weedy surge wrasse *Halichoeres margaritaceus* . uloulo-gatala, patagaloa surge wrasse *Thalassoma purpureum* . lape-moana red ribbon wrasse *Thalassoma quinquevittatum* . sugale-samasama sunset wrasse *Thalassoma lutescens* . sugale-la'o, sugale-taili, sugale-gasufi rockmover wrasse *Novaculichthys taeniourus* . Mullidae (Goatfishes) i'asina, vete, afulu yellow goatfish *Mulloidichthys* spp. Vete yellowfin goatfish *Mulloidichthys vanicolensis* . afolu, afulu yellowstripe goatfish *Mulloidichthys flavolineatus* . afoul, afulu banded goatfish *Parupeneus* spp. tusia, tulausaena, ta'uleia dash-dot goatfish *Parupeneus barberinus* . matulau-moana doublebar goatfish *Parupeneus bifasciatus* . moana-ula redspot goatfish *Parupeneus heptacanthus* . i'asina, vete, afulu, moana yellowsaddle goatfish *Parupeneus cyclostomas* . matulau-ilamutu side-spot goatfish *Parupeneus pleurostigma* . i'asina, vete, afulu multi-barred goatfish *Parupeneus multifaciatus* . Mugilidae (Mullets) anae, aua. fuafua fringelip mullet *Crenimugil crenilabis* . moi, poi false mullet *Neomyxus leuciscus* . Muraenidae (Moray eels) Pusi yellowmargin moray eel *Gymnothorax flavimarginatus* . maoa'e giant moray eel *Gymnothorax javanicus* . pusi-pulepule undulated moray eel *Gymnothorax undulatus* . Octopodidae (Octopus) fe'e fe'e octopus octopus *Octopus cyanea, Octopus ornatus* . Polynemidae umiumia, i'ausi threadfin *Polydactylus sexfilis* . Pricanthidae (Bigeye) matapula glasseye *Heteropriacanthus cruentatus* . matapula bigeye *Priacanthus hamrur* . Scaridae (Parrotfishes) Fuga stareye parrotfish *Calotomus carolinus* . fuga, galo-uluto'i, fuga-valea, laea-mamanu parrotfish *Scarus* spp. ulapokea, laea-ulapokea Pacific longnose parrotfish *Hipposcarus longiceps* . Scombridae Tagi dogtooth tuna *Gymnosarda unicolor* . Siganidae (Rabbitfish) loloa, lo forktail rabbitfish *Siganus aregenteus* . Sphyraenidae (Barracuda) Sapatu heller's barracuda *Sphyraena helleri* . Saosao great barracuda *Sphyraena barracuda* . Turbinidae (turban shells, green snails Alili green snails *Turbo* spp. American Samoa Potentially Harvested Coral Reef Taxa: Samoan name English common name Scientific name sugale, sugale-vaolo, sugale-a'a, lalafi, lape-a'au, la'ofia wrasses (Those species not listed as CHCRT) Labrida. malie, apoapo, moemoeao sharks (Those species not listed as CHCRT) Carcharhinidae, Sphyrnidae. Fai rays and skates Dasyatididae, Myliobatidae. pe'ape'a batfishes Ephippidae. mutumutu, misimisi, ava'ava-moana sweetlips Haemulidae. talitaliuli remoras Echeneidae. mo'o, mo'otai tilefishes Malacanthidae. Tiva dottybacks Pseudochromidae. aneanea, tafuti prettyfins Plesiopidae. Tapua coral crouchers Caracanthidae. flashlightfishes Anomalopidae. gatala, ataata, vaolo, gatala-uli, gatala-sega, gatala-aleva, ateate, apoua, susami, gatala-sina, gatala-mumu groupers (Those species not listed as CHCRT or BMUS) Serrandiae. lupo, lupota, mamalusi, ulua, sapoanae, taupapa, nato, filu, atuleau, malauli-apamoana, malauli-sinasama, malauli-matalapo'a, lai jacks and scads (Those species not listed as CHCRT or BMUS) Carangidae. Malau soldierfishes and squirrelfishes (Those species not listed as CHCRT) Holocentridae. i'asina, vete, afulu, afoul, ulula'oa goatfishes (Those species not listed as CHCRT) Mullidae. pone, palagi surgeonfishes (Those species not listed as CHCRT) Acanthuridae. pelupelu, nefu herrings Clupeidae. nefu, file anchovies Engraulidae. mano'o, mano'o-popo, mano'o-fugafuga, mano'o-apofusami, mano'o-a'au gobies Gobiidae. mu, mu-taiva, tamala, malai, feloitega, mu-mafalaugutu, savane-ulusama, matala'oa snappers (Those species not listed as CHCRT or BMUS) Lutjanidae. sumu, sumu-papa, sumu-taulau trigger fishes (Those species not listed as CHCRT) Balistidae. Lo rabbitfishes (Those species not listed as CHCRT) Siganidae. nanue, matamutu, mutumutu rudderfishes (Those species not listed as CHCRT) Kyphosidae. ulisega, atule-toto fusiliers Caesionidae. filoa, mata'ele'ele, ulamalosi emperors (Those species not listed as CHCRT or BMUS) Lethrinidae. pusi, maoa'e, atapanoa, u'aulu, apeape, fafa, gatamea, pusi-solasulu eels (Those species not listed as CHCRT) Muraenidae, Chlopsidae, Congridae, Moringuidae, Ophichthidae. fo, fo-tusiloloa, fo-si'umu, fo-loloa, fo-tala, fo-manifi, fo-aialo, fo-tuauli cardinalfishes Apogonidae. pe'ape'a, laulaufau moorish idols Zanclidae. tifitifi, si'u, i'usamasama, tifitifi-segaula, laulafau-laumea, alosina butterfly fishes Chaetodontidae. tu'u'u, tu'u'u-sama, tu'u'u-lega, tu'u'u-ulavapua, tu'u'u-matamalu, tu'u'u-alomu, tu'u'u-uluvela, tu'u'u-atugauli, tu'u'u-tusiuli, tu'u'u-manini angelfishes Pomacanthidae. tu'u'u, mutu, mamo, tu'u'u-lumane damselfishes Pomacentridae. i'atala, la'otele, nofu scorpionfishes Scorpaenidae. mano'o, mano'o-mo'o, mano'o-palea, mano'o-la'o blennies Blenniidae. sapatu barracudas (Those species not listed as CHCRT) Sphyraenidae. la'o, ulutu'i, lausiva hawkfishes (Those species not listed as CHCRT) Cirrhitidae. la'otale, nofu frogfishes Antennariidae. pipefishes and seahorses Syngnathidae. ta'oto sandperches Pinguipedidae. tagi dog tooth tuna *Gymnosarda unicolor* . taoto-ena, taoto-sama, `au'aulauti, taotito trumpetfish *Aulostomus chinensis* . taotao, taoto-ama cornetfish *Fistularia commersoni* . sue, sue-vaolo, sue-va'a, sue-lega, sue-mu, sue-uli, sue-lape, sue-afa, sue-sugale puffer fishes and porcupine fishes Tetradontidae. ali flounders and soles Bothidae, Soleidae. moamoa trunkfishes Ostraciidae. fugafuga, tuitui, sava'e sea cucumbers and sea urchins Echinoderms. amu blue corals Heliopora. amu organpipe corals Tubipora. ahermatypic corals Azooxanthellates. amu mushroom corals Fungiidae. amu small and large coral polyps amu fire corals Millepora. amu soft corals and gorgonians. lumane, matalelei anemones Actinaria. soft zoanthid corals (Those species not listed as CHCRT) Zoanthinaria. Mollusca. sisi-sami sea snails Gastropoda. aliao, alili *Trochus* spp. sea sea slugs Opistobranches. black lipped pearl oyster *Pinctada margaritifera* . faisua giant clam Tridacnidae. pipi, asi, fatuaua, tio, pae, fole other clams Other Bivalves. ula, pa'a, kuku, papata lobsters, shrimps, mantis shrimps, true crabs and hermit crabs (Those species not listed as Crustacean MUS) Crustaceans. sea squirts Tunicates. sponges Porifera. amu lace corals Stylasteridae. amu hydroid corals Solanderidae. segmented worms (Those species not listed as CHCRT) Annelids. limu seaweed Algae. Live rock. All other American Samoa coral reef ecosystem MUS that are marine plants, invertebrates, and fishes that are not listed in the American Samoa CHCRT table or are not American Samoa bottomfish, crustacean, precious coral, or western Pacific pelagic MUS. § 665.122 [Reserved] § 665.123 Relation to other laws. To ensure consistency between the management regimes of different Federal agencies with shared management responsibilities of fishery resources within the American Samoa fishery management area, fishing for American Samoa coral reef ecosystem MUS is not allowed within the boundary of a National Wildlife Refuge unless specifically authorized by the USFWS, regardless of whether that refuge was established by action of the President or the Secretary of the Interior. § 665.124 Permits and fees.
(a)*Applicability.* Unless otherwise specified in this subpart, § 665.13 applies to coral reef ecosystem permits.
(1)*Special permit.* Any person of the United States fishing for, taking or retaining American Samoa coral reef ecosystem MUS must have a special permit if they, or a vessel which they operate, is used to fish for any:
(i)American Samoa coral reef ecosystem MUS in low-use MPAs as defined in § 665.99;
(ii)American Samoa Potentially Harvested Coral Reef Taxa in the coral reef ecosystem management area; or
(iii)American Samoa coral reef ecosystem MUS in the coral reef ecosystem management area with any gear not specifically allowed in this subpart.
(2)*Transshipment permit.* A receiving vessel must be registered for use with a transshipment permit if that vessel is used in the American Samoa coral reef ecosystem management area to land or transship PHCRT, or any American Samoa coral reef ecosystem MUS harvested within low-use MPAs.
(3)*Exceptions.* The following persons are not required to have a permit under this section:
(i)Any person issued a permit to fish under any FEP who incidentally catches American Samoa coral reef ecosystem MUS while fishing for bottomfish MUS, crustacean MUS, western Pacific pelagic MUS, precious coral, or seamount groundfish.
(ii)Any person fishing for American Samoa CHCRT outside of an MPA, who does not retain any incidentally caught American Samoa PHCRT; and
(iii)Any person collecting marine organisms for scientific research as described in § 665.17, or § 600.745 of this chapter.
(b)*Validity.* Each permit will be valid for fishing only in the fishery management area specified on the permit.
(c)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits are contained in § 665.13.
(d)*Special permit.* The Regional Administrator shall issue a special permit in accordance with the criteria and procedures specified in this section.
(1)*Application.* An applicant for a special or transshipment permit issued under this section must complete and submit to the Regional Administrator, a Special Coral Reef Ecosystem Fishing Permit Application Form issued by NMFS. Information in the application form must include, but is not limited to, a statement describing the objectives of the fishing activity for which a special permit is needed, including a general description of the expected disposition of the resources harvested under the permit ( *i.e.,* stored live, fresh, frozen, preserved; sold for food, ornamental, research, or other use; and a description of the planned fishing operation, including location of fishing and gear operation, amount and species (directed and incidental) expected to be harvested and estimated habitat and protected species impacts).
(2)*Incomplete applications.* The Regional Administrator may request from an applicant additional information necessary to make the determinations required under this section. An applicant will be notified of an incomplete application within 10 working days of receipt of the application. An incomplete application will not be considered until corrected and completed in writing.
(3)*Issuance.*
(i)If an application contains all of the required information, the Regional Administrator will forward copies of the application within 30 days to the Council, the USCG, the fishery management agency of the affected state, and other interested parties who have identified themselves to the Council, and the USFWS.
(ii)Within 60 days following receipt of a complete application, the Regional Administrator will consult with the Council through its Executive Director, USFWS, and the Director of the affected state fishery management agency concerning the permit application and will receive their recommendations for approval or disapproval of the application based on:
(A)Information provided by the applicant;
(B)The current domestic annual harvesting and processing capacity of the directed and incidental species for which a special permit is being requested;
(C)The current status of resources to be harvested in relation to the overfishing definition in the FEP;
(D)Estimated ecosystem, habitat, and protected species impacts of the proposed activity; and
(E)Other biological and ecological information relevant to the proposal. The applicant will be provided with an opportunity to appear in support of the application.
(iii)Following a review of the Council's recommendation and supporting rationale, the Regional Administrator may:
(A)Concur with the Council's recommendation and, after finding that it is consistent with the goals and objectives of the FEP, the national standards, the Endangered Species Act, and other applicable laws, approve or deny a special permit; or
(B)Reject the Council's recommendation, in which case, written reasons will be provided by the Regional Administrator to the Council for the rejection.
(iv)If the Regional Administrator does not receive a recommendation from the Council within 60 days of Council receipt of the permit application, the Regional Administrator can make a determination of approval or denial independently.
(v)Within 30 working days after the consultation in paragraph (d)(3)(ii) of this section, or as soon as practicable thereafter, NMFS will notify the applicant in writing of the decision to grant or deny the special permit and, if denied, the reasons for the denial. Grounds for denial of a special permit include the following:
(A)The applicant has failed to disclose material information required, or has made false statements as to any material fact, in connection with his or her application.
(B)According to the best scientific information available, the directed or incidental catch in the season or location specified under the permit would detrimentally affect any coral reef resource or coral reef ecosystem in a significant way, including, but not limited to issues related to, spawning grounds or seasons, protected species interactions, EFH, and habitat areas of particular concern (HAPC).
(C)Issuance of the special permit would inequitably allocate fishing privileges among domestic fishermen or would have economic allocation as its sole purpose.
(D)The method or amount of harvest in the season and/or location stated on the permit is considered inappropriate based on previous human or natural impacts in the given area.
(E)NMFS has determined that the maximum number of permits for a given area in a given season has been reached and allocating additional permits in the same area would be detrimental to the resource.
(F)The activity proposed under the special permit would create a significant enforcement problem.
(vi)The Regional Administrator may attach conditions to the special permit, if it is granted, consistent with the management objectives of the FEP, including, but not limited to:
(A)The maximum amount of each resource that can be harvested and landed during the term of the special permit, including trip limits, where appropriate.
(B)The times and places where fishing may be conducted.
(C)The type, size, and amount of gear which may be used by each vessel operated under the special permit.
(D)Data reporting requirements.
(E)Such other conditions as may be necessary to ensure compliance with the purposes of the special permit consistent with the objectives of the FEP.
(4)*Appeals of permit actions.*
(i)Except as provided in subpart D of 15 CFR part 904, any applicant for a permit or a permit holder may appeal the granting, denial, conditioning, or suspension of their permit or a permit affecting their interests to the Regional Administrator. In order to be considered by the Regional Administrator, such appeal must be in writing, must state the action(s) appealed, and the reasons therefore, and must be submitted within 30 days of the original action(s) by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(ii)Upon receipt of an appeal authorized by this section, the Regional Administrator will notify the permit applicant, or permit holder, as appropriate, and will request such additional information and in such form as will allow action upon the appeal. Upon receipt of sufficient information, the Regional Administrator will rule on the appeal in accordance with the permit eligibility criteria set forth in this section and the FEP, as appropriate, based upon information relative to the application on file at NMFS and the Council and any additional information, the summary record kept of any hearing and the hearing officer's recommended decision, if any, and such other considerations as deemed appropriate. The Regional Administrator will notify all interested persons of the decision, and the reasons therefore, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(iii)If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose after first giving notice of the time, place, and subject matter of the hearing in the **Federal Register.** Such a hearing shall normally be held no later than 30 days following publication of the notice in the **Federal Register,** unless the hearing officer extends the time for reasons deemed equitable. The appellant, the applicant (if different), and, at the discretion of the hearing officer, other interested parties, may appear personally and/or be represented by counsel at the hearing and may submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(iv)The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator will notify interested persons of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's action constitutes final action for the agency for the purposes of the Administrative Procedure Act.
(5)The Regional Administrator may, for good cause, extend any time limit prescribed in this section for a period not to exceed 30 days either upon his or her own motion or upon written request from the Council, appellant or applicant stating the reason(s) therefore. § 665.125 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15 of this part, it is unlawful for any person to do any of the following:
(a)Fish for, take, retain, possess or land any American Samoa coral reef ecosystem MUS in any low-use MPA as defined in § 665.99 unless:
(1)A valid permit has been issued for the hand harvester or the fishing vessel operator that specifies the applicable area of harvest;
(2)A permit is not required, as outlined in § 665.124; or
(3)The American Samoa coral reef ecosystem MUS possessed on board the vessel originated outside the management area and this can be demonstrated through receipts of purchase, invoices, fishing logbooks or other documentation.
(b)Fish for, take, or retain any American Samoa coral reef ecosystem MUS species:
(1)That is determined overfished with subsequent rulemaking by the Regional Administrator;
(2)By means of gear or methods prohibited under § 665.127;
(3)In a low-use MPA without a valid special permit; or
(4)In violation of any permit issued under §§ 665.13, 665.123, or 665.124.
(c)Fish for, take, or retain any wild live rock or live hard coral except under a valid special permit for scientific research, aquaculture seed stock collection or traditional and ceremonial purposes by indigenous people. § 665.126 Notifications. Any special permit holder subject to the requirements of this subpart must contact the appropriate NMFS enforcement agent in American Samoa, Guam, or Hawaii at least 24 hours before landing any coral reef ecosystem MUS unit species harvested under a special permit, and report the port and the approximate date and time at which the catch will be landed. § 665.127 Allowable gear and gear restrictions.
(a)American Samoa coral reef ecosystem MUS may be taken only with the following allowable gear and methods:
(1)Hand harvest;
(2)Spear;
(3)Slurp gun;
(4)Hand net/dip net;
(5)Hoop net for Kona crab;
(6)Throw net;
(7)Barrier net;
(8)Surround/purse net that is attended at all times;
(9)Hook-and-line (includes handline (powered or not), rod-and-reel, and trolling);
(10)Crab and fish traps with vessel ID number affixed; and
(11)Remote-operating vehicles/submersibles.
(b)American Samoa coral reef ecosystem MUS may not be taken by means of poisons, explosives, or intoxicating substances. Possession or use of these materials by any permit holder under this subpart who is established to be fishing for coral reef ecosystem MUS in the management area is prohibited.
(c)Existing FEP fisheries shall follow the allowable gear and methods outlined in their respective plans.
(d)Any person who intends to fish with new gear not included in this section must describe the new gear and its method of deployment in the special permit application. A decision on the permissibility of this gear type will be made by the Regional Administrator after consultation with the Council and the director of the affected state fishery management agency. § 665.128 Gear identification.
(a)The vessel number must be affixed to all fish and crab traps on board the vessel or deployed in the water by any vessel or person holding a permit under §§ 665.13 or 665.124 or that is otherwise established to be fishing for American Samoa coral reef ecosystem MUS in the management area.
(b)*Enforcement action.*
(1)Traps not marked in compliance with paragraph
(a)of this section and found deployed in the coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer.
(2)Unattended surround nets or bait seine nets found deployed in the coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer. §§ 665.129-665.139 [Reserved] § 665.140 American Samoa Crustacean Fisheries [Reserved]. § 665.141 Definitions. As used in §§ 665.140 through 665.159: *American Samoa crustacean management unit species* means the following crustaceans: Samoan name English common name Scientific name Ula spiny lobster *Panulirus marginatus, Panulirus penicillatus.* Papata slipper lobster Scyllaridae. pa'a Kona crab *Ranina ranina.* deepwater shrimp *Heterocarpus* spp. *Crustacean Permit Area 3 (Permit Area 3)* includes the EEZ around American Samoa. § 665.142 Permits.
(a)*Applicability.*
(1)The owner of any vessel used to fish for lobster in Permit Area 3 must have a permit issued for that vessel.
(2)The owner of any vessel used to fish for deepwater shrimp in Crustacean Permit Area 3 must have a permit issued for that vessel.
(b)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits issued under this section, as applicable, are contained in § 665.13.
(c)*Application.* An application for a permit required under this section will be submitted to PIRO as described in § 665.13. If the application for a limited access permit is submitted on behalf of a partnership or corporation, the application must be accompanied by a supplementary information sheet obtained from PIRO and contain the names and mailing addresses of all partners or shareholders and their respective percentage of ownership in the partnership or corporation. § 665.143 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, in Crustacean Permit Area 3, it is unlawful for any person to fish for, take, or retain deepwater shrimp without a permit issued under § 665.142. § 665.144 Notifications.
(a)The operator of any vessel fishing subject to the requirements of this subpart must:
(1)Report, not less than 24 hours, but not more than 36 hours, before landing, the port, the approximate date and the approximate time at which spiny and slipper lobsters will be landed.
(2)Report, not less than 6 hours and not more than 12 hours before offloading, the location and time that offloading of spiny and slipper lobsters will begin.
(b)The Regional Administrator will notify permit holders of any change in the reporting method and schedule required in paragraphs (a)(1) and (a)(2) of this section at least 30 days prior to the opening of the fishing season. § 665.145 At-sea observer coverage. All fishing vessels subject to §§ 665.140 through 665.145 and subpart A of this part must carry an observer when requested to do so by the Regional Administrator. §§ 665.146-665.159 [Reserved] § 665.160 American Samoa precious coral fisheries [Reserved]. § 665.161 Definitions. As used in §§ 665.160 through 665.169: *American Samoa precious coral management unit species (American Samoa precious coral MUS)* means any coral of the genus *Corallium* in addition to the following species of corals: Local name English common name Scientific name Amu piniki-mumu Pink coral (also known as red coral) *Corallium secundum,* *Corallium regale, Corallium laauense.* Amu auro Gold coral *Gerardia* spp., *Callogorgia gilberti, Narella* spp., *Calyptrophora* spp. Amu ofe Bamboo coral *Lepidisis olapa, Acanella* spp. Amu ofe Black coral *Antipathes dichotoma, Antipathes grandis,* *Antipathes ulex.* *American Samoa precious coral permit area* means the area encompassing the precious coral beds within the U.S. EEZ around American Samoa. Each bed is designated by a permit area code and assigned to one of the following four categories:
(1)Established beds. [ *Reserved* ]
(2)Conditional beds. [ *Reserved* ]
(3)Refugia. [ *Reserved* ]
(4)Exploratory Area. Permit Area X-P-AS includes all coral beds, other than established beds, conditional beds, or refugia, in the EEZ seaward of American Samoa. § 665.162 Permits.
(a)Any vessel of the United States fishing for, taking, or retaining American Samoa precious coral MUS in any American Samoa precious coral permit area must have a permit issued under § 665.13.
(b)Each permit will be valid for fishing only in the permit area specified on the permit. Precious Coral Permit Areas are defined in § 665.161.
(c)No more than one permit will be valid for any one vessel at any one time.
(d)No more than one permit will be valid for any one person at any one time.
(e)The holder of a valid permit to fish one permit area may obtain a permit to fish another permit area only upon surrendering to the Regional Administrator any current permit for the precious coral fishery issued under § 665.13.
(f)General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits for the precious coral fishery are contained in § 665.13. § 665.163 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and in § 665.15, it is unlawful for any person to:
(a)Use any vessel to fish for, take, retain, possess or land precious coral in any precious coral permit area, unless a permit has been issued for that vessel and area as specified in § 665.13 and that permit is on board the vessel.
(b)Fish for, take, or retain any species of American Samoa precious coral MUS in any precious coral permit area:
(1)By means of gear or methods prohibited by § 665.164.
(2)In refugia specified in § 665.161.
(3)In a bed for which the quota specified in § 665.167 has been attained.
(4)In violation of any permit issued under § 665.13 or § 665.17.
(5)In a bed that has been closed pursuant to §§ 665.166 or 665.169.
(c)Take and retain, possess, or land any live pink coral or live black coral from any precious coral permit area that is less than the minimum height specified in § 665.165 unless:
(1)A valid EFP was issued under § 665.17 for the vessel and the vessel was operating under the terms of the permit; or
(2)The coral originated outside coral beds listed in this paragraph, and this can be demonstrated through receipts of purchase, invoices, or other documentation. § 665.164 Gear restrictions. Only selective gear may be used to harvest coral from any precious coral permit area. § 665.165 Size restrictions. The height of a live coral specimen shall be determined by a straight line measurement taken from its base to its most distal extremity. The stem diameter of a living coral specimen shall be determined by measuring the greatest diameter of the stem at a point no less than 1 inch (2.54 cm) from the top surface of the living holdfast.
(a)Live pink coral harvested from any precious coral permit area must have attained a minimum height of 10 inches (25.4 cm).
(b)*Black coral.* Live black coral harvested from any precious coral permit area must have attained either a minimum stem diameter of 1 inch (2.54 cm), or a minimum height of 48 inches (122 cm). § 665.166 Closures.
(a)If the Regional Administrator determines that the harvest quota for any coral bed will be reached prior to the end of the fishing year, NMFS shall publish a notice to that effect in the **Federal Register** and shall use other means to notify permit holders. Any such notice must indicate the reason for the closure, the bed being closed, and the effective date of the closure.
(b)A closure is also effective for a permit holder upon the permit holder's actual harvest of the applicable quota. § 665.167 Quotas.
(a)General. The quotas limiting the amount of precious coral that may be taken in any precious coral permit area during the fishing year are listed in § 665.167(d). Only live coral is counted toward the quota. The accounting period for all quotas begins July 1, 1983.
(b)*Conditional bed closure.* A conditional bed will be closed to all nonselective coral harvesting after the quota for one species of coral has been taken.
(c)*Reserves and reserve release.* The quotas for exploratory area X-P-AS will be held in reserve for harvest by vessels of the United States in the following manner:
(1)At the start of the fishing year, the reserve for the American Samoa exploratory area will equal the quota minus the estimated domestic annual harvest for that year.
(2)As soon as practicable after December 31 each year, the Regional Administrator will determine the amount harvested by vessels of the United States between July 1 and December 31 of the year that just ended on December 31.
(3)NMFS will release to TALFF an amount of precious coral for each exploratory area equal to the quota minus two times the amount harvested by vessels of the United States in that July 1-December 31 period.
(4)NMFS will publish in the **Federal Register** a notification of the Regional Administrator's determination and a summary of the information on which it is based as soon as practicable after the determination is made.
(d)The American Samoa exploratory permit area X-P-AS has an annual quota of 1,000 kg for all American Samoa precious coral MUS combined with the exception of black corals. § 665.168 Seasons. The fishing year for precious coral begins on July 1 and ends on June 30 the following year. § 665.169 Gold coral harvest moratorium. Fishing for, taking, or retaining any gold coral in any precious coral permit area is prohibited through June 30, 2013. Subpart C—Hawaii Fisheries § 665.198 Management area. The Hawaii fishery management area is the EEZ seaward of the State of Hawaii, including the Main Hawaiian Islands
(MHI)and Northwestern Hawaiian Islands (NWHI), with the inner boundary a line coterminous with the seaward boundaries of the State of Hawaii and the outer boundary a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured. § 665.199 Area restrictions [Reserved]. § 665.200 Hawaii bottomfish and seamount groundfish fisheries [Reserved]. § 665.201 Definitions. As used in §§ 665.200 through 665.219: *Hawaii bottomfish management unit species (Hawaii bottomfish MUS)* means the following species: Local name English common name Scientific name Lehi silver jaw jobfish *Aphareus rutilans.* Uku white papio, ulua au gray jobfish *Aprion virescens.* kea giant trevally *Caranx ignobilis.* ulua la`uli black jack *Caranx lugubris.* hāpu`upu`u sea bass *Epinephalus quernus.* Ehuonaga, `ula`ula red snapper *Etelis carbunculus.* koa`e longtail snapper *Etelis coruscans.* ta`ape blue stripe snapper *Lutjanus kasmira.* kalekale yellowtail snapper *Pristipomoides auricilla.* `ōpakapaka pink snapper *Pristipomoides filamentosus.* kalekale pink snapper *Pristipomoides seiboldii.* gindai snapper *Pristipomoides zonatus.* pig ulua, butaguchi thicklip trevally *Pseudocaranx dentex.* kahala amberjack *Seriola dumerili.* *Hawaii restricted bottomfish species fishing year* means the year beginning at 0001 HST on September 1 and ending at 2400 HST on August 31 of the next calendar year. *Main Hawaiian Islands non-commercial bottomfish permit* means the permit required by § 665.203(a)(2) to own or fish from a vessel that is used in any non-commercial vessel-based fishing, landing, or transshipment of any Hawaii bottomfish MUS in the MHI Management Subarea. *Protected species study zone* means the waters within 50 nm, as designated by the Regional Administrator pursuant to § 665.208, around the following islands of the NWHI and as measured from the following coordinates: Name N. lat. W. long. Nihoa Island 23°05′ 161°55′ Necker Island 23°35′ 164°40′ French Frigate Shoals 23°45′ 166°15′ Gardner Pinnacles 25°00′ 168°00′ Maro Reef 25°25′ 170°35′ Laysan Island 25°45′ 171°45′ Lisianski Island 26°00′ 173°55′ Pearl and Hermes Reef 27°50′ 175°50′ Midway Island 28°14′ 177°22′ Kure Island 28°25′ 178°20′ *Seamount Groundfish* means the following species: Common name Scientific name Armorhead *Pseudopentaceros wheeleri.* Alfonsin *Beryx splendens.* Raftfish *Hyperoglyphe japonica.* § 665.202 Management subareas.
(a)The Hawaii fishery management area is divided into subareas with the following designations and boundaries:
(1)Main Hawaiian Islands means the U.S. EEZ around the Hawaiian Archipelago lying to the east of 161°20′ W. long.
(2)Northwestern Hawaiian Islands means the EEZ around the Hawaiian Archipelago lying to the west of 161°20′ W. long. For the purposes of regulations issued under this subpart, Midway Island is treated as part of the NWHI Subarea.
(i)Ho'omalu Zone means that portion of the EEZ around the NWHI west of 165° W. long.
(ii)Mau Zone means that portion of the EEZ around the NWHI between 161°20′ W. long. and 165° W. long.
(3)Hancock Seamount means that portion of the EEZ in the Northwestern Hawaiian Islands west of 180°00′ W. long. and north of 28°00′ N. lat.
(b)The inner boundary of each management subarea is a line coterminous with the seaward boundaries of the State of Hawaii.
(c)The outer boundary of each management subarea is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured. § 665.203 Permits.
(a)*Applicability—*
(1)*Northwestern Hawaiian Islands.* The owner of any vessel used to fish for, land, or transship Hawaii bottomfish MUS shoreward of the outer boundary of the NWHI subarea must have a permit issued under this section, and the permit must be registered for use with that vessel. PIRO will not register a single vessel for use with a Ho'omalu Zone permit and a Mau Zone permit at the same time. Mau Zone permits issued before June 14, 1999, became invalid June 14, 1999, except that a permit issued to a person who submitted a timely application under paragraph (b)(3) of this section is valid until the permit holder either receives a Mau Zone limited entry permit or until final agency action is taken on the permit holder's application. The Ho'omalu Zone and the Mau Zone limited entry systems described in this section are subject to abolition, modification, or additional effort limitation programs.
(2)*MHI non-commercial.* The owner of a vessel that is used for and any person who participates in non-commercial, vessel-based fishing, landing, or transshipment of Hawaii bottomfish MUS in the MHI management subarea is required to obtain an MHI non-commercial bottomfish permit or a State of Hawaii Commercial Marine License. If one or more persons on a vessel-based bottomfish fishing trip holds an MHI non-commercial permit, then the entire trip is considered non-commercial, and not commercial. However, if any commercial fishing occurs during or as a result of a vessel-based fishing trip, then the fishing trip is considered commercial, and not non-commercial. Charter boat customers are not subject to the requirements of the section.
(b)* Submission.*
(1)An application for a permit required under this section must be submitted to PIRO as described in § 665.13.
(2)Ho'omalu Zone limited access permit. In addition to an application under § 665.13(c), each applicant for a Ho'omalu Zone permit must also submit a supplementary information sheet provided by PIRO, which must be signed by the vessel owner or a designee and include the following information:
(i)The qualification criterion that the applicant believes he or she meets for issuance of a limited access permit;
(ii)A copy of landings receipts or other documentation, with a certification from a state or Federal agency that this information is accurate, to demonstrate participation in the NWHI bottomfish fishery; and
(iii)If the application is filed by a partnership or corporation, the names of each of the individual partners or shareholders and their respective percentages of ownership of the partnership or corporation.
(3)Mau Zone limited access permit. PIRO will not accept applications for a new Mau Zone permit after June 14, 1999. In addition to an application under § 665.13(c), each applicant for a Mau Zone permit must also submit a supplementary information sheet provided by PIRO, which must be signed by the vessel owner or a designee and include the following information:
(i)The qualification criterion that the applicant believes he or she meets for issuance of a limited access permit;
(ii)Copy of State of Hawaii catch report(s) to demonstrate that the permitted vessel had made qualifying landings of bottomfish from the Mau Zone; and
(iii)If the application is filed by a partnership or corporation, the names of each of the individual partners or shareholders and their respective percentage of ownership of the partnership or corporation.
(c)Sale or transfer of Ho'omalu limited access permits to new vessel owners.
(1)A Ho'omalu zone permit may not be sold or otherwise transferred to a new owner.
(2)A Ho'omalu zone permit or permits may be held by a partnership or corporation. If 50 percent or more of the ownership of the vessel passes to persons other than those listed in the original application, the permit will lapse and must be surrendered to the Regional Administrator.
(d)Transfer of Ho'omalu Zone limited access permits to replacement vessels.
(1)Upon application by the owner of a permitted vessel, the Regional Administrator will transfer that owner's permit to a replacement vessel owned by that owner, provided that the replacement vessel does not exceed 60 ft (18.3 m) LOA. The replacement vessel must be put into service no later than 12 months after the owner applies for the transfer, or the transfer shall be void.
(2)An owner of a permitted vessel may apply to the Regional Administrator for transfer of that owner's permit to a replacement vessel greater than 60 ft (18.3 m) LOA. The Regional Administrator may transfer the permit upon determining, after consultation with the Council and considering the objectives of the limited access program, that the replacement vessel has catching power that is comparable to the rest of the vessels holding permits for the fishery, or has catching power that does not exceed that of the original vessel, and that the transfer is not inconsistent with the objectives of the program. The Regional Administrator shall consider vessel length, range, hold capacity, gear limitations, and other appropriate factors in making determinations of catching power equivalency and comparability of the catching power of vessels in the fishery.
(e)Ho'omalu Zone limited access permit renewal.
(1)A qualifying landing for Ho'omalu Zone permit renewal is a landing of at least 2,500 lb (1,134 kg) of Hawaii bottomfish MUS from the Ho'omalu Zone or a landing of at least 2,500 lb (1,134 kg) of fish from the Ho'omalu Zone, of which at least 50 percent by weight was Hawaii bottomfish MUS. A permit is eligible for renewal for the next calendar year if the vessel covered by the permit made three or more qualifying landings during the current calendar year.
(2)The owner of a permitted vessel that did not make three or more qualifying landings of bottomfish in a year may apply to the Regional Administrator for a waiver of the landing requirement. If the Regional Administrator finds that failure to make three landings was due to circumstances beyond the owner's control, the Regional Administrator may renew the permit. A waiver may not be granted if the failure to make three landings was due to general economic conditions or market conditions, such that the vessel operations would not be profitable.
(f)Issuance of new Ho'omalu Zone limited access permits. The Regional Administrator may issue new Ho'omalu Zone limited access permits under § 665.13 if the Regional Administrator determines, in consultation with the Council, that bottomfish stocks in the Ho'omalu Zone are able to support additional fishing effort.
(g)Eligibility for new Ho'omalu Zone limited access permits. When the Regional Administrator has determined that new permits may be issued, they shall be issued to applicants based upon eligibility, determined as follows:
(1)*Point system.*
(i)Two points will be assigned for each year in which the applicant was owner or captain of a vessel that made three or more of any of the following types of landings in the NWHI:
(A)Any amount of Hawaii bottomfish MUS, regardless of weight, if made on or before August 7, 1985;
(B)At least 2,500 lb (1,134 kg) of Hawaii bottomfish MUS, if made after August 7, 1985; or
(C)At least 2,500 lb (1,134 kg) of any fish lawfully harvested from the NWHI, of which at least 50 percent by weight was bottomfish, if made after August 7, 1985.
(ii)One point will be assigned for each year in which the applicant was owner or captain of a vessel that landed at least 6,000 lb (2,722 kg) of bottomfish from the MHI.
(iii)For any one year, points will be assigned under either paragraph (g)(1)(i) or (g)(1)(ii) of this section, but not under both paragraphs.
(iv)Before the Regional Administrator issues a Ho'omalu zone permit to fish for bottomfish under this section, the primary operator and relief operator named on the application form must have completed a protected species workshop conducted by NMFS.
(2)*Restrictions.* An applicant must own at least a 25 percent share in the vessel that the permit would cover, and only one permit will be assigned to any vessel.
(3)*Order of issuance.* New permits shall be awarded to applicants in descending order, starting with the applicant with the largest number of points. If two or more persons have an equal number of points, and there are insufficient new permits for all such applicants, the new permits shall be awarded by the Regional Administrator through a lottery.
(4)*Notification.* The Regional Administrator shall place a notice in the **Federal Register** and shall use other means to notify prospective applicants of the opportunity to file applications for new permits under this program.
(h)Eligibility for new Mau Zone limited access permits.
(1)PIRO will issue an initial Mau Zone permit to a vessel owner who qualifies for at least three points under the following point system:
(i)An owner who held a Mau Zone permit on or before December 17, 1991, and whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS on or before December 17, 1991, shall be assigned 1.5 points.
(ii)An owner whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS during 1991 shall be assigned 0.5 point.
(iii)An owner whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS during 1992 shall be assigned 1.0 point.
(iv)An owner whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS during 1993 shall be assigned 1.5 points.
(v)An owner whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS during 1994 shall be assigned 2.0 points.
(vi)An owner whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS during 1995 shall be assigned 2.5 points.
(vii)An owner whose permitted vessel made at least one qualifying landing of Hawaii bottomfish MUS during 1996 shall be assigned 3.0 points.
(viii)Before PIRO issues a Mau Zone permit to fish for bottomfish under this section, the primary operator and relief operator named on the application form must have completed a protected species workshop conducted by NMFS.
(2)For purposes of this paragraph (h), a “qualifying landing” means any amount of Hawaii bottomfish MUS lawfully harvested from the Mau Zone and offloaded for sale. No points shall be assigned to an owner for any qualifying landings reported to the State of Hawaii more than 1 year after the landing.
(3)More than one Mau Zone permit may be issued to an owner of two or more vessels, provided each of the owner's vessels for which a permit will be registered for use has made the required qualifying landings for the owner to be assigned at least three eligibility points.
(4)A Mau Zone permit holder who does not own a vessel at the time initial permits are issued must register the permit for use with a vessel owned by the permit holder within 12 months from the date the permit was issued. In the interim, the permit holder may register the permit for use with a leased or chartered vessel. If within 12 months of initial permit issuance, the permit holder fails to apply to PIRO to register the permit for use with a vessel owned by the permit holder, then the permit shall expire.
(5)For each of paragraphs (h)(1)(i) through (h)(1)(viii) of this section, PIRO shall assign points based on the landings of one permitted vessel to only one owner if the vessel did not have multiple owners during the time frame covered by the subordinate paragraphs. If a vessel had multiple owners during a time frame covered by any of paragraphs (h)(1)(i) through (h)(1)(viii) of this section (including joint owners, partners, or shareholders of a corporate owner), PIRO will assign the points for that subordinate paragraph to a single owner if only one owner submits an application with respect to the landings of that vessel during that time frame. If multiple owners submit separate applications with respect to the same landings of the same vessel during the same time frame, then PIRO shall:
(i)Adhere to any written agreement between the applicants with respect to who among them shall be assigned the aggregate point(s) generated by landings during such time frame(s), or
(ii)If there is no agreement:
(A)Shall issue the applicants a joint permit provided the vessel's landings during such time frames generated at least three points, or
(B)In the event the vessel's landings during such time frame(s) generated less than three points, shall not assign any points generated by the vessel's landings during such time frame(s).
(i)Ownership requirements and registration of Mau Zone limited access permits for use with other vessels.
(1)A Mau Zone permit may be held by an individual, partnership, or corporation. No more than 49 percent of the underlying ownership interest in a Mau Zone permit may be sold, leased, chartered, or otherwise transferred to another person or entity. If more than 49 percent of the underlying ownership of the permit passes to persons or entities other than those listed in the original permit application supplemental information sheet, then the permit expires and must be surrendered to PIRO.
(2)A Mau Zone permit holder may apply under § 665.13 to PIRO to register the permit for use with another vessel if that vessel is owned by the permit holder, and is no longer than 60 ft (18.3 m) LOA.
(3)If a Mau Zone permit holder sells the vessel for which the permit is registered for use, the permit holder must, within 12 months of the date of sale, apply to PIRO to register the permit for use with a vessel owned by the permit holder. If the permit holder has not applied to register a replacement vessel within 12 months, then the permit expires.
(4)If a permitted vessel owned by the permit holder is sold or becomes unseaworthy, the Mau Zone permit with which the vessel was registered may be registered for use with a leased or chartered vessel for a period not to exceed 12 months from the date of registration of the leased or chartered vessel. If by the end of that 12-month period the permit holder fails to apply to PIRO to register the permit for use with a vessel owned by the permit holder, then the permit expires.
(j)Mau Zone limited access permit renewal.
(1)A Mau Zone permit will be eligible for renewal if the vessel for which the permit is registered for use made at least five separate fishing trips with landings of at least 500 lb (227 kg) of Hawaii bottomfish MUS per trip during the calendar year. Only one landing of bottomfish MUS per fishing trip to the Mau Zone will be counted toward the landing requirement.
(2)If the vessel for which the permit is registered for use fails to meet the landing requirement of paragraph (j)(1) of this section, the owner may apply to the Regional Administrator for a waiver of the landing requirement. Grounds for a waiver are limited to captain incapacitation, vessel breakdowns, and the loss of the vessel at sea if the event prevented the vessel from meeting the landing requirement. Unprofitability is not sufficient for waiver of the landing requirement.
(3)Failure of the permit holder to register a vessel for use under the permit does not exempt a permit holder from the requirements specified in this paragraph.
(k)Appeals of permit actions.
(1)Except as provided in subpart A of 15 CFR part 904, any applicant for a permit or a permit holder may appeal the granting, denial, or revocation of his or her permit to the Regional Administrator.
(2)In order to be considered by the Regional Administrator, such appeal must be in writing, must state the action appealed, and the reasons therefore, and must be submitted within 30 days of the appealed action. The appellant may request an informal hearing on the appeal.
(3)The Regional Administrator, in consultation with the Council, will decide the appeal in accordance with the FEP and implementing regulations and based upon information relative to the application on file at NMFS and the Council, the summary record kept of any hearing, the hearing officer's recommended decision, if any, and any other relevant information.
(4)If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose. The applicant or permit holder may appear personally and/or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(5)The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. The Regional Administrator's decision on the application is the final administrative decision of the Department of Commerce, and is effective on the date the Administrator signs the decision. § 665.204 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person to do any of the following:
(a)Fish for Hawaii bottomfish or seamount groundfish MUS using gear prohibited under § 665.206.
(b)Fish for, or retain on board a vessel, Hawaii bottomfish MUS in the Ho'omalu Zone or the Mau Zone without the appropriate permit registered for use with that vessel issued under § 665.13.
(c)Serve as primary operator or relief operator on a vessel with a Mau or Ho'omalu Zone permit without completing a protected species workshop conducted by NMFS, as required by § 665.203.
(d)Fail to notify the USCG at least 24 hours prior to making any landing of bottomfish taken in the Ho'omalu Zone, as required by § 665.205.
(e)Fish within any protected species study zone in the NWHI without notifying the Regional Administrator of the intent to fish in these zones, as required under § 664.205.
(f)Falsify or fail to make or file reports of all fishing activities shoreward of the outer boundary of the MHI management subarea, in violation of § 665.14(a) or (b).
(g)Own a vessel or fish from a vessel that is used to fish non-commercially for any Hawaii bottomfish MUS in the MHI management subarea without either a MHI non-commercial bottomfish permit or a State of Hawaii Commercial Marine License, in violation of §§ 665.2 or 665.203(a)(2).
(h)Fish for or possess any Hawaii Restricted Bottomfish Species as specified in § 665.210, in the MHI management subarea after a closure of the fishery, in violation of § 665.211.
(i)Sell or offer for sale any Hawaii Restricted Bottomfish Species, as specified in § 665.210, after a closure of the fishery, in violation of § 665.211.
(j)Harvest, possess, or land more than a total of five fish (all species combined) identified as Hawaii Restricted Bottomfish Species in § 665.210 from a vessel in the MHI management subarea, while holding a MHI non-commercial bottomfish permit, or while participating as a charter boat customer, in violation of § 665.212. § 665.205 Notification.
(a)The owner or operator of a fishing vessel subject to § 665.203(a)(1) must inform PIRO at least 72 hours (not including weekends and holidays) before leaving port, of his or her intent to fish within the protected species study zones defined in § 665.201. The notice must include the name of the vessel, name of the operator, intended departure and return date, and a telephone number at which the owner or operator may be contacted during the business day (8 a.m. to 5 p.m.) to indicate whether an observer will be required on the subject fishing trip.
(b)The operator of a fishing vessel that has taken Hawaii bottomfish MUS in the Ho'omalu Zone must contact the USCG, by radio or otherwise, at the 14th District, Honolulu, HI; Pacific Area, San Francisco, CA; or 17th District, Juneau, AK, at least 24 hours before landing, and report the port and the approximate date and time at which the bottomfish will be landed. § 665.206 Gear restrictions.
(a)*Bottom trawls and bottom set gillnets.* Fishing for Hawaii bottomfish and seamount groundfish MUS with bottom trawls and bottom set gillnets is prohibited.
(b)*Possession of gear.* Possession of a bottom trawl and bottom set gillnet by any vessel having a permit under § 665.203 or otherwise established to be fishing for Hawaii bottomfish or seamount groundfish MUS in the management subareas is prohibited.
(c)*Poisons and explosives.* The possession or use of any poisons, explosives, or intoxicating substances for the purpose of harvesting Hawaii bottomfish and seamount groundfish MUS is prohibited. § 665.207 At-sea observer coverage.
(a)All fishing vessels subject to §§ 665.200 though 665.212 must carry an observer when directed to do so by the Regional Administrator.
(b)PIRO will advise the vessel owner or operator of any observer requirement within 72 hours (not including weekends or holidays) of receipt of the notice provided pursuant to § 665.205(a). If an observer is required, the owner or operator will be informed of the terms and conditions of observer coverage, and the time and place of embarkation of the observer.
(c)All observers must be provided with sleeping, toilet, and eating accommodations at least equal to that provided to a full crew member. A mattress or futon on the floor, or a cot, is not acceptable in place of a regular bunk. Meal and other galley privileges must be the same for the observer as for other crew members.
(d)Female observers on a vessel with an all-male crew must be accommodated either in a single-person cabin or, if reasonable privacy can be ensured by installing a curtain or other temporary divider, in a two-person cabin shared with a licensed officer of the vessel. If the cabin assigned to a female observer does not have its own toilet and shower facilities that can be provided for the exclusive use of the observer, then a schedule for time-sharing of common facilities must be established and approved by the Regional Administrator prior to the vessel's departure from port. § 665.208 Protected species conservation. The Regional Administrator may change the size of the protected species study zones defined in § 665.201 of this subpart:
(a)If the Regional Administrator determines that a change in the size of the study zones would not result in fishing for bottomfish in the NWHI that would adversely affect any species listed as threatened or endangered under the ESA.
(b)After consulting with the Council.
(c)Through notification in the **Federal Register** published at least 30 days prior to the effective date or through actual notice to the permit holders. § 665.209 Fishing moratorium on Hancock Seamount. Fishing for Hawaii bottomfish and seamount groundfish MUS on the Hancock Seamount is prohibited through August 31, 2010. § 665.210 Hawaii restricted bottomfish species. *Hawaii restricted bottomfish species* means the following species: Local name English common name Scientific name lehi silver jaw jobfish *Aphareus rutilans* . ehu squirrelfish snapper *Etelis carbunculus* . onaga longtail snapper *Etelis coruscans* . opakapaka Pink snapper *Pristipomoides filamentosus* . kalekale snapper *Pristipomoides sieboldii* . gindai snapper *Pristipomoides zonatus* . hapu`upu`u sea bass *Epinephelus quernus* . § 665.211 Total Allowable Catch
(TAC)limit.
(a)TAC limits will be set annually for the fishing year by NMFS, as recommended by the Council, based on the best available scientific, commercial, and other information, and taking into account the associated risk of overfishing.
(b)The Regional Administrator shall publish a notice indicating the annual TAC limit in the **Federal Register** by August 31 of each year, and shall use other means to notify permit holders of the TAC limit for the year.
(c)When the TAC limit specified in this section is projected to be reached based on analyses of available information, the Regional Administrator shall publish a notice to that effect in the **Federal Register** and shall use other means to notify permit holders. The notice will include an advisement that the fishery will be closed beginning at a specified date, which is not earlier than 14 days after the date of filing the closure notice for public inspection at the Office of the Federal Register, until the end of the fishing year in which the TAC is reached.
(d)On and after the date specified in § 665.211(c), no person may fish for or possess any Hawaii Restricted Bottomfish Species as specified in § 665.210 in the MHI management subarea, except as otherwise allowed in this section.
(e)On and after the date specified in § 665.211(c), no person may sell or offer for sale Hawaii Restricted Bottomfish Species as specified in § 665.210, except as otherwise authorized by law.
(f)Fishing for, and the resultant possession or sale of, Hawaii Restricted Bottomfish Species by vessels legally registered to Mau Zone, Ho‘omalu Zone, or PRIA bottomfish fishing permits and conducted in compliance with all other laws and regulations, is exempted from this section. § 665.212 Non-commercial bag limits. No more than a total of five fish (all species combined) identified as Hawaii Restricted Bottomfish Species as specified in § 665.210, may be harvested, possessed, or landed by any individual participating in a non-commercial vessel-based fishing trip in the MHI management subarea. Charter boat customers are also subject to the bag limit. §§ 665.213-665.219 [Reserved] § 665.220 Hawaii coral reef ecosystem fisheries [Reserved]. § 665.221 Definitions. As used in §§ 665.220 through 665.239: *Hawaii coral reef ecosystem management unit species (Hawaii coral reef ecosystem MUS)* means all of the Currently Harvested Coral Reef Taxa and Potentially Harvested Coral Reef Taxa listed in this section and which spend the majority of their non-pelagic (post-settlement) life stages within waters less than or equal to 50 fathoms in total depth. Hawaii Currently Harvested Coral Reef Taxa: Family name Local name English common name Scientific name Acanthuridae (Surgeonfishes) na`ena`e orange-spot surgeonfish *Acanthurus olivaceus.* Pualu yellowfin surgeonfish *Acanthurus xanthopterus.* Manini convict tang *Acanthurus triostegus.* Palani eye-striped surgeonfish *Acanthurus dussumieri.* Maiko blue-lined surgeon *Acanthurus nigroris.* maiko, maikoiko whitebar surgeonfish *Acanthurus leucopareius.* whitecheek surgeonfish *Acanthurus nigricans.* `api white-spotted surgeonfish *Acanthurus guttatus.* Pualu ringtail surgeonfish *Acanthurus blochii.* mai`i`i brown surgeonfish *Acanthurus nigrofuscus.* Kole yellow-eyed surgeonfish *Ctenochaetus strigosus.* NA striped bristletooth *Ctenochaetus striatus.* Kala bluespine unicornfish *Naso unicornus.* kalalei, umaumalei orangespine unicornfish *Naso lituratus.* Acanthuridae (Surgeonfishes) kala holo black tongue unicornfish *Naso hexacanthus.* Kala whitemargin unicornfish *Naso annulatus.* kala lolo spotted unicornfish *Naso brevirostris.* gray unicornfish *Naso caesius.* lau`ipala yellow tang *Zebrasoma flavescens.* Balistidae (Triggerfish) humuhumu hi`ukole pinktail triggerfish *Melichthys vidua.* humuhumu `ele`ele black triggerfish *Melichthys niger.* humuhumu nukunuku apua`a picassofish *Rhinecanthus aculeatus.* bridled triggerfish *Sufflamen fraenatum.* Carangidae (Jacks) akule, hahalu bigeye scad *Selar crumenophthalmus.* `opelu, `opelu mama mackerel scad *Decapterus macarellus.* Carcharhinidae (Sharks) Manō grey reef shark *Carcharhinus amblyrhynchos.* Manō galapagos shark *Carcharhinus galapagensis.* Manō blacktip reef shark *Carcharhinus melanopterus.* manō lalakea whitetip reef shark *Triaenodon obesus.* Holocentridae (Soldierfish/Squirrel- fish) menpachi, `u`u menpachi, `u`u bigscale soldierfish brick soldierfish *Myripristis berndti.* *Myripristis amaena.* menpachi, `u`u yellowfin soldierfish *Myripristis chryseres.* menpachi, `u`u pearly soldierfish *Myripristis kuntee.* `ala`ihi file-lined squirrelfish *Sargocentron microstoma.* `ala`ihi crown squirrelfish *Sargocentron diadema.* `ala`ihi peppered squirrelfish *Sargocentron punctatissimum.* `ala`ihi blue-lined squirrelfish *Sargocentron tiere.* `ala`ihi Hawaiian squirrelfish *Sargocentron xantherythrum.* `ala`ihi saber or long jaw squirrelfish *Sargocentron spiniferum.* `ala`ihi spotfin squirrelfish *Neoniphon* spp. Kuhliidae (Flagtails) `aholehole Hawaiian flag-tail *Kuhlia sandvicensis.* Kyphosidae (Rudderfish) Nenue rudderfish *Kyphosus biggibus.* Nenue rudderfish *Kyphosus cinerascens.* Nenue rudderfish *Kyphosus vaigiensis.* Labridae (Wrasses) `a`awa saddleback hogfish *Bodianus bilunulatus.* po`ou ring-tailed wrasse *Oxycheilinus unifasciatus.* laenihi, nabeta razor wrasse *Xyrichtys pavo.* kupoupou ho`u cigar wrasse *Cheilio inermis.* surge wrasse *Thalassoma purpureum.* red ribbon wrasse *Thalassoma quinquevittatum.* sunset wrasse *Thalassoma lutescens.* rockmover wrasse *Novaculichthys taeniourus.* Mullidae (Goatfishes) Weke yellow goatfish *Mulloidichthys* spp. weke nono orange goatfish *Mulloidichthys pfleugeri.* weke`ula yellowfin goatfish *Mulloidichthys vanicolensis.* weke`a or weke a`a yellowstripe goatfish *Mulloidichthys flavolineatus.* kumu, moano banded goatfish *Parupeneus* spp. Munu doublebar goatfish *Parupeneus bifasciatus.* moano kea, moano kale yellowsaddle goatfish *Parupeneus cyclostomas.* Malu side-spot goatfish *Parupeneus pleurostigma.* Moano multi-barred goatfish *Parupeneus multifaciatus.* weke pueo bandtail goatfish *Upeneus arge.* Mugilidae (Mullets) `ama`ama stripped mullet *Mugil cephalus.* Uouoa false mullet *Neomyxus leuciscus.* Muraenidae (Moray eels) puhi paka yellowmargin moray eel *Gymnothorax flavimarginatus.* Puhi giant moray eel *Gymnothorax javanicus.* puhi laumilo undulated moray eel *Gymnothorax undulatus.* Puhi dragon eel *Enchelycore pardalis.* Octopodidae (Octopus) he`e mauli, tako octopus *Octopus cyanea.* he`e, tako octopus *Octopus ornatus.* Polynemidae Moi threadfin *Polydactylus sexfilis.* Priacanthidae (Big-eyes) `aweoweo glasseye *Heteropriacanthus cruentatus.* `aweoweo bigeye *Priacanthus hamrur.* Scaridae (Parrotfish) uhu, palukaluka parrotfish *Scarus* spp. panuhunuhu stareye parrotfish *Calotomus carolinus.* Sphyraenidae (Barracuda) kawele`a, kaku Heller's barracuda *Sphyraena helleri.* Kaku great barracuda *Sphyraena barracuda.* Turbinidae green snails turban shells *Turbo* spp. Zanclidae kihikihi moorish idol *Zanclus cornutus.* Chaetodontidae kikakapu butterflyfish *Chaetodon auriga.* kikakapu raccoon butterflyfish *Chaetodon lunula.* kikakapu saddleback butterflyfish *Chaetodon ephippium.* Sabellidae featherduster worm. Hawaii Potentially Harvested Coral Reef Taxa: Local name English common name Scientific name Hinalea wrasses (Those species not listed as CHCRT) Labridae. Manō sharks (Those species not listed as CHCRT) Carcharhinidae, Sphyrnidae. Hihimanu rays and skates Dasyatididae, Myliobatidae. roi, hapu`upu `u groupers, seabass (Those species not listed as CHCRT or in BMUS) Serrandiae. tilefishes Malacanthidae. dobe, kagami, pa`opa`o, papa, omaka, ulua jacks and scads (Those species not listed as CHCRT or in BMUS) Carangidae. `u`u solderfishes and squirrelfishes (Those species not listed as CHCRT) Holocentridae. weke, moano, kumu goatfishes (Those species not listed as CHCRT) Mullidae. na`ena `e, maikoiko surgeonfishes (Those species not listed as CHCRT) Acanthuridae. remoras Echeneidae. Puhi eels (Those species not listed as CHCRT) Muraenidae, Congridae, Ophichthidae. `upapalu cardinalfishes Apogonidae. herrings Clupeidae. Nehu anchovies Engraulidae. coral crouchers Caracanthidae. `o`opu gobies Gobiidae. to`au snappers (Those species not listed as CHCRT or in BMUS) Lutjanidae. Nunu trumpetfish *Aulostomus chinensis.* nunu peke cornetfish *Fistularia commersoni.* Kihikihi moorish Idols Zanclidae. Kikakapu butterflyfishes Chaetodontidae. angelfishes Pomacanthidae. Mamo damselfishes Pomacentridae. nohu, okoze scorpionfishes, lionfishes Scorpaenidae. pa o'o blennies Blenniidae. Kaku barracudas (Those species not listed as CHCRT) Sphyraenidae. sandperches Pinguipedidae. paki`i flounders and soles Bothidae, Soleidae, Pleurnectidae. Makukana trunkfishes Ostraciidae. humu humu trigger fishes (Those species not listed as CHCRT) Balistidae. Nenue rudderfishes (Those species not listed as CHCRT) Kyphosidae. po`opa`a hawkfishes (Those species not listed as CHCRT) Cirrhitidae. `o`opu hue, fugu puffer fishes and porcupine fishes Tetradontidae. frogfishes Antennariidae. pipefishes and seahorses Syngnathidae. namako, lole, wana sea cucumbers and sea urchins (Those species not listed as CHCRT) Echinoderms. Mollusca. ko`a ahermatypic corals Azooxanthellates. ko`a mushroom corals Fungiidae. ko`a small and large coral polyps soft corals and gorgonians anemones Actinaria. soft zoanthid corals Zoanthinaria. hydroid corals Solanderidae. ko`a lace corals Stylasteridae. ula, a`ama, mo`ala, `alakuma lobsters, shrimps, mantis shrimps, true crabs and hermit crabs (Those species not listed as CMUS) Crustaceans. Hydrozoans, Bryzoans. black-lip pearl oyster *Pinctada margaritifera.* other clams Other Bivalves. sea squirts Tunicates. sponges Porifera. tako, he`e octopi Cephalopods. sea snails Gastropoda. sea slugs Opistobranchs. Limu seaweed Algae. Live rock. segmented worms (Those species not listed as CHCRT) Annelids. All other Hawaii coral reef ecosystem MUS that are marine plants, invertebrates, and fishes that are not listed in the Hawaii CHCRT table or are not Hawaii bottomfish, crustacean, precious coral, seamount groundfish or western Pacific pelagic MUS. § 665.222 Management area. The Hawaii coral reef ecosystem management area is as follows:
(a)The U.S. EEZ around the Hawaiian Archipelago lying to the east of 160°50′ W. long.
(b)The inner boundary of the management area is the seaward boundary of the State of Hawaii.
(c)The outer boundary of the management area is the outer boundary of the U.S. EEZ. § 665.223 Relation to other laws. To ensure consistency between the management regimes of different Federal agencies with shared management responsibilities of fishery resources within the Hawaii coral reef ecosystem management area, fishing for Hawaii coral reef ecosystem MUS is not allowed within the boundary of a National Wildlife Refuge unless specifically authorized by the USFWS, regardless of whether that refuge was established by action of the President or the Secretary of the Interior. § 665.224 Permits and fees.
(a)*Applicability.* Unless otherwise specified in this subpart, § 665.13 applies to Hawaii coral reef ecosystem permits.
(1)*Special permit.* Any person of the United States fishing for, taking or retaining Hawaii coral reef ecosystem MUS must have a special permit if they, or a vessel which they operate, is used to fish for any:
(i)Hawaii coral reef ecosystem MUS in low-use MPAs as defined in § 665.199;
(ii)Hawaii Potentially Harvested Coral Reef Taxa in the coral reef ecosystem management area; or
(iii)Hawaii coral reef ecosystem MUS in the coral reef ecosystem management area with any gear not specifically allowed in this subpart.
(2)*Transshipment permit.* A receiving vessel must be registered for use with a transshipment permit if that vessel is used in the Hawaii coral reef ecosystem management area to land or transship PHCRT, or any Hawaii coral reef ecosystem MUS harvested within low-use MPAs.
(3)*Exceptions.* The following persons are not required to have a permit under this section:
(i)Any person issued a permit to fish under any FEP who incidentally catches Hawaii coral reef ecosystem MUS while fishing for bottomfish MUS, crustacean MUS, western Pacific pelagic MUS, precious coral, or seamount groundfish.
(ii)Any person fishing for Hawaii CHCRT outside of an MPA, who does not retain any incidentally caught Hawaii PHCRT; and
(iii)Any person collecting marine organisms for scientific research as described in § 665.17, or § 600.745 of this chapter.
(b)*Validity.* Each permit will be valid for fishing only in the fishery management area specified on the permit.
(c)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits are contained in § 665.13.
(d)*Special permit.* The Regional Administrator shall issue a special permit in accordance with the criteria and procedures specified in this section.
(1)*Application.* An applicant for a special or transshipment permit issued under this section must complete and submit to the Regional Administrator a Special Coral Reef Ecosystem Fishing Permit Application Form issued by NMFS. Information in the application form must include, but is not limited to a statement describing the objectives of the fishing activity for which a special permit is needed, including a general description of the expected disposition of the resources harvested under the permit ( *i.e.,* stored live, fresh, frozen, preserved, sold for food, ornamental, research, or other use, and a description of the planned fishing operation, including location of fishing and gear operation, amount and species (directed and incidental) expected to be harvested and estimated habitat and protected species impacts).
(2)*Incomplete applications.* The Regional Administrator may request from an applicant additional information necessary to make the determinations required under this section. An applicant will be notified of an incomplete application within 10 working days of receipt of the application. An incomplete application will not be considered until corrected in writing.
(3)*Issuance.*
(i)If an application contains all of the required information, the Regional Administrator will forward copies of the application within 30 days to the Council, the USCG, the fishery management agency of the affected state, and other interested parties who have identified themselves to the Council, and the USFWS.
(ii)Within 60 days following receipt of a complete application, the Regional Administrator will consult with the Council through its Executive Director, USFWS, and the Director of the affected state fishery management agency concerning the permit application and will receive their recommendations for approval or disapproval of the application based on:
(A)Information provided by the applicant;
(B)The current domestic annual harvesting and processing capacity of the directed and incidental species for which a special permit is being requested;
(C)The current status of resources to be harvested in relation to the overfishing definition in the FEP;
(D)Estimated ecosystem, habitat, and protected species impacts of the proposed activity; and
(E)Other biological and ecological information relevant to the proposal. The applicant will be provided with an opportunity to appear in support of the application.
(iii)Following a review of the Council's recommendation and supporting rationale, the Regional Administrator may:
(A)Concur with the Council's recommendation and, after finding that it is consistent with the goals and objectives of the FEP, the national standards, the Endangered Species Act, and other applicable laws, approve or deny a special permit; or
(B)Reject the Council's recommendation, in which case, written reasons will be provided by the Regional Administrator to the Council for the rejection.
(iv)If the Regional Administrator does not receive a recommendation from the Council within 60 days of Council receipt of the permit application, the Regional Administrator can make a determination of approval or denial independently.
(v)Within 30 working days after the consultation in paragraph (d)(3)(ii) of this section, or as soon as practicable thereafter, NMFS will notify the applicant in writing of the decision to grant or deny the special permit and, if denied, the reasons for the denial. Grounds for denial of a special permit include the following:
(A)The applicant has failed to disclose material information required, or has made false statements as to any material fact, in connection with his or her application.
(B)According to the best scientific information available, the directed or incidental catch in the season or location specified under the permit would detrimentally affect any coral reef resource or coral reef ecosystem in a significant way, including, but not limited to, issues related to spawning grounds or seasons, protected species interactions, EFH, and habitat areas of particular concern (HAPC).
(C)Issuance of the special permit would inequitably allocate fishing privileges among domestic fishermen or would have economic allocation as its sole purpose.
(D)The method or amount of harvest in the season and/or location stated on the permit is considered inappropriate based on previous human or natural impacts in the given area.
(E)NMFS has determined that the maximum number of permits for a given area in a given season has been reached and allocating additional permits in the same area would be detrimental to the resource.
(F)The activity proposed under the special permit would create a significant enforcement problem.
(vi)The Regional Administrator may attach conditions to the special permit, if it is granted, consistent with the management objectives of the FEP, including, but not limited to:
(A)The maximum amount of each resource that can be harvested and landed during the term of the special permit, including trip limits, where appropriate.
(B)The times and places where fishing may be conducted.
(C)The type, size, and amount of gear which may be used by each vessel operated under the special permit.
(D)Data reporting requirements.
(E)Such other conditions as may be necessary to ensure compliance with the purposes of the special permit consistent with the objectives of the FEP.
(4)*Appeals of permit actions.*
(i)Except as provided in subpart D of 15 CFR part 904, any applicant for a permit or a permit holder may appeal the granting, denial, conditioning, or suspension of their permit or a permit affecting their interests to the Regional Administrator. In order to be considered by the Regional Administrator, such appeal must be in writing, must state the action(s) appealed, and the reasons therefore, and must be submitted within 30 days of the original action(s) by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(ii)Upon receipt of an appeal authorized by this section, the Regional Administrator will notify the permit applicant, or permit holder as appropriate, and will request such additional information in such form as will allow action upon the appeal. Upon receipt of sufficient information, the Regional Administrator will rule on the appeal in accordance with the permit eligibility criteria set forth in this section and the FEP, as appropriate, based on information relative to the application on file at NMFS and the Council and any additional information, the summary record kept of any hearing and the hearing officer's recommended decision, if any, and such other considerations as deemed appropriate. The Regional Administrator will notify all interested persons of the decision, and the reasons therefore, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(iii)If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose after first giving notice of the time, place, and subject matter of the hearing in the **Federal Register.** Such a hearing shall normally be held no later than 30 days following publication of the notice in the **Federal Register,** unless the hearing officer extends the time for reasons deemed equitable. The appellant, the applicant (if different), and, at the discretion of the hearing officer, other interested parties, may appear personally and/or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(iv)The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator will notify interested persons of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's action constitutes final action for the agency for the purposes of the Administrative Procedure Act.
(5)Any time limit prescribed in this section may be extended for good cause, for a period not to exceed 30 days, by the Regional Administrator, either upon his or her own motion or upon written request from the Council, appellant or applicant stating the reason(s) therefore. § 665.225 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15 of this part, it is unlawful for any person to do any of the following:
(a)Fish for, take, retain, possess or land any Hawaii coral reef ecosystem MUS in any low-use MPA as defined in § 665.199 unless:
(1)A valid permit has been issued for the hand harvester or the fishing vessel operator that specifies the applicable area of harvest;
(2)A permit is not required, as outlined in § 665.224; or
(3)The Hawaii coral reef ecosystem MUS possessed on board the vessel originated outside the management area and this can be demonstrated through receipts of purchase, invoices, fishing logbooks or other documentation.
(b)Fish for, take, or retain any Hawaii coral reef ecosystem MUS species:
(1)That is determined overfished with subsequent rulemaking by the Regional Administrator.
(2)By means of gear or methods prohibited under § 665.227.
(3)In a low-use MPA without a valid special permit.
(4)In violation of any permit issued under §§ 665.13 or 665.224.
(c)Fish for, take, or retain any wild live rock or live hard coral except under a valid special permit for scientific research, aquaculture seed stock collection or traditional and ceremonial purposes by indigenous people. § 665.226 Notifications. Any special permit holder subject to the requirements of this subpart must contact the appropriate NMFS enforcement agent in American Samoa, Guam, or Hawaii at least 24 hours before landing any Hawaii coral reef ecosystem MUS unit species harvested under a special permit, and report the port and the approximate date and time at which the catch will be landed. § 665.227 Allowable gear and gear restrictions.
(a)Hawaii coral reef ecosystem MUS may be taken only with the following allowable gear and methods:
(1)Hand harvest;
(2)Spear;
(3)Slurp gun;
(4)Hand net/dip net;
(5)Hoop net for Kona crab;
(6)Throw net;
(7)Barrier net;
(8)Surround/purse net that is attended at all times;
(9)Hook-and-line (includes handline (powered or not), rod-and-reel, and trolling);
(10)Crab and fish traps with vessel ID number affixed; and
(11)Remote-operating vehicles/submersibles.
(b)Hawaii coral reef ecosystem MUS may not be taken by means of poisons, explosives, or intoxicating substances. Possession or use of these materials by any permit holder under this subpart who is established to be fishing for Hawaii coral reef ecosystem MUS in the Hawaii management area is prohibited.
(c)Existing FEP fisheries shall follow the allowable gear and methods outlined in their respective plans.
(d)Any person who intends to fish with new gear not included in this section must describe the new gear and its method of deployment in the special permit application. A decision on the permissibility of this gear type will be made by the Regional Administrator after consultation with the Council and the director of the affected state fishery management agency. § 665.228 Gear identification.
(a)The vessel number must be affixed to all fish and crab traps on board the vessel or deployed in the water by any vessel or person holding a permit under §§ 665.13 or 665.224 or that is otherwise established to be fishing for Hawaii coral reef ecosystem MUS in the Hawaii management area.
(b)*Enforcement action.*
(1)Traps not marked in compliance with paragraph
(a)of this section and found deployed in the Hawaii coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer.
(2)Unattended surround nets or bait seine nets found deployed in the Hawaii coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer. §§ 665.229-665.239 [Reserved] § 665.240 Hawaii crustacean fisheries [Reserved]. § 665.241 Definitions. As used in §§ 665.240 through 665.259: *Hawaii crustacean management area* is divided into the following areas:
(1)*Crustacean Permit Area 1 (Permit Area 1)* means the EEZ around the NWHI.
(2)*Crustacean Permit Area 2 (Permit Area 2)* means the EEZ around the MHI.
(3)*Crustacean Permit Area 1 VMS Subarea* means an area within the EEZ around the NWHI 50 nm from the center geographical positions of the islands and reefs in the NWHI as follows: Name N. lat. W. long. Nihoa Island 23°05′ 161°55′ Necker Island 23°35′ 164°40′ French Frigate Shoals 23°45′ 166°15′ Gardner Pinnacles 25°00′ 168°00′ Maro Reef 25°25′ 170°35′ Laysan Island 25°45′ 171°45′ Lisianski Island 26°00′ 173°55′ Pearl and Hermes Reef 27°50′ 175°50′ Midway Island 28°14′ 177°22′ Kure Island 28°25′ 178°20′ The remainder of the VMS subarea is delimited by parallel lines tangent to and connecting the 50-nm areas around the following: from Nihoa Island to Necker Island; from French Frigate Shoals to Gardner Pinnacles; from Gardner Pinnacles to Maro Reef; from Laysan Island to Lisianski Island; and from Lisianski Island to Pearl and Hermes Reef. *Hawaii crustacean management unit species (Hawaii crustacean MUS)* means the following crustaceans: Local name English common name Scientific name Ula spiny lobster *Panulirus marginatus, Panulirus penicillatus.* ula papapa slipper lobster Scyllaridae. papa`i kua loa Kona crab *Ranina ranina.* deepwater shrimp *Heterocarpus* spp. *Interested parties* means the State of Hawaii Department of Land and Natural Resources, the Council, holders of permits issued under § 665.242, and any person who has notified the Regional Administrator of his or her interest in the procedures and decisions described in § 665.248, and who has specifically requested to be considered an “interested party.” *Lobster grounds* refers, singularly or collectively, to the following four areas in Crustacean Permit Area 1 that shall be used to manage the lobster fishery:
(1)Necker Island Lobster Grounds—waters bounded by straight lines connecting the following coordinates in the order presented: 24°00′ N. lat., 165°00′ W. long.; 24°00′ N. lat., 164°00′ W. long.; 23°00′ N. lat., 164°00′ W. long.; and 23°00′ N. lat., 165°00′ W. long.
(2)Gardner Pinnacles Lobster Grounds—waters bounded by straight lines connecting the following coordinates in the order presented: 25°20′ N. lat., 168°20′ W. long.; 25°20′ N. lat., 167°40′ W. long.; 24°20′ N. lat., 167°40′ W. long.; and 24°20′ N. lat., 168°20′ W. long.
(3)Maro Reef Lobster Grounds—waters bounded by straight lines connecting the following coordinates in the order presented: 25°40′ N. lat., 171°00′ W. long.; 25°40′ N. lat., 170°20′ W. long.; 25°00′ N. lat., 170°20′ W. long.; and 25°00′ N. lat., 171°00′ W. long.
(4)General NWHI Lobster Grounds—all waters within Crustacean Permit Area 1 except for the Necker Island, Gardner Pinnacles, and Maro Reef Lobster Grounds. § 665.242 Permits.
(a)*Applicability.*
(1)The owner of any vessel used to fish for lobster in Permit Area 1 must have a limited access permit issued for such vessel.
(2)The owner of any vessel used to fish for lobster in Permit Area 2 must have a permit issued for such a vessel.
(3)The owner of any vessel used to fish for deepwater shrimp in Crustacean Permit Areas 1 or 2 must have a permit issued for that vessel.
(4)Harvest of Hawaii crustacean MUS within the Northwestern Hawaiian Islands Marine National Monument is subject to the requirements of 50 CFR part 404.
(b)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits issued under this section, as applicable, are contained in § 665.13.
(c)*Application.* An application for a permit required under this section will be submitted to PIRO as described in § 665.13. If the application for a limited access permit is submitted on behalf of a partnership or corporation, the application must be accompanied by a supplementary information sheet obtained from PIRO and contain the names and mailing addresses of all partners or shareholders and their respective percentage of ownership in the partnership or corporation.
(d)*Lobster Limited Access Permit Requirements.*
(1)A lobster limited access permit is valid for fishing only in Crustacean Permit Area 1.
(2)Only one permit will be assigned to any vessel.
(3)No vessel owner will have permits for a single vessel to harvest lobsters in Permit Areas 1 and 2 at the same time.
(4)A maximum of 15 limited access permits can be valid at any time.
(e)*Transfer or sale of limited access permits.*
(1)Permits may be transferred or sold, but no one individual, partnership, or corporation will be allowed to hold a whole or partial interest in more than one permit, except that an owner who qualifies initially for more than one permit may maintain those permits, but may not obtain additional permits. Layering of partnerships or corporations shall not insulate a permit holder from this requirement.
(2)If 50 percent or more of the ownership of a limited access permit is passed to persons other than those listed on the permit application, PIRO must be notified of the change in writing and provided copies of the appropriate documents confirming the changes within 30 days.
(3)Upon the transfer or sale of a limited access permit, a new application must be submitted by the new permit owner according to the requirements of § 665.13. The transferred permit is not valid until this process is completed.
(f)*Replacement of a vessel covered by a limited access permit.* A limited access permit issued under this section may, without limitation as to frequency, be transferred by the permit holder to a replacement vessel owned by that person.
(g)*Issuance of limited access permits to future applicants.*
(1)The Regional Administrator may issue limited access permits under this section when fewer than 15 vessel owners hold active permits.
(2)When the Regional Administrator has determined that limited access permits may be issued to new persons, a notice shall be placed in the **Federal Register,** and other means will be used to notify prospective applicants of the opportunity to obtain permits under the limited access management program.
(3)A period of 90 days will be provided after publication of the **Federal Register** notice for submission of new applications for a limited access permit.
(4)Limited access permits issued under this paragraph
(g)will be issued first to applicants qualifying under paragraph (g)(4)(i) of this section. If the number of limited access permits available is greater than the number of applicants that qualify under paragraph (g)(4)(i) of this section, then limited access permits will be issued to applicants under paragraph (g)(4)(ii) of this section.
(i)First priority to receive limited access permits under this paragraph
(g)goes to owners of vessels that were used to land lobster from Permit Area 1 during the period 1983 through 1990, and who were excluded from the fishery by implementation of the limited access system. If there are insufficient permits for all such applicants, the new permits shall be issued by the Regional Administrator through a lottery.
(ii)Second priority to receive limited access permits under paragraph
(g)goes to owners with the most points, based upon a point system. If two or more owners have the same number of points and there are insufficient permits for all such owners, the Regional Administrator shall issue the permits through a lottery. Under the point system, limited access permits will be issued, in descending order, beginning with owners who have the most points and proceeding to owners who have the least points, based on the following:
(A)Three points shall be assigned for each calendar year after August 8, 1985, that the applicant was the operator of a vessel that was used to land lobster from Permit Area 1.
(B)Two points shall be assigned for each calendar year or partial year after August 8, 1985, that the applicant was the owner, operator, or crew member of a vessel engaged in either commercial fishing in Permit Area 2 for lobster, or fishing in Permit Area 1 for fish other than lobster with an intention to sell all or part of the catch.
(C)One point shall be assigned for each calendar year or partial year after August 8, 1985, that the applicant was the owner, operator, or crew member of a vessel engaged in any other commercial fishing in the EEZ surrounding Hawaii.
(5)A holder of a new limited access permit must own at least a 50 percent share in the vessel that the permit would cover. § 665.243 Prohibitions. In addition to the general prohibitions specified in 50 CFR §§ 600.725 and 665.15, it is unlawful for any person to do any of the following:
(a)In Permit Area 1, it is unlawful for any person to—
(1)Fish for, take, or retain lobsters—
(i)Without a limited access permit issued under § 665.242.
(ii)By methods other than lobster traps or by hand for lobsters, as specified in § 665.245.
(iii)From closed areas for lobsters, as specified in § 665.251.
(iv)During a closed season, as specified in § 665.250.
(v)After the closure date, as specified in § 665.252, and until the fishery opens again in the following calendar year.
(vi)In a lobster grounds after closure of that grounds as specified in § 665.252(b).
(2)Fail to report before landing or offloading as specified in § 665.244.
(3)Fail to comply with any protective measures implemented under § 665.248.
(4)Leave a trap unattended in the Hawaii crustacean management area except as provided in § 665.245.
(5)Maintain on board the vessel or in the water more than 1,200 traps per fishing vessel, of which no more than 1,100 can be assembled traps, as specified in § 665.245.
(6)Land lobsters taken in Permit Area 1 after the closure date, as specified in § 665.252, until the fishery opens again the following year.
(7)Refuse to make available to an authorized officer and employee of NMFS designated by the Regional Administrator for inspection and copying any records that must be made available in accordance with § 665.14(g)(2).
(8)Possess on a fishing vessel that has a limited access permit issued under § 665.242 any lobster trap in Crustacean Permit Area 1 when fishing for lobster is prohibited as specified in §§ 665.248, 665.250(a), or 665.252, or except as allowed under § 665.245(a)(7).
(9)Possess on a fishing vessel that has a limited access permit issued under this subpart any lobster trap in Crustacean Permit Area 1 VMS Subarea when fishing for lobsters is prohibited as specified in §§ 665.248, 665.250(a), or 665.252, except as allowed under § 665.245(a)(8).
(10)Interfere with, tamper with, alter, damage, disable, or impede the operation of a VMS unit or to attempt any of the same while engaged in the Permit Area 1 fishery; or to move or remove a VMS unit while engaged in the Permit Area 1 fishery without first notifying the Regional Administrator.
(11)Make a false statement, oral or written, to the Regional Administrator or an authorized officer, regarding the certification, use, operation, or maintenance of a VMS unit used in the fishery.
(12)Fail to allow an authorized officer to inspect and certify a VMS unit used in the fishery.
(13)Possess, on a fishing vessel that has a limited access permit issued under this subpart, any lobster trap in a lobster grounds that is closed under § 665.252(b), unless the vessel has an operational VMS unit, certified by NMFS, on board.
(b)In Permit Area 2, it is unlawful for any person to—
(1)Fish for, take, or retain lobsters—
(i)By methods other than lobster traps or by hand, as specified in § 665.245; or
(ii)During a closed season, as specified in § 665.250(b).
(2)Retain or possess on a fishing vessel any lobster taken in Permit Area 2 that is less than the minimum size specified in § 665.249.
(3)Possess on a fishing vessel any lobster or lobster part taken in Permit Area 2 in a condition where the lobster is not whole and undamaged as specified in § 665.249.
(4)Retain or possess on a fishing vessel, or remove the eggs from, any egg-bearing lobster, as specified in § 665.249.
(5)Possess on a fishing vessel that has a permit for Permit Area 2 issued under this subpart any lobster trap in Permit Area 2 when fishing for lobster in the MHI is prohibited during the months of May, June, July, and August.
(c)In Crustacean Permit Areas 1 and 2, it is unlawful for any person to fish for, take, or retain deepwater shrimp without a permit issued under § 665.242. § 665.244 Notifications.
(a)The operator of any vessel subject to the requirements of this subpart must:
(1)Report, not less than 24 hours, but not more than 36 hours, before landing, the port, the approximate date and the approximate time at which spiny and slipper lobsters will be landed.
(2)Report, not less than 6 hours and not more than 12 hours before offloading, the location and time that offloading of spiny and slipper lobsters will begin.
(b)The Regional Administrator will notify permit holders of any change in the reporting method and schedule required in paragraph
(a)of this section at least 30 days prior to the opening of the fishing season. § 665.245 Gear restrictions.
(a)*Permit Area 1.*
(1)Lobsters may be taken only with lobster traps or by hand. Lobsters may not be taken by means of poisons, drugs, other chemicals, spears, nets, hook, or explosives.
(2)The smallest opening of an entry way of any lobster trap may not allow any sphere or cylinder greater than 6.5 inches (16.5 cm) in diameter to pass from outside the trap to inside the trap.
(3)Each lobster trap must have a minimum of two escape vent panels that meet the following requirements:
(i)Panels must have at least four unobstructed circular holes no smaller than 67 mm in diameter, with centers at least 82 mm apart.
(ii)The lowest part of any opening in an escape vent panel must not be more than 85 mm above the floor of the trap.
(iii)Panels must be placed opposite one another in each trap.
(4)A vessel fishing for or in possession of lobster in any permit area may not have on board the vessel any trap that does not meet the requirements of paragraphs (a)(1), (2), and
(3)of this section.
(5)A maximum of 1,200 traps per vessel may be maintained on board or in the water, provided that no more than 1,100 assembled traps are maintained on board or in the water. If more than 1,100 traps are maintained, the unassembled traps may be carried as spares only, in order to replace assembled traps that may be lost or become unusable.
(6)Traps shall not be left unattended in any permit area, except in the event of an emergency, in which case the vessel operator must notify the SAC of the emergency that necessitated leaving the traps on the grounds, and the location and number of the traps, within 24 hours after the vessel reaches port.
(7)A vessel whose owner has a limited access permit issued under this subpart and has an operating VMS unit certified by NMFS may enter Crustacean Permit Area 1 with lobster traps on board on or after June 25, but must remain outside the Crustacean Permit Area 1 VMS Subarea until the NWHI lobster season opens on July 1.
(8)A vessel whose owner has a limited access permit issued under this subpart and has on board an operational VMS unit certified by NMFS may transit Crustacean Permit Area 1, including Crustacean Permit Area 1 VMS Subarea, with lobster traps on board for the purpose of moving to another lobster grounds or returning to port following the closure date, as specified in § 665.252, providing the vessel does not stop or fish and is making steady progress to another lobster grounds or back to port as determined by NMFS.
(9)The operator of a permitted vessel must notify the Regional Administrator or an authorized officer no later than June 15 of each year if the vessel will use a VMS unit in the fishery and allow for inspection and certification of the unit.
(b)Permit Area 2. Lobsters may be taken only with lobster traps or by hand. Lobsters may not be taken by means of poisons, drugs, other chemicals, spears, nets, hooks, or explosives. § 665.246 Gear identification. In Permit Area 1, the vessel's official number must be marked legibly on all traps and floats maintained on board the vessel or in the water by that vessel. § 665.247 At-sea observer coverage. All fishing vessels subject to §§ 665.240 though 665.252 and subpart A of this part must carry an observer when requested to do so by the Regional Administrator. § 665.248 Monk seal protective measures.
(a)*General.* This section establishes a procedure that will be followed if the Regional Administrator receives a report of a monk seal death that appears to be related to the lobster fishery in Permit Area 1.
(b)*Notification.* Upon receipt of a report of a monk seal death that appears to be related to the lobster fishery, the Regional Administrator will notify all interested parties of the facts known about the incident. The Regional Administrator will also notify them that an investigation is in progress, and that, if the investigation reveals a threat of harm to the monk seal population, protective measures may be implemented.
(c)*Investigation.*
(1)The Regional Administrator will investigate the incident reported and will attempt to:
(i)Verify that the incident occurred.
(ii)Determine the extent of the harm to the monk seal population.
(iii)Determine the probability of a similar incident recurring.
(iv)Determine details of the incident such as:
(A)The number of animals involved.
(B)The cause of the mortality.
(C)The age and sex of the dead animal(s).
(D)The relationship of the incident to the reproductive cycle, for example, breeding season (March-September), non-breeding season (October-February).
(E)The population estimates or counts of animals at the island where the incident occurred.
(F)Any other relevant information.
(v)Discover and evaluate any extenuating circumstances.
(vi)Evaluate any other relevant factors.
(2)The Regional Administrator will make the results of the investigation available to the interested parties and request their advice and comments.
(d)*Determination of relationship.* The Regional Administrator will review and evaluate the results of the investigation and any comments received from interested parties. If there is substantial evidence that the death of the monk seal was related to the lobster fishery, the Regional Administrator will:
(1)Advise the interested parties of his or her conclusion and the facts upon which it is based.
(2)Request from the interested parties their advice on the necessity of protective measures and suggestions for appropriate protective measures.
(e)*Determination of response.* The Regional Administrator will consider all relevant information discovered during the investigation or submitted by interested parties in deciding on the appropriate response. Protective measures may include, but are not limited to, changes in trap design, changes in gear, closures of specific areas, or closures for specific periods of time.
(f)*Action by the Regional Administrator.* If the Regional Administrator decides that protective measures are necessary and appropriate, the Regional Administrator will prepare a document that describes the incident, the protective measures proposed, and the reasons for the protective measures; provide it to the interested parties; and request their comments.
(g)*Implementation of protective measures.*
(1)If, after completing the steps described in paragraph
(f)of this section, the Regional Administrator concludes that protective measures are necessary and appropriate, the Regional Administrator will recommend the protective measures to the Assistant Administrator and provide notice of this recommendation to the Chairman of the Council and the Director of the Division of Aquatic Resources, Department of Land and Natural Resources, State of Hawaii.
(2)If the Assistant Administrator concurs with the Regional Administrator's recommendation, NMFS will publish an action in the **Federal Register** that includes a description of the incident that triggered the procedure described in this section, the protective measures, and the reasons for the protective measures.
(h)*Notification of “no action.”* If, at any point in the process described in this section, the Regional Administrator or Assistant Administrator decides that no further action is required, the interested parties will be notified of this decision.
(i)*Effective dates.*
(1)The protective measures will take effect 10 days after the date of publication in the **Federal Register.**
(2)The protective measures will remain in effect for the shortest of the following time periods:
(i)Until the Hawaii FEP and this section are amended to respond to the problem;
(ii)Until other action that will respond to the problem is taken under the ESA;
(iii)Until the Assistant Administrator, following the procedures set forth in paragraph
(j)of this section, decides that the protective measures are no longer required and repeals the measures; or
(iv)For the period of time set forth in the **Federal Register** notification, not to exceed 3 months. The measures may be renewed for 3 months after again following procedures in paragraphs
(b)through
(g)of this section.
(j)*Repeal.*
(1)If the Assistant Administrator decides that protective measures may no longer be necessary for the protection of monk seals, the Assistant Administrator will notify the interested parties of this preliminary decision and the facts upon which it is based. The Assistant Administrator will request advice on the proposed repeal of the protective measures.
(2)The Assistant Administrator will consider all relevant information obtained by the Regional Administrator or submitted by interested parties in deciding whether to repeal the protective measures.
(3)If the Assistant Administrator decides to repeal the protective measures—
(i)Interested parties will be notified of the decision; and
(ii)Notification of repeal and the reasons for the repeal will be published in the **Federal Register.**
(k)*Monk seal emergency protective measures* —(1) *Determination of emergency.* If, at any time during the process described in paragraphs
(a)through
(j)of this section, the Regional Administrator determines that an emergency exists involving monk seal mortality related to the lobster fishery and that measures are needed immediately to protect the monk seal population, the Regional Administrator will—
(i)Notify the interested parties of this determination and request their immediate advice and comments.
(ii)Forward a recommendation for emergency action and any advice and comments received from interested parties to the Assistant Administrator.
(2)*Implementation of emergency measures.* If the Assistant Administrator agrees with the recommendation for emergency action—
(i)The Regional Administrator will determine the appropriate emergency protective measures.
(ii)NMFS will publish the emergency protective measures in the **Federal Register.**
(iii)The Regional Administrator will notify the interested parties of the emergency protective measures. Holders of permits to fish in Permit Area I will be notified by certified mail. Permit holders that the Regional Administrator knows are on the fishing grounds also will be notified by radio.
(3)*Effective dates.*
(i)Emergency protective measures are effective against a permit holder at 12:01 a.m., local time, of the day following the day the permit holder receives actual notice of the measures.
(ii)Emergency protective measures are effective for 10 days from the day following the day the first permit holder is notified of the protective measures.
(iii)Emergency protective measures may be extended for an additional 10 days, if necessary, to allow the completion of the procedures set out in § 665.252. § 665.249 Lobster size and condition restrictions in Permit Area 2.
(a)Only spiny lobsters with a carapace length of 8.26 cm or greater may be retained (see Figure 1 to this part).
(b)Any lobster with a punctured or mutilated body, or a separated carapace and tail, may not be retained.
(c)A female lobster of any size may not be retained if it is carrying eggs externally. Eggs may not be removed from female lobsters. § 665.250 Closed seasons.
(a)Lobster fishing is prohibited in Permit Area 1 during the months of January through June, inclusive.
(b)Lobster fishing is prohibited in Permit Area 2 during the months of May, June, July, and August. § 665.251 Closed areas. All lobster fishing is prohibited:
(a)Within 20 nm of Laysan Island.
(b)Within the EEZ landward of the 10-fathom curve as depicted on National Ocean Survey Charts, Numbers 19022, 19019, and 19016. § 665.252 Harvest limitation program.
(a)*General.* Harvest guidelines for the Necker Island Lobster Grounds, Gardner Pinnacles Lobster Grounds, Maro Reef Lobster Grounds, and General NWHI Lobster Grounds for Permit Area 1 will be set annually for the calendar year and shall:
(1)Apply to the total catch of spiny and slipper lobsters.
(2)Be expressed in terms of numbers of lobsters.
(b)*Harvest guideline.*
(1)The Regional Administrator shall use information from daily lobster catch reports and lobster sales reports from previous years, and may use information from research sampling and other sources to establish the annual harvest guideline in accordance with the FEP after consultation with the Council.
(2)NMFS shall publish a document indicating the annual harvest guideline in the **Federal Register** by February 28 of each year and shall use other means to notify permit holders of the harvest guideline for the year.
(3)The Regional Administrator shall determine, on the basis of the information reported to NMFS by the operator of each vessel fishing, when the harvest guideline for each lobster ground will be reached.
(4)Notice of the date when the harvest guideline for a lobster ground is expected to be reached and specification of the closure date of the lobster grounds will be provided to each permit holder and/or operator of each permitted vessel at least 24 hours in advance of the closure. After a closure, the harvest of lobster in that lobster ground is prohibited, and the possession of lobster traps on board the vessel in that lobster ground is prohibited unless allowed under § 665.245(a)(8).
(5)With respect to the notification in paragraph (b)(4) of this section, NMFS shall provide each permit holder and operator of each permitted vessel with the following information, as appropriate:
(i)Determination of when the overall harvest guideline for Crustacean Permit Area 1 will be reached;
(ii)Closure date after which harvest of lobster or possession of lobster traps on board the vessel in a lobster grounds is prohibited;
(iii)Closure date after which the possession of lobster traps on board the vessel in Crustacean Permit Area 1 is prohibited by any permitted vessel that is not operating a VMS unit certified by NMFS; and
(iv)Specification of when further landings of lobster will be prohibited by permitted vessels not carrying an operational VMS unit, certified by NMFS, on board.
(c)*Monitoring and adjustment.* The operator of each vessel fishing during the open season shall report lobster catch (by species) and effort (number of trap hauls) data while at sea to NMFS in Honolulu. The Regional Administrator shall notify permit holders of the reporting method, schedule, and logistics at least 30 days prior to the opening of the fishing season. §§ 665.253-665.259 [Reserved] § 665.260 Hawaii precious coral fisheries [Reserved]. § 665.261 Definitions. As used in §§ 665.260 through 665.270: *Hawaii precious coral management unit species (Hawaii precious coral MUS)* means any coral of the genus *Corallium* in addition to the following species of corals: English common name Scientific name Pink coral (also known as red coral) *Corallium secundum, Corallium regale,* *Corallium laauense.* Gold coral *Gerardia* spp., *Callogorgia gilberti, Narella* spp., *Calyptrophora* spp. Bamboo coral *Lepidisis olapa, Acanella* spp. Black coral *Antipathes griggi, Antipathes grandis,* *Antipathes ulex.* *Hawaii precious coral permit area* means the area encompassing the precious coral beds within the EEZ around Hawaii. Each bed is designated by a permit area code and assigned to one of the following four categories:
(1)*Established beds.*
(i)Makapu'u (Oahu), Permit Area E-B-1, includes the area within a radius of 2.0 nm of a point at 21°18.0′ N. lat., 157°32.5′ W. long.
(ii)Au'au Channel (Maui), Permit Area E-B-2, includes the area west and south of a point at 21°10′ N. lat., 156°40′ W. long., and east of a point at 21° N. lat., 157° W. long., and west and north of a point at 20°45′ N. lat., 156°40′ W. long.
(2)*Conditional beds.*
(i)Keahole Point (Hawaii), Permit Area C-B-1, includes the area within a radius of 0.5 nm of a point at 19°46.0′ N. lat., 156°06.0′ W. long.
(ii)Kaena Point (Oahu), Permit Area C-B-2, includes the area within a radius of 0.5 nm of a point at 21°35.4′ N. lat., 158°22.9′ W. long.
(iii)Brooks Bank, Permit Area C-B-3, includes the area within a radius of 2.0 nm of a point at 24°06.0′ N. lat., 166°48.0′ W. long.
(iv)180 Fathom Bank, Permit Area C-B-4, N.W. of Kure Atoll, includes the area within a radius of 2.0 nm of a point at 28°50.2′ N. lat., 178°53.4′ W. long.
(3)*Refugia.* Westpac Bed, Permit Area R-1, includes the area within a radius of 2.0 nm of a point at 23°18′ N. lat., 162°35′ W. long.
(4)*Exploratory areas.* Permit Area X-P-H includes all coral beds, other than established beds, conditional beds, or refugia, in the EEZ seaward of the State of Hawaii. § 665.262 Permits.
(a)Any vessel of the United States fishing for, taking, or retaining Hawaii precious coral MUS in any Hawaiian Archipelago precious coral permit area must have a permit issued under § 665.13.
(b)Each permit will be valid for fishing only in the permit area specified on the permit. Precious Coral Permit Areas are defined in § 665.261.
(c)No more than one permit will be valid for any one vessel at any one time.
(d)No more than one permit will be valid for any one person at any one time.
(e)The holder of a valid permit to fish one permit area may obtain a permit to fish another permit area only upon surrendering to the Regional Administrator any current permit for the precious coral fishery issued under § 665.13.
(f)General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits for the precious coral fishery are contained in § 665.13. §665.263 Prohibitions. In addition to the general prohibitions specified in 50 CFR 600.725 and in 665.15, it is unlawful for any person to:
(a)Use any vessel to fish for, take, retain, possess or land precious coral in any Hawaii precious coral permit area, unless a permit has been issued for that vessel and area as specified in § 665.13 and that permit is on board the vessel.
(b)Fish for, take, or retain any species of Hawaii precious coral MUS in any precious coral permit area:
(1)By means of gear or methods prohibited by § 665.264.
(2)In refugia specified in § 665.261.
(3)In a bed for which the quota specified in § 665.269 has been attained.
(4)In violation of any permit issued under §§ 665.13 or 665.17.
(5)In a bed that has been closed pursuant to §§ 665.268 or 665.270.
(c)Take and retain, possess, or land any live pink coral or live black coral from any precious coral permit area that is less than the minimum height specified in § 665.265 unless:
(1)A valid EFP was issued under § 665.17 for the vessel and the vessel was operating under the terms of the permit; or
(2)The coral originated outside coral beds listed in this paragraph, and this can be demonstrated through receipts of purchase, invoices, or other documentation. § 665.264 Gear restrictions. Only selective gear may be used to harvest coral from any precious coral permit area. § 665.265 Size restrictions. The height of a live coral specimen shall be determined by a straight line measurement taken from its base to its most distal extremity. The stem diameter of a living coral specimen shall be determined by measuring the greatest diameter of the stem at a point no less than 1 inch (2.54 cm) from the top surface of the living holdfast.
(a)Live pink coral harvested from any precious coral permit area must have attained a minimum height of 10 inches (25.4 cm).
(b)*Black coral.* Live black coral harvested from any precious coral permit area must have attained either a minimum stem diameter of 1 inch (2.54 cm), or a minimum height of 48 inches (122 cm). § 665.266 Area restrictions. Fishing for coral on the WestPac Bed is not allowed. The specific area closed to fishing is all waters within a 2-nm radius of the midpoint of 23°18.0′ N. lat., 162°35.0′ W. long. § 665.267 Seasons. The fishing year for precious coral begins on July 1 and ends on June 30 the following year, except at the Makapu'u and Au'au Channel Beds, which have a two-year fishing period that begins July 1 and ends June 30, two years later. § 665.268 Closures.
(a)If the Regional Administrator determines that the harvest quota for any coral bed will be reached prior to the end of the fishing year, or the end of the 2-year fishing period at Makapu'u Bed or Au'au Channel Bed, NMFS shall publish a notice to that effect in the **Federal Register** and shall use other means to notify permit holders. Any such notice must indicate the reason for the closure, the bed being closed, and the effective date of the closure.
(b)A closure is also effective for a permit holder upon the permit holder's actual harvest of the applicable quota. § 665.269 Quotas.
(a)*General.* The quotas limiting the amount of precious coral that may be taken in any precious coral permit area during the fishing year are listed in § 665.269(d). Only live coral is counted toward the quota. The accounting period for all quotas begins July 1, 1983.
(b)*Conditional bed closure.* A conditional bed will be closed to all nonselective coral harvesting after the quota for one species of coral has been taken.
(c)*Reserves and reserve release.* The quotas for exploratory area X-P-H will be held in reserve for harvest by vessels of the United States in the following manner:
(1)At the start of the fishing year, the reserve for the Hawaii exploratory areas will equal the quota minus the estimated domestic annual harvest for that year.
(2)As soon as practicable after December 31 each year, the Regional Administrator will determine the amount harvested by vessels of the United States between July 1 and December 31 of the year that just ended on December 31.
(3)NMFS will release to TALFF an amount of Hawaii precious coral for each exploratory area equal to the quota minus two times the amount harvested by vessels of the United States in that July 1-December 31 period.
(4)NMFS will publish in the **Federal Register** a notification of the Regional Administrator's determination and a summary of the information on which it is based as soon as practicable after the determination is made.
(d)Quotas for precious coral permit areas. Type of coral bed Name of coral bed Harvest quota in kilograms Number of years Established Beds Au'au Channel Black: 5,000 2 Makapu'u Pink: 2,000 2 Gold: 0
(zero)Bamboo: 500 2 Conditional Beds 180 Fathom Bank Pink: 222 1 Gold: 67 1 Bamboo: 56 1 Brooks Bank Pink: 444 1 Gold: 133 1 Bamboo: 111 1 Kaena Point Pink: 67 1 Gold: 20 1 Bamboo: 17 1 Keahole Point Pink: 67 1 Gold: 20 1 Bamboo: 17 1 Refugia Westpac All: 0
(zero)Exploratory Area Hawaii 1,000 per area (all species combined except black corals) 1 Notes: 1. No fishing for coral is authorized in refugia. 2. A moratorium on gold coral harvesting is in effect through June 30, 2013. § 665.270 Gold coral harvest moratorium. Fishing for, taking, or retaining any gold coral in any precious coral permit area is prohibited through June 30, 2013. Subpart D—Mariana Archipelago Fisheries § 665.398 Management area. The Mariana fishery management area is the EEZ seaward of Guam and CNMI with the inner boundary a line coterminous with the seaward boundaries of Guam and CNMI and the outer boundary a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured, or is coterminous with adjacent international maritime boundaries. § 665.399 Area restrictions. Anchoring by all fishing vessels over 50 ft (15.25 m) LOA is prohibited in the U.S. EEZ seaward of Guam west of 144°30′ E. long. except in the event of an emergency caused by ocean conditions or by a vessel malfunction that can be documented. § 665.400 Mariana bottomfish fisheries [Reserved]. § 665.401 Definitions. As used in §§ 665.400 through 665.419: *CNMI commercial bottomfish permit* means the permit required by § 665.404(a)(2) to engage in commercial fishing for Mariana bottomfish MUS in the CNMI management subarea. *Guam bottomfish permit* means the permit required by § 665.404(a)(1) to use a large vessel to fish for, land, or transship Mariana bottomfish MUS shoreward of the outer boundary of the Guam subarea of the Mariana fishery management area. *Mariana bottomfish management unit species (Mariana bottomfish MUS)* means the following fish: Local name Chamorro/Carolinian English common name Scientific name Lehi/maroobw red snapper, silvermouth *Aphareus rutilans.* Gogunafon/aiwe gray snapper, jobfish *Aprion virescens.* Tarakitu/etam Giant trevally, jack *Caranx ignobilis.* Tarakiton attelong/orong Black trevally, jack *Caranx lugubris.* Gadao/meteyil blacktip grouper *Epinephelus fasciatus.* Bueli/bwele lunartail grouper *Variola louti.* Buninas agaga'/falaghal moroobw red snapper *Etelis carbunculus.* Abuninas/taighulupegh red snapper *Etelis coruscans.* Mafuti/atigh redgill emperor *Lethrinus rubrioperculatus.* Mafuti/loot Ambon emperor *Lethrinus amboinensis.* Funai/saas blueline snapper *Lutjanus kasmira.* Buninas/falaghal-maroobw yellowtail snapper *Pristipomoides auricilla.* Buninas or pakapaka/falaghal-maroobw pink snapper *Pristipomoides filamentosus.* Buninas/falaghal-maroobw yelloweye snapper *Pristipomoides flavipinnis.* pink snapper *Pristipomoides seiboldii.* Buninas rayao amariyu/falaghal-maroobw snapper *Pristipomoides zonatus.* Tarakiton tadong/Meseyugh amberjack *Seriola dumerili.* § 665.402 Management subareas. The Mariana fishery management area is divided into bottomfish management subareas with the following designations and boundaries:
(a)*Guam Management Subarea* means the EEZ seaward of the Territory of Guam, with the inner boundary defined as a line coterminous with the seaward boundary of the Territory of Guam.
(b)*CNMI Management Subarea* means the EEZ seaward of the CNMI. The CNMI Management Subarea is further divided into subareas with the following designations and boundaries:
(1)*CNMI Inshore Area* means that portion of the EEZ within 3 nautical miles from the shoreline of the CNMI.
(2)*CNMI Offshore Area* means that portion of the EEZ seaward of 3 nautical miles from the shoreline of the CNMI.
(c)The outer boundary of each fishery management area is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured, or is coterminous with adjacent international maritime boundaries, except that the outer boundary of the CNMI Inshore Area is 3 nautical miles from the shoreline. The boundary between the fishery management areas of Guam and CNMI extends to those points which are equidistant between Guam and the island of Rota in the CNMI. CNMI and Guam management subareas are divided by a line intersecting these two points: 148° E. long., 12° N. lat., and 142° E. long., 16° N. lat. § 665.403 Bottomfish fishery area management.
(a)*Guam large vessel bottomfish prohibited area (Area GU-1).* A large vessel of the United States, as defined in § 665.12, may not be used to fish for Mariana bottomfish MUS in the Guam large vessel bottomfish prohibited area, defined as the U.S. EEZ waters surrounding Guam that are enclosed by straight lines connecting the following coordinates in the order listed: Point N. lat. E. long. GU-1-A 14°16′ 144°17′ GU-1-B 13°50′ 143°52′ GU-1-C 13°17′ 143°46′ GU-1-D 12°50′ 143°54′ GU-1-E 12°30′ 144°14′ GU-1-F 12°25′ 144°51′ GU-1-G 12°57′ 145°33′ GU-1-H 13°12′ 145°43′ GU-1-I 13°29′44″ 145°48′27″ GU-1-A 14°16′ 144°17′
(b)*CNMI medium and large vessel bottomfish prohibited areas.* A medium or large vessel of the United States, as defined in § 665.12, may not be used to fish commercially for Mariana bottomfish MUS in the following areas:
(1)*CNMI Southern Islands (Area NM-1).* The CNMI Southern Islands prohibited area is defined as the waters of the U.S. EEZ surrounding CNMI that are enclosed by straight lines connecting the following coordinates in the order listed: Point N. lat. E. long. NM-1-A 14°9′ 144°15′ NM-1-B 16°10′47″ 145°12′ NM-1-C 16°10′47″ 146°53′ NM-1-D 14°48′ 146°33′ NM-1-E 13°27′ 145°43′ NM-1-A 14°9′ 144°15′
(2)*CNMI Alamagan Island (Area NM-2).* The CNMI Alamagan Island prohibited area is defined as the waters of the U.S. EEZ surrounding CNMI that are enclosed by straight lines connecting the following coordinates in the order listed: Point N. lat. E. long. NM-2-A 17°26′ 145°40′ NM-2-B 17°46′ 145°40′ NM-2-C 17°46′ 146°00′ NM-2-D 17°26′ 146°00′ NM-2-A 17°26′ 145°40′ § 665.404 Permits.
(a)*Applicability* —(1) *Guam large vessel.* The owner of any large vessel used to fish for, land, or transship Mariana bottomfish MUS shoreward of the outer boundary of the Guam subarea must have a permit issued under this section, and the permit must be registered for use with that vessel.
(2)Commonwealth of the Northern Mariana Islands
(CNMI)commercial. The owner of any vessel used to commercially fish for, transship, receive, or land Mariana bottomfish MUS shoreward of the outer boundary of the CNMI management subarea must have a permit issued under this section, and the permit must be registered for use with that vessel.
(b)*Submission.* An application for a permit required under this section must be submitted to PIRO as described in § 665.13. § 665.405 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person to do any of the following:
(a)Fish for Mariana bottomfish MUS using gear prohibited under § 665.406.
(b)Use a large vessel that does not have a valid Guam bottomfish permit registered for use with that vessel to fish for, land, or transship Mariana bottomfish MUS shoreward of the outer boundary of the Guam management subarea of the bottomfish fishery management area in violation of § 665.404(a).
(c)Use a large vessel to fish for Mariana bottomfish MUS within the Guam large vessel bottomfish prohibited area, as defined in § 665.403(a).
(d)Land or transship, shoreward of the outer boundary of the Guam management subarea of the bottomfish fishery management area, Mariana bottomfish MUS that were harvested in violation of § 665.405(c).
(e)Use a vessel to fish commercially for Mariana bottomfish MUS shoreward of the outer boundary of the CNMI management subarea without a valid CNMI commercial bottomfish permit registered for use with that vessel, in violation of § 665.404(a)(2).
(f)Use a medium or large vessel, as defined in § 665.12, to fish for Mariana bottomfish MUS within the CNMI medium and large vessel bottomfish prohibited areas, as defined in § 665.403(b).
(g)Retain, land, possess, sell, or offer for sale, shoreward of the outer boundary of the CNMI management subarea, Mariana bottomfish MUS that were harvested in violation of § 665.405(f), except that Mariana bottomfish MUS that are harvested legally may be transferred to a receiving vessel shoreward of the outer boundary of the CNMI medium and large vessel bottomfish prohibited area as defined in § 665.403(b).
(h)Falsify or fail to make, keep, maintain, or submit a Federal logbook as required under § 665.14(b) when using a vessel to engage in commercial fishing for Mariana bottomfish MUS shoreward of the outer boundary of the CNMI management subarea in violation of § 665.14(b). § 665.406 Gear restrictions.
(a)Bottom trawls and bottom set gillnets. Fishing for bottomfish with bottom trawls and bottom set gillnets is prohibited.
(b)*Possession of gear.* Possession of a bottom trawl and bottom set gillnet by any vessel having a permit under § 665.404 or otherwise established to be fishing for bottomfish in the management subareas is prohibited.
(c)*Poisons and explosives.* The possession or use of any poisons, explosives, or intoxicating substances for the purpose of harvesting bottomfish is prohibited. § 665.407 At-sea observer coverage. All fishing vessels subject to §§ 665.400 through 665.407 must carry an observer when directed to do so by the Regional Administrator. §§ 665.408-665.419 [Reserved] § 665.420 Mariana coral reef ecosystem fisheries [Reserved]. § 665.421 Definitions. As used in §§ 665.420 through 665.439: *Mariana coral reef ecosystem management unit species (Mariana coral reef ecosystem MUS)* means all of the Currently Harvested Coral Reef Taxa and Potentially Harvested Coral Reef Taxa listed in this section and which spend the majority of their non-pelagic (post-settlement) life stages within waters less than or equal to 50 fathoms in total depth. Mariana Currently Harvested Coral Reef Taxa: Family name Local name (Chamorro/ Carolinian) English common name Scientific name Acanthuridae (Surgeonfishes) orange-spot surgeonfish *Acanthurus olivaceus.* hugupao dangulo/mowagh yellowfin surgeonfish *Acanthurus xanthopterus.* Kichu/limell convict tang *Acanthurus triostegus.* eye-striped surgeonfish *Acanthurus dussumieri.* blue-lined surgeon *Acanthurus nigroris.* whitebar surgeonfish *Acanthurus leucopareius.* whitebar surgeonfish *Acanthurus leucopareius.* Hiyok/filaang blue-banded surgeonfish *Acanthurus lineatus.* blackstreak surgeonfish *Acanthurus nigricauda.* whitecheek surgeonfish *Acanthurus nigricans.* white-spotted surgeonfish *Acanthurus guttatus.* ringtail surgeonfish *Acanthurus blochii.* brown surgeonfish *Acanthurus nigrofuscus.* mimic surgeonfish *Acanthurus pyroferus.* Yellow tang *Zebrasoma flavescens.* striped bristletooth *Ctenochaetus striatus.* twospot bristletooth *Ctenochaetus binotatus.* tataga/igh-falafal bluespine unicornfish *Naso unicornus.* hangon/bwulaalay orangespine unicornfish *Naso lituratus.* humpnose unicornfish *Naso tuberosus.* black tongue unicornfish *Naso hexacanthus.* bignose unicornfish *Naso vlamingii.* whitemargin unicornfish *Naso annulatus.* spotted unicornfish *Naso brevirostris.* humpback unicornfish *Naso brachycentron.* gray unicornfish *Naso caesius.* Balistidae (Triggerfishes) titan triggerfish *Balistoides viridescens.* clown triggerfish *Balistoides conspicillum.* orange striped triggerfish *Balistapus undulatus.* pinktail triggerfish *Melichthys vidua.* black triggerfish *Melichthys niger.* blue triggerfish *Pseudobalistes fuscus.* Picassofish *Rhinecanthus aculeatus.* wedged Picassofish *Balistoides rectangulus.* bridled triggerfish *Sufflamen fraenatus.* Carangidae (Jacks) atulai/peti Bigeye scad *Selar crumenophthalmus.* mackerel scad *Decapterus macarellus.* Carcharhinidae (Sharks) grey reef shark *Carcharhinus amblyrhynchos.* silvertip shark *Carcharhinus albimarginatus.* Galapagos shark *Carcharhinus galapagensis.* blacktip reef shark *Carcharhinus melanopterus.* whitetip reef shark *Triaenodon obesus.* Holocentridae (Solderfish/Squirrelfish saksak/mweel bigscale soldierfish *Myripristis berndti.* sagamelon bronze soldierfish *Myripristis adusta.* sagamelon blotcheye soldierfish *Myripristis murdjan.* sagamelon brick soldierfish *Myripristis amaena.* sagamelon scarlet soldierfish *Myripristis pralinia.* sagamelon violet soldierfish *Myripristis violacea.* sagamelon whitetip soldierfish *Myripristis vittata.* sagamelon yellowfin soldierfish *Myripristis chryseres.* sagamelon pearly soldierfish *Myripristis kuntee.* sagamelon tailspot squirrelfish *Sargocentron caudimaculatum.* file-lined squirrelfish *Sargocentron microstoma.* chalak crown squirrelfish *Sargocentron diadema.* sagsag/leet blue-lined squirrelfish *Sargocentron tiere.* sisiok saber or long jaw squirrelfish *Sargocentron spiniferum.* sagsag/leet spotfin squirrelfish *Neoniphon* spp. Kuhliidae (Flagtails) barred flag-tail *Kuhlia mugil.* Kyphosidae (Rudderfish) Guili rudderfish *Kyphosus biggibus.* Guili/schpwul rudderfish *Kyphosus cinerascens.* guilen puengi/reel rudderfish *Kyphosus vaigienses.* Labridae (Wrasses) tangison/maam floral wrasse *Cheilinus chlorourus.* tangison/maam napoleon wrasse *Cheilinus undulatus.* lalacha mamate/Porou triple-tail wrasse *Cheilinus trilobatus.* harlequin tuskfish, red-breasted wrasse *Cheilinus fasciatus.* ring-tailed wrasse *Oxycheilinus unifasciatus.* razor wrasse *Xyrichtys pavo.* whitepatch wrasse *Xyrichtys aneitensis.* cigar wrasse *Cheilio inermis.* blackeye thicklip *Hemigymnus melapterus.* barred thicklip *Hemigymnus fasciatus.* three-spot wrasse *Halichoeres trimaculatus.* checkerboard wrasse *Halichoeres hortulanus.* weedy surge wrasse *Halichoeres margaritacous.* three-spot wrasse *Halichoeres trimaculatus.* surge wrasse *Thalassoma purpureum.* red ribbon wrasse *Thalassoma quinquevittatum.* sunset wrasse *Thalassoma lutescens.* longface wrasse *Hologynmosus doliatus.* rockmover wrasse *Novaculichthys taeniourus.* Mullidae (Goatfishes) yellow goatfish *Mulloidichthys* spp. satmoneti/wichigh yellowfin goatfish *Mulloidichthys vanicolensis.* satmoneti (adult) ti'ao (juvenile) yellowstripe goatfish *Mulloidichthys flaviolineatus.* banded goatfish *Parupeneus* spp. satmonetiyo/failighi dash-dot goatfish *Parupeneus barberinus.* satmoneti acho/sungoongo doublebar goatfish *Parupeneus bifasciatus.* redspot goatfish *Parupeneus heptacanthus.* satmoneti (adult) ti'ao (juvenile) white-lined goatfish *Parupeneus ciliatus.* satmoneti (adult) ti'ao (juvenile) yellowsaddle goatfish *Parupeneus cyclostomas.* satmoneti (adult) ti'ao (juvenile) side-spot goatfish *Parupeneus pleurostigma.* satmoneti (adult) ti'ao (juvenile) multi-barred goatfish *Parupeneus multifaciatus.* band tail goatfish *Upeneus arge.* Mugilidae (Mullets) laiguan (adult) Agues (juvenile) striped mullet *Mugil cephalus.* laiguan (adult) Agues (juvenile) Engel's mullet *Moolgarda engeli.* laiguan (adult) Agues (juvenile) fringelip mullet *Crenimugil crenilabis.* Muraenidae (Moray eels) yellowmargin moray eel *Gymnothorax flavimarginatus.* giant moray eel *Gymnothorax javanicus.* undulated moray eel *Gymnothorax undulatus.* Octopodidae (Octopus) gamsun octopus *Octopus cyanea.* gamsun octopus *Octopus ornatus.* Polynemidae threadfin *Polydactylus sexfilis.* Pricanthidae (Bigeye) glasseye *Heteropriacanthus cruentatus.* Bigeye *Priacanthus hamrur.* Scaridae (Parrotfishes) atuhong/roow humphead parrotfish *Bolbometopon muricatum.* palakse (sm.) laggua (lg.) parrotfish *Scarus* spp. gualafi/oscha Pacific longnose parrotfish *Hipposcarus longiceps.* palaksin chaguan stareye parrotfish *Calotomus carolinus.* Scombridae White tuna/ayul dogtooth tuna *Gymnosarda unicolor.* Siganidae (Rabbitfish) hiting/manahok/llegh forktail rabbitfish *Siganus aregentus.* hiting golden rabbitfish *Siganus guttatus.* hiting galagu gold-spot rabbitfish *Siganus punctatissimus.* Randall's rabbitfish *Siganus randalli.* hiting/sesyon/palawa scribbled rabbitfish *Siganus spinus.* hiting vermiculate rabbitfish *Siganus vermiculatus.* Sphyraenidae (Barracuda) Heller's barracuda *Sphyraena helleri.* great barracuda *Sphyraena barracuda.* Turbinidae (turban/green snails) aliling pulan/aliling tulompu green snails *Turbo* spp. turban shells. Mariana Potentially Harvested Coral Reef Taxa: English common name Scientific name Wrasses (Those species not listed as Currently Harvested Coral Reef Taxa or CHCRT) Labridae. Sharks Carcharhinidae, Sphyrnidae. Rays and skates Dasyatididae, Myliobatidae. Groupers (Those species not listed as CHCRT or Bottomfish Management Unit Species or BMUS) Serrandiae. Jacks and Scads (Those species not listed as CHCRT or BMUS) Carangidae. Solderfishes and Squirrelfishes (Those species not listed as CHCRT) Holocentridae. Goatfishes (Those species not listed as CHCRT) Mullidae. Surgeonfishes (Those species not listed as CHCRT) Acanthuridae. Batfishes Ephippidae. Monos Monodactylidae. Sweetlips Haemulidae. Remoras Echeneidae. Tilefishes Malacanthidae. Emperors (Those species not listed as CHCRT) Lethrinidae. Dottybacks Pseudochromidae. Prettyfins Plesiopidae. Eels (Those species not listed as CHCRT) Muraenidae, Chlopsidae, Congridae, Ophichthidae. Cardinalfishes Apogonidae. Moorish Idols Zanclidae. Trumpetfish *Aulostomus chinensis.* Cornetfish *Fistularia commersoni.* Butterfly fishes Chaetodontidae. Angelfishes Pomacanthidae. Damselfishes Pomacentridae. Scorpionfishes Scorpaenidae. Coral crouchers Caracanthidae. Flashlightfishes Anomalopidae. Herrings Clupeidae. Anchovies Engraulidae. Gobies Gobiidae. Blennies Blenniidae. Barracudas (Those species not listed as CHCRT) Sphyraenidae. Snappers (Those species not listed as CHCRT or BMUS) Lutjanidae. Trigger fishes (Those species not listed as CHCRT) Balistidae. Rabbitfishes (Those species not listed as CHCRT) Siganidae. Sandperches Pinguipedidae. Dog tooth tuna *Gymnosarda unicolor.* Rudderfishes (Those species not listed as CHCRT) Kyphosidae. Flounders, Soles Bothidae. Soleidae. Trunkfishes Ostraciidae. Fusiliers Caesionidae. Hawkfishes Cirrhitidae. Frogfishes Antennariidae. Pipefishes, Seahorses Syngnathidae. Puffer fishes, Porcupine fishes Tetradontidae. Blue corals Heliopora. Organpipe corals Tubipora. Ahermatypic corals Azooxanthellates. Sea cucumbers, Sea urchins (Those species not listed as CHCRT) Echinoderms. Mollusca. Sea snails Gastropoda. Turban shells *Trochus* spp. Sea slugs Opistobranchs. Black lipped pearl oyster *Pinctada margaritifera.* Giant clam Tridacnidae. Other Clams Other Bivalves. Mushroom corals Fungiidae. Small and large coral polyps Fire corals Millepora. Soft corals, Gorgonians Anemones Actinaria. Soft zoanthid corals Zoanthinaria. Hydrozoans, Bryzoans. Sea squirts Tunicates. Sponges Porifera. Cephalopods. Lobsters, Shrimps/Mantis shrimps, true crabs and hermit crabs (Those species not listed as CMUS) Crustacea. Lace corals Stylasteridae. Hydroid corals Solanderidae. Seaweed Algae. Segmented worms Annelids. Live rock. All other Mariana coral reef ecosystem MUS that are marine plants, invertebrates, and fishes that are not listed in the Mariana CHCRT table or are not Mariana bottomfish, crustacean, precious coral or western Pacific pelagic MUS. § 665.422 Management area. The Mariana coral reef management area consists of the U.S. EEZ around Guam and the offshore area of the CNMI or that portion of the U.S. EEZ around CNMI between three nautical miles offshore and the outer boundary of the U.S. EEZ. The inner boundary of the management area is the seaward boundaries of the Territory of Guam, and a line three nautical miles seaward from the shoreline of CNMI. The outer boundary of the management area is the outer boundary of the U.S. EEZ or adjacent international maritime boundaries. The CNMI and Guam management area is divided by a line intersecting these two points: 148° E. long., 12° N. lat., and 142° E. long., 16° N. lat. § 665.423 Relation to other laws. To ensure consistency between the management regimes of different Federal agencies with shared management responsibilities of fishery resources within the Mariana coral reef ecosystem management area, fishing for Mariana coral reef ecosystem MUS is not allowed within the boundary of a National Wildlife Refuge unless specifically authorized by the USFWS, regardless of whether that refuge was established by action of the President or the Secretary of the Interior. § 665.424 Permits and fees.
(a)*Applicability.* Unless otherwise specified in this subpart, § 665.13 applies to coral reef ecosystem permits.
(1)*Special permit.* Any person of the United States fishing for, taking or retaining Mariana coral reef ecosystem MUS must have a special permit if they, or a vessel which they operate, is used to fish for any:
(i)Mariana coral reef ecosystem MUS in low-use MPAs as defined in § 665.399;
(ii)Mariana Potentially Harvested Coral Reef Taxa in the coral reef ecosystem management area; or
(iii)Mariana Coral reef ecosystem MUS in the Mariana coral reef ecosystem management area with any gear not specifically allowed in this subpart.
(2)*Transshipment permit.* A receiving vessel must be registered for use with a transshipment permit if that vessel is used in the Mariana coral reef ecosystem management area to land or transship Mariana PHCRT, or any Mariana coral reef ecosystem MUS harvested within low-use MPAs.
(3)*Exceptions.* The following persons are not required to have a permit under this section:
(i)Any person issued a permit to fish under any FEP who incidentally catches Mariana coral reef ecosystem MUS while fishing for bottomfish MUS, crustacean MUS, western Pacific pelagic MUS, precious coral, or seamount groundfish.
(ii)Any person fishing for Mariana CHCRT outside of an MPA, who does not retain any incidentally caught Mariana PHCRT.
(iii)Any person collecting marine organisms for scientific research as described in § 665.17, or § 600.745 of this chapter.
(b)*Validity.* Each permit will be valid for fishing only in the fishery management area specified on the permit.
(c)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits are contained in § 665.13.
(d)*Special permit.* The Regional Administrator shall issue a special permit in accordance with the criteria and procedures specified in this section.
(1)*Application.* An applicant for a special or transshipment permit issued under this section must complete, and submit to the Regional Administrator, a Special Coral Reef Ecosystem Fishing Permit Application Form issued by NMFS. Information in the application form must include, but is not limited to, a statement describing the objectives of the fishing activity for which a special permit is needed, including a general description of the expected disposition of the resources harvested under the permit (i.e., stored live, fresh, frozen, preserved; sold for food, ornamental, research, or other use; and a description of the planned fishing operation, including location of fishing and gear operation, amount and species (directed and incidental) expected to be harvested and estimated habitat and protected species impacts).
(2)*Incomplete applications.* The Regional Administrator may request from an applicant additional information necessary to make the determinations required under this section. An applicant will be notified of an incomplete application within 10 working days of receipt of the application. An incomplete application will not be considered until corrected and completed in writing.
(3)*Issuance.*
(i)If an application contains all of the required information, the Regional Administrator will forward copies of the application within 30 days to the Council, the USCG, the fishery management agency of the affected state, and other interested parties who have identified themselves to the Council, and the USFWS.
(ii)Within 60 days following receipt of a complete application, the Regional Administrator will consult with the Council through its Executive Director, USFWS, and the Director of the affected state fishery management agency concerning the permit application, and will receive their recommendations for approval or disapproval of the application based on:
(A)Information provided by the applicant;
(B)The current domestic annual harvesting and processing capacity of the directed and incidental species for which a special permit is being requested;
(C)The current status of resources to be harvested in relation to the overfishing definition in the FEP;
(D)Estimated ecosystem, habitat, and protected species impacts of the proposed activity; and
(E)Other biological and ecological information relevant to the proposal. The applicant will be provided with an opportunity to appear in support of the application.
(iii)Following a review of the Council's recommendation and supporting rationale, the Regional Administrator may:
(A)Concur with the Council's recommendation and, after finding that it is consistent with the goals and objectives of the FEP, the national standards, the Endangered Species Act, and other applicable laws, approve or deny a special permit; or
(B)Reject the Council's recommendation, in which case, written reasons will be provided by the Regional Administrator to the Council for the rejection.
(iv)If the Regional Administrator does not receive a recommendation from the Council within 60 days of Council receipt of the permit application, the Regional Administrator can make a determination of approval or denial independently.
(v)Within 30 working days after the consultation in paragraph (d)(3)(ii) of this section, or as soon as practicable thereafter, NMFS will notify the applicant in writing of the decision to grant or deny the special permit and, if denied, the reasons for the denial. Grounds for denial of a special permit include the following:
(A)The applicant has failed to disclose material information required, or has made false statements as to any material fact, in connection with his or her application.
(B)According to the best scientific information available, the directed or incidental catch in the season or location specified under the permit would detrimentally affect any coral reef resource or coral reef ecosystem in a significant way, including, but not limited to, issues related to spawning grounds or seasons, protected species interactions, EFH, and habitat areas of particular concern (HAPC).
(C)Issuance of the special permit would inequitably allocate fishing privileges among domestic fishermen or would have economic allocation as its sole purpose.
(D)The method or amount of harvest in the season and/or location stated on the permit is considered inappropriate based on previous human or natural impacts in the given area.
(E)NMFS has determined that the maximum number of permits for a given area in a given season has been reached and allocating additional permits in the same area would be detrimental to the resource.
(F)The activity proposed under the special permit would create a significant enforcement problem.
(vi)The Regional Administrator may attach conditions to the special permit, if it is granted, consistent with the management objectives of the FEP, including, but not limited to:
(A)The maximum amount of each resource that can be harvested and landed during the term of the special permit, including trip limits, where appropriate.
(B)The times and places where fishing may be conducted.
(C)The type, size, and amount of gear which may be used by each vessel operated under the special permit.
(D)Data reporting requirements.
(E)Such other conditions as may be necessary to ensure compliance with the purposes of the special permit consistent with the objectives of the FEP.
(4)Appeals of permit actions.
(i)Except as provided in subpart D of 15 CFR part 904, any applicant for a permit or a permit holder may appeal the granting, denial, conditioning, or suspension of their permit or a permit affecting their interests to the Regional Administrator. In order to be considered by the Regional Administrator, such appeal must be in writing, must state the action(s) appealed, and the reasons therefore, and must be submitted within 30 days of the original action(s) by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(ii)Upon receipt of an appeal authorized by this section, the Regional Administrator will notify the permit applicant, or permit holder as appropriate, and will request such additional information and in such form as will allow action upon the appeal. Upon receipt of sufficient information, the Regional Administrator will rule on the appeal in accordance with the permit eligibility criteria set forth in this section and the FEP, as appropriate, based upon information relative to the application on file at NMFS and the Council and any additional information, the summary record kept of any hearing and the hearing officer's recommended decision, if any, and such other considerations as deemed appropriate. The Regional Administrator will notify all interested persons of the decision, and the reasons therefore, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(iii)If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose after first giving notice of the time, place, and subject matter of the hearing in the **Federal Register** . Such a hearing shall normally be held no later than 30 days following publication of the notice in the **Federal Register** , unless the hearing officer extends the time for reasons deemed equitable. The appellant, the applicant (if different), and, at the discretion of the hearing officer, other interested parties, may appear personally and/or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(iv)The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator will notify interested persons of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's action constitutes final action for the agency for the purposes of the Administrative Procedure Act.
(5)The Regional Administrator may extend, for good cause, any time limit prescribed in this section for a period not to exceed 30 days, either upon his or her own motion or upon written request from the Council, appellant or applicant stating the reason(s) therefore. § 665.425 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15 of this part, it is unlawful for any person to do any of the following:
(a)Fish for, take, retain, possess or land any Mariana coral reef ecosystem MUS in any low-use MPA as defined in § 665.399 unless:
(1)A valid permit has been issued for the hand harvester or the fishing vessel operator that specifies the applicable area of harvest;
(2)A permit is not required, as outlined in § 665.424 of this part; or
(3)The Mariana coral reef ecosystem MUS possessed on board the vessel originated outside the management area and this can be demonstrated through receipts of purchase, invoices, fishing logbooks or other documentation.
(b)Fish for, take, or retain any Mariana coral reef ecosystem MUS species:
(1)That is determined overfished with subsequent rulemaking by the Regional Administrator.
(2)By means of gear or methods prohibited under § 665.427.
(3)In a low-use MPA without a valid special permit.
(4)In violation of any permit issued under §§ 665.13 or 665.424.
(c)Fish for, take, or retain any wild live rock or live hard coral except under a valid special permit for scientific research, aquaculture seed stock collection or traditional and ceremonial purposes by indigenous people. § 665.426 Notifications. Any special permit holder subject to the requirements of this subpart must contact the appropriate NMFS enforcement agent in American Samoa, Guam, or Hawaii at least 24 hours before landing any Mariana coral reef ecosystem MUS unit species harvested under a special permit, and report the port and the approximate date and time at which the catch will be landed. § 665.427 Allowable gear and gear restrictions.
(a)Mariana coral reef ecosystem MUS may be taken only with the following allowable gear and methods:
(1)Hand harvest;
(2)Spear;
(3)Slurp gun;
(4)Hand net/dip net;
(5)Hoop net for Kona crab;
(6)Throw net;
(7)Barrier net;
(8)Surround/purse net that is attended at all times;
(9)Hook-and-line (includes handline (powered or not), rod-and-reel, and trolling);
(10)Crab and fish traps with vessel ID number affixed; and
(11)Remote-operating vehicles/submersibles.
(b)Mariana coral reef ecosystem MUS may not be taken by means of poisons, explosives, or intoxicating substances. Possession or use of these materials by any permit holder under this subpart who is established to be fishing for Mariana coral reef ecosystem MUS in the management area is prohibited.
(c)Existing FEP fisheries shall follow the allowable gear and methods outlined in their respective plans.
(d)Any person who intends to fish with new gear not included in this section must describe the new gear and its method of deployment in the special permit application. A decision on the permissibility of this gear type will be made by the Regional Administrator after consultation with the Council and the director of the affected state fishery management agency. § 665.428 Gear identification.
(a)The vessel number must be affixed to all fish and crab traps on board the vessel or deployed in the water by any vessel or person holding a permit under §§ 665.13 or 665.424 or that is otherwise established to be fishing for Mariana coral reef ecosystem MUS in the management area.
(b)*Enforcement action.*
(1)Traps not marked in compliance with paragraph
(a)of this section and found deployed in the coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer.
(2)Unattended surround nets or bait seine nets found deployed in the coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer. §§ 665.429-665.439 [Reserved] § 665.440 Mariana crustacean fisheries. [Reserved] § 665.441 Definitions. As used in §§ 665.440 through 665.459: *Crustacean Permit Area 5 (Permit Area 5)* means the EEZ around Guam and the EEZ seaward of points 3 nautical miles from the shoreline of the CNMI. *Mariana crustacean management unit species* means the following crustaceans: Local name English common name Scientific name Mahonggang spiny lobster *Panulirus marginatus,* *Panulirus penicillatus* . pa'pangpang slipper lobster Scyllaridae. Kona crab *Ranina ranina.* deepwater shrimp *Heterocarpus* spp. § 665.442 Permits.
(a)*Applicability.*
(1)The owner of any vessel used to fish for lobster in Permit Area 3 must have a permit issued for such a vessel.
(2)The owner of any vessel used to fish for deepwater shrimp in Crustacean Permit Area 5 must have a permit issued for that vessel.
(b)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits issued under this section, as applicable, are contained in § 665.13.
(c)*Application.* An application for a permit required under this section shall be submitted to PIRO as described in § 665.13. If the application for a limited access permit is submitted on behalf of a partnership or corporation, the application must be accompanied by a supplementary information sheet obtained from PIRO and contain the names and mailing addresses of all partners or shareholders and their respective percentage of ownership in the partnership or corporation. § 665.443 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person in Crustacean Permit Area 5 to fish for, take, or retain deepwater shrimp without a permit issued under § 665.442. § 665.444 Notifications.
(a)The operator of any vessel subject to the requirements of this subpart must:
(1)Report, not less than 24 hours, but not more than 36 hours, before landing, the port, the approximate date and the approximate time at which spiny and slipper lobsters will be landed.
(2)Report, not less than 6 hours and not more than 12 hours before offloading, the location and time that offloading of spiny and slipper lobsters will begin.
(b)The Regional Administrator will notify permit holders of any change in the reporting method and schedule required in paragraphs (a)(1) and
(2)of this section at least 30 days prior to the opening of the fishing season. § 665.445 At-sea observer coverage. All fishing vessels subject to §§ 665.440 through 665.445 and subpart A of this part must carry an observer when requested to do so by the Regional Administrator. §§ 665.446-665.459 [Reserved] § 665.460 Mariana precious coral fisheries [Reserved]. § 665.461 Definitions. *Mariana precious coral management unit species* means any coral of the genus *Corallium* in addition to the following species of corals: English common name Scientific name Pink coral (also known as red coral) *Corallium secundum, Corallium regale,* * Corallium laauense* . Gold coral *Gerardia* spp., *Callogorgia gilberti, Narella* spp., *Calyptrophora* spp. Bamboo coral *Lepidisis olapa, Acanella* spp. Black coral *Antipathes dichotoma, Antipathes grandis,* *Antipathes ulex* . *Mariana precious coral permit area* means the area encompassing the precious coral beds within the EEZ around the Mariana Archipelago. Each bed is designated by a permit area code and assigned to one of the following four categories:
(1)Established beds. [ *Reserved* ]
(2)Conditional beds. [ *Reserved* ]
(3)Refugia. [ *Reserved* ]
(4)Exploratory Area.
(i)Permit Area X-P-G includes all coral beds, other than established beds, conditional beds, or refugia, in the EEZ seaward of Guam.
(ii)Permit Area X-P-CNMI includes all coral beds, other than established beds, conditional beds, or refugia, in the EEZ seaward of points 3 nautical miles from the shoreline of the CNMI. § 665.462 Permits.
(a)Any vessel of the United States fishing for, taking, or retaining Mariana precious coral MUS in any Mariana Archipelago precious coral permit area must have a permit issued under § 665.13.
(b)Each permit will be valid for fishing only in the permit area specified on the permit. Precious Coral Permit Areas are defined in § 665.461.
(c)No more than one permit will be valid for any one vessel at any one time.
(d)No more than one permit will be valid for any one person at any one time.
(e)The holder of a valid permit to fish one permit area may obtain a permit to fish another permit area only upon surrendering to the Regional Administrator any current permit for the precious coral fishery issued under § 665.13.
(f)General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits for the precious coral fishery are contained in § 665.13. § 665.463 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and in § 665.15, it is unlawful for any person to:
(a)Use any vessel to fish for, take, retain, possess or land Mariana precious coral MUS in any Mariana precious coral permit area, unless a permit has been issued for that vessel and area as specified in § 665.13 and that permit is on board the vessel.
(b)Fish for, take, or retain any species of Mariana precious coral MUS in any Mariana precious coral permit area:
(1)By means of gear or methods prohibited by § 665.464.
(2)In refugia specified in § 665.461.
(3)In a bed for which the quota specified in § 665.467 has been attained.
(4)In violation of any permit issued under §§ 665.13 or 665.17.
(5)In a bed that has been closed pursuant to §§ 665.466 or 665.469.
(c)Take and retain, possess, or land any live pink coral or live black coral from any precious coral permit area that is less than the minimum height specified in § 665.465 unless:
(1)A valid EFP was issued under § 665.17 for the vessel and the vessel was operating under the terms of the permit; or
(2)The coral originated outside coral beds listed in this paragraph, and this can be demonstrated through receipts of purchase, invoices, or other documentation. § 665.464 Gear restrictions. Only selective gear may be used to harvest coral from any precious coral permit area. § 665.465 Size restrictions. The height of a live coral specimen shall be determined by a straight line measurement taken from its base to its most distal extremity. The stem diameter of a living coral specimen shall be determined by measuring the greatest diameter of the stem at a point no less than 1 inch (2.54 cm) from the top surface of the living holdfast.
(a)Live pink coral harvested from any precious coral permit area must have attained a minimum height of 10 inches (25.4 cm).
(b)*Black coral.* Live black coral harvested from any precious coral permit area must have attained either a minimum stem diameter of 1 inch (2.54 cm), or a minimum height of 48 inches (122 cm). § 665.466 Closures.
(a)If the Regional Administrator determines that the harvest quota for any coral bed will be reached prior to the end of the fishing year, NMFS shall publish a notice to that effect in the **Federal Register** and shall use other means to notify permit holders. Any such notice must indicate the reason for the closure, the bed being closed, and the effective date of the closure.
(b)A closure is also effective for a permit holder upon the permit holder's actual harvest of the applicable quota. § 665.467 Quotas.
(a)*General.* The quotas limiting the amount of precious coral that may be taken in any precious coral permit area during the fishing year are listed in § 665.467(d). Only live coral is counted toward the quota. The accounting period for all quotas begins July 1, 1983.
(b)*Conditional bed closure.* A conditional bed will be closed to all nonselective coral harvesting after the quota for one species of coral has been taken.
(c)*Reserves and reserve release.* The quotas for exploratory areas X-P-G and X-P-CNMI will be held in reserve for harvest by vessels of the United States in the following manner:
(1)At the start of the fishing year, the reserve for the Guam and CNMI exploratory areas will equal the quota minus the estimated domestic annual harvest for that year.
(2)As soon as practicable after December 31 each year, the Regional Administrator will determine the amount harvested by vessels of the United States between July 1 and December 31 of the year that just ended on December 31.
(3)NMFS will release to TALFF an amount of precious coral for each exploratory area equal to the quota minus two times the amount harvested by vessels of the United States in that July 1-December 31 period.
(4)NMFS will publish in the **Federal Register** a notification of the Regional Administrator's determination and a summary of the information on which it is based as soon as practicable after the determination is made.
(d)The Guam and CNMI exploratory permit areas, X-P-GU and X-P-CNMI, each have annual quotas of 1,000 kg for all precious coral MUS combined with the exception of black corals. § 665.468 Seasons. The fishing year for precious coral begins on July 1 and ends on June 30 the following year. § 665.469 Gold coral harvest moratorium. Fishing for, taking, or retaining any gold coral in any precious coral permit area is prohibited through June 30, 2013. Subpart E—Pacific Remote Island Area Fisheries § 665.598 Management area. The PRIA fishery management area is the EEZ seaward of Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, and Wake Island, Pacific Remote Island Areas with the inner boundary a line coterminous with the seaward boundaries of the above atolls, reefs and islands PRIA and the outer boundary a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured, or is coterminous with adjacent international maritime boundaries. § 665.599 Area restrictions.
(a)Fishing is prohibited in all no-take MPAs. The following U.S. EEZ waters are no-take MPAs: Landward of the 50 fathom
(fm)(91.5 m) curve at Jarvis, Howland, and Baker Islands, and Kingman Reef; as depicted on National Ocean Survey Chart Numbers 83116 and 83153.
(b)Low-use MPAs. The following U.S. EEZ waters in the Western Pacific Region are low-use MPAs: All waters between the shoreline and the 50 fm (91.5 m) curve around Johnston Atoll, Palmyra Atoll, and Wake Island as depicted on National Ocean Survey Chart Numbers 83637, 83157 and 81664. § 665.600 PRIA bottomfish fisheries [Reserved]. § 665.601 Definitions. As used in §§ 665.600 through 665.619: *PRIA bottomfish fishing permit* means the permit required by § 665.603 to use a vessel to fish for PRIA bottomfish MUS in the EEZ around the PRIA, or to land bottomfish MUS shoreward of the outer boundary of the EEZ around the PRIA, with the exception of EEZ waters around Midway Atoll. *PRIA bottomfish management unit species (PRIA bottomfish MUS)* means the following fish: English common name Scientific name Silver jaw jobfish *Aphareus rutilans.* Giant trevally *Caranx ignobilis.* Black jack *Caranx lugubris.* Blacktip grouper *Epinephelus fasciatus.* Sea bass *Epinephelus quernus.* Red snapper *Etelis carbunculus.* Longtail snapper *Etelis coruscans.* Redgill emperor *Lethrinus rubrioperculatus.* Yellowtail snapper *Pristipomoides auricilla.* Pink snapper *Pristipomoides filamentosus.* Pink snapper *Pristipomoides seiboldii.* Lunartail, lyretail grouper *Variola louti.* § 665.602 [Reserved] § 665.603 Permits.
(a)* Applicability.* PRIA. The owner of any vessel used to fish for, land, or transship PRIA bottomfish MUS shoreward of the outer boundary of the PRIA subarea must have a permit issued under this section, and the permit must be registered for use with that vessel.
(b)*Submission.* An application for a permit required under this section must be submitted to PIRO as described in § 665.13. § 665.604 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.16, it is unlawful for any person to do any of the following:
(a)Fish for PRIA bottomfish MUS using gear prohibited under § 665.605.
(b)Fish for, or retain on board a vessel, PRIA bottomfish MUS in the PRIA without the appropriate permit registered for use with that vessel issued under § 665.13.
(c)Falsify or fail to make or file all reports of PRIA bottomfish MUS landings taken in the PRIA, containing all data in the exact manner, as specified in § 665.14(b). § 665.605 Gear restrictions.
(a)* Bottom trawls and bottom set gillnets.* Fishing for PRIA bottomfish MUS with bottom trawls and bottom set gillnets is prohibited.
(b)*Possession of gear.* Possession of a bottom trawl and bottom set gillnet by any vessel having a permit under § 665.603 or otherwise established to be fishing for PRIA bottomfish MUS in the PRIA fishery management area is prohibited.
(c)*Poisons and explosives.* The possession or use of any poisons, explosives, or intoxicating substances for the purpose of harvesting PRIA bottomfish is prohibited. § 665.606 At-sea observer coverage. All fishing vessels subject to §§ 665.600 through 665.606 must carry an observer when directed to do so by the Regional Administrator. §§ 665.607-665.619 [Reserved] § 665.620 PRIA coral reef ecosystem fisheries [Reserved]. § 665.621 Definitions. As used in §§ 665.620 through 665.639: *PRIA coral reef ecosystem management unit species (PRIA coral reef ecosystem MUS)* means all of the Currently Harvested Coral Reef Taxa and Potentially Harvested Coral Reef Taxa listed in this section and which spend the majority of their non-pelagic (post-settlement) life stages within waters less than or equal to 50 fathoms in total depth. PRIA Currently Harvested Coral Reef Taxa: Family name English common name Scientific name Acanthuridae (Surgeonfishes) orange-spot *Acanthurus olivaceus.* surgeonfish yellowfin surgeonfish *Acanthurus xanthopterus.* convict tang *Acanthurus triostegus.* eye-striped surgeonfish *Acanthurus dussumieri.* blue-lined surgeon *Acanthurus nigroris.* Whitebar surgeonfish *Acanthurus leucopareius.* blue-banded surgeonfish *Acanthurus lineatus.* blackstreak surgeonfish *Acanthurus nigricauda.* whitecheek surgeonfish *Acanthurus nigricans.* white-spotted surgeonfish *Acanthurus guttatus.* Ringtail surgeonfish *Acanthurus blochii.* brown surgeonfish *Acanthurus nigrofuscus.* yellow-eyed surgeonfish *Ctenochaetus strigosus.* striped bristletooth *Ctenochaetus striatus.* twospot bristletooth *Ctenochaetus binotatus.* Yellow tang *Zebrasoma flavescens.* bluespine unicornfish *Naso unicornus.* orangespine unicornfish *Naso lituratus.* black tongue unicornfish *Naso hexacanthus.* bignose unicornfish *Naso vlamingii.* whitemargin unicornfish *Naso annulatus.* spotted unicornfish *Naso brevirostris.* Labridae (Wrasses) Napoleon wrasse *Cheilinus undulatus.* Triple-tail wrasse *Cheilinus trilobatus.* Floral wrasse *Cheilinus chlorourus.* ring-tailed wrasse *Oxycheilinus unifasciatus.* bandcheek wrasse *Oxycheilinus diagrammus.* Barred thicklip *Hemigymnus fasciatus.* three-spot wrasse *Halichoeres trimaculatus.* red ribbon wrasse *Thalassoma quinquevittatum.* Sunset wrasse *Thalassoma lutescens.* Mullidae (Goatfishes) Yellow goatfish *Mulloidichthys.* spp. Orange goatfish *Mulloidichthys pfleugeri.* yellowstripe goatfish *Mulloidichthys flavolineatus.* Banded goatfish *Parupeneus.* spp. Mullidae (Goatfishes) dash-dot goatfish *Parupeneus barberinus.* yellowsaddle goatfish *Parupeneus cyclostomas.* multi-barred goatfish *Parupeneus multifaciatus.* bantail goatfish *Upeneus arge.* Mugilidae (Mullets) fringelip mullet *Crenimugil crenilabis.* engel's mullet *Moolgarda engeli.* false mullet *Neomyxus leuciscus.* Muraenidae (Moray eels) yellowmargin moray eel *Gymnothorax flavimarginatus.* giant moray eel *Gymnothorax javanicus.* undulated moray eel *Gymnothorax undulatus.* Octopodidae Octopus *Octopus cyanea.* Octopus *Octopus ornatus.* Pricanthidae (Bigeye) Glasseye *Heteropriacanthus cruentatus.* Scaridae (Parrotfishes) Humphead parrotfish *Bolbometopon muricatum.* parrotfish *Scarus.* spp. pacific longnose parrotfish *Hipposcarus longiceps.* stareye parrotfish *Calotomus carolinus.* Scombridae Dogtooth tuna *Gymnosarda unicolor.* Sphyraenidae (Barracuda) great barracuda *Sphyraena barracuda.* PRIA Potentially Harvested Coral Reef Taxa: English common name Scientific name wrasses (Those species not listed as CHCRT) Labridae. sharks (Those species not listed as CHCRT) Carcharhinidae, Sphyrnidae. rays and skates Myliobatidae, Mobulidae. groupers (Those species not listed as CHCRT or as BMUS) Serrandiae. jacks and scads (Those species not listed as CHCRT or as BMUS) Carangidae. solderfishes and squirrelfishes (Those species not listed as CHCRT) Holocentridae. goatfishes (Those species not listed as CHCRT) Mullidae. Batfishes Ephippidae. Sweetlips Haemulidae. Remoras Echeneidae. Tilefishes Malacanthidae. Dottybacks Pseudochromidae. Prettyfins Plesiopidae. surgeonfishes (Those species not listed as CHCRT) Acanthuridae. emperors (Those species not listed as CHCRT or as BMUS) Lethrinidae. Herrings Clupeidae. Gobies Gobiidae. snappers (Those species not listed as CHCRT or as BMUS) Lutjanidae. trigger fishes (Those species not listed as CHCRT) Balistidae. rabbitfishes (Those species not listed as CHCRT) Siganidae. eels (Those species not listed as CHCRT) Muraenidae, Chlopsidae, Congridae, Ophichthidae. Cardinalfishes Apogonidae. moorish idols Zanclidae. butterfly fishes Chaetodontidae. Angelfishes Pomacanthidae. Damselfishes Pomacentridae. Scorpionfishes Scorpaenidae. Blennies Blenniidae. barracudas (Those species not listed as CHCRT) Sphyraenidae. Sandperches Pinguipedidae. rudderfishes (Those species not listed as CHCRT) Kyphosidae. Fusiliers Caesionidae. hawkfishes (Those species not listed as CHCRT) Cirrhitidae. Frogfishes Antennariidae. pipefishes, seahorses Syngnathidae. flounders, soles Bothidae. Trunkfishes Ostraciidae. puffer fishes, porcupine fishes Tetradontidae. Trumpetfish *Aulostomus chinensis* . Cornetfish *Fistularia commersoni* . blue corals Heliopora. organpipe corals Tubipora. ahermatypic corals Azooxanthellates. mushroom corals Fungiidae. small and large coral polyps fire corals Millepora. soft corals, gorgonians Anemones Actinaria. soft zoanthid corals Zoanthinaria. Hydrozoans, Bryzoans. sea squirts Tunicates. sea cucumbers and sea urchins Echinoderms. Those species not listed as CHCRT Mollusca. sea snails Gastropoda. Trochus. sea slugs Opistobranchs. black lipped pearl oyster *Pinctada margaritifera* . giant clam Tridacnidae. other clams Other Bivalves. Cephalopods. lobsters, shrimps/mantis shrimps, true crabs and hermit crabs (Those species not listed as CMUS) Crustaceans. Sponges Porifera. lace corals Stylasteridae. hydroid corals Solanderidae. segmented worms Annelids. Seaweed Algae. Live rock. All other PRIA coral reef ecosystem MUS that are marine plants, invertebrates, and fishes that are not listed in the PRIA CHCRT table or are not PRIA bottomfish, crustacean, precious coral, or western Pacific pelagic MUS. § 665.622 [Reserved] § 665.623 Relation to other laws. To ensure consistency between the management regimes of different Federal agencies with shared management responsibilities of fishery resources within the PRIA fishery management area, fishing for PRIA coral reef ecosystem MUS is not allowed within the boundary of a National Wildlife Refuge unless specifically authorized by the USFWS, regardless of whether that refuge was established by action of the President or the Secretary of the Interior. § 665.624 Permits and fees.
(a)*Applicability.* Unless otherwise specified in this subpart, § 665.13 applies to coral reef ecosystem permits.
(1)*Special permit.* Any person of the United States fishing for, taking or retaining PRIA coral reef ecosystem MUS must have a special permit if they, or a vessel which they operate, is used to fish for any:
(i)PRIA Coral reef ecosystem MUS in low-use MPAs as defined in § 665.599;
(ii)PRIA Potentially Harvested Coral Reef Taxa in the PRIA coral reef ecosystem management area; or
(iii)PRIA Coral reef ecosystem MUS in the PRIA coral reef ecosystem management area with any gear not specifically allowed in this subpart.
(2)*Transshipment permit.* A receiving vessel must be registered for use with a transshipment permit if that vessel is used in the PRIA coral reef ecosystem management area to land or transship PRIA PHCRT, or any PRIA coral reef ecosystem MUS harvested within low-use MPAs.
(3)*Exceptions.* The following persons are not required to have a permit under this section:
(i)Any person issued a permit to fish under any FEP who incidentally catches PRIA coral reef ecosystem MUS while fishing for bottomfish MUS, crustacean MUS, western Pacific pelagic MUS, precious coral, or seamount groundfish.
(ii)Any person fishing for PRIA CHCRT outside of an MPA, who does not retain any incidentally caught PRIA PHCRT.
(iii)Any person collecting marine organisms for scientific research as described in § 665.17, or § 600.745 of this chapter.
(b)*Validity.* Each permit will be valid for fishing only in the fishery management area specified on the permit.
(c)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits are contained in § 665.13.
(d)*Special permit.* The Regional Administrator shall issue a special permit in accordance with the criteria and procedures specified in this section.
(1)*Application.* An applicant for a special or transshipment permit issued under this section must complete and submit to the Regional Administrator a Special Coral Reef Ecosystem Fishing Permit Application Form issued by NMFS. Information in the application form must include, but is not limited to, a statement describing the objectives of the fishing activity for which a special permit is needed, including a general description of the expected disposition of the resources harvested under the permit ( *i.e.,* stored live, fresh, frozen, preserved; sold for food, ornamental, research, or other use; and a description of the planned fishing operation, including location of fishing and gear operation, amount and species (directed and incidental) expected to be harvested and estimated habitat and protected species impacts).
(2)*Incomplete applications.* The Regional Administrator may request from an applicant additional information necessary to make the determinations required under this section. An applicant will be notified of an incomplete application within 10 working days of receipt of the application. An incomplete application will not be considered until corrected and completed in writing.
(3)*Issuance.*
(i)If an application contains all of the required information, the Regional Administrator will forward copies of the application within 30 days to the Council, the USCG, the fishery management agency of the affected state, and other interested parties who have identified themselves to the Council, and the USFWS.
(ii)Within 60 days following receipt of a complete application, the Regional Administrator will consult with the Council through its Executive Director, USFWS, and the Director of the affected state fishery management agency concerning the permit application and will receive their recommendations for approval or disapproval of the application based on:
(A)Information provided by the applicant;
(B)The current domestic annual harvesting and processing capacity of the directed and incidental species for which a special permit is being requested;
(C)The current status of resources to be harvested in relation to the overfishing definition in the FEP;
(D)Estimated ecosystem, habitat, and protected species impacts of the proposed activity; and
(E)Other biological and ecological information relevant to the proposal. The applicant will be provided with an opportunity to appear in support of the application.
(iii)Following a review of the Council's recommendation and supporting rationale, the Regional Administrator may:
(A)Concur with the Council's recommendation and, after finding that it is consistent with the goals and objectives of the FEP, the national standards, the Endangered Species Act, and other applicable laws, approve or deny a special permit; or
(B)Reject the Council's recommendation, in which case, written reasons will be provided by the Regional Administrator to the Council for the rejection.
(iv)If the Regional Administrator does not receive a recommendation from the Council within 60 days of Council receipt of the permit application, the Regional Administrator can make a determination of approval or denial independently.
(v)Within 30 working days after the consultation in paragraph (d)(3)(ii) of this section, or as soon as practicable thereafter, NMFS will notify the applicant in writing of the decision to grant or deny the special permit and, if denied, the reasons for the denial. Grounds for denial of a special permit include the following:
(A)The applicant has failed to disclose material information required, or has made false statements as to any material fact, in connection with his or her application.
(B)According to the best scientific information available, the directed or incidental catch in the season or location specified under the permit would detrimentally affect any coral reef resource or coral reef ecosystem in a significant way, including, but not limited to issues related to, spawning grounds or seasons, protected species interactions, EFH, and habitat areas of particular concern (HAPC).
(C)Issuance of the special permit would inequitably allocate fishing privileges among domestic fishermen or would have economic allocation as its sole purpose.
(D)The method or amount of harvest in the season and/or location stated on the permit is considered inappropriate based on previous human or natural impacts in the given area.
(E)NMFS has determined that the maximum number of permits for a given area in a given season has been reached and allocating additional permits in the same area would be detrimental to the resource.
(F)The activity proposed under the special permit would create a significant enforcement problem.
(vi)The Regional Administrator may attach conditions to the special permit, if it is granted, consistent with the management objectives of the FEP, including but not limited to:
(A)The maximum amount of each resource that can be harvested and landed during the term of the special permit, including trip limits, where appropriate.
(B)The times and places where fishing may be conducted.
(C)The type, size, and amount of gear which may be used by each vessel operated under the special permit.
(D)Data reporting requirements.
(E)Such other conditions as may be necessary to ensure compliance with the purposes of the special permit consistent with the objectives of the FEP.
(4)Appeals of permit actions.
(i)Except as provided in subpart D of 15 CFR part 904, any applicant for a permit or a permit holder may appeal the granting, denial, conditioning, or suspension of their permit or a permit affecting their interests to the Regional Administrator. In order to be considered by the Regional Administrator, such appeal must be in writing, must state the action(s) appealed, and the reasons therefore, and must be submitted within 30 days of the original action(s) by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(ii)Upon receipt of an appeal authorized by this section, the Regional Administrator will notify the permit applicant, or permit holder as appropriate, and will request such additional information and in such form as will allow action upon the appeal. Upon receipt of sufficient information, the Regional Administrator will rule on the appeal in accordance with the permit eligibility criteria set forth in this section and the FEP, as appropriate, based upon information relative to the application on file at NMFS and the Council and any additional information, the summary record kept of any hearing and the hearing officer's recommended decision, if any, and such other considerations as deemed appropriate. The Regional Administrator will notify all interested persons of the decision, and the reasons therefor, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(iii)If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose after first giving notice of the time, place, and subject matter of the hearing in the **Federal Register.** Such a hearing shall normally be held no later than 30 days following publication of the notice in the **Federal Register** , unless the hearing officer extends the time for reasons deemed equitable. The appellant, the applicant (if different), and, at the discretion of the hearing officer, other interested parties, may appear personally and/or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(iv)The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator shall notify interested persons of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's action constitutes final action for the agency for the purposes of the Administrative Procedure Act.
(5)The Regional Administrator may, for good cause, extend any time limit prescribed in this section for a period not to exceed 30 days, either upon his or her own motion or upon written request from the Council, appellant or applicant stating the reason(s) therefore. § 665.625 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person to do any of the following:
(a)Fish for, take, retain, possess or land any PRIA coral reef ecosystem MUS in any low-use MPA as defined in § 665.599 unless:
(1)A valid permit has been issued for the hand harvester or the fishing vessel operator that specifies the applicable area of harvest;
(2)A permit is not required, as outlined in § 665.624;
(3)The PRIA coral reef ecosystem MUS possessed on board the vessel originated outside the management area and this can be demonstrated through receipts of purchase, invoices, fishing logbooks or other documentation.
(b)Fish for, take, or retain any PRIA coral reef ecosystem MUS species:
(1)That is determined overfished with subsequent rulemaking by the Regional Administrator.
(2)By means of gear or methods prohibited under § 665.627.
(3)In a low-use MPA without a valid special permit.
(4)In violation of any permit issued under §§ 665.13 or 665.624.
(c)Fish for, take, or retain any wild live rock or live hard coral except under a valid special permit for scientific research, aquaculture seed stock collection or traditional and ceremonial purposes by indigenous people. § 665.626 Notifications. Any special permit holder subject to the requirements of this subpart must contact the appropriate NMFS enforcement agent in American Samoa, Guam, or Hawaii at least 24 hours before landing any PRIA coral reef ecosystem MUS unit species harvested under a special permit, and report the port and the approximate date and time at which the catch will be landed. § 665.627 Allowable gear and gear restrictions.
(a)Coral reef ecosystem MUS may be taken only with the following allowable gear and methods:
(1)Hand harvest;
(2)Spear;
(3)Slurp gun;
(4)Hand net/dip net;
(5)Hoop net for Kona crab;
(6)Throw net;
(7)Barrier net;
(8)Surround/purse net that is attended at all times;
(9)Hook-and-line (includes handline (powered or not), rod-and-reel, and trolling);
(10)Crab and fish traps with vessel ID number affixed; and
(11)Remote-operating vehicles/submersibles.
(b)PRIA coral reef ecosystem MUS may not be taken by means of poisons, explosives, or intoxicating substances. Possession or use of these materials by any permit holder under this subpart who is established to be fishing for coral reef ecosystem MUS in the management area is prohibited.
(c)PRIA coral reef ecosystem MUS may not be taken by means of spearfishing with SCUBA at night (from 6 p.m. to 6 a.m.) in the U.S. EEZ waters around Howland Island, Baker Island, Jarvis Island, Wake Island, Kingman Reef, Johnston Atoll and Palmyra Atoll.
(d)Existing FEP fisheries shall follow the allowable gear and methods outlined in their respective plans.
(e)Any person who intends to fish with new gear not included in this section must describe the new gear and its method of deployment in the special permit application. A decision on the permissibility of this gear type will be made by the Regional Administrator after consultation with the Council and the director of the affected state fishery management agency. § 665.628 Gear identification.
(a)The vessel number must be affixed to all fish and crab traps on board the vessel or deployed in the water by any vessel or person holding a permit under §§ 665.13 or 665.624 or that is otherwise established to be fishing for PRIA coral reef ecosystem MUS in the PRIA fishery management area.
(b)*Enforcement action.*
(1)Traps not marked in compliance with paragraph
(a)of this section and found deployed in the PRIA fishery management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer.
(2)Unattended surround nets or bait seine nets found deployed in the coral reef ecosystem management area will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer. §§ 665.629-665.639 [Reserved] § 665.640 PRIA crustacean fisheries [Reserved]. § 665.641 Definitions. As used in §§ 665.640 through 665.659: *Crustacean Permit Area 4 (Permit Area 4)* means the EEZ around Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll, and Wake Island. *PRIA crustacean fishing permit* means the permit required by § 665.642 to use a vessel to fish for PRIA crustacean MUS in the PRIA fishery management area, or to land crustacean MUS shoreward of the outer boundary of the PRIA fishery management area. *PRIA crustacean management unit species* means the following crustaceans: English common name Scientific name Spiny lobster *Panulirus marginatus, Panulirus penicillatus.* Slipper lobster Scyllaridae. Kona crab *Ranina ranina.* Deepwater shrimp *Heterocarpus.* spp. § 665.642 Permits.
(a)*Applicability.*
(1)The owner of any vessel used to fish for lobster in Permit Area 4 must have a permit issued for that vessel.
(2)The owner of any vessel used to fish for deepwater shrimp in Crustacean Permit Area 4 must have a permit issued for that vessel.
(b)*General requirements.* General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits issued under this section, as applicable, are contained in § 665.13.
(c)*Application.* An application for a permit required under this section will be submitted to PIRO as described in § 665.13. If the application for a limited access permit is submitted on behalf of a partnership or corporation, the application must be accompanied by a supplementary information sheet obtained from PIRO and contain the names and mailing addresses of all partners or shareholders and their respective percentage of ownership in the partnership or corporation. § 665.643 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and § 665.15, it is unlawful for any person in Crustacean Permit Area 4 to fish for, take, or retain deepwater shrimp without a permit issued under § 665.642. § 665.644 Notifications.
(a)The operator of any vessel subject to the requirements of this subpart must:
(1)Report, not less than 24 hours, but not more than 36 hours, before landing, the port, the approximate date and the approximate time at which spiny and slipper lobsters will be landed.
(2)Report, not less than 6 hours and not more than 12 hours before offloading, the location and time that offloading of spiny and slipper lobsters will begin.
(b)The Regional Administrator will notify permit holders of any change in the reporting method and schedule required in paragraphs (a)(1) and
(2)of this section at least 30 days prior to the opening of the fishing season. § 665.645 At-sea observer coverage. All fishing vessels subject to §§ 665.640 through 665.645 and subpart A of this part must carry an observer when requested to do so by the Regional Administrator. §§ 665.646-665.659 [Reserved] § 665.660 PRIA precious coral fisheries [Reserved]. § 665.661 Definitions. As used in §§ 665.660 through 665.669: *PRIA precious coral management unit species (PRIA precious coral MUS)* means any coral of the genus *Corallium* in addition to the following species of corals: English common name Scientific name Pink coral (also known as red coral) *Corallium secundum, Corallium regale, Corallium laauense.* Gold coral *Gerardia* spp., *Callogorgia gilberti, Narella* spp., *Calyptrophora* spp. Bamboo coral *Lepidisis olapa, Acanella* spp. Black coral *Antipathes dichotoma, Antipathes grandis, Antipathes ulex.* *PRIA precious coral permit area* means the area encompassing the precious coral beds within the EEZ around the PRIA. Each bed is designated by a permit area code and assigned to one of the following four categories:
(1)Established beds. [ *Reserved* ]
(2)Conditional beds. [ *Reserved* ]
(3)Refugia. [ *Reserved* ]
(4)Exploratory Area. Permit Area X-P-PI includes all coral beds, other than established beds, conditional beds, or refugia, in the EEZ seaward Palmyra Atoll, Kingman Reef, Jarvis Island, Baker Island, Howland Island, Johnston Atoll and Wake Island. § 665.662 Permits.
(a)Any vessel of the United States fishing for, taking, or retaining PRIA precious coral MUS in any PRIA precious coral permit area must have a permit issued under § 665.13.
(b)Each permit will be valid for fishing only in the permit area specified on the permit. Precious Coral Permit Areas are defined in § 665.661.
(c)No more than one permit will be valid for any one vessel at any one time.
(d)No more than one permit will be valid for any one person at any one time.
(e)The holder of a valid permit to fish one permit area may obtain a permit to fish another permit area only upon surrendering to the Regional Administrator any current permit for the precious coral fishery issued under § 665.13.
(f)General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, sanctions, and appeals for permits for the precious coral fishery are contained in § 665.13. § 665.663 Prohibitions. In addition to the general prohibitions specified in § 600.725 of this chapter and in § 665.15, it is unlawful for any person to:
(a)Use any vessel to fish for, take, retain, possess or land PRIA precious coral MUS in any precious coral permit area, unless a permit has been issued for that vessel and area as specified in § 665.13 and that permit is on board the vessel.
(b)Fish for, take, or retain any species of PRIA precious coral MUS in any precious coral permit area:
(1)By means of gear or methods prohibited by § 665.664.
(2)In refugia specified in § 665.661.
(3)In a bed for which the quota specified in § 665.667 has been attained.
(4)In violation of any permit issued under §§ 665.13 or 665.17.
(5)In a bed that has been closed pursuant to §§ 665.666 or 665.669.
(c)Take and retain, possess, or land any live pink coral or live black coral from any precious coral permit area that is less than the minimum height specified in § 665.665 unless:
(1)A valid EFP was issued under § 665.17 for the vessel and the vessel was operating under the terms of the permit; or
(2)The coral originated outside coral beds listed in this paragraph, and this can be demonstrated through receipts of purchase, invoices, or other documentation. § 665.664 Gear restrictions. Only selective gear may be used to harvest coral from any precious coral permit area. § 665.665 Size restrictions. The height of a live coral specimen shall be determined by a straight line measurement taken from its base to its most distal extremity. The stem diameter of a living coral specimen shall be determined by measuring the greatest diameter of the stem at a point no less than 1 inch (2.54 cm) from the top surface of the living holdfast.
(a)Live pink coral harvested from any precious coral permit area must have attained a minimum height of 10 inches (25.4 cm).
(b)*Black coral.* Live black coral harvested from any precious coral permit area must have attained either a minimum stem diameter of 1 inch (2.54 cm), or a minimum height of 48 inches (122 cm). § 665.666 Closures.
(a)If the Regional Administrator determines that the harvest quota for any coral bed will be reached prior to the end of the fishing year, NMFS shall publish a notice to that effect in the **Federal Register** and shall use other means to notify permit holders. Any such notice must indicate the reason for the closure, the bed being closed, and the effective date of the closure.
(b)A closure is also effective for a permit holder upon the permit holder's actual harvest of the applicable quota. § 665.667 Quotas.
(a)*General.* The quotas limiting the amount of precious coral that may be taken in any precious coral permit area during the fishing year are listed in § 665.667(d). Only live coral is counted toward the quota. The accounting period for all quotas begins July 1, 1983.
(b)*Conditional bed closure.* A conditional bed will be closed to all nonselective coral harvesting after the quota for one species of coral has been taken.
(c)*Reserves and reserve release.* The quotas for exploratory area, X-P-PI, will be held in reserve for harvest by vessels of the United States in the following manner:
(1)At the start of the fishing year, the reserve for the PRIA exploratory area will equal the quota minus the estimated domestic annual harvest for that year.
(2)As soon as practicable after December 31 each year, the Regional Administrator will determine the amount harvested by vessels of the United States between July 1 and December 31 of the year that just ended on December 31.
(3)NMFS will release to TALFF an amount of precious coral for each exploratory area equal to the quota minus two times the amount harvested by vessels of the United States in that July 1-December 31 period.
(4)NMFS will publish in the **Federal Register** a notification of the Regional Administrator's determination and a summary of the information on which it is based as soon as practicable after the determination is made.
(d)PRIA exploratory permit area, X-P-PI, has an annual quota of 1,000 kg for all precious coral MUS combined with the exception of black corals. § 665.668 Seasons. The fishing year for precious coral begins on July 1 and ends on June 30 the following year. § 665.669 Gold coral harvest moratorium. Fishing for, taking, or retaining any gold coral in any precious coral permit area is prohibited through June 30, 2013. Subpart F—Western Pacific Pelagic Fisheries § 665.798 Management area. The western Pacific Pelagic fishery management area includes all areas of fishing operations in the EEZ or on the high seas for any vessels of the United States or persons that:
(a)Fish for, possess, or transship western Pacific pelagic fishery MUS within the EEZ waters around American Samoa, CNMI, Guam, Hawaii, or PRIA; or
(b)Land western Pacific pelagic fishery MUS in American Samoa, CNMI, Guam, Hawaii, or PRIA. § 665.799 Area restrictions.
(a)Fishing is prohibited in all no-take MPAs designated in this section.
(b)No-take MPAs. The following U.S. EEZ waters are no-take MPAs:
(1)Landward of the 50-fathom
(fm)(91.5-m) curve at Jarvis, Howland, and Baker Islands, and Kingman Reef; as depicted on National Ocean Survey Chart Numbers 83116 and 83153;
(2)Landward of the 50-fm (91.5-m) curve around Rose Atoll, as depicted on National Ocean Survey Chart Number 83484. § 665.800 Definitions. As used in §§ 665.798 through 665.818: *American Samoa longline limited access permit* means the permit required by § 665.801 to use a vessel shoreward of the outer boundary of the EEZ around American Samoa to fish for western Pacific pelagic MUS using longline gear or to land or transship western Pacific pelagic MUS that were caught in the EEZ around American Samoa using longline gear. *American Samoa pelagics mailing list* means the list maintained by PIRO of names and mailing addresses of parties interested in receiving notices of availability for American Samoa longline limited access permits. *Basket-style longline gear* means a type of longline gear that is divided into units called “baskets” each consisting of a segment of main line to which 10 or more branch lines with hooks are spliced. The mainline and all branch lines are made of multiple braided strands of cotton, nylon, or other synthetic fibers impregnated with tar or other heavy coatings that cause the lines to sink rapidly in seawater. *Deep-set or Deep-setting* means the deployment of, or deploying, respectively, longline gear in a manner consistent with all the following criteria: With all float lines at least 20 meters in length; with a minimum of 15 branch lines between any two floats (except basket-style longline gear which may have as few as 10 branch lines between any two floats); without the use of light sticks; and resulting in the possession or landing of no more than 10 swordfish ( *Xiphias gladius* ) at any time during a given trip. As used in this definition “float line” means a line used to suspend the main longline beneath a float and “light stick” means any type of light emitting device, including any fluorescent “glow bead,” chemical, or electrically powered light that is affixed underwater to the longline gear. *Fish dealer* means any person who:
(1)Obtains, with the intention to resell, western Pacific pelagic MUS, or portions thereof, that were harvested or received by a vessel that holds a permit or is otherwise regulated under bottomfish fisheries in this subpart; or
(2)Provides recordkeeping, purchase, or sales assistance in obtaining or selling such MUS (such as the services provided by a wholesale auction facility). *Hawaii longline limited access permit* means the permit required by § 665.801 to use a vessel to fish for western Pacific pelagic MUS with longline gear in the EEZ around Hawaii or to land or transship longline-caught western Pacific pelagic MUS shoreward of the outer boundary of the EEZ around Hawaii. *Longline fishing prohibited area* means the portions of the EEZ in which longline fishing is prohibited as specified in § 665.806. *Longline fishing vessel* means a vessel that has longline gear on board the vessel. *Longline gear* means a type of fishing gear consisting of a main line that exceeds 1 nm in length, is suspended horizontally in the water column either anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached; except that, within the protected species zone as defined in § 665.806, longline gear means a type of fishing gear consisting of a main line of any length that is suspended horizontally in the water column either anchored, floating, or attached to a vessel, and from which branch or dropper lines with hooks are attached. *Pelagic handline fishing* means fishing for western Pacific pelagic MUS from a stationary or drifting vessel using hook and line gear other than longline gear. *Pelagic troll fishing (trolling)* means fishing for western Pacific pelagic MUS from a moving vessel using hook and line gear. *PRIA pelagic troll and handline fishing permit* means the permit required by § 665.801 to use a vessel shoreward of the outer boundary of the EEZ around the PRIA to fish for western Pacific pelagic MUS using pelagic handline or troll fishing methods. *Receiving vessel permit* means a permit required by § 665.801(c) for a receiving vessel to transship or land western Pacific pelagic MUS taken by other vessels using longline gear. *Shallow-set or shallow-setting* means the deployment of, or deploying, respectively, longline gear in a manner that does not meet the definition of deep-set or deep-setting as defined in this section. *Squid jig fishing* means fishing for squid that are western Pacific pelagic MUS using a hook or hooks attached to a line that is raised and lowered in the water column by manual or mechanical means. *Western Pacific general longline permit* means the permit authorized under § 665.801 to use a vessel shoreward of the outer boundary of the EEZ around Guam, CNMI, Johnston or Palmyra Atolls, Kingman Reef, or Wake, Jarvis, Baker or Howland Islands to fish for western Pacific pelagic MUS using longline gear or to land or to transship western Pacific pelagic MUS that were caught using longline gear. *Western Pacific pelagic management unit species* means the following species: English common name Scientific name Tunas: Albacore *Thunnus alalunga.* bigeye tuna *Thunnus obesus.* yellowfin tuna *Thunnus albacares.* northern bluefin tuna *Thunnus thynnus.* skipjack tuna *Katsuwonus pelamis.* Kawakawa *Euthynnus affinis.* other tuna relatives *Auxis* spp., *Scomber* spp., * Allothunnus* spp. Billfishes: Indo-Pacific blue marlin *Makaira mazara.* black marlin *Makaira indica.* striped marlin *Tetrapturus audax.* shortbill spearfish *Tetrapturus angustirostris.* Swordfish *Xiphias gladius.* Sailfish *Istiophorus platypterus.* Sharks: pelagic thresher shark *Alopias pelagicus.* bigeye thresher shark *Alopias superciliosus.* common thresher shark *Alopias vulpinus.* silky shark *Carcharhinus falciformis.* oceanic whitetip shark *Carcharhinus longimanus.* blue shark *Prionace glauca.* shortfin mako shark *Isurus oxyrinchus.* longfin mako shark *Isurus paucus.* salmon shark *Lamna ditropis.* Other pelagic fishes: mahimahi (dolphinfish) *Coryphaena* spp. Wahoo *Acanthocybium solandri.* Moonfish *Lampris* spp. Oilfish Gempylidae. Pomfret Bramidae. Squid: diamondback squid *Thysanoteuthis rhombus.* neon flying squid *Ommastrephes bartramii.* purpleback flying squid *Sthenoteuthis oualaniensis.* § 665.801 Permits.
(a)A vessel of the United States must be registered for use with a valid permit under the High Seas Fishing Compliance Act if that vessel is used to fish on the high seas, as required under § 300.15 of this title.
(b)A vessel of the United States must be registered for use under a valid Hawaii longline limited access permit if that vessel is used:
(1)To fish for western Pacific pelagic MUS using longline gear in the EEZ around the Hawaiian Archipelago; or
(2)To land or transship, shoreward of the outer boundary of the EEZ around the Hawaiian Archipelago, western Pacific pelagic MUS that were harvested using longline gear.
(c)A vessel of the United States must be registered for use under a valid American Samoa longline limited access permit, in accordance with § 665.816, if that vessel is used to:
(1)Fish for western Pacific pelagic MUS using longline gear in the EEZ around American Samoa;
(2)Land shoreward of the outer boundary of the EEZ around American Samoa western Pacific pelagic MUS that were harvested using longline gear in the EEZ around American Samoa; or
(3)Transship shoreward of the outer boundary of the EEZ around American Samoa western Pacific pelagic MUS that were harvested using longline gear in the EEZ around American Samoa or on the high seas.
(d)A vessel of the United States must be registered for use under a valid Western Pacific general longline permit, American Samoa longline limited access permit, or Hawaii longline limited access permit if that vessel is used to:
(1)Fish for western Pacific pelagic MUS using longline gear in the EEZ around Guam, CNMI, or PRIA (with the exception of Midway Atoll); or
(2)Land or transship shoreward of the outer boundary of the EEZ around Guam, CNMI, or PRIA (with the exception of Midway Atoll), western Pacific pelagic MUS that were harvested using longline gear.
(e)A receiving vessel of the United States must be registered for use with a valid receiving vessel permit if that vessel is used to land or transship, shoreward of the outer boundary of the EEZ around American Samoa, Hawaii, Guam, CNMI, or PRIA, western Pacific pelagic MUS that were harvested using longline gear.
(f)A vessel of the United States must be registered for use with a valid PRIA pelagic troll and handline fishing permit if that vessel is used to fish for western Pacific pelagic MUS using pelagic handline or trolling fishing methods in the EEZ around the PRIA (with the exception of Midway Atoll).
(g)A vessel of the United States must be registered for use under a Western Pacific squid jig fishing permit, if that vessel is more than 50 ft (15.4 m) LOA and is used to squid jig fish in EEZ waters around American Samoa, CNMI, Guam, Hawaii, or PRIA.
(h)Any required permit must be valid and on board the vessel and available for inspection by an authorized agent, except that, if the permit was issued (or registered to the vessel) during the fishing trip in question, this requirement applies only after the start of any subsequent fishing trip.
(i)A permit is valid only for the vessel for which it is registered. A permit not registered for use with a particular vessel may not be used.
(j)An application for a permit required under this section will be submitted to PIRO as described in § 665.13.
(k)General requirements governing application information, issuance, fees, expiration, replacement, transfer, alteration, display, and sanctions for permits issued under this section, as applicable, are contained in § 665.13.
(l)A Hawaii longline limited access permit may be transferred as follows:
(1)The owner of a Hawaii longline limited access permit may apply to transfer the permit:
(i)To a different person for registration for use with the same or another vessel; or
(ii)For registration for use with another U.S. vessel under the same ownership.
(2)[ *Reserved* ]
(m)A Hawaii longline limited access permit will not be registered for use with a vessel that has a LOA greater than 101 ft (30.8 m).
(n)Only a person eligible to own a documented vessel under the terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or otherwise) a Hawaii longline limited access permit.
(o)Permit appeals. Except as provided in subpart D of 15 CFR part 904, any applicant for a permit or any permit owner may appeal to the Regional Administrator the granting, denial, conditioning, suspension, or transfer of a permit or requested permit under this section. To be considered by the Regional Administrator, the appeal must be in writing, must state the action(s) appealed, and the reasons therefore, and must be submitted within 30 days of the action(s) by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(1)Upon receipt of an appeal authorized by this section, the Regional Administrator may request additional information. Upon receipt of sufficient information, the Regional Administrator will decide the appeal in accordance with the criteria set out in this part for qualifying for, or renewing, limited access permits. In making such decision, the Administrator will review relevant portions of the Western Pacific Pelagic FEP, to the extent such review would clarify the criteria in this part. Such decision will be based upon information relative to the application on file at NMFS and the Council and any additional information available; the summary record kept of any hearing and the hearing officer's recommended decision, if any, as provided in paragraph (o)(3) of this section; and such other considerations as deemed appropriate. The Regional Administrator will notify the appellant of the decision and the reasons therefore, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(2)If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose. Such a hearing normally shall be held no later than 30 days following receipt of the appeal, unless the hearing officer extends the time. The appellant and, at the discretion of the hearing officer, other interested persons, may appear personally and/or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend, in writing, a decision to the Regional Administrator.
(3)The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator will notify the appellant, and interested persons, if any, of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's action shall constitute final Agency action for purposes of the Administrative Procedure Act.
(4)In the case of a timely appeal from an American Samoa longline limited access permit initial permit decision, the Regional Administrator will issue the appellant a temporary American Samoa longline limited access permit. A temporary permit will expire 20 days after the Regional Administrator's final decision on the appeal. In no event will a temporary permit be effective for longer than 60 days.
(5)With the exception of temporary permits issued under paragraph (o)(4) of this section, the Regional Administrator, for good cause, may extend any time limit prescribed in this section for a period not to exceed 30 days, either upon his/her own motion or upon written request from the appellant stating the reason(s) therefore. § 665.802 Prohibitions. In addition to the prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to do any of the following:
(a)Falsify or fail to make and/or file all reports of western Pacific pelagic MUS landings, containing all data and in the exact manner, as required by applicable state law or regulation, as specified in § 665.14(a), provided that the person is required to do so by applicable state law or regulation.
(b)Use a vessel without a valid permit issued under the High Seas Fishing Compliance Act to fish for western Pacific pelagic MUS using longline gear, on the high seas, in violation of §§ 665.801(a), and 300.15 of this title.
(c)Use a vessel in the EEZ around the Hawaiian Archipelago without a valid Hawaii longline limited access permit registered for use with that vessel, to fish for western Pacific pelagic MUS using longline gear, in violation of § 665.801(b)(1).
(d)Use a vessel shoreward of the outer boundary of the EEZ around the Hawaiian Archipelago without a valid Hawaii longline limited access permit registered for use with that vessel, to land or transship western Pacific pelagic MUS that were harvested with longline gear, in violation of § 665.801(b)(2).
(e)Use a vessel in the EEZ around American Samoa without a valid American Samoa longline limited access permit registered for use with that vessel, to fish for western Pacific pelagic MUS using longline gear, in violation of § 665.801(c)(1).
(f)Use a vessel shoreward of the outer boundary of the EEZ around American Samoa without a valid American Samoa longline limited access permit registered for use with that vessel, to land western Pacific pelagic MUS that were caught with longline gear within the EEZ around American Samoa, in violation of § 665.801(c)(2).
(g)Use a vessel within the EEZ around American Samoa without a valid American Samoa longline limited access permit registered for use with that vessel, to transship western Pacific pelagic MUS that were caught with longline gear, in violation of § 665.801(c)(3).
(h)Use a vessel in the EEZ around Guam, CNMI, or PRIA (with the exception of Midway Atoll) without either a valid Western Pacific general longline permit, American Samoa longline limited access permit or a Hawaii longline limited access permit registered for use with that vessel, to fish for western Pacific pelagic MUS using longline gear, in violation of § 665.801(d)(1).
(i)Use a vessel shoreward of the outer boundary of the EEZ around Guam, CNMI, or PRIA (with the exception of Midway Atoll) without either a valid Western Pacific general longline permit, American Samoa longline limited access permit or a Hawaii longline limited access permit registered for use with that vessel, to land or transship western Pacific pelagic MUS that were harvested using longline gear, in violation of § 665.801(d)(2).
(j)Use a vessel shoreward of the outer boundary of the EEZ around American Samoa, CNMI, Guam, Hawaii, or PRIA, to land or transship western Pacific pelagic MUS caught by other vessels using longline gear, without a valid receiving vessel permit registered for use with that vessel, in violation of § 665.801(e).
(k)Use a vessel in the EEZ around the PRIA employing handline or trolling methods to fish for western Pacific pelagic MUS without a valid PRIA pelagic troll and handline fishing permit registered for use for that vessel, in violation of § 665.801(f).
(l)Fish in the fishery after failing to comply with the notification requirements in § 665.803.
(m)Fail to comply with notification requirements set forth in § 665.803 or in any EFP issued under § 665.17. (n)-(u) [ *Reserved* ]
(v)Fish with longline gear within a longline fishing prohibited area, except as allowed pursuant to an exemption issued under §§ 665.17 or 665.807, in violation of § 665.806.
(w)Fish for western Pacific pelagic MUS with longline gear within the protected species zone, in violation of § 665.806(b).
(x)Fail to comply with a term or condition governing the observer program established in § 665.808, if using a vessel registered for use with a Hawaii longline limited access permit, or a vessel registered for use with a size Class B, C or D American Samoa longline limited access permit, to fish for western Pacific pelagic MUS using longline gear.
(y)Fail to comply with other terms and conditions that the Regional Administrator imposes by written notice to either the permit holder or the designated agent of the permit holder to facilitate the details of observer placement.
(z)Fail to fish in accordance with the seabird take mitigation techniques set forth at §§ 665.815(a)(1) or 665.815(a)(2) when operating a vessel registered for use under a Hawaii longline limited access permit. (aa)-(bb) [ *Reserved* ]
(cc)Own or operate a vessel registered for use under any longline permit issued under § 665.801 while engaged in longline fishing for western Pacific pelagic MUS and fail to be certified for completion of a NMFS protected species workshop, in violation of § 665.814(a).
(dd)Own or operate a vessel registered for use under any longline permit issued under § 665.801 while engaged in longline fishing for western Pacific pelagic MUS without having on board a valid protected species workshop certificate issued by NMFS or a legible copy thereof, in violation of § 665.814(d).
(ee)Possess light sticks on board a vessel registered for use under a Hawaii longline limited access permit at any time during a trip for which notification to NMFS under § 665.803(a) indicated that deep-setting would be done, in violation of § 665.813(d).
(ff)Fail to carry, or fail to use, a line clipper, dip net, or dehooker on a vessel registered for use under any longline permit issued under § 665.801, in violation of § 665.812. (gg)-(hh) [ *Reserved* ]
(ii)When operating a vessel registered for use under any longline limited access permit issued under § 665.801, fail to comply with the sea turtle handling, resuscitation, and release requirements, in violation of § 665.812(b).
(jj)Engage in shallow-setting from a vessel registered for use under any longline permit issued under § 665.801 north of the Equator (0° lat.) with hooks other than circle hooks sized 18/0 or larger with an offset not to exceed 10 degrees, in violation of § 665.813(f).
(kk)Engage in shallow-setting from a vessel registered for use under any longline permit issued under § 665.801 north of the Equator (0° lat.) with bait other than mackerel-type bait, in violation of § 665.813(g).
(ll)[ *Reserved* ]
(mm)Fail to use a line setting machine or line shooter, with weighted branch lines, to set the main longline when operating a vessel that is registered for use under a Hawaii longline limited access permit and equipped with monofilament main longline, when making deep sets north of 23° N. lat., in violation of § 665.815(a)(1) or (a)(2).
(nn)Fail to employ basket-style longline gear such that the mainline is deployed slack when operating a vessel registered for use under a Hawaii longline limited access north of 23° N. lat., in violation of § 665.815(a)(2)(v).
(oo)Fail to maintain and use blue dye to prepare thawed bait when operating a vessel registered for use under a Hawaii longline limited access permit that is fishing north of 23° N. lat., in violation of § 665.815(a)(2)(vi) through (viii).
(pp)Fail to retain, handle, and discharge fish, fish parts, and spent bait, strategically when operating a vessel registered for use under a Hawaii longline limited access permit that is fishing north of 23° N. lat., in violation of § 665.815(a)(2)(i) through (iv).
(qq)Fail to be begin the deployment of longline gear at least 1 hour after local sunset or fail to complete the setting process before local sunrise from a vessel registered for use under a Hawaii longline limited access permit while shallow-setting north of 23° N. lat., in violation of § 665.815(a)(4).
(rr)Fail to handle short-tailed albatrosses that are caught by pelagic longline gear in a manner that maximizes the probability of their long-term survival, in violation of § 665.815(b).
(ss)Engage in shallow-setting from a vessel registered for use under a Hawaii longline limited access permit after the shallow-set component of the longline fishery has been closed pursuant to § 665.813(b), in violation of § 665.813(i).
(tt)Fail to immediately retrieve longline fishing gear upon receipt of actual notice that the shallow-set component of the longline fishery has been closed pursuant to § 665.813(b), in violation of § 665.813(i). (uu)-(vv) [ *Reserved* ]
(ww)Fail to handle seabirds other than short-tailed albatrosses that are caught by pelagic longline gear in a manner that maximizes the probability of their long-term survival, in violation of § 665.815(c).
(xx)Use a large vessel to fish for western Pacific Pelagic MUS within an American Samoa large vessel prohibited area except as allowed pursuant to an exemption issued under § 665.818.
(yy)Fish for western Pacific pelagic MUS using gear prohibited under § 665.810 or not permitted by an EFP issued under § 665.17.
(zz)Use a vessel that is greater than 50 ft (15.4 m) LOA to squid jig fish in EEZ waters around American Samoa, CNMI, Guam, Hawaii, or PRIA, without a Western Pacific squid jig fishing permit registered for use with that vessel, in violation of § 665.801(g). § 665.803 Notifications.
(a)The permit holder, or designated agent, for any vessel registered for use under a Hawaii longline limited access permit, or for any vessel greater than 40 ft (12.2 m) LOA that is registered for use under an American Samoa longline limited access permit, shall provide a notice to the Regional Administrator at least 72 hours (not including weekends and Federal holidays) before the vessel leaves port on a fishing trip, any part of which occurs in the EEZ around the Hawaiian Archipelago or American Samoa. The vessel operator will be presumed to be an agent designated by the permit holder unless the Regional Administrator is otherwise notified by the permit holder. The permit holder or designated agent for a vessel registered for use under Hawaii longline limited access permits must also provide notification of the trip type (either deep-setting or shallow-setting).
(b)The permit holder, or designated agent, for any vessel registered for use under a Western Pacific squid jig fishing permit that is greater than 50 ft (15.4 m) LOA, shall provide a notice to the Regional Administrator at least 72 hours (not including weekends and Federal holidays) before the vessel leaves port on a fishing trip, any part of which occurs in western Pacific EEZ waters. The vessel operator will be presumed to be an agent designated by the permit holder unless the Regional Administrator is otherwise notified by the permit holder.
(c)For purposes of this section, the notice must be provided to the office or telephone number designated by the Regional Administrator. The notice must provide the official number of the vessel, the name of the vessel, the intended departure date, time, and location, the name of the operator of the vessel, and the name and telephone number of the permit holder or designated agent to be available between 8 a.m. and 5 p.m. (local time) on weekdays for NMFS to contact to arrange observer placement.
(d)The operator of any vessel subject to the requirements of this subpart who does not have on board a VMS unit while transiting the protected species zone as defined in § 665.806, must notify the NMFS Special-Agent-In-Charge immediately upon entering and immediately upon departing the protected species zone. The notification must include the name of the vessel, name of the operator, date and time
(GMT)of access or exit from the protected species zone, and location by latitude and longitude to the nearest minute.
(e)The permit holder for any American Samoa longline limited access permit, or an agent designated by the permit holder, must notify the Regional Administrator in writing within 30 days of any change to the permit holder's contact information or any change to the vessel documentation associated with a permit registered to an American Samoa longline limited access permit. Complete changes in the ownership of the vessel registered to an American Samoa longline limited access permit must also be reported to PIRO in writing within 30 days of the change. Failure to report such changes may result in a delay in processing an application, permit holders failing to receive important notifications, or sanctions pursuant to the Magnuson-Stevens Act at 16 U.S.C. 1858(g) or 15 CFR part 904, subpart D. § 665.804 Gear identification.
(a)*Identification.* The operator of each permitted vessel in the fishery management area must ensure that the official number of the vessel be affixed to every longline buoy and float, including each buoy and float that is attached to a radar reflector, radio antenna, or flag marker, whether attached to a deployed longline or possessed on board the vessel. Markings must be legible and permanent, and must be of a color that contrasts with the background material.
(b)*Enforcement action.* Longline gear not marked in compliance with paragraph
(a)of this section and found deployed in the EEZ will be considered unclaimed or abandoned property, and may be disposed of in any manner considered appropriate by NMFS or an authorized officer. § 665.805 [Reserved] § 665.806 Longline fishing prohibited area management.
(a)*Prohibited areas.* Longline fishing shall be prohibited in the longline fishing prohibited areas as defined in paragraphs (b), (c), and
(d)of this section.
(b)*Longline protected species zone.*
(1)The protected species zone is 50 nm from the center geographical positions of certain islands and reefs in the NWHI, as follows: Name N. lat. W. long. Nihoa Island 23°05′ 161°55′ Necker Island 23°35′ 164°40′ French Frigate Shoals 23°45′ 166°15′ Gardner Pinnacles 25°00′ 168°00′ Maro Reef 25°25′ 170°35′ Laysan Island 25°45′ 171°45′ Lisianski Island 26°00′ 173°55′ Pearl and Hermes Reef 27°50′ 175°50′ Midway Island 28°14′ 177°22′ Kure Island 28°25′ 178°20′
(2)Where the areas are not contiguous, parallel lines drawn tangent to and connecting those semicircles of the 50-nm areas that lie between Nihoa Island and Necker Island, French Frigate Shoals and Gardner Pinnacles, Gardner Pinnacles and Maro Reef, and Lisianski Island and Pearl and Hermes Reef, shall delimit the remainder of the protected species zone.
(c)*Main Hawaiian Islands (MHI).*
(1)From February 1-September 30 each year, the longline fishing prohibited area around the MHI is the portion of the EEZ seaward of Hawaii bounded by straight lines connecting the following coordinates in the order listed: Point N. lat. W. long. A 18°05′ 155°40′ B 18°20′ 156°25′ C 20°00′ 157°30′ D 20°40′ 161°40′ E 21°40′ 161°55′ F 23°00′ 161°30′ G 23°05′ 159°30′ H 22°55′ 157°30′ I 21°30′ 155°30′ J 19°50′ 153°50′ K 19°00′ 154°05′ A 18°05′ 155°40′
(2)From October 1 through the following January 31 each year, the longline fishing prohibited area around the MHI is the portion of the EEZ seaward of Hawaii bounded by straight lines connecting the following coordinates in the order listed: Point N. lat. W. long. A 18°05′ 155°40′ L 18°25′ 155°40′ M 19°00′ 154°45′ N 19°15′ 154°25′ O 19°40′ 154°20′ P 20°20′ 154°55′ Q 20°35′ 155°30′ R 21°00′ 155°35′ S 22°30′ 157°35′ T 22°40′ 159°35′ U 22°25′ 160°20′ V 21°55′ 160°55′ W 21°40′ 161°00′ E 21°40′ 161°55′ D 20°40′ 161°40′ C 20°00′ 157°30′ B 18°20′ 156°25′ A 18°05′ 155°40′
(d)*Guam.* The longline fishing prohibited area around Guam is the waters seaward of Guam bounded by straight lines connecting the following coordinates in the order listed: Point N. lat. E. long. A 14°25′ 144°00′ B 14°00′ 143°38′ C 13°41′ 143°33′33″ D 13°00′ 143°25′30″ E 12°20′ 143°37′ F 11°40′ 144°09′ G 12°00′ 145°00′ H 13°00′ 145°42′ I 13°27′ 145°51′ § 665.807 Exemptions for longline fishing prohibited areas; procedures.
(a)An exemption permitting a person to use longline gear to fish in a portion(s) of the Hawaii longline fishing prohibited area will be issued to a person who can document that he or she:
(1)Currently owns a Hawaii longline limited access permit issued under this part and registered for use with his or her vessel;
(2)Before 1970, was the owner or operator of a vessel when that vessel landed western Pacific pelagic MUS taken on longline gear in an area that is now within the Hawaii longline fishing prohibited area;
(3)Was the owner or operator of a vessel that landed western Pacific pelagic MUS taken on longline gear in an area that is now within the Hawaii longline fishing prohibited area, in at least 5 calendar years after 1969, which need not be consecutive; and
(4)In any one of the 5 calendar years, was the owner or operator of a vessel that harvested at least 80 percent of its total landings, by weight, of longline-caught western Pacific pelagic MUS in an area that is now in the Hawaii longline fishing prohibited area.
(b)Each exemption shall specify the portion(s) of the Hawaii longline fishing prohibited area, bounded by longitudinal and latitudinal lines drawn to include each statistical area, as appearing on Hawaii State Commercial Fisheries Charts, in which the exemption holder made the harvest documented for the exemption application under paragraph (a)(4) of this section.
(c)Each exemption is valid only within the portion(s) of the Hawaii longline fishing prohibited area specified on the exemption.
(d)A person seeking an exemption under this section must submit an application and supporting documentation to PIRO at least 15 days before the desired effective date of the exemption.
(e)If the Regional Administrator determines that a gear conflict has occurred and is likely to occur again in the Hawaii longline fishing prohibited area between a vessel used by a person holding an exemption under this section and a non-longline vessel, the Regional Administrator may prohibit all longline fishing in the Hawaii longline fishing prohibited area around the island where the conflict occurred, or in portions thereof, upon notice to each holder of an exemption who would be affected by such a prohibition.
(f)The Council will consider information provided by persons with Hawaii longline limited access permits issued under this part who believe they have experienced extreme financial hardship resulting from the Hawaii longline area closure, and will consider recommendations of the Pelagic Advisory Review Board to assess whether exemptions under this section should continue to be allowed, and, if appropriate, revise the qualifying criteria in paragraph
(a)of this section to permit additional exemptions.
(1)If additional exemptions are needed, the Council will advise the Regional Administrator in writing of its recommendation, including criteria by which financial hardships will be mitigated, while retaining the effectiveness of the longline fishing prohibited area.
(2)Following a review of the Council's recommendation and supporting rationale, the Regional Administrator may:
(i)Reject the Council's recommendation, in which case written reasons will be provided by the Regional Administrator to the Council for the rejection; or
(ii)Concur with the Council's recommendation and, after finding that it is consistent with the goals and objectives of the Pelagics FEP, the national standards, and other applicable law, initiate rulemaking to implement the Council's recommendations. § 665.808 Conditions for at-sea observer coverage.
(a)NMFS shall advise the permit holder or the designated agent of any observer requirement at least 24 hours (not including weekends and Federal holidays) before any trip for which NMFS received timely notice in compliance with these regulations.
(b)The “Notice Prior to Fishing Trip” requirements in this subpart commit the permit holder to the representations in the notice. The notice can be modified by the permit holder or designated agent because of changed circumstance, if the Regional Administrator is promptly provided a modification to the notice that complies with the notice requirements. The notice will also be considered modified if the Regional Administrator and the permit holder or designated agent agrees to placement changes.
(c)When NMFS notifies the permit holder or designated agent of the obligation to carry an observer in response to a notification under this subpart, or as a condition of an EFP issued under § 665.17, the vessel may not engage in the fishery without taking the observer.
(d)A NMFS observer shall arrive at the observer's assigned vessel 30 minutes before the time designated for departure in the notice or the notice as modified, and will wait 1 hour for departure.
(e)A permit holder must accommodate a NMFS observer assigned under these regulations. The Regional Administrator's office, and not the observer, will address any concerns raised over accommodations.
(f)The permit holder, vessel operator, and crew must cooperate with the observer in the performance of the observer's duties, including:
(1)Allowing for the embarking and debarking of the observer.
(2)Allowing the observer access to all areas of the vessel necessary to conduct observer duties.
(3)Allowing the observer access to communications equipment and navigation equipment as necessary to perform observer duties.
(4)Allowing the observer access to VMS units to verify operation, obtain data, and use the communication capabilities of the units for official purposes.
(5)Providing accurate vessel locations by latitude and longitude or loran coordinates, upon request by the observer.
(6)Providing sea turtle, marine mammal, or seabird specimens as requested.
(7)Notifying the observer in a timely fashion when commercial fishing operations are to begin and end.
(g)The permit holder, operator, and crew must comply with other terms and conditions to ensure the effective deployment and use of observers that the Regional Administrator imposes by written notice.
(h)The permit holder must ensure that assigned observers are provided living quarters comparable to crew members and are provided the same meals, snacks, and amenities as are normally provided to other vessel personnel. A mattress or futon on the floor or a cot is not acceptable if a regular bunk is provided to any crew member, unless other arrangements are approved in advance by the Regional Administrator.
(i)Reimbursement requirements are as follows:
(1)Upon observer verification of vessel accommodations and the number of assigned days on board, NMFS will reimburse vessel owners a reasonable amount for observer subsistence as determined by the Regional Administrator.
(2)If requested and properly documented, NMFS will reimburse the vessel owner for the following:
(i)Communications charges incurred by the observer.
(ii)Lost fishing time arising from a seriously injured or seriously ill observer, provided that notification of the nature of the emergency is transmitted to the Observer Program, NMFS (see address for PIRO Regional Administrator) at the earliest practical time. NMFS will reimburse the owner only for those days during which the vessel is unable to fish as a direct result of helping the NMFS employee who is seriously injured or seriously ill. Lost fishing time is based on time traveling to and from the fishing grounds and any documented out-of-pocket expenses for medical services. Payment will be based on the current target fish market prices and that vessel's average target fish catch retained per day at sea for the previous 2 years, but shall not exceed $5,000 per day or $20,000 per claim. Detailed billing with receipts and supporting records are required for allowable communication and lost fishing time claims. The claim must be completed in ink, showing the claimant's printed name, address, vessel name, observer name, trip dates, days observer was on board, an explanation of the charges, and claimant's dated signature with a statement verifying the claim to be true and correct. Requested reimbursement claims must be submitted to the Fisheries Observer Branch, Pacific Islands Region, NMFS. NMFS will not process reimbursement invoices and documentation submitted more than 120 days after the occurrence.
(j)If a vessel normally has cabins for crew members, female observers on a vessel with an all-male crew must be accommodated either in a single person cabin or, if NMFS concludes that adequate privacy can be ensured by installing a curtain or other temporary divider, in a two-person shared cabin. If the vessel normally does not have cabins for crew members, alternative accommodations must be approved by NMFS. If a cabin assigned to a female observer does not have its own toilet and shower facilities that can be provided for the exclusive use of the observer, or if no cabin is assigned, then arrangements for sharing common facilities must be established and approved in advance by NMFS. § 665.809 Port privileges and transiting for unpermitted U.S. longline vessels. A U.S. longline fishing vessel that does not have a permit under subpart A of this part may enter waters of the fishery management area with western Pacific pelagic MUS on board, but may not land or transship any western Pacific pelagic MUS on board the vessel. The vessel's longline gear must be stowed or secured so it is rendered unusable during the time the vessel is in those waters. § 665.810 Prohibition of drift gillnetting. Fishing with drift gillnets in the fishery management area is prohibited, except where authorized by an EFP issued under § 665.17. § 665.811 [Reserved] § 665.812 Sea turtle take mitigation measures.
(a)Possession and use of required mitigation gear. The gear required in paragraph
(a)of this section must be used according to the sea turtle handling requirements set forth in paragraph
(b)of this section.
(1)Hawaii longline limited access permits. Any owner or operator of a vessel registered for use under a Hawaii longline limited access permit must carry aboard the vessel line clippers meeting the minimum design standards specified in paragraph (a)(5) of this section, dip nets meeting the minimum design standards specified in paragraph (a)(6) of this section, and dehookers meeting the minimum design and performance standards specified in paragraph (a)(7) of this section.
(2)Other longline vessels with freeboards of more than 3 ft (0.91m). Any owner or operator of a longline vessel with a permit issued under § 665.801 other than a Hawaii limited access longline permit and that has a freeboard of more than 3 ft (0.91 m) must carry aboard the vessel line clippers meeting the minimum design standards specified in paragraph (a)(5) of this section, dip nets meeting the minimum design standards specified in paragraph (a)(6) of this section, and dehookers meeting this minimum design and performance standards specified in paragraph (a)(7) of this section.
(3)Other longline vessels with freeboards of 3 ft (0.91 m) or less. Any owner or operator of a longline vessel with a permit issued under § 665.801 other than a Hawaii limited access longline permit and that has a freeboard of 3 ft (0.91 m) or less must carry aboard their vessels line clippers capable of cutting the vessels fishing line or leader within approximately 1 ft (0.3 m) of the eye of an embedded hook, as well as wire or bolt cutters capable of cutting through the vessel's hooks.
(4)Handline, troll, pole-and-line, and other vessels using hooks other than longline vessels. Any owner or operator of a vessel fishing under the Pelagics FEP with hooks other than longline gear are not required to carry specific mitigation gear, but must comply with the handling requirements set forth in paragraph
(b)of this section.
(5)*Line clippers.* Line clippers are intended to cut fishing line as close as possible to hooked or entangled sea turtles. NMFS has established minimum design standards for line clippers. The Arceneaux line clipper
(ALC)is a model line clipper that meets these minimum design standards and may be fabricated from readily available and low-cost materials (see Figure 3 to this part). The minimum design standards are as follows:
(i)A protected cutting blade. The cutting blade must be curved, recessed, contained in a holder, or otherwise afforded some protection to minimize direct contact of the cutting surface with sea turtles or users of the cutting blade.
(ii)Cutting blade edge. The blade must be capable of cutting 2.0-2.1 mm monofilament line and nylon or polypropylene multistrand material commonly known as braided mainline or tarred mainline.
(iii)An extended reach holder for the cutting blade. The line clipper must have an extended reach handle or pole of at least 6 ft (1.82 m).
(iv)Secure fastener. The cutting blade must be securely fastened to the extended reach handle or pole to ensure effective deployment and use.
(6)*Dip nets.* Dip nets are intended to facilitate safe handling of sea turtles and access to sea turtles for purposes of cutting lines in a manner that minimizes injury and trauma to sea turtles. The minimum design standards for dip nets that meet the requirements of this section nets are:
(i)An extended reach handle. The dip net must have an extended reach handle of at least 6 ft (1.82 m) of wood or other rigid material able to support a minimum of 100 lb (34.1 kg) without breaking or significant bending or distortion.
(ii)Size of dip net. The dip net must have a net hoop of at least 31 inches (78.74 cm) inside diameter and a bag depth of at least 38 inches (96.52 cm). The bag mesh openings may be no more than 3 inches by 3 inches (7.62 cm by 7.62 cm).
(7)*Dehookers.*
(i)Long-handled dehooker for ingested hooks. This item is intended to be used to remove ingested hooks from sea turtles that cannot be boated, and to engage a loose hook when a turtle is entangled but not hooked and line is being removed. One long-handled dehooker for ingested hooks is required on board. The minimum design and performance standards are as follows:
(A)*Hook removal device.* The hook removal device must be constructed of 5/16 inch (7.94 mm) 316L stainless steel and have a dehooking end no larger than 1 7/8 inches (4.76 cm) outside diameter. The device must be capable of securely engaging and controlling the leader while shielding the barb of the hook to prevent the hook from re-engaging during removal. It must not have any unprotected terminal points (including blunt ones), as these could cause injury to the esophagus during hook removal. The device must be of a size capable of securing the range of hook sizes and styles used by the vessel.
(B)*Extended reach handle.* The hook removal device must be securely fastened to an extended reach handle or pole with a length equal to or greater than 150 percent of the vessel's freeboard or 6 ft (1.83 m), whichever is greater. It is recommended that the handle be designed so that it breaks down into sections. The handle must be sturdy and strong enough to facilitate the secure attachment of the hook removal device.
(ii)Long-handled dehooker for external hooks. This item is intended to be used to remove externally-hooked hooks from sea turtles that cannot be boated. The long-handled dehooker for ingested hooks described in paragraph (a)(7)(i) of this section meets this requirement. The minimum design and performance standards are as follows:
(A)*Construction.* The device must be constructed of 5/16 inch (7.94 mm) 316 L stainless steel rod. A 5 inch (12.70 cm) tube T-handle of 1 inch (2.54 cm) outside diameter is recommended, but not required. The dehooking end must be blunt with all edges rounded. The device must be of a size capable of securing the range of hook sizes and styles used by the vessel.
(B)*Handle.* The handle must have a length equal to or greater than the vessel's freeboard or 3 ft (0.91 m), whichever is greater.
(iii)Long-handled device to pull an “inverted V.” This item is intended to be used to pull an “inverted V” in the fishing line when disentangling and dehooking entangled sea turtles. One long-handled device to pull an “inverted V” is required on the vessel. The minimum design and performance standards are as follows:
(A)*Hook end.* It must have a hook-shaped end, like that of a standard boat hook or gaff, which must be constructed of stainless steel or aluminum.
(B)*Handle.* The handle must have a length equal to or greater than 150 percent of the vessel's freeboard or 6 ft (1.83 m), whichever is greater. The handle must be sturdy and strong enough to allow the hook end to be effectively used to engage and pull an “inverted V” in the line.
(C)The long-handled dehookers described in paragraphs (a)(7)(i) and
(ii)of this section meet this requirement.
(iv)Short-handled dehooker for ingested hooks. This item is intended to be used to remove ingested hooks, externally hooked hooks, and hooks in the front of the mouth of sea turtles that can be boated. One short-handled dehooker for ingested hooks is required on board. The minimum design and performance standards are as follows:
(A)*Hook removal device.* The hook removal device must be constructed of 1/4 inch (6.35 mm) 316 L stainless steel, and the design of the dehooking end must be such to allow the hook to be secured and the barb shielded without re-engaging during the hook removal process. The dehooking end must be no larger than 1-5/16 inch (3.33 cm) outside diameter. It must not have any unprotected terminal points (including blunt ones), as this could cause injury to the esophagus during hook removal. The dehooking end must be of a size appropriate to secure the range of hook sizes and styles used by the vessel.
(B)*Sliding plastic bite block.* The dehooker must have a sliding plastic bite block, which is intended to be used to protect the sea turtle's beak and facilitate hook removal if the turtle bites down on the dehooker. The bite block must be constructed of a 3/4 inch (1.91 cm) inside diameter high impact plastic cylinder (for example, Schedule 80 PVC) that is 10 inches (25.40 cm) long. The dehooker and bite block must be configured to allow for 5 inches (12.70 cm) of slide of the bite block along the shaft of the dehooker.
(C)*Shaft and handle.* The shaft must be 16 to 24 inches (40.64 to 60.69 cm) in length, and must have a T-handle 4 to 6 inches (10.16 to 15.24 cm) in length and 3/4 to 1 1/4 inches (1.90 to 3.18 cm) in diameter.
(v)Short-handled dehooker for external hooks. This item is intended to be used to remove externally hooked hooks from sea turtles that can be boated. One short-handled dehooker for external hooks is required on board. The short-handled dehooker for ingested hooks required to comply with paragraph (a)(7)(v) of this section meets this requirement. The minimum design and performance standards are as follows:
(A)*Hook removal device.* The hook removal device must be constructed of 5/16 inch (7.94 cm) 316 L stainless steel, and the design must be such that a hook can be rotated out without pulling it out at an angle. The dehooking end must be blunt, and all edges rounded. The device must be of a size appropriate to secure the range of hook sizes and styles used by the vessel.
(B)*Shaft and handle.* The shaft must be 16 to 24 inches (40.64 to 60.69 cm) in length, and must have a T-handle 4 to 6 inches (10.16 to 15.24 cm) in length and 3/4 to 1 1/4 inches (1.90 to 3.18 cm) in diameter.
(8)Tire. This item is intended to be used for supporting a turtle in an upright orientation while it is on board. One tire is required on board, but an assortment of sizes is recommended to accommodate a range of turtle sizes. The tire must be a standard passenger vehicle tire and must be free of exposed steel belts.
(9)Long-nose or needle-nose pliers. This item is intended to be used to remove deeply embedded hooks from the turtle's flesh that must be twisted in order to be removed, and also to hold in place PVC splice couplings when used as mouth openers. One pair of long-nose or needle-nose pliers is required on board. The minimum design standards are as follows: The pliers must be 8 to 14 inches (20.32 to 35.56 cm) in length. It is recommended that they be constructed of stainless steel material.
(10)Wire or bolt cutters. This item is intended to be used to cut through hooks in order to remove all or part of the hook. One pair of wire or bolt cutters is required on board. The minimum design and performance standards are as follows: The wire or bolt cutters must be capable of cutting hard metals, such as stainless or carbon steel hooks, and they must be capable of cutting through the hooks used by the vessel.
(11)Monofilament line cutters. This item is intended to be used to cut and remove fishing line as close to the eye of the hook as possible if the hook is swallowed or cannot be removed. One pair of monofilament line cutters is required on board. The minimum design standards are as follows: Monofilament line cutters must be 6 to 9 inches (15.24 to 22.86 cm) in length. The blades must be 1 3/4 (4.45 cm) in length and 5/8 inches (1.59 cm) wide when closed.
(12)Mouth openers and gags. These items are intended to be used to open the mouths of boated sea turtles, and to keep them open when removing ingested hooks in a way that allows the hook or line to be removed without causing further injury to the turtle. At least two of the seven different types of mouth openers and gags described below are required on board. The seven types and their minimum design standards are as follows.
(i)A block of hard wood. A block of hard wood is intended to be used to gag open a turtle's mouth by placing it in the corner of the jaw. It must be made of hard wood of a type that does not splinter (for example, maple), and it must have rounded and smoothed edges. The dimensions must be 10 to 12 inches (24.50 to 30.48 cm) by 3/4 to 1 1/4 inches (1.90 to 3.18 cm) by 3/4 to 1 1/4 inches (1.90 to 3.18 cm).
(ii)A set of three canine mouth gags. A canine mouth gag is intended to be used to gag open a turtle's mouth while allowing hands-free operation after it is in place. A set of canine mouth gags must include one of each of the following sizes: small (5 inches, 12.7 cm), medium (6 inches, 15.2 cm), and large (7 inches, 17.8 cm). They must be constructed of stainless steel. A 1 3/4 inch (4.45 cm) long piece of vinyl tubing ( 3/4 inch, 1.91 cm) outside diameter and 5/8 inch (1.59 cm) inside diameter) must be placed over the ends of the gags to protect the turtle's beak.
(iii)A set of two sturdy canine chew bones. A canine chew bone is intended to be used to gag open a turtle's mouth by placing it in the corner of the jaw. They must be constructed of durable nylon, zylene resin, or thermoplastic polymer, and strong enough to withstand biting without splintering. To accommodate a variety of turtle beak sizes, a set must include one large (5 1/2 to 8 inches (13.97 to 20.32 cm) in length) and one small (3 1/2 to 4 1/2 inches (8.89 to 11.43 cm) in length) canine chew bones.
(iv)A set of two rope loops covered with hose. A set of two rope loops covered with a piece of hose is intended to be used as a mouth opener and to keep a turtle's mouth open during hook and/or line removal. A set consists of two 3-foot (0.91 m) lengths of poly braid rope, each covered with an 8 inch (20.32 cm) section of 1/2 inch (1.27 cm) or 3/4 inch (1.91 cm) light-duty garden hose, and each tied into a loop.
(v)A hank of rope. A hank of rope is intended to be used to gag open a sea turtle's mouth by placing it in the corner of the jaw. A hank of rope is made from a 6 foot (1.83 m) lanyard of braided nylon rope that is folded to create a hank, or looped bundle, of rope. The hank must be 2 to 4 inches (5.08 to 10.16 cm) in thickness.
(vi)A set of four PVC splice couplings. PVC splice couplings are intended to be used to allow access to the back of the mouth of a turtle for hook and line removal by positioning them inside a turtle's mouth and holding them in place with long-nose or needle-nose pliers. The set must consist of the following Schedule 40 PVC splice coupling sizes: 1 inch (2.54 cm), 1 1/4 inches (3.18 cm), 1 1/2 inches (3.81 cm), and 2 inches (5.08 cm).
(vii)A large avian oral speculum. A large avian oral speculum is intended to be used to hold a turtle's mouth open and control the head with one hand while removing a hook with the other hand. It must be 9 inches (22.86 cm) in length and constructed of 3/16 inch (4.76 mm) wire diameter surgical stainless steel (Type 304). It must be covered with 8 inches (20.32 cm) of clear vinyl tubing 5/16 inch (7.94 mm) outside diameter, 3/16 inch (4.76 mm) inside diameter.
(b)Handling requirements. If a sea turtle is observed to be hooked or entangled in fishing gear from any vessel fishing under the Pelagics FEP, vessel owners and operators must use the required mitigation gear set forth in paragraph
(a)of this section to comply with these handling requirements. Any hooked or entangled sea turtle must be handled in a manner to minimize injury and promote survival.
(1)Sea turtles that cannot be brought aboard. In instances where a sea turtle is too large to be brought aboard or the sea turtle cannot be brought aboard without causing further injury to the sea turtle, the vessel owner or operator must disentangle and remove the gear, or cut the line as close as possible to the hook or entanglement, to remove the maximum amount of the gear from the sea turtle.
(2)Sea turtles that can be brought aboard. In instances where a sea turtle is not too large to be brought aboard, or the sea turtle can be brought aboard without causing further injury to the turtle, the vessel owner or operator must take the following actions:
(i)Immediately bring the sea turtle aboard;
(ii)Handle the sea turtle in accordance with the procedures in paragraphs (b)(3) and (b)(4) of this section; and
(iii)Disentangle and remove the gear, or cut the line as close as possible to the hook or entanglement, to remove the maximum amount of the gear from the sea turtle.
(3)*Sea turtle resuscitation.* If a sea turtle appears dead or comatose, the following actions must be taken:
(i)Place the sea turtle on its belly (on the bottom shell or plastron) so that the sea turtle is right side up and its hindquarters elevated at least 6 inches (15.24 cm) for a period of no less than 4 hours and no more than 24 hours. The amount of the elevation varies with the size of the sea turtle; greater elevations are needed for larger sea turtles;
(ii)Administer a reflex test at least once every 3 hours. The test is to be performed by gently touching the eye and pinching the tail of a sea turtle to determine if the sea turtle is responsive;
(iii)Keep the sea turtle shaded and damp or moist (but under no circumstances place the sea turtle into a container holding water). A water-soaked towel placed over the eyes, carapace and flippers is the most effective method of keeping a sea turtle moist; and
(iv)Return to the sea any sea turtle that revives and becomes active in the manner described in paragraph (b)(4) of this section. Sea turtles that fail to revive within the 24-hour period must also be returned to the sea in the manner described in paragraph (b)(4) of this section.
(4)*Sea turtle release.* After handling a sea turtle in accordance with the requirements of paragraphs (b)(2) and (b)(3) of this section, the sea turtle must be returned to the ocean after identification unless NMFS requests the retention of a dead sea turtle for research. In releasing a sea turtle the vessel owner or operator must:
(i)Place the vessel engine in neutral gear so that the propeller is disengaged and the vessel is stopped, and release the sea turtle away from deployed gear; and
(ii)Observe that the turtle is safely away from the vessel before engaging the propeller and continuing operations.
(5)Other sea turtle requirements. No sea turtle, including a dead turtle, may be consumed or sold. A sea turtle may be landed, offloaded, transshipped or kept below deck only if NMFS requests the retention of a dead sea turtle for research. § 665.813 Western Pacific longline fishing restrictions.
(a)[ *Reserved* ]
(b)Limits on sea turtle interactions.
(1)Maximum annual limits are established on the number of physical interactions that occur each calendar year between leatherback and loggerhead sea turtles and vessels registered for use under Hawaii longline limited access permits while shallow-setting.
(i)The annual limit for leatherback sea turtles ( *Dermochelys coriacea* ) is 16, and the annual limit for loggerhead sea turtles ( *Caretta caretta* ) is 46.
(ii)If any annual sea turtle interaction limit in paragraph (b)(i) of this section is exceeded in a calendar year, the annual limit for that sea turtle species will be adjusted downward the following year by the number of interactions by which the limit was exceeded.
(iii)No later than January 31 of each year the Regional Administrator will publish a notice in the **Federal Register** of the applicable annual sea turtle interaction limits established pursuant to paragraphs (b)(i) and (b)(ii) of this section.
(2)Upon determination by the Regional Administrator that, based on data from NMFS observers, either of the two sea turtle interaction limits has been reached during a given calendar year:
(i)As soon as practicable, the Regional Administrator will file for publication at the Office of the Federal Register a notification of the sea turtle interaction limit having been reached. The notification will include an advisement that the shallow-set component of the longline fishery shall be closed, and that shallow-set longline fishing north of the Equator by vessels registered for use under Hawaii longline limited access permits will be prohibited beginning at a specified date, until the end of the calendar year in which the sea turtle interaction limit was reached. Coincidental with the filing of the notification, the Regional Administrator will also provide actual notice that the shallow-set component of the longline fishery shall be closed, and that shallow-set longline fishing north of the Equator by vessels registered for use under Hawaii longline limited access permits will be prohibited beginning at a specified date, to all holders of Hawaii longline limited access permits via telephone, satellite telephone, radio, electronic mail, facsimile transmission, or post.
(ii)Beginning on the fishery closure date indicated by the Regional Administrator in the notification provided to vessel operators and permit holders and published in the **Federal Register** under paragraph (b)(2)(i) of this section, until the end of the calendar year in which the sea turtle interaction limit was reached, the Hawaii-based shallow-set component of the longline fishery shall be closed.
(c)[ *Reserved* ]
(d)Vessels registered for use under a Hawaii longline limited access permit may not have on board at any time during a trip for which notification to NMFS under § 665.803(a) indicated that deep-setting would be done any float lines less than 20 meters in length or light sticks. As used in this paragraph “float line” means a line used to suspend the main longline beneath a float and “light stick” means any type of light emitting device, including any fluorescent “glow bead,” chemical, or electrically powered light that is affixed underwater to the longline gear.
(e)[ *Reserved* ]
(f)Any owner or operator of a vessel registered for use under any longline permit issued under § 665.801 must use only circle hooks sized 18/0 or larger, with an offset not to exceed 10 degrees, when shallow-setting north of the Equator (0° lat.). As used in this paragraph, an offset circle hook sized 18/0 or larger is one with an outer diameter at its widest point no smaller than 1.97 inches (50 mm) when measured with the eye of the hook on the vertical axis (y-axis) and perpendicular to the horizontal axis (x-axis). As used in this paragraph, the allowable offset is measured from the barbed end of the hook, and is relative to the parallel plane of the eyed-end, or shank, of the hook when laid on its side.
(g)Any owner or operator of a vessel registered for use under any longline permit issued under § 665.801 must use only mackerel-type bait when shallow-setting north of the Equator (0° lat.). As used in this paragraph, mackerel-type bait means a whole fusiform fish with a predominantly blue, green or gray back and predominantly gray, silver or white lower sides and belly.
(h)Owners and operators of vessels registered for use under a Hawaii longline limited access permit may make sets only of the type (shallow-setting or deep-setting) indicated in the notification to NMFS pursuant to § 665.803(a).
(i)Vessels registered for use under Hawaii longline limited access permits may not be used to engage in shallow-setting north of the Equator (0° lat.) any time during which the shallow-set component of the longline fishery is closed pursuant to paragraph (b)(2)(ii) of this section.
(j)Owners and operators of vessels registered for use under a Hawaii longline limited access permit may land or possess no more than 10 swordfish from a fishing trip for which the permit holder notified NMFS under § 665.803(a) that the vessel would engage in a deep-setting trip. § 665.814 Protected species workshop.
(a)Each year, both the owner and the operator of a vessel registered for use under any longline permit issued under § 665.801 must attend and be certified for completion of a workshop conducted by NMFS on interaction mitigation techniques for sea turtles, seabirds and other protected species.
(b)A protected species workshop certificate will be issued by NMFS annually to any person who has completed the workshop.
(c)An owner of a vessel registered for use under any longline permit issued under § 665.801 must have a valid protected species workshop certificate issued by NMFS to the owner of the vessel, in order to maintain or renew their vessel registration.
(d)An owner and an operator of a vessel registered for use under any longline permit issued under § 665.801 must have on board the vessel a valid protected species workshop certificate issued by NMFS to the operator of the vessel, or a legible copy thereof. § 665.815 Pelagic longline seabird mitigation measures.
(a)*Seabird mitigation techniques.* When deep-setting or shallow-setting north of 23° N. lat. or shallow-setting south of 23° N. lat., owners and operators of vessels registered for use under a Hawaii longline limited access permit, must either side-set according to paragraph (a)(1) of this section, or fish in accordance with paragraph (a)(2) of this section.
(1)Side-setting. Owners and operators of vessels opting to side-set under this section must fish according to the following specifications:
(i)The mainline must be deployed as far forward on the vessel as practicable, and at least 1 m (3.3 ft) forward from the stern of the vessel;
(ii)The mainline and branch lines must be set from the port or the starboard side of the vessel;
(iii)If a mainline shooter is used, the mainline shooter must be mounted as far forward on the vessel as practicable, and at least 1 m (3.3 ft) forward from the stern of the vessel;
(iv)Branch lines must have weights with a minimum weight of 45 g (1.6 oz);
(v)One weight must be connected to each branch line within 1 m (3.3 ft) of each hook;
(vi)When seabirds are present, the longline gear must be deployed so that baited hooks remain submerged and do not rise to the sea surface; and
(vii)A bird curtain must be deployed. Each bird curtain must consist of the following three components: a pole that is fixed to the side of the vessel aft of the line shooter and which is at least 3 m (9.8 ft) long; at least three main streamers that are attached at regular intervals to the upper 2 m (6.6 ft) of the pole and each of which has a minimum diameter of 20 mm (0.8 in); and branch streamers attached to each main streamer at the end opposite from the pole, each of which is long enough to drag on the sea surface in the absence of wind, and each of which has a minimum diameter 10 mm (0.4 in).
(2)Alternative to side-setting. Owners and operators of vessels that do not side-set must do the following:
(i)Discharge fish, fish parts (offal), or spent bait while setting or hauling longline gear, on the opposite side of the vessel from where the longline gear is being set or hauled, when seabirds are present;
(ii)Retain sufficient quantities of fish, fish parts, or spent bait between the setting of longline gear for the purpose of strategically discharging it in accordance with paragraph (a)(2)(i) of this section;
(iii)Remove all hooks from fish, fish parts, or spent bait prior to its discharge in accordance with paragraph (a)(2)(i) of this section;
(iv)Remove the bill and liver of any swordfish that is caught, sever its head from the trunk and cut it in half vertically and periodically discharge the butchered heads and livers in accordance with paragraph (a)(2)(i) of this section;
(v)When using basket-style longline gear north of 23° N. lat., ensure that the main longline is deployed slack to maximize its sink rate;
(vi)Use completely thawed bait that has been dyed blue to an intensity level specified by a color quality control card issued by NMFS;
(vii)Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb size) containing blue dye on board the vessel; and
(viii)Follow the requirements in paragraphs (a)(3) and (a)(4) of this section, as applicable.
(3)Deep-setting requirements. The following additional requirements apply to vessels engaged in deep-setting using a monofilament main longline north of 23° N. lat. that do not side-set. Owners and operators of these vessels must do the following:
(i)Employ a line shooter; and
(ii)Attach a weight of at least 45 g (1.6 oz) to each branch line within 1 m (3.3 ft) of the hook.
(4)Shallow-setting requirement. In addition to the requirements set forth in paragraphs (a)(1) and (a)(2) of this section, owners and operators of vessels engaged in shallow-setting that do not side-set must begin the deployment of longline gear at least 1 hour after local sunset and complete the deployment no later than local sunrise, using only the minimum vessel lights to conform with navigation rules and best safety practices.
(b)Short-tailed albatross handling techniques. If a short-tailed albatross is hooked or entangled by a vessel registered for use under a Hawaii longline limited access permit, owners and operators must ensure that the following actions are taken:
(1)Stop the vessel to reduce the tension on the line and bring the bird on board the vessel using a dip net;
(2)Cover the bird with a towel to protect its feathers from oils or damage while being handled;
(3)Remove any entangled lines from the bird; and
(4)Determine if the bird is alive or dead.
(i)If dead, freeze the bird immediately with an identification tag attached directly to the specimen listing the species, location and date of mortality, and band number if the bird has a leg band. Attach a duplicate identification tag to the bag or container holding the bird. Any leg bands present must remain on the bird. Contact NMFS, the USCG, or the USFWS at the numbers listed on the Short-tailed Albatross Handling Placard distributed at the NMFS protected species workshop, inform them that you have a dead short-tailed albatross on board, and submit the bird to NMFS within 72 hours following completion of the fishing trip.
(ii)If alive, handle the bird in accordance with paragraphs (b)(5) through
(11)of this section.
(5)Place the bird in a safe enclosed place;
(6)Immediately contact NMFS, the USCG, or the USFWS at the numbers listed on the Short-tailed Albatross Handling Placard distributed at the NMFS protected species workshop and request veterinary guidance;
(7)Follow the veterinary guidance regarding the handling and release of the bird;
(8)If the bird is externally hooked and no veterinary guidance is received within 24-48 hours, handle the bird in accordance with paragraphs (c)(4) and (c)(5) of this section, and release the bird only if it meets the following criteria:
(i)Able to hold its head erect and respond to noise and motion stimuli;
(ii)Able to breathe without noise;
(iii)Capable of flapping and retracting both wings to normal folded position on its back;
(iv)Able to stand on both feet with toes pointed forward; and
(v)Feathers are dry.
(9)Any seabird that is released in accordance with paragraph (b)(8) of this section or under the guidance of a veterinarian must be placed on the sea surface;
(10)If the hook has been ingested or is inaccessible, keep the bird in a safe, enclosed place and submit it to NMFS immediately upon the vessel's return to port. Do not give the bird food or water; and
(11)Complete the short-tailed albatross recovery data form issued by NMFS.
(c)Non-short-tailed albatross seabird handling techniques. If a seabird other than a short-tailed albatross is hooked or entangled by a vessel registered for use under a Hawaii longline limited access permit owners and operators must ensure that the following actions are taken:
(1)Stop the vessel to reduce the tension on the line and bring the seabird on board the vessel using a dip net;
(2)Cover the seabird with a towel to protect its feathers from oils or damage while being handled;
(3)Remove any entangled lines from the seabird;
(4)Remove any external hooks by cutting the line as close as possible to the hook, pushing the hook barb out point first, cutting off the hook barb using bolt cutters, and then removing the hook shank;
(5)Cut the fishing line as close as possible to ingested or inaccessible hooks;
(6)Leave the bird in a safe enclosed space to recover until its feathers are dry; and
(7)After recovered, release seabirds by placing them on the sea surface. § 665.816 American Samoa longline limited entry program.
(a)*General.* Under § 665.801(c), certain U.S. vessels are required to be registered for use under a valid American Samoa longline limited access permit. With the exception of reductions in permits in vessel size Class A under paragraph (c)(1) of this section, the maximum number of permits will be capped at the number of initial permits actually issued under paragraph
(f)of this section.
(b)*Terminology.* For purposes of this section, the following terms have these meanings:
(1)Documented participation means participation proved by, but not necessarily limited to, a properly submitted NMFS or American Samoa logbook, an American Samoa creel survey record, a delivery or payment record from an American Samoa-based cannery, retailer or wholesaler, an American Samoa tax record, an individual wage record, ownership title, vessel registration, or other official documents showing:
(i)Ownership of a vessel that was used to fish in the EEZ around American Samoa, or
(ii)Evidence of work on a fishing trip during which longline gear was used to harvest western Pacific pelagic MUS in the EEZ around American Samoa. If the applicant does not possess the necessary documentation of evidence of work on a fishing trip based on records available only from NMFS or the Government of American Samoa ( *e.g.,* creel survey record or logbook), the applicant may issue a request to PIRO to obtain such records from the appropriate agencies, if available. The applicant should provide sufficient information on the fishing trip to allow PIRO to retrieve the records.
(2)Family means those people related by blood, marriage, and formal or informal adoption.
(c)Vessel size classes. The Regional Administrator shall issue American Samoa longline limited access permits in the following size classes:
(1)Class A: Vessels less than or equal to 40 ft (12.2 m) LOA. The maximum number will be reduced as Class B-1, C-1, and D-1 permits are issued under paragraph (f)(5) of this section.
(2)Class B: Vessels over 40 ft (12.2 m) to 50 ft (15.2 m) LOA.
(3)Class B-1: Maximum number of 14 permits for vessels over 40 ft (12.2 m) to 50 ft (15.2 m) LOA, to be made available according to the following schedule:
(i)Four permits in the first calendar year after the Regional Administrator has issued all initial permits in Classes A, B, C, and D (initial issuance);
(ii)In the second calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first four, plus four additional permits;
(iii)In the third calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first eight, plus four additional permits; and
(iv)In the fourth calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first 12, plus two additional permits.
(4)Class C: Vessels over 50 ft (15.2 m) to 70 ft (21.3 m) LOA.
(5)Class C-1: Maximum number of six permits for vessels over 50 ft (15.2) to 70 ft (21.3 m) LOA, to be made available according to the following schedule:
(i)Two permits in the first calendar year after initial issuance;
(ii)In the second calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first two, plus two additional permits; and
(iii)In the third calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first four, plus two additional permits.
(6)Class D: Vessels over 70 ft (21.3 m) LOA.
(7)Class D-1: Maximum number of 6 permits for vessels over 70 ft (21.3 m) LOA, to be made available according to the following schedule:
(i)Two permits in the first calendar year after initial issuance;
(ii)In the second calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first two, plus two additional permits; and
(iii)In the third calendar year after initial issuance, any unissued, relinquished, or revoked permits of the first four, plus two additional permits.
(d)A vessel subject to this section may only be registered with an American Samoa longline limited access permit of a size class equal to or larger than the vessel's LOA.
(e)Initial permit qualification. Any U.S. national or U.S. citizen or company, partnership, or corporation qualifies for an initial American Samoa longline limited access permit if the person, company, partnership, or corporation, on or prior to March 21, 2002, owned a vessel that was used during the time of their ownership to harvest western Pacific pelagic MUS with longline gear in the EEZ around American Samoa, and that fish was landed in American Samoa:
(1)Prior to March 22, 2002; or
(2)Prior to June 28, 2002, provided that the person or business provided to NMFS or the Council, prior to March 22, 2002, a written notice of intent to participate in the pelagic longline fishery in the EEZ around American Samoa.
(f)Initial permit issuance.
(1)Any application for issuance of an initial permit must be submitted to PIRO no later than 120 days after the effective date of this final rule. The Regional Administrator shall publish a notice in the **Federal Register,** send notices to persons on the American Samoa pelagics mailing list, and use other means to notify prospective applicants of the availability of permits. Applications for initial permits must be made, and application fees paid, in accordance with §§ 665.13(c)(1), 665.13 (d), and 665.13 (f)(2). A complete application must include documented participation in the fishery in accordance with § 665.816(b)(1). If the applicant is any entity other than a sole owner, the application must be accompanied by a supplementary information sheet obtained from the Regional Administrator, containing the names and mailing addresses of all owners, partners, and corporate officers.
(2)Only permits of Class A, B, C, and D will be made available for initial issuance. Permits of Class B-1, C-1, and D-1, will be made available in subsequent calendar years.
(3)Within 30 days of receipt of a completed application, the Assistant Regional Administrator for Sustainable Fisheries, PIRO, shall make a decision on whether the applicant qualifies for an initial permit and will notify the successful applicant by a dated letter. The successful applicant must register a vessel, of the equivalent size class or smaller to which the qualifying vessel would have belonged, to the permit within 120 days of the date of the letter of notification, and maintain this vessel registration to the permit for at least 120 days. The successful applicant must also submit a supplementary information sheet, obtained from the Regional Administrator, containing the name and mailing address of the owner of the vessel to which the permit is registered. If the registered vessel is owned by any entity other than a sole owner, the names and mailing addresses of all owners, partners, and corporate officers must be included.
(4)An appeal of a denial of an application for an initial permit shall be processed in accordance with § 665.801(o) of this subpart.
(5)After all appeals on initial permits are concluded in any vessel size class, the maximum number of permits in that class shall be the number of permits issued during the initial issuance process (including appeals). The maximum number of permits will not change, except that the maximum number of Class A permits will be reduced if Class A permits are replaced by B-1, C-1, or D-1 permits under paragraph
(h)of this section. Thereafter, if any Class A, B, C, or D permit becomes available, the Regional Administrator shall re-issue that permit according to the process set forth in paragraph
(g)of this section.
(g)Additional permit issuance.
(1)If the number of permits issued in Class A, B, C, or D, falls below the maximum number of permits, the Regional Administrator shall publish a notice in the **Federal Register,** send notices to persons on the American Samoa pelagics mailing list, and use other means to notify prospective applicants of any available permit(s) in that class. Any application for issuance of an additional permit must be submitted to PIRO no later than 120 days after the date of publication of the notice on the availability of additional permits in the **Federal Register.** A complete application must include documented participation in the fishery in accordance with § 665.816(b)(1). The Regional Administrator shall issue permits to persons according to the following priority standard:
(i)First priority accrues to the person with the earliest documented participation in the pelagic longline fishery in the EEZ around American Samoa on a Class A sized vessel.
(ii)The next priority accrues to the person with the earliest documented participation in the pelagic longline fishery in the EEZ around American Samoa on a Class B size, Class C size, or Class D size vessel, in that order.
(iii)In the event of a tie in the priority ranking between two or more applicants, the applicant whose second documented participation in the pelagic longline fishery in the EEZ around American Samoa is first in time will be ranked first in priority. If there is still a tie between two or more applicants, the Regional Administrator will select the successful applicant by an impartial lottery.
(2)Applications must be made, and application fees paid, in accordance with §§ 665.13(c)(1), 665.13(d), and 665.13(f)(2). If the applicant is any entity other than a sole owner, the application must be accompanied by a supplementary information sheet, obtained from the Regional Administrator, containing the names and mailing addresses of all owners, partners, and corporate officers that comprise ownership of the vessel for which the permit application is prepared.
(3)Within 30 days of receipt of a completed application, the Assistant Regional Administrator for Sustainable Fisheries shall make a decision on whether the applicant qualifies for a permit and will notify the successful applicant by a dated letter. The successful applicant must register a vessel of the equivalent vessel size or smaller to the permit within 120 days of the date of the letter of notification. The successful applicant must also submit a supplementary information sheet, obtained from the Regional Administrator, containing the name and mailing address of the owner of the vessel to which the permit is registered. If the registered vessel is owned by any entity other than a sole owner, the names and mailing addresses of all owners, partners, and corporate officers must be included. If the successful applicant fails to register a vessel to the permit within 120 days of the date of the letter of notification, the Assistant Regional Administrator for Sustainable Fisheries shall issue a letter of notification to the next person on the priority list or, in the event that there are no more prospective applicants on the priority list, re-start the issuance process pursuant to paragraph (g)(1) of this section. Any person who fails to register the permit to a vessel under this paragraph (g)(3) within 120 days shall not be eligible to apply for a permit for 6 months from the date those 120 days expired.
(4)An appeal of a denial of an application for a permit shall be processed in accordance with § 665.801(o).
(h)Class B-1, C-1, and D-1 Permits.
(1)Permits of Class B-1, C-1, and D-1 will be initially issued only to persons who hold a Class A permit and who, prior to March 22, 2002, participated in the pelagic longline fishery around American Samoa.
(2)The Regional Administrator shall issue permits to persons for Class B-1, C-1, and D-1 permits based on each person's earliest documented participation, with the highest priority given to that person with the earliest date of documented participation.
(3)A permit holder who receives a Class B-1, C-1, or D-1 permit must relinquish his or her Class A permit and that permit will no longer be valid. The maximum number of Class A permits will be reduced accordingly.
(4)Within 30 days of receipt of a completed application for a Class B-1, C-1, and D-1 permit, the Regional Administrator shall make a decision on whether the applicant qualifies for a permit and will notify the successful applicant by a dated letter. The successful applicant must register a vessel of the equivalent vessel size or smaller to the permit within 120 days of the date of the letter of notification. The successful applicant must also submit a supplementary information sheet, obtained from the Regional Administrator, containing the name and mailing address of the owner of the vessel to which the permit is registered. If the registered vessel is owned by any entity other than a sole owner, the names and mailing addresses of all owners, partners, and corporate officers must be included.
(5)An appeal of a denial of an application for a Class B-1, C-1, or D-1 permit shall be processed in accordance with § 665.801(o).
(6)If a Class B-1, C-1, or D-1 permit is relinquished, revoked, or not renewed pursuant to paragraph (j)(1) of this section, the Regional Administrator shall make that permit available according to the procedure described in paragraph
(g)of this section.
(i)Permit transfer. The holder of an American Samoa longline limited access permit may transfer the permit to another individual, partnership, corporation, or other entity as described in this section. Applications for permit transfers must be submitted to the Regional Administrator within 30 days of the transfer date. If the applicant is any entity other than a sole owner, the application must be accompanied by a supplementary information sheet, obtained from the Regional Administrator, containing the names and mailing addresses of all owners, partners, and corporate officers. After such an application has been made, the permit is not valid for use by the new permit holder until the Regional Administrator has issued the permit in the new permit holder's name under § 665.13(c).
(1)Permits of all size classes except Class A. An American Samoa longline limited access permit of any size class except Class A may be transferred (by sale, gift, bequest, intestate succession, barter, or trade) to the following persons only:
(i)A western Pacific community located in American Samoa that meets the criteria set forth in § 305(I)(2) of the Magnuson-Stevens Act, 16 U.S.C. § 1855(I)(2), and its implementing regulations, or
(ii)Any person with documented participation in the pelagic longline fishery in the EEZ around American Samoa.
(2)Class A Permits. An American Samoa longline limited access permit of Class A may be transferred (by sale, gift, bequest, intestate succession, barter, or trade) to the following persons only:
(i)A family member of the permit holder,
(ii)A western Pacific community located in American Samoa that meets the criteria set forth in § 305(I)(2) of the Magnuson-Stevens Act, 16 U.S.C. 1855, and its implementing regulations, or
(iii)Any person with documented participation in the pelagic longline fishery on a Class A size vessel in the EEZ around American Samoa prior to March 22, 2002.
(3)Class B-1, C-1, and D-1 Permits. Class B-1, C-1, and D-1 permits may not be transferred to a different owner for 3 years from the date of initial issuance, except by bequest or intestate succession if the permit holder dies during those 3 years. After the initial 3 years, Class B-1, C-1, and D-1 permits may be transferred only in accordance with the restrictions in paragraph (i)(1) of this section.
(j)Permit renewal and registration of vessels.
(1)Use requirements. An American Samoa longline limited access permit will not be renewed following 3 consecutive calendar years (beginning with the year after the permit was issued in the name of the current permit holder) in which the vessel(s) to which it is registered landed less than:
(i)For permit size Classes A or B: a total of 1,000 lb (455 kg) of western Pacific pelagic MUS harvested in the EEZ around American Samoa using longline gear, or
(ii)For permit size Classes C or D: a total of 5,000 lb (2,273 kg) of western Pacific pelagic MUS harvested in the EEZ around American Samoa using longline gear.
(2)[Reserved]
(k)Concentration of ownership of permits. No more than 10 percent of the maximum number of permits, of all size classes combined, may be held by the same permit holder. Fractional interest will be counted as a full permit for the purpose of calculating whether the 10-percent standard has been reached.
(l)Three year review. Within 3 years of the effective date of this final rule, the Council shall consider appropriate revisions to the American Samoa limited entry program after reviewing the effectiveness of the program with respect to its biological and socioeconomic objectives, concerning gear conflict, overfishing, enforceability, compliance, and other issues. § 665.817 American Samoa pelagic fishery area management.
(a)*Large vessel prohibited areas.* A large vessel of the United States may not be used to fish for western Pacific pelagic MUS in the American Samoa large vessel prohibited areas as defined in paragraphs
(b)and
(c)of this section, except as allowed pursuant to an exemption issued under § 665.818.
(b)*Tutuila Island, Manu'a Islands, and Rose Atoll (AS-1).* The large vessel prohibited area around Tutuila Island, the Manu'a Islands, and Rose Atoll consists of the waters of the EEZ around American Samoa enclosed by straight lines connecting the following coordinates: Point S. lat. W. long. AS-1-A 13°30′ 167°25′ AS-1-B 15°13′ 167°25′ and from Point AS-1-A westward along the latitude 13°30′ S. until intersecting the U.S. EEZ boundary with Samoa, and from Point AS-1-B westward along the latitude 15°13′ S. until intersecting the U.S. EEZ boundary with Samoa.
(c)Swains Island (AS-2). The large vessel prohibited area around Swains Island consists of the waters of the EEZ around American Samoa enclosed by straight lines connecting the following coordinates: Point S. lat. W. long. AS-2-A 11°48′ 171°50′ AS-2-B 11°48′ 170°20′ and from Point AS-2-A northward along the longitude 171°50′ W. until intersecting the U.S. EEZ boundary with Tokelau, and from Point AS-2-B northward along the longitude 170°20′ W. until intersecting the U.S. EEZ boundary with Tokelau. § 665.818 Exemptions for American Samoa large vessel prohibited areas.
(a)An exemption will be issued to a person who currently owns a large vessel to use that vessel to fish for western Pacific pelagic MUS in the American Samoa large vessel prohibited management areas, if the person seeking the exemption had been the owner of that vessel when it was registered for use with a Western Pacific general longline permit, and has made at least one landing of western Pacific pelagic MUS in American Samoa on or prior to November 13, 1997.
(b)A landing of western Pacific pelagic MUS for the purpose of this section must have been properly recorded on a NMFS Western Pacific Federal daily longline form that was submitted to NMFS, as required in § 665.14.
(c)An exemption is valid only for a vessel that was registered for use with a Western Pacific general longline permit and landed western Pacific pelagic MUS in American Samoa on or prior to November 13, 1997, or for a replacement vessel of equal or smaller LOA than the vessel that was initially registered for use with a Western Pacific general longline permit on or prior to November 13, 1997.
(d)An exemption is valid only for the vessel for which it is registered. An exemption not registered for use with a particular vessel may not be used.
(e)An exemption may not be transferred to another person.
(f)If more than one person, *e.g.,* a partnership or corporation, owned a large vessel when it was registered for use with a Western Pacific general longline permit and made at least one landing of western Pacific pelagic MUS in American Samoa on or prior to November 13, 1997, an exemption issued under this section will be issued to only one person. ER14JA10.126 ER14JA10.127 ER14JA10.128 [FR Doc. E9-30972 Filed 1-13-10; 8:45 am] BILLING CODE 3510-22-C 75 9 Thursday, January 14, 2010 Proposed Rules Part III Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States; Proposed Rule DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R1-ES-2009-0085] [[MO 92210-0-0009] [RIN 1018-AW88] Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Bull Trout in the Coterminous United States AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule, announcement of public hearing, and announcement of availability of draft economic analysis. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to revise the designation of critical habitat for the bull trout ( *Salvelinus confluentus* ) under the Endangered Species Act of 1973, as amended. In total, approximately 36,498 kilometers
(km)(22,679 miles (mi)) of streams (which includes 1,585.7 km (985.30 mi) of marine shoreline area in the Olympic Peninsula and Puget Sound), and 215,870 hectares
(ha)(533,426 acres (ac)) of reservoirs or lakes are being proposed for the revised critical habitat designation. The revised proposed critical habitat is located in Adams, Benewah, Blaine, Boise, Bonner, Boundary, Butte, Camas, Canyon, Clearwater, Custer, Elmore, Gem, Idaho, Kootenai, Lemhi, Lewis, Nez Perce, Owyhee, Shoshone, Valley, and Washington counties in Idaho; Deer Lodge, Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Powell, Ravalli, and Sanders counties in Montana; Baker, Clatsop, Columbia, Deschutes, Gilliam, Grant, Harney, Hood River, Jefferson, Klamath, Lake, Lane, Linn, Malheur, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco, and Wheeler counties in Oregon; Asotin, Benton, Chelan, Clallam, Clark, Columbia, Cowlitz, Douglas, Franklin, Garfield, Grant, Grays Harbor, Island, Jefferson, King, Kittitas, Klickitat, Mason, Okanogan, Pend Oreille, Pierce, Skagit, Skamania, Snohomish, Thurston, Wahkiakum, Walla Walla, Whatcom, Whitman, and Yakima counties in Washington; and Elko county, Nevada. DATES: *Written Comments* : We will accept comments received or postmarked on or before March 15, 2010. Because of the anticipated interest in this proposed designation, we are planning on holding a public hearing and several public meetings. *Public Hearing* : We will hold a public hearing in Boise, Idaho on February 25, 2010, from 7 p.m. to 9 p.m.; and public meetings in: • Bend, Oregon on February 2, 2010, 5:30 p.m. to 7:30 p.m.; • Chiloquin, Oregon on February 3, 2010, 6 p.m. to 8 p.m.; • LaGrande, Oregon on February 4, 2010, 5:30 p.m. to 7:30 p.m.; • Post Falls, Idaho on February 11, 2010, 4 p.m. to 7 p.m.; • Missoula, Montana on February 16, 2010, 3 p.m. to 8 p.m.; • Elko, Nevada on February 17, 2010, 5 p.m. to 7 p.m.; • Wenatchee, Washington on February 23, 2010, 6 p.m. to 8 p.m.; and • Boise, Idaho on February 25, 2010, 4 p.m. to 6 p.m. ADDRESSES: You may submit comments by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Search for docket FWS-R1-ES-2009-0085 and then follow the instructions for submitting comments. • *U.S. mail or hand-delivery* : Public Comments Processing, Attn: FWS-R1-ES-2009-0085; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. • *Public Hearing* : We will hold the public hearing at Boise Centre on the Grove, 850 W. Front Street, Boise, Idaho. • *Public Meetings:* We will hold the public meetings at: o Hollingshead Barn, 1235 NE Jones Road, Bend Oregon; o Chiloquin Community Center, 140 S. 1st Street, Chiloquin, Oregon; o Blue Mountain Conference Center, 404 12th Street, la Grande, Oregon; o Red Lion Templins Inn, 414 East 1st Avenue, Post Falls, Idaho; o Montana Fish, Wildlife, and Parks Headquarters, 3201 Spurgin Road, Missoula, Montana; o Elko Convention Center, Gold Room, 700 Moren Way, Elko, Nevada; o Wenatchee-Okanogan National Forest Headquarters, 215 Melody Lane, Wenatchee, Washington; and o Boise Centre on the Grove, 850 W. Front Street, Boise, Idaho. We will post all comments on *http://www.regulations.gov* . This generally means that we will post any personal information you provide us (see the **Public Comments** section below for more information). FOR FURTHER INFORMATION CONTACT: Jeff Foss, Field Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 South Vinnell Way, Boise, ID 83702; telephone 208-378-5243; facsimile 208-378-5262. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Public Comments We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned government agencies, the scientific community, industry, or other interested parties concerning this proposed rule. Verbal testimony or written comments may also be presented during the public hearing (see the **Public Hearing** section below for more information). We will consider information and recommendations from all interested parties. We particularly seek comments concerning:
(1)The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Endangered Species Act of 1973, as amended
(Act)(16 U.S.C. 1531 *et seq.* ), including whether there are threats to the species from human activity, the degree to which threats can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation;
(2)Specific information on: • The amount and distribution of bull trout habitat, • What areas occupied at the time of listing that contain features essential to the conservation of the species should be included in the designation and why, • Special management considerations or protections that the features essential to the conservation of the bull trout that have been identified in this proposal may require, including managing for the potential effects of climate change, and • What areas not occupied at the time of listing are essential to the conservation of the species and why;
(3)Land use designations and current or planned activities in the areas occupied by the species, and their possible impacts on proposed critical habitat;
(4)Any foreseeable economic, national security, or other relevant impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts;
(5)Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation. Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. We request specific information on: • The benefits of including specific areas in the final designation and supporting rationale, • The benefits of excluding specific areas from the final designation and supporting rationale, and • Whether any specific exclusions may result in the extinction of the species and why (see Exclusions section below).
(6)Whether our exemptions under section 4(a)(3)(B) of the Act of the lands on Department of Defense
(DOD)land at the Bayview Acoustic Research Detachment
(ARD)Naval Surface Warfare Center, Bayview Idaho; Naval Radio Station Jim Creek in western Washington; Naval Station Everett in western Washington; Naval Air Station Whidbey Island in western Washington, and U.S. Army Fort Lewis Installation in western Washington, are or are not appropriate, and why;
(7)Specific information on the following areas considered to be essential to the conservation of the species: • Mainstem and tributary habitats within the White Salmon River Critical Habitat Subunit
(CHSU)that are believed to be unoccupied, but which are considered essential for providing foraging, migration, and overwintering
(FMO)habitat or spawning and rearing areas to reestablish a population within this system; • Unoccupied tributaries within the Lake Pend Oreille, Pend Oreille River, and lower Priest River CHSU that are considered essential for providing spawning and rearing areas to reestablish a population within the Pend Oreille River; and • Areas of mainstem habitat in the Yakima River (Yakima River Critical Habitat Unit (CHU)) and Touchet River (Walla Walla River Basin CHU) for which we have limited or no documented evidence of occupancy, but which are currently believed to be essential for providing connectivity to the mainstem Columbia River and Walla Walla River, respectively, for the fluvial life-history form;
(8)Specific information on areas of habitat that were historically occupied, or areas for which we have limited evidence of occupancy, which we do not consider to be essential to the conservation of the species in this proposed rule. These areas include Okanogan River; Lake Chelan and Stehekin River; west side tributaries to Hood Canal (e.g., Dosewallips River, Duckabush River, Quilcene River); and Willapa River;
(9)Specific information on areas believed to be unoccupied in the Klamath River basin, but essential for FMO habitat;
(10)Specific information as to whether the six recovery units identified in the “Critical Habitat Background” section accurately reflect the conservation needs of bull trout;
(11)Information on the projected and reasonably likely impacts of climate change on bull trout, and any special management needs or protections that may be needed in the critical habitat areas we are proposing.
(12)Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate, and specifically: • Whether regulatory protections and conservation activities already being implemented for salmon, steelhead, bull trout , other species, or other concerns (e.g., water quality) in areas proposed as critical habitat are appropriate to include as baseline costs (e.g., costs that would occur regardless of critical habitat designation for bull trout) for purposes of our economic analysis, and if not, why not; • Whether there are incremental costs of critical habitat designation (e.g., costs attributable solely to critical habiatat designation) that have not been appropriately identified or considered in our economic analysis, including costs associated with future administrative costs or project modifications that may be required by Federal agencies related to section 7 consultation under the Act; • Whether there are incremental economic benefits of critical habitat designation that have not been appropriately identified or considered in our economic analysis.
(13)Information on whether existing special management considerations or protections being implemented in areas designated as critical habitat for salmon by the National Marine Fisheries Service (NOAA Fisheries) are adequate for conserving essential bull trout habitat where proposed bull trout critical habitat overlaps, and if not, why not.
(14)We have organized the Primary Constituent Elements
(PCEs)of bull trout critical habitat based on the life-history needs of the species. We are considering reorganizing the PCEs in order to improve clarity, into broad habitat attributes (water bodies and migratory corridors), and identify specific needs of bull trout within these broad categories. This approach would likely require repetition of specific features, but may be more understandable by making clear the relationships between the needs of the species and the specific locations where those needs are provided. We request comments on whether this reorganization would improve clarity of the PCEs.
(15)Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments; and
(16)Specific information on ways to improve the clarity of this rule as it pertains to completion of consultations under section 7 of the Endangered Species Act. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will post your entire comment—including your personal identifying information—on *http://www.regulations.gov* . If you provide personal identifying information, in addition to the required items specified in the previous paragraphs, such as your street address, phone number, or e-mail address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on *http://www.regulations.gov* , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). We are holding a public hearing on the date listed in the **DATES** section at the address listed in the ADDRESSES section. We are holding this public hearing to provide interested parties an opportunity to present verbal testimony (formal, oral comments) or written comments regarding the proposed critical habitat designation and the associated Draft Economic Analysis. An informational session will precede the hearing from 4 p.m. to 6 p.m. During this session, Service biologists will be available to provide information and address questions on the proposed rule in advance of the formal hearing. People needing reasonable accommodations in order to attend and participate in the public hearings should contact Jeff Foss, Idaho Fish and Wildlife Office, at 208-378-5243 as soon as possible (see FOR FURTHER INFORMATION CONTACT section). In order to allow sufficient time to process requests, please call no later than one week before the hearing date. We are also holding public meetings on the dates listed in the **DATES** section at the addresses listed in the ADDRESSES section. During the public meetings, Service biologists will be available to provide information and address questions on the proposed rule. However, we will not accept verbal testimony at these public meetings. Information regarding this notice is available in alternative formats upon request. Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For further information on the bull trout biology and habitat, population abundance and trend, distribution, demographic features, habitat use and conditions, threats, and conservation measures, please see the Bull Trout 5-year Review Summary and Evaluation, completed April 25, 2008. This document is available on the Idaho Fish and Wildlife Office web site at *http://ecos.fws.gov/docs/five_year_review/doc1907.pdf* . Description, Distribution, Habitat and Recovery Bull trout have more specific habitat requirements than most other salmonids (Rieman and McIntyre 1993, p. 4). Habitat components that particularly influence their distribution and abundance include water temperature, cover, channel form and stability, spawning and rearing substrate conditions, and migratory corridors (Fraley and Shepard 1989, p. 138; Goetz 1989, p. 19; Watson and Hillman 1997, p. 247). This proposed rule identifies those physical and biological features essential to bull trout conservation. Bull trout are members of the char subgroup of the family Salmonidae and are native to waters of western North America. Bull trout range throughout the Columbia River and Snake River basins, extending east to headwater streams in Montana and Idaho, into Canada, and in the Klamath River basin of south-central Oregon. The distribution of populations, however, is scattered and patchy (Goetz 1989, p. 4; Ziller 1992, p. 6; Rieman and McIntyre 1993, p. 3; Light *et al.* 1996, p. 44; Quigley and Arbelbide 1997, p. 1176). Bull trout exhibit a number of life-history strategies. Stream-resident bull trout complete their entire life cycle in the tributary streams where they spawn and rear. Most bull trout are migratory, spawning in tributary streams where juvenile fish usually rear from one to four years before migrating to either a larger river (fluvial) or lake (adfluvial) where they spend their adult life, returning to the tributary stream to spawn (Fraley and Shepard 1989, p. 133). Resident and migratory forms may be found together, and either form can produce resident or migratory offspring (Rieman and McIntyre 1993, p. 2). Bull trout, coastal cutthroat trout ( *Oncorhynchus clarki clarki* ), Pacific salmon ( *Oncorhynchus* spp.), and some other species are commonly referred to as anadromous (fish that can migrate from saltwater to freshwater to reproduce). However, bull trout, coastal cutthroat trout, and some other species that enter the marine environment are more properly termed amphidromous. Unlike strictly anadromous species, such as Pacific salmon, amphidromous species often return seasonally to fresh water as subadults, sometimes for several years, before returning to spawn (Wilson 1997, p. 5). The amphidromous life-history form of bull trout is unique to the Coastal-Puget Sound population (64 FR 58921; November 1, 1999). For additional information on the biology of this life form, see our June 25, 2004, proposed critical habitat designation for the Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout (69 FR 35767). The decline of bull trout is primarily due to habitat degradation and fragmentation, blockage of migratory corridors, poor water quality, past fisheries management practices, impoundments, dams, water diversions, and the introduction of nonnative species (63 FR 31647; June 10, 1998; 64 FR 17112; April 8, 1999). Finalization of the 2002 draft recovery plan was held in abeyance pending completion of the 5-year review process, and was also affected by resource demands associated with the litigation discussed below. The bull trout 5-year review (Service 2008, p. 45) recommended that the recovery units identified in the 2002 draft recovery plan be updated throughout their range based on assemblages of bull trout core areas (metapopulations or interacting breeding populations) that retain genetic and ecological integrity and are significant to the distribution of bull trout throughout the conterminous United States. After consulting with biologists from states, Federal agencies, and Native American tribes, and applying the best scientific information available, we identified six recovery units for bull trout in the conterminous United States. Please refer to the “Critical Habitat” section below for additional information on this topic. Previous Federal Actions On November 29, 2002, we proposed to designate critical habitat for the Klamath River and Columbia River bull trout populations (67 FR 71235). On October 6, 2004, we finalized the critical habitat designation for the Klamath River and Columbia River bull trout populations (69 FR 59995). On June 25, 2004, we proposed to designate critical habitat for the Jarbidge, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations (69 FR 35767). On September 26, 2005, we designated critical habitat for the Klamath River, Columbia River, Jarbidge River, Coastal-Puget Sound, and Saint Mary-Belly River populations of bull trout (70 FR 56212). Please refer to the above-mentioned rules for a detailed summary of previous Federal actions completed prior to publication of this proposed rule. On January 5, 2006, a complaint was filed in Federal district court by the Alliance for the Wild Rockies, Inc. and Friends of the Wild Swan, alleging the Service failed to designate adequate critical habitat, failed to rely on the best scientific and commercial data available, failed to consider the relevant factors that led to listing, and failed to properly assess the economic benefits and costs of critical habitat designation. Other allegations included an inadequate analysis and the unlawful use of exclusions. On March 23, 2009, the Service provided notice to the U.S. District Court for the District of Oregon that we would seek remand of the final critical habitat rule for bull trout based on the findings of an Investigative Report by the Department of the Interior Inspector General (USDI 2008, pp. 10-38). On July 1, 2009, the court granted our request for a voluntary remand of the 2005 final rule and directed the Service to submit a new proposed rule to the **Federal Register** by December 31, 2009, and to submit a final decision on that proposed rule to the **Federal Register** by September 30, 2010 ( *Alliance for the Wild Rockies v. Allen* , 2009 U.S. Dist. LEXIS 63122 (D. Or., July 1, 2009)). The court directed that the existing critical habitat rule shall remain in effect until completion of the remanded decision. Summary of Changes from Previously Designated Critical Habitat Approximately 36,498 km (22,679 mi) of streams (which includes 1,585.7 km (985.3 mi) of marine shoreline area, and 215,870 ha (533,426 ac) of reservoirs or lakes) are being proposed as revised critical habitat in this rule. Areas that were proposed as critical habitat in the November 29, 2002, proposed designation for the Klamath River and Columbia River bull trout populations (67 FR 71235) and the June 25, 2004, proposed designation for the Jarbidge, Coastal-Puget Sound, and Saint Mary-Belly River bull trout populations (69 FR 35767) are identified in Table 1 below. Based on better occupancy data and refined information on the importance of certain habitats, we are proposing to designate 3 percent more critical habitat in streams (measured on a linear basis) and 10 percent less critical habitat in lakes and reservoirs (measured by area) than were proposed in the combined 2002 and 2004 proposed rules. Table 1.—Extent of Proposed Bull Trout Critical Habitat In The Combined 2002 and 2004 Proposed Rules (67 FR 71235; 69 FR 35767) Bull Trout Population Stream length km mi Lakes, Reservoirs and Marshes ha ac Marine shoreline km mi States Klamath DPS 476 296 13,735 33,939 OR Columbia River DPS
(CDPS)14,416 8,958 83,219 205,639 ID CDPS 5,341 3,319 88,051 217,577 MT CDPS 5,460 3,391 18,077 44,670 OR CDPS 4,034 2,507 12,503 30,897 WA Jarbidge 211 131 ID/NV Coastal-Puget Sound 3,685 2,290 21,262 52,540 1,585 985 WA St. Mary-Belly 142 88 2,548 6,295 MT Total 33,765 20,980 239,395 591,577 1,585 985 This proposed rule differs from the September 26, 2005, final critical habitat designation for bull trout (70 FR 56212) in the following ways: In the 2005 final rule, we designated approximately 6,161 km (3,828 mi) of streams and 57,9578 ha (143,218 ac) of lakes in Idaho, Montana, Oregon, and Washington; and 1,585 km (985 mi) of shoreline paralleling marine habitat in Washington as critical habitat (70 FR 56212). No critical habitat was designated in the Jarbidge River basin (70 FR 56249-56251). In this rule, we are proposing to designate 36,498 km (22,679 mi) of streams (which includes 1,585.7 km (985.3 mi) of marine shoreline area in the Olympic Peninsula and Puget Sound), and 215,870 ha (533,426 ac) of lakes and reservoirs as critical habitat, which includes 266.9 km (165.9 mi) of streams in the Jarbidge River basin. In the 2005 final rule, we did not designate any unoccupied critical habitat because the Secretary concluded that it was not possible to make a determination that such lands were essential to the conservation of the species (70 FR 56232). In this rule, we are proposing to designate 1,495 km (929 mi) of streams (four percent of the total) that are outside the geographical area occupied by the species at the time it was listed that have been determined to be essential for the conservation of the species. In the 2005 rule, a variety of areas were exempted from critical habitat designation under section 4(a)(3) of the Act or excluded from designation as critical habitat under section 4(b)(2) of the Act (70 FR 56232). These areas included several DOD facilities; certain Tribal lands; Nisqually National Wildlife Refuge lands; lands subject to Habitat Conservation Plans (HCPs); lands subject to Federal or State management plans (including PACFISH, INFISH, Interior Columbia Basin Ecosystem Management Project, Northwest Forest Plan, Southwest Idaho Land and Resource Management Plan, Southeast Oregon Resource Management Plan, Federal Columbia River Power System, Snake River Basin Adjudication); waters impounded behind dams; and all lands that were proposed as critical habitat in the Jarbidge River in Nevada. Federal agencies have an independent responsibility under section 7(a)(1) of the Act to use their programs in furtherance of the Act and to utilize their authorities to carry out programs for the conservation of endangered and threatened species. We consider the development and implementation of land management plans by Federal agencies to be consistent with this statutory obligation under section 7(a)(1) of the Act. For this reason, Federal land management plans, in and of themselves, are generally not an appropriate basis for excluding essential habitat, thus this rule does not propose to exclude any Federal lands under section 4(b)(2) of the Act. However, in some areas, Federal land management agencies actively manage for bull trout and its habitat and conduct specific conservation actions for the species. Therefore, in this proposed rule, we are asking for specific information regarding whether the effects of these actions are such that the benefits of excluding these particular areas from critical habitat outweigh the benefits of including these area as critical habitat under section 4(b)(2) of the Act (see “Application of Section 4(b)(2) of the Act” below). In addition, we are exempting several DOD facilities under section 4(a)(3) of the Act based on existing Integrated Natural Resource Management Plans that provide a benefit to bull trout, and we are considering excluding certain non-Federal lands under section 4(b)(2) of the Act based on other conservation management considerations (see “Exemptions under Section 4(a)(3) of the Act” and “Application of Section 4(b)(2) of the Act” below). We are also proposing to designate 266.9 km (165.9 mi) of streams in the Jarbidge River basin. Two economic analyses related to previous bull trout critical habitat proposed rules were prepared in 2004 and 2005, which followed a co-extensive analytical approach, consistent with recent court rulings. Those analyses considered conservation and protection activities for bull trout, without distinguishing between impacts associated with listing the species and those associated with the designation of critical habitat. The economic analysis prepared for this proposed rule does not follow the coextensive analytical approach, and differentiates between baseline and incremental economic impacts. Under this approach, because of the conservation measures already in place for salmon, steelhead, the Klamath suckers, and other protected fish species, our analysis indicates that the incremental economic impact in areas occupied by bull trout will be small, and the most significant incremental effect will be in those areas not currently occupied (less than four percent of the areas being proposed as critical habitat). The majority of forecast incremental costs are associated with unoccupied critical habitat in the Upper Willamette River Basin and are associated with conservation efforts undertaken at flood control facilities. The discussion under “Draft Economic Analysis” below provides additional information in this regard. The PCEs in this rule are similar to those described in the 2005 final designation (70 FR 56236); however, we are proposing an additional PCE related to the presence of nonnative fish that may prey on, compete with, or inbreed with, bull trout. In addition, we are considering reorganizing the PCEs, as noted above, into broad habitat attributes (water bodies and migratory corridors), and identify specific needs of bull trout within these broad categories. This reorganization would keep all of the PCEs presented in this proposal intact, but organizing them in such a way as to show the most important broad categories first, and then breaking them down into specific descriptions. A small proportion of critical habitat designated in the 2005 final rule is not being proposed as critical habitat in this revision. These areas include streams and lakes determined either not to include bull trout or any of their PCEs, or not to be essential to their conservation. For example, Sycan Marsh in the Klamath River basin no longer holds enough water to support bull trout, so we propose the stream channels through the marsh as critical habitat, allowing connectivity among populations, instead of the entire marsh. The remainder of the areas designated in the 2005 final rule would remain designated as critical habitat if this proposed revision is finalized. A similarly small proportion of habitat proposed in this rule was not designated in the 2005 final rule. These areas include streams and lakes since determined to be occupied by bull trout, to provide one or more PCEs, or as essential to their conservation. For example, the mainstem Columbia River and the lower portions of connecting tributaries such as the John Day River have been found to be more important for FMO habitat for bull trout than was previously understood. All areas known to contain the most important bull trout habitat and PCEs, or that may be unoccupied but essential to their conservation, are proposed in this rule. Copies of the previous proposed and final bull trout critical habitat rules and a map showing the relationship of the 2005 final rule and this proposed rule are available on the Idaho Fish and Wildlife Office web site at *http://www.fws.gov/pacific/bulltrout* . Critical Habitat Background Critical habitat is defined in section 3 of the Act as:
(1)The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a)essential to the conservation of the species, and
(b)which may require special management considerations or protection; and
(2)specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by the landowner. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply but even in the event of a destruction or adverse modification finding, the Federal action agency's and the applicant's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time it was listed must contain the physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify habitat areas that provide essential life cycle needs of the species (areas on which are found the physical and biological features
(PBFs)laid out in the appropriate quantity and spatial arrangement for the conservation of the species), based on the best scientific data available. Under the regulation at 50 CFR 424.12(e), we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the **Federal Register** on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be proposed as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species, based on scientific data not now available to the Service. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions Federal agencies implement under section 7(a)(1) of the Act. Areas that support populations are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Relationship of Critical Habitat to Recovery Planning In developing this proposed rule, we considered the conservation relationship between the proposed critical habitat designation and recovery planning. Although recovery plans formulate the recovery strategy for a species, they are not regulatory documents, and there are no specific protections, prohibitions, or requirements afforded a species based solely on a recovery plan. Furthermore, although critical habitat designation can contribute to the overall recovery strategy for a species, it does not, by itself, achieve recovery plan goals. The Act states in section 3(5)(C), “except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.” In most cases, it is not the intent of the Act to designate critical habitat for every population and every documented historical location of a species. Instead, the focus of critical habitat designation is on habitat that contains the physical and biological features essential to conservation of the species. The 5-year review (Service 2008, p. 45) recommended, in part, that we update recovery units from the 2002 draft recovery plan for bull trout throughout their range (Service 2002), based on assemblages of bull trout core areas (metapopulations or interacting breeding populations) that retain genetic and ecological integrity and are significant to the distribution of bull trout throughout the conterminous United States. To complete the recovery unit update, we consulted with biologists from States, Federal agencies, and Native American tribes, using the best scientific information available. Factors that were considered in determining the geographic arrangement of the updated recovery units included ensuring
(1)resiliency by protecting large areas of high-quality habitat;
(2)redundancy by protecting multiple populations; and
(3)representation by protecting diverse genetic and life-history aspects of bull trout populations distributed throughout the range of the listed entity (Tear *et al.* 2005, p. 841). Bull trout are listed under the Act as “Threatened” throughout the coterminous United States primarily due to habitat threats. In 2008 the Service completed a 5-year review of bull trout status and concluded in part that it should reevaluate the number of bull trout Distinct Population Segments (DPSs), and consider reclassifying bull trout into separate DPSs. The Service subsequently recommended not immediately pursuing reclassification due to time and cost constraints, but applied relevant factors in its 1996 DPS policy. As a result, six draft recovery units
(RUs)were identified. Subsequent to identifying these six RUs, we evaluated each RU and determined that they were needed to ensure a resilient, redundant, and representative distribution of bull trout populations throughout the range of the listed entity. To accomplish these goals, we need to protect large areas of high-quality habitat, protect multiple populations, and protect diverse genetic and life-history aspects. The six draft recovery units identified for bull trout in the conterminous United States include: Mid-Columbia recovery unit; Saint Mary recovery unit; Columbia Headwaters recovery unit; Coastal recovery unit; Klamath recovery unit; and Upper Snake recovery unit (Figure 1). Conserving each RU is essential to conserving the listed entity as a whole. These six new biologically based recovery units will be proposed to replace the 27 recovery units previously identified in the bull trout draft recovery plan (Service 2002, Chapter 1, p. 3). Figure 1. Map of bull trout draft recovery units EP14JA10.000 BILLING CODE 4310-55-S Areas that support populations, but are outside the critical habitat designation, may continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Methods As required by section 4(b)(2) of the Act, we use the best scientific data available in determining areas that contain the features that are essential to the conservation of bull trout. Data sources include research published in peer-reviewed journals and previous Service documents on the species, including the final listing determination (FR 64 58909-58933; November 1, 1999), the bull trout draft recovery plan (Service 2002), and the bull trout 5-year review (Service 2008). Additionally, we utilized regional Geographic Information System
(GIS)shape files for area calculations and mapping. Primary Constituent Elements In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas occupied at the time of listing to propose as critical habitat, we consider the physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection. These features are the PCEs laid out in the appropriate quantity and spatial arrangement for conservation of the species. These include, but are not limited to:
(1)Space for individual and population growth and for normal behavior;
(2)Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3)Cover or shelter;
(4)Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5)Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species. As discussed in greater detail below, we derived nine specific PCEs required for bull trout from the biological needs of the species as described or referred to in the **Background** section of this proposed rule and the following information. The nine PCEs relate to
(1)water quality;
(2)migration corridors;
(3)food availability;
(4)instream habitat;
(5)water temperature;
(6)substrate characteristics;
(7)stream flow;
(8)water quantity; and
(9)nonnative species. Space for Individual and Population Growth and for Normal Behavior Streams and groundwater sources with high water quality and cold temperatures, complex habitat, and migratory corridors provide space for individual and population growth and for normal behavior for bull trout. Bull trout exhibit a number of life-history strategies. Stream-resident bull trout complete their entire life cycle in the tributary streams where they spawn and rear. Some bull trout are migratory, spawning in tributary streams where juvenile fish usually rear from one to four years before migrating to either a larger river (fluvial form) or lake (adfluvial form) where they spend their adult life, returning to the tributary stream to spawn (Fraley and Shepard 1989, p. 133). These migratory forms occur in areas where conditions allow for movement from upper watershed spawning streams to larger downstream waters that contain greater foraging opportunities (Dunham and Rieman 1999, p. 646). Resident and migratory forms may be found together, and either form can produce resident or migratory offspring (Rieman and McIntyre 1993, p. 2). Where ocean environments are accessible to bull trout they may also migrate to and from salt water (amphidromy). The ability to migrate is important to the persistence of bull trout local populations (Rieman and McIntyre 1993, p. 2; Gilpin 1997, p. 4; Rieman and Clayton 1997, p 6; Rieman *et al.* 1997, p. 1121). Bull trout rely on migratory corridors to move from spawning and rearing habitats to foraging and overwintering habitats and back. Migratory bull trout become much larger than resident fish in the more productive waters of larger streams and lakes, leading to increased reproductive potential. Stream resident populations are associated with headwater streams in mountainous regions where cold water and velocity barriers are common. Typically, these streams are smaller and have higher gradients than those occupied by adfluvial and fluvial populations. In these headwater streams, resident bull trout are associated with deep pools and in-stream cover, and most stream-resident populations are dwarfed (McPhail and Baxter 1996, p. 12). The use of migratory corridors by bull trout also results in increased dispersion, facilitating gene flow among local populations (interbreeding groups) when individuals from different local populations interbreed, stray, or return to non-natal streams. Also, local populations that have been extirpated by catastrophic events may become reestablished because of movements by bull trout through migratory corridors (Rieman and McIntyre 1993, p. 7; MBTSG 1998, p. 45). Lakes and reservoirs also figure prominently in meeting the life-cycle requirements of bull trout. For adfluvial (migrating between lakes and rivers or streams) bull trout populations, lakes and reservoirs provide an important component of the core FMO habitat and are integral to maintaining the adfluvial life-history strategy that is commonly exhibited by bull trout. When juvenile bull trout emigrate downstream to a lake or reservoir from the spawning and rearing streams in its headwaters, they enter a more productive lentic (still or slow-moving water) environment that allows them to achieve rapid growth and energy storage. Some reservoirs may have adversely affected bull trout, while others have provided benefits. For example, the basin of Hungry Horse Reservoir has functioned adequately for 50 years as a surrogate home for stranded Flathead Lake bull trout trapped upstream of the dam when it was completed. While this is an artificial impoundment, the habitat the reservoir provides and the presence of an enhanced prey base of native minnows, suckers, and whitefish within the reservoir sustain a large adfluvial bull trout population. Additionally, while barriers to migration are often viewed as a negative consequence of dams, the connectivity barrier at Hungry Horse Dam has served an important, albeit unintended, function in restricting the proliferation of nonnative *Salvelinus* species (including brook trout ( *Salvelinus fontinalis* ) and lake trout ( *Salvelinus namaycush* )) from downstream areas upstream above the dam. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Bull trout are opportunistic feeders that prey upon other organisms. Prey selection is primarily a function of size and life-history strategy. Resident and juvenile migratory bull trout prey on terrestrial and aquatic insects, macro-zooplankton, and small fish (Donald and Alger 1993, p. 244; McPhail and Baxter 1996, p. 15). Adult migratory bull trout feed almost exclusively on other fish (Rieman and McIntyre 1993, p. 3). Habitats must provide the necessary aquatic and adjacent terrestrial conditions to harbor prey species in sufficient quantity and diversity to meet the physiological requirements necessary to maintain bull trout populations. An abundant food base, including a broad array of terrestrial organisms of riparian origin, aquatic macroinvertebrates, and forage fish, supports individual and population growth and allows for normal bull trout behavior. Cover or Shelter At all life stages, bull trout require complex forms of cover, including large woody debris, undercut banks, boulders, and pools (Fraley and Shepard 1989, pp. 137-138; Watson and Hillman 1997, p. 249). Juveniles and adults frequently inhabit side channels, stream margins, and pools with suitable cover (Sexauer and James 1997, p. 368). McPhail and Baxter (1996, p. 11) reported that newly emerged fry are secretive and hide in gravel along stream edges and side channels. They also reported that juveniles are found mainly in pools but also in riffles and runs, maintain focal sites near the bottom, and are strongly associated with instream cover, particularly overhead cover such as woody debris or riparian vegetation. Bull trout have been observed overwintering in deep beaver ponds or pools containing large woody debris (Jakober 1995, p. 90). Adult bull trout migrating to spawning areas have been recorded as staying two to four weeks at the mouths of spawning tributaries in deeper holes or near logs or cover debris (Fraley and Shepard 1989, p. 137). Bull trout may also use lotic (swift-flowing water) and in some cases saltwater environments seasonally for reasons that include use as cover. Riparian vegetation; large wood; variable stream channel morphology including deep pools, side-channels, undercut banks and substrates; and in some cases access to downstream environments provide cover and shelter, which support individual and population growth and allow for normal bull trout behavior. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Bull trout have more specific habitat requirements than most other salmonids (Rieman and McIntyre 1993, p. 4). Habitat components that particularly influence their distribution and abundance include water temperature, cover, channel form and stability, spawning and rearing substrate conditions, and migratory corridors (Fraley and Shepard 1989, p. 138; Goetz 1989, p. 19; Watson and Hillman 1997, p. 247). Watson and Hillman (1997, p. 248) concluded watersheds must have specific physical characteristics to provide the necessary habitat requirements for bull trout spawning and rearing, and that the characteristics are not necessarily ubiquitous throughout the watersheds in which bull trout occur. The preferred spawning habitat of bull trout consists of low-gradient stream reaches with loose, clean gravel (Fraley and Shepard 1989, p. 133). Bull trout typically spawn from August to November during periods of decreasing water temperatures (Swanberg 1997, p. 735). However, migratory forms are known to begin spawning migrations as early as April and to move upstream as much as 250 km (155 mi) to spawning areas (Fraley and Shepard 1989 p. 138; Swanberg 1997, p. 735). Fraley and Shepard (1989, p. 137) reported that initiation of spawning by bull trout in the Flathead River system appeared to be related largely to water temperature, with spawning initiated when water temperatures dropped below 10 °Celsius (°C) (50 °Fahrenheit (°F)). Goetz (1989, pp. 22-32) reported a temperature range from 4 to 10 °C (39 to 50 °F). Such areas often are associated with cold-water springs or groundwater upwelling (Rieman *et al.* 1997, p. 1121; Baxter *et al.* 1999, p. 137). Fraley and Shepard (1989, p. 137) also found that groundwater influence and proximity to cover are important factors influencing spawning site selection. They reported the combination of relatively specific requirements resulted in a restricted spawning distribution in relation to available stream habitat. Depending on water temperature, egg incubation is normally 100 to 145 days (Pratt 1992, p. 5). Water temperatures of 1.2 to 5.4 °C (34.2 to 41.7 °F) have been reported for incubation, with an optimum (best embryo survivorship) temperature reported to be from 2 to 4 °C (36 to 39 °F) (Fraley and Shepard 1989, p. 138; McPhail and Baxter 1996, p. 10). Juveniles remain in the substrate after hatching, such that the time from egg deposition to emergence of fry can exceed 200 days. During the relatively long incubation period in the gravel, bull trout eggs are especially vulnerable to fine sediments and water quality degradation (Fraley and Shepard 1989, p. 141). Increases in fine sediment appear to reduce egg survival and emergence (Pratt 1992, p. 6). Juveniles are likely also affected. High juvenile densities have been reported in areas characterized by a diverse cobble substrate and a low percent of fine sediments (Shepard *et al.* 1984, p. 6). Habitats with cold water temperature, appropriately-sized stream substrate, and stream substrate with a low level of fine material (i.e., less than 12 percent of fine substrate less than 0.85 millimeter
(mm)(0.03 inch (in.)) in diameter) are necessary factors for egg incubation and juvenile rearing that supports individual and population growth (WFPB 1997, pp. 98, F-25). Habitats Protected from Disturbance or Representative of the Historic, Geographical, and Ecological Distributions of the Species There are some habitats throughout the range of the species that are well protected from disturbance and representative of ideal ecological conditions of the species. These areas mainly include wilderness, national parks, and other public lands specifically protected from most human disturbance (e.g., State parks), and often constitute bull trout “strongholds” with robust, well-distributed populations. Some populations outside of these areas may still be well protected for other reasons (e.g., conservation easements, Habitat Conservation Plans, Safe Harbor Agreements), but many other populations are threatened by human actions. Water diversion and reservoir development can reduce stream flow, reduce the amount of water available in a stream channel, change water quality, and alter groundwater regimes. These changes may collectively impact habitat and passage for bull trout and can cause increases in water temperatures. Impoundments may also increase nonnative species predation and competition, which can significantly affect bull trout populations. Some nonnative fish species that prey on bull trout include lake trout, walleye ( *Sander vitreum* ), northern pike ( *Esox lucius* ), smallmouth bass ( *Micropterus dolomieu* ), and brown trout ( *Salmo trutta* ). Brown trout or other introduced salmonids such as rainbow trout ( *Onchorynchus mykiss* ), as well as smallmouth bass, northern pike, walleye, and other species also compete with bull trout for limited resources. Brook trout commonly hybridize with bull trout (Ratliff and Howell 1992, p. 16; Leary *et al.* 1993, p. 857). The stability of stream channels and stream flows are important habitat characteristics for bull trout populations (Rieman and McIntyre 1993, p. 5). The side channels, stream margins, and pools with suitable cover for bull trout are sensitive to activities that directly or indirectly affect stream channel stability and alter natural flow patterns. For example, altered stream flow in the fall may disrupt bull trout during the spawning period, and channel instability may decrease survival of eggs and young juveniles in the gravel during winter through spring (Fraley and Shepard 1989, p. 141; Pratt 1992, p. 6; Pratt and Huston 1993, p. 70). Streams with a natural hydrograph (those with normal discharge variations over time as a response to seasonal precipitation); permanent water; and an absence of nonnative species are representative of the highest quality ecological habitat of the species. Streams with these characteristics provide space for individual and population growth. We propose bull trout habitats of two primary use types: spawning and rearing (SR), and foraging, migration, and overwintering (FMO). All nine PCEs listed below may be found in, or be essential to, bull trout in each of these two habitat use types. This proposed rule identifies over 3,500 water body segments as either SR or FMO habitat. Due to a lack of sufficiently detailed data, we do not identify the specific PCEs present for each water body segment. Future consultations with the Service on specific agency actions will help identify those PCEs that are most important in a specific water body segment. Factors such as time of year, seasonal precipitation, drought conditions, and other phenomenon can influence the essential physical and biological features present at any particular location at any particular time across its range given the variability of habitats used by bull trout. In addition, attributes such as stream flow and substrate size and composition are influenced by stream order and gradient. Accordingly, establishing an upper and lower range of conditions for specific attributes in some cases may be impracticable. Primary Constituent Elements for Bull Trout Based on the above needs and our current knowledge of the life-history, biology, and ecology of the species and the characteristics of the habitat necessary to sustain the essential life-history functions of the species, we have identified the following PCEs for bull trout critical habitat.
(1)Springs, seeps, groundwater sources, and subsurface water connectivity (hyporehic flows) to contribute to water quality and quantity and provide thermal refugia.
(2)Migratory habitats with minimal physical, biological, or water quality impediments between spawning, rearing, overwintering, and freshwater and marine foraging habitats, including but not limited to permanent, partial, intermittent, or seasonal barriers.
(3)An abundant food base, including terrestrial organisms of riparian origin, aquatic macroinvertebrates, and forage fish.
(4)Complex river, stream, lake, reservoir, and marine shoreline aquatic environments and processes with features such as large wood, side channels, pools, undercut banks and substrates, to provide a variety of depths, gradients, velocities, and structure.
(5)Water temperatures ranging from 2 to 15 °C (36 to 59 °F), with adequate thermal refugia available for temperatures at the upper end of this range. Specific temperatures within this range will vary depending on bull trout life-history stage and form; geography; elevation; diurnal and seasonal variation; shade, such as that provided by riparian habitat; and local groundwater influence.
(6)Substrates of sufficient amount, size, and composition to ensure success of egg and embryo overwinter survival, fry emergence, and young-of-the-year and juvenile survival. A minimal amount (e.g., less than 12 percent) of fine substrate less than 0.85 mm (0.03 in.) in diameter and minimal embeddedness of these fines in larger substrates are characteristic of these conditions.
(7)A natural hydrograph, including peak, high, low, and base flows within historic and seasonal ranges or, if flows are controlled, they minimize departures from a natural hydrograph.
(8)Sufficient water quality and quantity such that normal reproduction, growth, and survival are not inhibited.
(9)Few or no nonnative predatory (e.g., lake trout, walleye, northern pike, smallmouth bass; inbreeding (e.g., brook trout); or competitive (e.g., brown trout) species present. Criteria Used To Identify Critical Habitat As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining areas that contain the physical and biological features essential to the conservation of bull trout that may require special management considerations or protection, and areas outside of the geographical area occupied at the time of listing that are essential for bull trout conservation (Service 2009; also see “Previous Federal Actions” section). The steps we followed in identifying critical habitat were:
(1)Our initial step in identifying critical habitat was to determine, in accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, the physical and biological habitat features essential to the conservation of the species, as explained in the previous section. We reviewed the best available scientific data pertaining to the habitat requirements of this species, including consulting with biologists from partner agencies and entities including Federal, State, tribal, and private biologists; experts from other scientific disciplines such as hydrology and forestry; resource users; and other stakeholders with an interest in bull trout and the habitats they depend on for survival and recovery. We also reviewed available data concerning bull trout habitat use and preferences, habitat conditions, threats, limiting factors, population demographics, and known locations, distribution, and abundances of bull trout.
(2)We then identified the geographical areas occupied by bull trout at the time of listing and areas not occupied that may be essential for the conservation of bull trout. We used data gathered during the bull trout recovery planning process and the bull trout draft recovery plan (Service 2002), and supplemented that data with recent data developed by State agencies, tribes, the U.S. Forest Service (USFS), and other entities. This data was used to update bull trout status and distribution data for purposes of the proposed critical habitat designation. For areas where we had data gaps, we solicited expert opinions from knowledgeable fisheries biologists in the local area. Material reviewed included data in reports submitted during section 7 consultations, reports from biologists holding section 10(a)(1)(A) recovery permits, research published in peer-reviewed scientific journals, academic theses, State and Federal government agency reports, and regional GIS overlays.
(3)We identified specific areas within each of the six new draft recovery units described above that contain the physical and biological features essential to bull trout conservation, considering distribution, abundance, trend, and connectivity needs. The objective was to ensure the areas proposed for designation as critical habitat would effectively serve the goals we believe are important for recovery:
(a)conserve the opportunity for diverse life-history expression;
(b)conserve the opportunity for genetic diversity;
(c)ensure that bull trout are distributed across representative habitats;
(d)ensure sufficient connectivity among populations;
(e)ensure sufficient habitat to support population viability (e.g., abundance, trend indices);
(f)address threats (see “Special Management Considerations or Protection” below), including climate change (see below); and
(g)ensure sufficient redundancy in conserving population units. The above recovery goals take into account the threats and physical and biological needs of the species throughout its range, and focus on its range-wide recovery needs. All critical habitat areas being proposed occur within the six new draft recovery units described above. Some areas contained the physical and biological features, but did not meet one or more of the above recovery goals because those features were not present in an appropriate quantity and spatial arrangement. Accordingly, we determined that such areas are not essential to bull trout conservation. For example, some areas contained spawning habitat (PCEs 5 and 6), but are disconnected from other populations and not large enough to support viable bull trout populations. Other areas were not included in this proposal because of limited habitat, marginal habitat, low bull trout density, or only sporadic presence of bull trout recorded. Predicted global climate change appears likely to pose additional threats to bull trout in many parts of their range in the coterminous United States; downscaled regional climate models for the Columbia River basin predict a general air temperature warming of 1.0 to 2.5 °C (33.8 to 36.5 °F) or more by 2050 (Reiman *et al.* 2007, p. 1,552). This predicted temperature trend will have important effects on the regional distribution and local extent of habitats available to salmonids (Rieman *et al.* 2007, p. 1,552). The optimal water temperatures for bull trout appear to be substantially lower than those for other salmonids (Rieman *et al.* 2007, p. 1,553). Coldwater fish do not physically adapt well to thermal increases (McCullough *et al.* 2009, pp. 96-101). Instead, they are more likely to change their behavior, alter the timing of certain behaviors, experience increased physical and biochemical stress, and exhibit reduced growth and survival (McCullough *et al.* 2009, pp. 98-100). Bull trout spawning and initial rearing areas are currently largely constrained by low fall and winter water temperatures, and existing thermally suitable habitat patches are often isolated from one another (Rieman *et al.* 2007, p. 1,553). With a warming climate, thermally suitable bull trout spawning and rearing areas are predicted to shrink during warm seasons, in some cases very dramatically, becoming even more isolated from one another under moderate climate change scenarios (Rieman *et al.* 2007, pp. 1,558-1,562; Porter and Nelitz 2009, pp. 5-7). Climate change will likely interact with other stressors, such as habitat loss and fragmentation (Rieman *et al.* 2007, pp. 1,558-1,560; Porter and Nelitz 2009, p. 3); invasions of nonnative fish (Rahel *et al.* 2008, pp. 552-553); diseases and parasites (McCullough *et al* 2009, p. 104); predators and competitors (McMahon *et al* . 2007, pp. 1,313-1,323; Rahel *et al* . 2008, pp. 552-553); and flow alteration (McCullough *et al* . 2009, pp. 106-108), to render some current spawning, rearing, and migratory habitats marginal or wholly unsuitable. For example, introduced congeneric populations of brook trout are widely distributed throughout the range of bull trout. McMahon *et al* . (2007, p. 1,320) demonstrated the presence of brook trout has a marked negative effect on bull trout, an effect that is magnified at higher water temperatures (16-20 °C (60-68 °F)). Changes and complex interactions are difficult to predict at a spatial scale relevant to bull trout conservation efforts, and key gaps exist in our understanding of whether bull trout (and other coldwater fishes) can behaviorally adapt to climate change. We considered probable effects of climate change on bull trout by first qualitatively screening core areas to assess those which might be most vulnerable to climate change effects, and highlighting them in our 2008 update of status and threats data in the core area template documents (Service 2008, p. 15). For example, in many locations we prioritized cold water spring habitats for conservation because they may be among the most resistant habitats to climate change effects. In other locations we deemphasized protection of some already low-elevation, warmer, marginal bull trout habitats, anticipating that they would become even less valuable for the future conservation of bull trout. Over a period of decades, climate change may directly threaten the integrity of the essential physical and biological features described in PCEs 1, 2, 3, 5, 7, 8 and 9. Protecting bull trout strongholds and cold water refugia from disturbance and ensuring connectivity among populations were important considerations in addressing this potential impact. Over 30 years of research into wildlife population sizes required for long-term viability (avoiding extinction) suggests that a minimum number of 5,000 individuals may be needed in light of rapidly changing environmental conditions such as accelerated climate change (Traill *et al* . 2009, p. 3). Although the minimum number of individuals may vary depending on the species involved, for bull trout, we have included additional unoccupied habitats in those areas where occupied habitats currently support far less than this number of individuals, so there are adequate PCEs for those small populations to recover. For example, in the Klamath basin where bull trout status is weak and threats are high (that is, where there are low number of individuals or populations, and poor habitat quality), we are proposing to designate all occupied habitat and some unoccupied habitat to ensure sufficient connectivity among existing bull trout populations. Unoccupied habitat proposed for protection is in FMO habitat, and is intended to ensure connectivity among existing, currently isolated bull trout populations. Conversely, examples of occupied areas that are not proposed as critical habitat include those where bull trout occur in low densities in very isolated or tenuous populations, areas where bull trout are heavily compromised by nonnative species, or areas where available habitat is restricted.
(4)In selecting areas to propose as critical habitat, we considered factors specific to each river system, such as size (i.e., stream order), gradient, channel morphology, connectivity to other aquatic habitats, and habitat complexity and diversity, as well as range-wide recovery considerations. We took into account the fact that bull trout habitat preference ranges from small headwater streams used largely for spawning and rearing, to downstream mainstem portions of river networks used for rearing, foraging, migration, or overwintering. To help determine which of these specific areas are essential to bull trout conservation, we considered the species' status in each recovery unit by evaluating whether:
(a)bull trout are rare and exposed to threats, such that recovery needs include removing threats from essentially all existing occurrences and restoring bull trout to portions of their historic range, or
(b)bull trout are declining and exposed to threats, such that recovery needs include stopping the decline and eliminating threats across key portions of their range, such as currently occupied strongholds. NatureServe is a nonprofit conservation organization whose mission is to provide the scientific basis for effective conservation action. The NatureServe database is sometimes used as one of several factors in identifying species which may warrant listing under the Act, but in other cases the information in the NatureServe database is limited in its usefulness for that purpose. Additionally, NatureServe has developed a computer spreadsheet tool used world-wide for evaluating a suite of factors related to rarity, trends, and threats to assess the extinction or extirpation risk of species and ecosystems. We did use this spreadsheet tool in analyzing the data we have for the bull trout. The protocol for assigning a conservation status rank to a species or population of a species is based on using biological data to derive a score for each of ten conservation status factors, which are grouped into three categories based on the characteristic of the factor: rarity (six factors such as population size or habitat area), trends (two factors), and threats (two factors) (Master *et al* . 2007, pp. 6-11). By inserting extensive biological data for bull trout collected by the Service and its partners through 2007 into the NatureServe status assessment ranking tool spreadsheet for each of 118 bull trout core areas or watersheds throughout their range, we were able to determine the relative status and threats within each of the 118 bull trout core areas or watersheds and each of the 6 draft recovery units. The proposed critical habitat designation identifies specific areas essential to the conservation of the bull trout local populations and spawning and rearing streams of highest conservation value. Factors taken into account at the smaller local population scale included the largest areas or populations, most highly connected populations, and areas with the highest conservation potential (i.e., the quantity and quality of physical and biological features present). At the larger core area scale, the proposed designation also focuses on areas having the highest conservation value by applying the factors that were applied at the local population scale. At both the local population and core area scales, the proposed designation emphasizes essential FMO habitats of highest conservation value, such as habitats that connect local populations and core areas and provide required space for life-history functions. In some areas, specific areas outside the geographical area occupied by bull trout at the time of listing have been determined to be essential for the conservation of the species and are being proposed as critical habitat. In those areas, bull trout habitat and population loss over time necessitates reestablishing bull trout in currently unoccupied habitat areas to achieve recovery. Based on the considerations described above, we propose a greater proportion of occupied habitat and more unoccupied habitat for protection in areas where bull trout demonstrate less resiliency, redundancy, and representation, and less critical habitat elsewhere. We find that areas occupied at the time of listing are inadequate to ensure the conservation of the species. Therefore, we are proposing additional areas outside the geographical area occupied by the species at the time it is listed. For example, in the Klamath Basin Recovery Unit where threats to bull trout are greatest, we are proposing to designate all habitat known to be occupied at the time of listing that contains the physical and biological features essential to the conservation of the species and which may require special management considerations or protection, and we propose designating a substantial proportion of unoccupied habitat outside of the geographical area occupied by the species at the time of listing that has been determined to be essential for bull trout conservation. Our primary consideration in proposing critical habitat for occupied areas is to protect species strongholds for spawning and rearing and FMO habitats. Our primary consideration for most unoccupied areas is restoring connectivity among populations by protecting FMO habitats. When determining proposed critical habitat boundaries within this proposed rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical and biological features essential for bull trout. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat. We are proposing for designation of critical habitat lands that we have determined were occupied at the time of listing and contain sufficient PBFs to support life-history functions essential for the conservation of the species and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of bull trout. We are proposing to designate 32 critical habitat units
(CHUs)within the geographical area occupied by the species at the time of listing. These units have an appropriate quantity and spatial arrangement of physical and biological features present that supports bull trout metapopulations, life processes, and overall species conservation. Twenty-nine of the units contain all of the physical and biological features identified in this proposed rule, supporting multiple life-history requirements. Three of the mainstem river units in the Columbia and Snake River basins contain most of the physical and biological features necessary to support the bull trout's particular use of that habitat, other than those associated with PCEs 5 and 6, which relate to breeding habitat. Lakes and reservoirs within these units also contain most of the physical and biological features necessary to support bull trout, other than those associated with PCEs 1, 4, and 6. Marine nearshore habitats within the Olympic Peninsula and Puget Sound CHUs contain only a subset of the identified physical and biological features for bull trout (PCEs 2, 3, 5, and 8). However, these habitats are important to conserving a diverse life-history expression and representative habitats. Special Management Considerations or Protection The term critical habitat is defined in section 3(5)(A) of the Act, in part, as geographical areas on which are found those physical and biological features essential to the conservation of the species and which may require special management considerations or protections. Accordingly, when designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. Although the determination that special management considerations or protection may be required is not a prerequisite to designating critical habitat in areas essential to the conservation of the species that were unoccupied at the time of listing, all areas being proposed as critical habitat require some level of management to address current and future threats to bull trout, to maintain or enhance the physical and biological features essential to its conservation, and to ensure the recovery of the species. The primary land and water management activities impacting the physical and biological features essential to the conservation of bull trout which may require special management considerations within the proposed critical habitat units include timber harvest and road building (forest management practices), agriculture and agricultural diversions, livestock grazing, dams, mining, and nonnative species presence or introduction (Beschta *et al* . 1987, p. 194; Chamberlin *et al* . 1991, p. 194; Furniss *et al* . 1991, p. 297; Meehan 1991, pp. 6-10; Nehlsen *et al* . 1991, p. 4; Sedell and Everest 1991, p. 6; Craig and Wissmar 1993, p. 18; Frissell 1993, p. 350; Henjum *et al* . 1994, p. 6; McIntosh *et al* . 1994, p. 37; Wissmar *et al* . 1994, p. 28; MBTSG 1995a, p. i; MBTSG 1995b, p. i; MBTSG 1995c, p. i; MBTSG 1995d, p. 1; USDA and USDI 1995, p. 8, 1997, pp. 132-144; Light *et al* . 1996, p. 6; MBTSG 1996a, p. ii; MBTSG 1996b, p. 1; MBTSG 1996c, p. i; MBTSG 1996d, p. i; MBTSG 1996e, p. i; MBTSG 1996f, p. 1; MBTSG 1996g, p. 7; MBTSG 1996h, p. 7). Urbanization and residential development may also impact the physical and biological features, and these features may require special management considerations or protections due to these development impacts. Timber harvest and road building in, or close to, riparian areas can immediately reduce stream shading and cover, channel stability, and large woody debris recruitment, and it can increase sedimentation and peak stream flows (Chamberlin *et al* . 1991, p. 180). These activities can subsequently lead to increased stream temperatures and bank erosion and decreased long-term stream productivity. The effects of road construction and associated maintenance account for a majority of sediment loads to streams in forested areas. In addition, stream crossings also can impede fish passage (Shepard *et al* . 1984, p. 1; Cederholm and Reid 1987, p. 392; Furniss *et al* . 1991, p. 301). Sedimentation affects streams by reducing pool depth, altering substrate composition, reducing interstitial space, and causing braiding of channels (Rieman and McIntyre 1993, p. 6), which reduce carrying capacity. Sedimentation negatively affects bull trout embryo survival and juvenile bull trout rearing densities (Shepard *et al* . 1984, p. 6; Pratt 1992, p. 6). An assessment of the interior Columbia Basin ecosystem revealed that increasing road densities were associated with declines in four nonanadromous salmonid species (bull trout; Yellowstone cutthroat trout ( *Oncorhyncus clarki bouvieri* ); westslope cutthroat trout ( *O. c. lewisi* ); and redband trout ( *O. mykiss* ssp.)) within the Columbia River basin, likely through a variety of factors associated with roads. Bull trout were less likely to use highly roaded basins for spawning and rearing and, if present, were likely to be at lower population levels (Quigley and Arbelbide 1997, p. 1183). These activities can directly and immediately threaten the integrity of the essential physical and biological features described in PCEs 1-6. Special management considerations or protections that may be needed for the essential features include the implementation of best management practices that could result in project modifications specifically designed to reduce these impacts in streams with bull trout, particularly in spawning and rearing habitat. Such best management practices could result in project modifications that require measures to ensure that road stream crossings do not impede fish migration or occur in or near spawning/rearing areas, or increase road surface drainage. Agricultural practices and associated activities adjacent to streams and in upland portions of watersheds also can adversely affect the physical and biological features essential to bull trout conservation. Irrigation withdrawals, including diversions, can dewater spawning and rearing streams, impede fish passage and migration, and entrain fish into the irrigation ditch from the river. Discharging pollutants such as nutrients, agricultural chemicals, animal waste, and sediment into spawning and rearing waters is also detrimental (Spence *et al* . 1996, p. 128). Agricultural practices regularly include stream channelization and diking, large woody debris and riparian vegetation removal, and bank armoring (Spence *et al* . 1996, p. 127). Improper livestock grazing can promote streambank erosion and sedimentation and limit the growth of riparian vegetation important for temperature control, streambank stability, fish cover, and detrital input (Platts 1991, pp. 397-399). In addition, grazing often results in increased organic nutrient input in streams (Platts 1991, p. 423). These activities can directly and immediately threaten the integrity of the essential physical and biological features described in PCEs 1-8. Special management for the essential features could include best management practices that could include project modifications specifically designed to reduce these types of impacts in streams with bull trout, such as fencing livestock from streamsides, moving animal feeding operations away from surface waters, using riparian buffer strips near crop fields, minimizing water withdrawal from streams, avoiding stream channel and spring head manipulation, and avoiding stream dewatering. Dams constructed without fish passage features, or with poorly designed fish passage features, create barriers to migratory bull trout, precluding access to suitable spawning, rearing, and migration habitats. Dams disrupt the connectivity within and between watersheds essential for maintaining aquatic ecosystem function (Naiman *et al* . 1992, p. 127; Spence *et al* . 1996, p. 141) and bull trout subpopulation interaction (Rieman and McIntyre 1993, p. 15). Natural recolonization of historically occupied sites can be precluded by migration barriers (e.g., McCloud Dam in California). These activities can directly and immediately threaten the integrity of the essential physical and biological features described in PCEs 2-7 and 9. Special management considerations that may be needed for the essential features include the implementation of best management practices that could result in project modifications, such as providing fish passage, specifically designed to reduce these impacts in streams with bull trout. Mining can degrade aquatic systems by generating sediment and heavy metals pollution, altering water pH levels, and changing stream channels and flow (Martin and Platts 1981, p. 2). These activities can directly and immediately threaten the integrity of the essential physical and biological features described in PCEs 1, 6, 7, and 8, even if they occur some distance upstream from critical habitat. Special management for these essential features could require best management practices that could result in project modifications specifically designed to reduce these impacts in streams with bull trout, such as avoiding surface water impacts from mining activities and neutralizing or containing toxic materials generated. Introductions of nonnative species by the Federal Government, State fish and game departments, and unauthorized private parties across the range of bull trout have resulted in predation, declines in abundance, local extirpations, and hybridization of bull trout (Bond 1992, p. 3; Howell and Buchanan 1992, p. viii; Donald and Alger 1993, p. 245; Leary *et al* . 1993, p. 857; Pratt and Huston 1993, p. 75; MBTSG 1995b, p. 10; MBTSG 1995d, p. 21; Platts *et al* . 1995, p. 9; MBTSG 1996g, p. 7; Palmisano and Kaczynski, in litt.1997, p. 29). Nonnative species may exacerbate stresses on bull trout from habitat degradation, fragmentation, isolation, and species interactions (Rieman and McIntyre 1993, p. 3). These activities can, over time, directly threaten the integrity of the essential physical and biological features described in PCE 9. Special management needs and considerations for this essential feature could require the implementation of best management practices that could result in project modifications specifically designed to reduce these impacts in streams with bull trout, such as avoiding future introductions, eradicating or controlling introduced species, and managing habitat to favor bull trout over other species. Urbanization and residential development in watersheds has led to decreased habitat complexity (uniform stream channels and simple nonfunctional riparian areas), impediments and blockages to fish passage, increased surface runoff (more frequent and severe flooding), and decreased water quality and quantity (Spence *et al* . 1996, pp. 130-134). In nearshore marine areas, urbanization and residential development has led to significant loss or physical alteration of intertidal and shoreline habitats, as well as led to the contamination of many estuarine and nearshore areas (PSWQAT 2000, p. 47; BMSL *et al* . 2001, ch. 10, pp. 1-27 ; Fresh *et al* . 2004, p. 1). Activities associated with urbanization and residential development can incrementally threaten the integrity of the essential physical and biological features described in PCEs 1-5, 7, and 8. Special management for these essential features could require best management practices that could result in project modifications specifically designed to reduce these impacts in streams with bull trout, such as setting back developments from riparian areas, minimizing water runoff from urban areas directly to streams, minimizing hard surfaces such as pavement in watersheds, and minimizing impacts related to fertilizer application. Proposed Critical Habitat Designation We are proposing 32 critical habitat units in 6 recovery units for bull trout. Each CHU is comprised of a number of specific streams or reservoir/lake areas, which are identified as subunits in this proposed rule. In freshwater areas, critical habitat includes the stream channels within the designated stream reaches and a lateral extent as defined by the bankfull elevation on one bank to the bankfull elevation on the opposite bank. If bankfull elevation is not evident on either bank, the ordinary high-water line determines the lateral extent of critical habitat. The lateral extent of critical habitat in lakes is defined by the perimeter of the water body as mapped on standard 1:24,000 scale topographic maps. In marine nearshore areas, the inshore extent of critical habitat is the mean higher high-water
(MHHW)line, including tidally influenced freshwater heads of estuaries. Critical habitat extends offshore to the depth of 10 meters
(m)(33 feet (ft)) relative to the mean low low-water
(MLLW)line. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for bull trout. A total of 36,497.70 km (22,678.5 mi) of streams (which includes 1,587.7 km (985.3 mi) of marine shoreline area (Table 2), and 215,870.1 ha (533,426.4 ac) of reservoir and lake surface area (Table 3) are proposed as bull trout critical habitat. A total of 1,495 km (929 mi; four percent) of stream and marine shoreline distance was unoccupied at the time of listing, with the remainder occupied. A total of 17,422 km (10,825 mi; 48 percent) of stream habitat is used for spawning and rearing, with the remainder—and all reservoirs and lakes—used for FMO. Tables 4 and 5 present total stream shoreline distance and reservoir and lake surface area proposed in each state. Table 6 presents the ownership for all stream shoreline distances proposed as critical habitat. Table 2.—Stream/Shoreline Distance Proposed for Designation as Bull Trout Critical Habitat by Critical Habitat Unit and Referencing Recovery Unit Recovery Unit Critical habitat unit Kilometers Miles Coastal 1.Olympic Peninsula 1,292.9 803.4 1.Olympic Peninsula (Marine) 673.8 418.7 2.Puget Sound 2,737.3 1,700.8 2.Puget Sound (Marine) 911.9 566.6 3.Lower Columbia River Basins 360.9 224.3 4.Upper Willamette River 304.9 189.5 5.Hood River 113.1 70.3 6.Lower Deschutes River 463.2 287.8 7.Odell Lake 27.4 17.0 8.Mainstem Lower Columbia River 342.2 212.6 Klamath 9.Klamath River Basin 440.0 273.4 Mid-Columbia 10.Upper Columbia River Basins 1,125.9 699.6 11.Yakima River 1,191.4 740.3 12.John Day River 1,176.4 731.0 13.Umatilla River 211.8 131.6 14.Walla Walla River Basin 452.7 281.3 15.Lower Snake River Basins 284.2 176.6 16.Grande Ronde River 1,057.7 657.2 17.Imnaha River 285.7 177.5 18.Sheep and Granite Creeks 47.9 29.7 19.Hells Canyon Complex 399.3 248.1 20.Powder River Basin 404.3 251.2 21.Clearwater River 2,702.1 1,679.0 22.Mainstem Upper Columbia River 522.7 324.8 23.Mainstem Snake River 552.2 343.1 Upper Snake 24. Malheur River Basin 250.7 155.8 25.Jarbidge River 266.9 165.9 26.Southwest Idaho River Basins 2,716.7 1,688.1 27.Salmon River Basin 8,119.4 5,045.1 28.Little Lost River 206.6 128.4 Columbia Headwaters 29.Coeur d'Alene River Basin 819.6 509.3 30.Kootenai River Basin 587.0 364.7 31.Clark Fork River Basin 5,332.1 3,313.2 Saint Mary 32.Saint Mary River Basin 116.8 72.6 Total 36,497.7 22,678.5 Table 3.—Area of Reservoirs or Lakes Proposed for Designation as Bull Trout Critical Habitat by Critical Habitat Unit Critical habitat unit Hectares Acres 1.Olympic Peninsula 3,366.2 8,318.1 2.Puget Sound 17,890.5 44,208.3 3.Lower Columbia River Basins 4,856.1 11,999.7 4.Upper Willamette River 3,601.5 8,899.6 5.Hood River 36.9 91.1 6.Lower Deschutes River 1,670.2 4,127.3 7.Odell Lake 1,387.1 3,427.6 9.Klamath River Basin 3,775.5 9,329.5 10.Upper Columbia River Basins 1,033.2 2,553.1 11.Yakima River 6,285.2 15,531.0 16.Grande Ronde River 605.2 1,495.5 21.Clearwater River 6,721.9 16,610.2 24.Malheur River Basin 715.9 1,768.9 26.Southwest Idaho River Basins 15,540.2 38,400.6 27.Salmon River Basin 1,659.5 4,100.6 29.Coeur d'Alene River Basin 12,606.9 31,152.2 30.Kootenai River Basin 12,089.2 29,873.1 31.Clark Fork River Basin 119,473.5 295,225.5 32.Saint Mary River Basin 2,555.4 6,314.5 Total 215,870.1 533,426.40 Table 4.—Stream/Shoreline Distance Proposed for Designation as Bull Trout Critical Habitat by State State Kilometers Miles Idaho 15,563.4 9,670.6 Montana 4,978.8 3,093.7 Nevada 137.3 85.3 Oregon 4,988.3 3,099.6 Oregon/Idaho 273.8 170.1 Washington 8,421.1 5,232.6 Washington Marine 1,585.7 985.3 Washington/Idaho 59.9 37.2 Washington/Oregon 489.0 303.9 Total 36,497.30 22,678.30 Table 5.—Area of Reservoirs or Lakes Proposed for Designation as Bull Trout Critical Habitat by State State Hectares Acres Idaho 80,093.2 19,7914.7 Montana 90,553.3 22,3762.2 Oregon 11,792.3 29,139.5 Washington 33,431.2 82,610.3 Total 215,870.1 533,426.40 Table 6.—Stream/Shoreline Distance Proposed for Designation as Bull Trout Critical Habitat by Ownership Ownership Kilometers Miles Federal 21,276 13,220 Federal/Private 422 262 Federal/State 4 2 State 889 552 Tribal 683 424 Private 13,223 8,216 Total 36,497 22,676 We present a brief description of all critical habitat designated in each of 32 units below, organized by recovery unit. Maps depicting the units and subunits are included with the proposed amendatory language below. For a more detailed textual and graphic description of all units and subunits, please see our website at *http://www.fws.gov/pacific/bulltrout* , or contact the Idaho Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT above). The areas being proposed as critical habitat below satisfy each of the above “Criteria Used to Identify Critical Habitat” considerations, and will conserve the opportunity for diverse life-history expression and genetic diversity; ensure that bull trout are distributed across representative habitats; ensure sufficient connectivity among populations; ensure sufficient habitat to support population viability; address threats; and ensure sufficient redundancy in conserving population units. The characteristics of each Critical Habitat Unit, Subunit, and in some cases water body segment that establish why a specific area is essential to the conservation of bull trout are identified in the reference (Service 2009). Examples of attributes that were considered include habitat use (FMO, spawning and rearing), occupancy data, geographic limits, accessibility, presence or absence of barriers, genetic analysis (used in metapopulation context), population data, habitat condition, and presence of anadromous salmonids. Coastal Recovery Unit Unit 1: Olympic Peninsula Unit The Olympic Peninsula CHU is located in northwestern Washington. Bull trout populations inhabiting the Olympic Peninsula comprise the coastal component of the Coastal-Puget Sound population. The unit includes approximately 1,292.9 km (803.4 mi) of stream, 3,366.2 ha (8,318.1 ac) of lake surface area, and 673.8 km (418.7 mi) of marine shoreline proposed as critical habitat. This CHU is bordered by Hood Canal to the east, Strait of Juan de Fuca to the north, the Pacific Ocean to the west, and the Lower Columbia River Basins and Puget Sound CHUs to the south. It extends across portions of Grays Harbor, Clallam, Mason, Pacific, and Jefferson Counties. All of the major river basins initiate from the Olympic Mountains. The Olympic Peninsula CHU is divided into 10 CHSUs. Although delta areas and small islands are difficult to map and may not be specifically identified by name, included within the critical habitat proposal are delta areas where streams form sloughs and braids and the nearshore of small islands found within the proposed marine areas. The State of Washington has assigned most streams a stream catalog number. Typically, if an unnamed stream or stream with no official U.S. Geological Survey name is proposed for critical habitat within the Puget Sound CHU, the stream catalog number is provided for reference. In those cases where tributary streams do not have a catalog number, they are referred to as “unnamed” or a locally accepted name is used. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 9-11), or *http://www.fws.gov/pacific/bulltrout* . Unit 2: Puget Sound Unit The Puget Sound CHU includes approximately 2,737.3 km (1,700.8 mi) of streams; 17,890.5 ha (44,208.3 ac) of lake surface area; and 911.9 km (566.6 mi) of marine shoreline proposed as critical habitat. The CHU is bordered by the Cascade Range to the east, Puget Sound to the west, Lower Columbia River Basins and Olympic Peninsula CHUs to the south, and the U.S.-Canada border to the north. The CHU extends across Whatcom, Skagit, Snohomish, King, Pierce, Thurston, and Island Counties in Washington. The major river basins initiate from the Cascade Range and flow west, discharging into Puget Sound, with the exception of the Chilliwack River system, which flows northwest into British Columbia, discharging into the Fraser River. The Puget Sound CHU is divided into 13 CHSUs. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 11-13), or *http://www.fws.gov/pacific/bulltrout* . Unit 3: Lower Columbia River Basins Unit The Lower Columbia River Basins CHU consists of portions of the Lewis, White Salmon, and Klickitat Rivers and associated tributaries in southwestern and south-central Washington. The CHU extends across Clark, Cowlitz, Klickitat, Skamania, and Yakima Counties. Approximately 360.9 km (224.3 mi) of stream and 4,856.1 ha (11,999.7 ac) of reservoir surface area are proposed as critical habitat. There are three bull trout local populations in the Lewis River watershed and one in the Klickitat River watershed. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 14), or *http://www.fws.gov/pacific/bulltrout* . Unit 4: Upper Willamette River Unit The Upper Willamette River CHU includes 304.9 km (189.5 mi) of streams and 3,601.5 ha (8,899.6 ac) of lake surface area is proposed as critical habitat in the McKenzie River and Middle Fork Willamette River subbasins of western Oregon. This unit is located primarily within Lane County, but also extends into Linn County. There are three known bull trout local populations in the McKenzie River subbasin and one bull trout local population in the Middle Fork Willamette River subbasin. With the exception of a short reach of the mainstem Willamette River and the mainstem Middle Fork Willamette River (including reservoirs) below Hills Creek Dam, segments proposed as critical habitat are occupied by bull trout. The stream segments that make up the Willamette River Unit are described below. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 14-15), or *http://www.fws.gov/pacific/bulltrout* . Unit 5: Hood River Unit The Hood River CHU includes the mainstem Hood River and three major tributaries: Clear Branch Hood River, West Fork Hood River, and East Fork Hood River. A total of 113.1 km (70.3 mi) of stream and 36.9 ha (91.1 ac) of lake surface is proposed as critical habitat. Portions of the mainstem Columbia River utilized as FMO by Hood River bull trout are discussed in the Lower Mainstem Columbia River section of this document. The Hood River CHU, located on the western slopes of the Cascades Mountains in northwest Oregon, lies entirely within Hood River County, Oregon. There are two local populations identified as essential:
(1)Clear Branch Hood River above Clear Branch Dam and
(2)Hood River and tributaries below Clear Branch Dam. This unit provides spawning and rearing habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 15), or *http://www.fws.gov/pacific/bulltrout* . Unit 6: Lower Deschutes River Unit The Lower Deschutes River CHU is located in Wasco, Sherman, Jefferson, Deschutes, and Crook Counties in central Oregon. There are five known local population in the lower Deschutes River basin:
(1)Warm Springs River;
(2)Shitike Creek;
(3)Whitewater River;
(4)Jefferson Creek-Candle Creek Complex; and
(5)Jack Creek-Canyon Creek-Heising Spring Complex. The Lower Deschutes River CHU includes
(1)the Metolius River basin, consisting of Canyon Creek, Jack Creek, Heising Spring, Candle Creek, Jefferson Creek, Whitewater River, the mainstem Metolius River, and Lake Billy Chinook;
(2)the mainstem Deschutes River from Lake Billy Chinook to Big Falls;
(3)Whychus Creek upstream to the USFS 6360 Road crossing;
(4)Crooked River from its confluence with Lake Billy Chinook upstream to Highway 97;
(5)Shitike Creek;
(6)Warm Springs River; and
(7)mainstem Deschutes River from the Pelton Regulating Dam downstream to the Columbia River. Approximately 463.2 km (287.8 mi) of streams and 1,670.2 ha (4,127.3 ac) of lake and reservoir surface area in the lower Deschutes River basin are proposed as critical habitat. A portion of the reaches occur on the Confederated Tribes of Warm Springs lands. The following stream segments are included in the Lower Deschutes River CHU. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 15), or *http://www.fws.gov/pacific/bulltrout* . Unit 7: Odell Lake Unit The Odell Lake CHU lies entirely within the Deschutes National Forest in Deschutes and Klamath Counties, Oregon. Total proposed critical habitat in this unit includes 27.4 km (17.0 mi) of streams and 1,387.1 ha (3,427.6 ac) of lake surface area. The single Odell Lake bull trout population has been isolated from the Deschutes River population by a lava flow that impounded Odell Creek and formed Davis Lake approximately 5,500 years ago. Odell Lake is the only remaining natural adfluvial population of bull trout in Oregon. The following lake area and stream segments are included in this CHU. This unit provides spawning and rearing habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 16), or *http://www.fws.gov/pacific/bulltrout* . Unit 8: Mainstem Lower Columbia River Unit The Mainstem Lower Columbia River CHU extends from the mouth of the Columbia River to John Day Dam and is located in the states of Oregon and Washington. It includes Clatsop, Columbia, Multnomah, Hood River, Wasco, and Sherman Counties in Oregon and Pacific, Wahkiakum, Cowlitz, Clark, Skamania, and Klickitat Counties in Washington. A total of 342.2 km (212.6 mi) of stream are being proposed as critical habitat. This unit provides connecting habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 16), or *http://www.fws.gov/pacific/bulltrout* . Unit 9: Klamath River Basin Unit (Klamath Recovery Unit) The Klamath River Basin CHU is located in south-central Oregon and includes three CHSUs:
(1)Upper Klamath Lake CHSU;
(2)Sycan River CHSU; and
(3)Upper Sprague River CHSU. It includes portions of Klamath and Lake Counties in Oregon. Total proposed critical habitat in this unit includes 440.0 km (273.4 mi) of streams and 3,775.5 ha (9,329.5 ac) of lake surface area. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 16-18), or *http://www.fws.gov/pacific/bulltrout* . Unit 10: Upper Columbia River Basins Unit (Mid-Columbia Recovery Unit) The Upper Columbia River Basins CHU includes the entire drainages of three CHSUs in central and north-central Washington on the east slopes of the Cascade Range and east of the Columbia River between Wenatchee, Washington, and the Okanogan River drainage:
(1)Wenatchee River CHSU in Chelan County;
(2)Entiat River CHSU in Chelan County; and
(3)Methow River CHSU in Okanogan County. The Upper Columbia River Basins CHU also includes the Lake Chelan basin (with some proposed critical habitat and Okanogan River basin) which historically provided spawning and rearing and FMO habitat. But it is unclear what role these drainages may play in recovery. A total of 1,125.9 km (699.6 mi) of streams and 1,033.2 ha (2,553.1 ac) of lake surface area in this CHU are proposed as critical habitat to provide for spawning and rearing, FMO habitat to support three core areas essential for conservation and recovery. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 18-19), or *http://www.fws.gov/pacific/bulltrout* . Unit 11: Yakima River Unit The Yakima River CHU supports adfluvial, fluvial, and resident life-history forms of bull trout. This CHU includes the mainstem Yakima River and tributaries from its confluence with the Columbia River upstream from the mouth of the Columbia River upstream to its headwaters at the crest of the Cascade Range. The Yakima River CHU is located on the eastern slopes of the Cascade Range in south-central Washington and encompasses the entire Yakima River basin located between the Klickitat and Wenatchee Basins. The Yakima River basin is one of the largest basins in the State of Washington; it drains southeast into the Columbia River near the town of Richland, Washington. The basin occupies most of Yakima and Kittitas Counties, about half of Benton County, and a small portion of Klickitat County. This CHU does not contain any subunits because it supports one core area. A total of 1,191.4 km (740.3 mi) of stream habitat and 6,285.2 ha (15,531.0 ac) of lake and reservoir surface area in this CHU are proposed as critical habitat. One of the largest populations of bull trout (South Fork Tieton River population) in central Washington is located above the Tieton Dam and supports the core area. This CHU supports two potential resident local populations identified in the U.S. Fish and Service's 2008 five year review (Service 2008, p. 6). This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 19-20), or *http://www.fws.gov/pacific/bulltrout* . Unit 12: John Day River Unit The John Day River CHU in the John Day River basin in eastern Oregon includes portions of the mainstem John Day River, North Fork John Day River, Middle Fork John Day River, and their tributary streams within Wheeler, Grant, and Umatilla Counties in Oregon. A total of 1,176.4 km (731.0 mi) of streams are proposed as critical habitat. Four CHSUs are defined for the John Day River CHU: Lower Mainstem John Day River, Upper Mainstem John Day River, North Fork John Day River, and Middle Fork John Day River. The latter three generally correspond to core areas. All proposed critical habitat designations are essential to the long-term conservation of the species. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 20), or *http://www.fws.gov/pacific/bulltrout* . Unit 13: Umatilla River Unit The Umatilla River CHU is located in northeastern Oregon in Umatilla and Union Counties. There are two local populations in this unit: one in the North Fork Umatilla River and one in North Fork Meacham Creek. Bull trout in this basin are primarily fluvial migrants that overwinter in middle and lower sections of the mainstem Umatilla River. Approximately 211.8 km (131.8 mi) of stream is proposed as critical habitat for bull trout in the Umatilla River basin. Approximately 48.7 km (30.3 mi) of stream within the Confederated Tribes of the Umatilla Indian Reservation lands is being proposed as critical habitat. The stream segments that make up the Umatilla River CHU are described below. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 21), or *http://www.fws.gov/pacific/bulltrout* . Unit 14: Walla Walla River Basin Unit The Walla Walla River Basin CHU straddles the Oregon-Washington State line in the eastern part of both States and includes two CHSUs. The unit includes 452.7 km (281.3 mi) of stream, extending across portions of Umatilla and Wallowa Counties in Oregon and Walla Walla and Columbia Counties in Washington. There are five known bull trout local populations in this unit: two in the Walla Walla River basin and three in the Touchet River basin. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 21), or *http://www.fws.gov/pacific/bulltrout* . Unit 15: Lower Snake River Basins Unit The Lower Snake River Basins CHU is located in southeast Washington and contains two CHSUs:
(1)Tucannon River basin CHSU located in Columbia and Garfield Counties and
(2)Asotin Creek basin CHSU within Garfield and Asotin Counties. Approximately 284.2 km (176.6 mi) of stream are proposed as critical habitat for bull trout within this unit. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 21-22), or *http://www.fws.gov/pacific/bulltrout* . Unit 16: Grande Ronde River Unit The Grande Ronde River CHU is located in northeast Oregon and southeast Washington and includes the Grande Ronde core area and the Little Minam core area. The Grande Ronde core area includes large portions of Union and Wallowa Counties and a small portion of Umatilla County in Oregon and about one-third of Asotin County and small portions of Columbia and Garfield Counties in Washington. The Little Minam core area is located entirely within the Eagle Cap Wilderness on the western edge of the Wallowa subbasin in both Union and Wallowa Counties in Oregon. The Grande Ronde River CHU contains at least ten local populations in the Grande Ronde River basin:
(1)Upper Grande Ronde;
(2)Catherine;
(3)Indian;
(4)Minam/Deer;
(5)Lostine/Bear;
(6)Upper Hurricane;
(7)North Fork Wenaha;
(8)South Fork Wenaha;
(9)Butte and West Fork Butte; and
(10)Lookingglass. The Little Minam River, a separate core area and a tributary to the Minam River, encompasses tributaries containing one local population located above a barrier falls at approximately 9.0 km (5.6 mi) upstream, as well as the Little Minam River below the barrier to its confluence with the Minam River. The Grande Ronde River CHU includes 1,057.7 km (657.2 mi) of streams and 605.2 ha (1,495.5 ac) of lakes and reservoirs proposed as critical habitat. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 22-23), or *http://www.fws.gov/pacific/bulltrout* . Unit 17: Imnaha River Unit The Imnaha River CHU extends across Wallowa, Baker, and Union Counties in northeastern Oregon. The CHU contains approximately 285.7 km (177.5 mi) of river proposed as critical habitat and four local populations:
(1)Mainstem Imnaha River;
(2)Big Sheep Creek and tributary streams (Big Sheep Creek is considered to be one local population above and below the Wallowa Valley Irrigation Canal);
(3)Little Sheep Creek and tributary streams; and
(4)McCully Creek, which could be considered one or two local populations depending if Big Sheep Creek above and below the diversion are separated. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 23), or *http://www.fws.gov/pacific/bulltrout* . Unit 18: Sheep and Granite Creeks Unit This CHU is located within Adams and Idaho Counties in Idaho, approximately 21.0 km (13.0 mi) east of Riggins, Idaho. In the Sheep and Granite Creeks CHU, 47.9 km (29.7 mi) of streams are proposed as critical habitat. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 23), or *http://www.fws.gov/pacific/bulltrout* . Unit 19: Hells Canyon Complex Unit The Hells Canyon Complex is located in Adams County, Idaho, and Baker County, Oregon. This CHU contains 399.3 km (248.1 mi) of streams proposed as critical habitat. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 23-24), or *http://www.fws.gov/pacific/bulltrout* . Unit 20: Powder River Basin Unit The Powder River Basin CHU includes approximately 404.3 km (251.2 mi) of stream proposed as critical habitat and is located within Baker, Union, and Wallowa Counties in northeastern Oregon. This unit is thought to contain 10 local populations of bull trout and 1 potential local population. Several unoccupied sections of the Powder River mainstem have been proposed to provide connectivity and recovery opportunities for local populations. The stream segments that make up the Powder River Basin CHU are described below. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 24), or *http://www.fws.gov/pacific/bulltrout* . Unit 21: Clearwater River Unit The Clearwater River CHU is located east of Lewiston, Idaho, and extends from the Snake River confluence at Lewiston on the west to headwaters in the Bitterroot Mountains along the Idaho-Montana border on the east in Nez Perce, Latah, Lewis, Clearwater, Idaho, and Shoshone Counties. This unit includes five CHSUs: Lower/Middle Fork Clearwater River; North Fork Clearwater River (and Fish Lake); South Fork Clearwater River; Lochsa River (and Fish Lake); and the Selway River. In the Clearwater River CHU, 2,702.1 km (1,679.0 mi) of streams and 6,721.9 ha (16,610.2 ac) of lake and reservoir surface area are proposed as critical habitat. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 24-26), or *http://www.fws.gov/pacific/bulltrout* . Unit 22: Mainstem Upper Columbia River Unit The Mainstem Upper Columbia River CHU includes the Columbia River from John Day Dam upstream 522.7 km (324.8 mi) to Chief Joseph Dam. The Columbia River generally flows south from Canada, southwest through Washington, and west through Oregon. The Columbia River drains from its headwaters in Alberta, Canada, and the west slopes of the Rocky Mountains in Montana. This reach of river is heavily influenced by Grand Coulee Dam operations, which provide hydroelectricity and irrigation water. The Mainstem Upper Columbia River CHU supports FMO habitat for fluvial bull trout; several accounts exist of bull trout in the Columbia River between the Yakima and John Day Rivers. The Mainstem Upper Columbia River CHU provides connectivity to the Mainstem Lower Columbia River CHU and 13 additional CHUs (Clearwater River, Powder River Basin, Imnaha River, Grande Ronde River, Walla Walla River Basin, Umatilla River, John Day River, Yakima River, Mainstem Snake River, Lower Snake River Basins, Hells Canyon Complex, Sheep and Granite Creeks, and Upper Columbia River Basins). The Mainstem Upper Columbia River CHU is located in north-central, central, and south-central Washington and north-central and northeast Oregon. This CHU is within Klickitat, Franklin, Benton, Grant, Yakima, Kittitas, Chelan, Douglas, and Okanogan Counties in Washington and Sherman, Gilliam, Morrow, and Umatilla Counties in Oregon. Several dams, all of which have reports of bull trout using their ladders, are located throughout this portion of the Columbia River, including John Day, McNary, Priest Rapids, Wanapum, Rock Island, Rocky Reach, and Wells Dams. For a justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 26), or *http://www.fws.gov/pacific/bulltrout* . Unit 23: Mainstem Snake River Unit The Mainstem Snake River CHU is located from the confluence with the Columbia River upstream to the head of Brownlee Reservoir. The Snake River is the largest tributary to the Columbia River and forms the border between Washington and Idaho from Clarkston/Lewiston upstream to Oregon. The Snake River also forms the boundary between Idaho and Oregon, and at that point upstream to the upper limit of Brownlee Reservoir, forms this CHU. The Snake River is within Franklin, Walla Walla, Columbia, Whitman, and Asotin Counties in Washington; Wallowa, Whitman, Baker, and Malheur Counties in Oregon; and Nez Perce, Idaho, Adams, and Washington Counties in Idaho. In the lower section of the Snake River are a series of dams and locks built by the U.S. Army Corps of Engineers (COE). The Lower Granite, Little Goose, Lower Monumental, and Ice Harbor Dams generate hydroelectric power and provide barge traffic navigation to Lewiston, Idaho. The major features in the Hells Canyon Hydroelectric Complex reach of the Snake River are Hells Canyon, Oxbow, and Brownlee Dams and their reservoirs. These projects are owned and operated by the Idaho Power Company to produce electrical power. The Mainstem Snake River CHU includes 552.2 km (343.1 mi) of streams proposed as critical habitat. This unit provides foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 26), or *http://www.fws.gov/pacific/bulltrout* . Unit 24: Malheur River Basin Unit (Upper Snake Recovery Unit) The Malheur River Basin CHU is in eastern Oregon within Grant, Baker, Harney, and Malheur Counties. A total of 250.7 km (155.8 mi) of streams and 715.9 ha (1,768.9 ac) of reservoir surface area are proposed as critical habitat. There are two local bull trout populations (Upper Malheur and North Fork Malheur Rivers (Service 2002, pp. 34-35)). The Bull Trout Draft Recovery Plan also identified several streams, including Bosonberg Creek, McCoy Creek, and Corral Basin Creek, for expansion of bull trout range within the upper Malheur River local population (Service 2002, pp. 34-35). Summit Creek is considered potential suitable bull trout habitat and is included in the proposed designation. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 27), or *http://www.fws.gov/pacific/bulltrout* . Unit 25: Jarbidge River Unit The Jarbidge River CHU encompasses the Jarbidge and Bruneau River basins, which drain into the Snake River within C.J. Strike Reservoir upstream of Grand View, Idaho. The Jarbidge River CHU is located approximately 70 miles north of Elko within Owyhee County in southwestern Idaho and Elko County in northeastern Nevada. The Jarbidge River CHU includes 266.9 km (165.9 mi) of streams proposed as critical habitat. The Jarbidge River CHU contains six local populations of resident and migratory bull trout and the stream segments in the Jarbidge River CHU provide either FMO or spawning and rearing habitat. These habitats maintain the population and the migratory life-history form essential to the species' long-term conservation and provide habitat necessary for the recovered distribution of bull trout (Service 2004b, pp. 7-9). The stream segments that make up the Jarbidge Unit are described below. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 27), or *http://www.fws.gov/pacific/bulltrout* . Unit 26: Southwest Idaho River Basins Unit The Southwest Idaho River Basins CHU is located in southwest Idaho in the following counties: Adams, Boise, Camas, Canyon, Elmore, Gem, Valley, and Washington. This unit includes eight CHSUs: Anderson Ranch, Arrowrock Reservoir, South Fork Payette River, Deadwood River, Middle Fork Payette River, North Fork Payette River, Squaw Creek, and Weiser River. The Southwest Idaho River Basins CHU includes approximately 2,716.7 km (1,688.1 mi) of streams and 15,540.2 ha (38,400.6 ac) of lake and reservoir surface area proposed as critical habitat. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 27-28), or *http://www.fws.gov/pacific/bulltrout* . Unit 27: Salmon River Basin Unit The Salmon River basin extends across central Idaho from the Snake River to the Montana-Idaho border. The Salmon River Basin CHU extends across portions of Adams, Blaine, Custer, Idaho, Lemhi, Nez Perce, and Valley Counties in Idaho. There are 10 CHSUs: Little-Lower Salmon River, Opal Lake, Lake Creek, South Fork Salmon River, Middle Salmon-Panther River, Middle Fork Salmon River, Middle Salmon Chamberlain River, Upper Salmon River, Lemhi River, and Pahsimeroi River. The Salmon River Basin CHU includes 8,119.4 km (5,045.1 mi) of stream and 1,659.5 ha (4,100.6 ac) of lake and reservoir surface area proposed as critical habitat. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 29-30), or *http://www.fws.gov/pacific/bulltrout* . Unit 28: Little Lost River Unit Located within Butte, Custer, and Lemhi Counties in east-central Idaho, near the town of Arco, Idaho, designated critical habitat in the Little Lost River CHU includes 206.6 km (128.4 mi) of streams proposed as critical habitat. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 30), or *http://www.fws.gov/pacific/bulltrout* . Unit 29: Coeur d'Alene River Basin Unit (Columbia Headwaters Recovery Unit) Located in Kootenai, Shoshone, Benewah, Bonner, and Latah Counties in Idaho, the Coeur d'Alene River Basin CHU includes the entire Coeur d'Alene Lake basin in northern Idaho. A total of 819.6 km (509.3 mi) of streams and 12,606.9 ha (31,152.2 ac) of lake surface area are proposed as critical habitat. There are no subunits within the Coeur d'Alene River Basin CHU. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 31), or *http://www.fws.gov/pacific/bulltrout* . Unit 30: Kootenai River Basin Unit The Kootenai River Basin CHU is located in the northwestern corner of Montana and the northeastern tip of the Idaho panhandle and includes the Kootenai River watershed upstream and downstream of Libby Dam. The Kootenai River flows in a unique horseshoe configuration, entering the United States from British Columbia, Canada, and then traversing across northwest Montana and the northern Idaho panhandle before returning to British Columbia from Idaho where it eventually joins the upper Columbia River drainage. The Kootenai River Basin CHU includes two CHSUs: the downstream Kootenai River CHSU in Boundary County, Idaho, and Lincoln County, Montana, and the upstream Lake Koocanusa CHSU in Lincoln County, Montana. The entire Kootenai River Basin CHU includes 587.0 km (364.7 mi) of streams and 12,089.2 ha (29,873.1 ac) of lake and reservoir surface area proposed as critical habitat. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 31-32), or *http://www.fws.gov/pacific/bulltrout* . Unit 31: Clark Fork River Basin Unit The Clark Fork River Basin CHU includes the northeastern corner of Washington (Pend Oreille County), the panhandle portion of northern Idaho (Boundary, Bonner, and Kootenai Counties), and most of western Montana (Lincoln, Flathead, Sanders, Lake, Mineral, Missoula, Powell, Lewis and Clark, Ravalli, Granite, and Deer Lodge Counties). This unit includes 12 CHSUs, organized primarily on the basis of major watersheds: Lake Pend Oreille, Pend Oreille River, and lower Priest River (Lake Pend Oreille); Priest Lakes and Upper Priest River (Priest Lakes); Lower Clark Fork River; Middle Clark Fork River; Upper Clark Fork River; Flathead Lake, Flathead River, and Headwater Lakes (Flathead); Swan River and Lakes (Swan); Hungry Horse Reservoir, South Fork Flathead River, and Headwater Lakes (South Fork Flathead); Bitterroot River; Blackfoot River; Clearwater River and Lakes; and Rock Creek. The Clark Fork River Basin CHU includes 5,332.1 km (3,313.2 mi) of streams and 119,473.5 ha (295,225.5 ac) of 45 lakes and reservoirs proposed as critical habitat. The subunits within this unit provide spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit and subunits, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 pp. 32-36), or *http://www.fws.gov/pacific/bulltrout* . Unit 32: Saint Mary River Basin Unit (Saint Mary Recovery Unit) We are proposing to designate critical habitat for bull trout in identified stream segments and lakes in the Saint Mary River Basin CHU in Montana. The entire U.S. portion of the Saint Mary River drainage, which forms the Saint Mary River Basin CHU, is located in Glacier County, Montana. The total stream distance proposed for designation as critical habitat in Montana is about 116.8 km (72.6 mi), and the five lakes have a surface area of about 2,555.4 ha (6,314.5 ac). Most high-elevation waters in Glacier National Park were historically fishless. Due to natural migration barriers, bull trout occupancy in the headwaters of the Belly River drainage (directly west of and adjacent to the Saint Mary River drainage) was confined to only a very minor portion of the U.S habitat near the international border. Due to this restricted U.S. distribution and the fact that all FMO habitat for these populations is in Alberta, Canada, the Belly River headwaters in unroaded backcountry of Glacier National Park are not included in this proposed critical habitat designation. This unit provides spawning, rearing, foraging, migratory, connecting, and overwintering habitat. For a detailed description of this unit, for justification of why this CHU, included CHSUs, or in some cases individual water bodies are proposed as critical habitat, and for documentation of occupancy by bull trout, see Service (2009 p. 36), or *http://www.fws.gov/pacific/bulltrout* . Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the U.S. Courts of Appeal for the Fifth and Ninth Circuits have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service* , 378 F.3d 1059 (9 th Cir. 2004) and *Sierra Club* v. U.S. Fish and Wildlife Service *et al* ., 245 F.3d 434, 442 (5 th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain those physical or biological features that relate to the ability of the area to periodically support the species) to serve its intended conservation role for the species. Federal activities that may affect bull trout or its designated critical habitat require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) or a permit from us under section 10 of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local or private lands that are not federally funded, authorized, or permitted do not require section 7 consultation. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure the activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1)A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2)A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that: • Can be implemented in a manner consistent with the intended purpose of the action; • Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction; • Are economically and technologically feasible; and • Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Application of the “Jeopardy” and “Adverse Modification” Standards Jeopardy Standard Currently, the Service applies an analytical framework for bull trout jeopardy analysis that relies heavily on the importance of known core area populations to the survival and recovery of bull trout. The section 7(a)(2) of the Act analysis is focused not only on these populations, but also on the habitat conditions that support them. The jeopardy analysis usually expresses the survival and recovery needs of bull trout in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, the jeopardy analysis focuses on the range-wide status of bull trout, the factors responsible for that condition, and what is necessary for this species to survive and recover. An emphasis is also placed on characterizing the condition of bull trout in the area affected by the proposed Federal action and the role of affected populations in the survival and recovery of bull trout. That context is then used to determine the significance of adverse and beneficial effects of the proposed Federal action and any cumulative effects for purposes of making the jeopardy determination. Core areas form the building blocks that provide for conserving the bull trout's evolutionary legacy as represented by major genetic groups. The jeopardy analysis also considers any conservation measures that may be proposed by a Federal action agency to minimize or compensate for adverse project effects to the bull trout or to promote its recovery. If a proposed Federal action is incompatible with the viability of the affected core area population(s), inclusive of associated habitat conditions, a jeopardy finding may be warranted, because of the relationship of each core area population to the survival and recovery of the species as a whole. Adverse Modification Standard The analytical framework described in the Director's December 9, 2004, memorandum is used to complete section 7(a)(2) analyses for Federal actions affecting bull trout critical habitat. The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or retain those physical and biological features that relate to the ability of the area to periodically support the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for bull trout. As discussed above, the role of critical habitat is to support the life-history needs of the species and provide for the conservation of the species. Generally, the conservation role of bull trout critical habitat units is to support viable core area populations. Since the primary threat to bull trout is habitat loss or degredation, the jeopardy analysis under section 7 of the Act for a project with a Federal nexus will most likely evaluate the effects of the action on the conservation or functionality of the habitat for the bull trout. Because of this, we believe that in many cases the analysis of the project to address designated critical habitat will be comparable. As such, we do not anticipate, for many circumstances, that the outcome of the consultation to address critical habitat will result in any significant additional project modifications or measures. When consulting under section 7(a)(2) in designated critical habitat, independent analyses are conducted for jeopardy to the species and adverse modification of critical habitat. In occupied bull trout habitat, any adverse modification determination would likely also result in a jeopardy determination for the same action. As such, project modifications that may be needed to minimize impacts to the species would coincidentally minimize impacts to critical habitat. Accordingly, in occupied critical habitat it is unlikely that an analysis would identify a difference between measures needed to avoid the destruction or adverse modification of critical habitat from measures needed to avoid jeopardizing the species. Alternatively, in unoccupied critical habitat, we would not conduct a jeopardy analysis, however, measures to avoid the destruction or adverse modification may be necessary to ensure that the affected critical habitat area can continue to serve its intended conservation role for the species, or retain the physical and biological features related to the ability of the area to periodically support the species. The adverse modification analysis focuses on the range-wide status of critical habitat, the factors responsible for that condition, and what is necessary for critical habitat to provide the necessary conservation value to the bull trout. An emphasis is placed on characterizing the functional condition of critical habitat PCEs in the area affected by the proposed Federal action. This analysis then addresses how the critical habitat PCEs will be affected, and in turn, how this will influence the conservation role of critical habitat units in support of viable core area populations. That context is then used to determine the significance of adverse and beneficial effects of the proposed Federal action and any cumulative effects for purposes of making the adverse modification determination at the range-wide scale. If a proposed Federal action would alter the physical or biological features of critical habitat to an extent that appreciably reduces the conservation function of critical habitat for the bull trout, an adverse modification finding for the proposed action is considered to be warranted. The intended purpose of critical habitat to support viable core areas establishes a sensitive scale for relating effects of an action on CHUs or subunits to the conservation function of the entire designated critical habitat. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and, therefore, result in consultation for the bull trout include, but are not limited to:
(1)Detrimental alteration of the minimum flow or the natural flow regime of any of the designated stream segments. Possible actions would include groundwater pumping, impoundment, water diversion, and hydropower generation. We note that such flow alterations resulting from actions affecting tributaries of the designated stream reaches may also destroy or adversely modify critical habitat.
(2)Alterations to the designated stream segments that could indirectly cause significant and detrimental effects to bull trout habitat. Possible actions include vegetation manipulation, timber harvest, road construction and maintenance, prescribed fire, livestock grazing, off-road vehicle use, powerline or pipeline construction and repair, mining, and development. Riparian vegetation profoundly influences instream habitat conditions by providing shade, organic matter, root strength, bank stability, and large woody debris inputs to streams. These characteristics influence water temperature, structure and physical attributes (useable habitat space, depth, width, channel roughness, cover complexity), and food supply.
(3)Detrimental alteration of the channel morphology of any of the designated stream segments. Possible actions would include channelization; impoundment; road and bridge construction; deprivation of substrate source; destruction and alteration of aquatic or riparian vegetation; reduction of available floodplain; removal of gravel or floodplain terrace materials; and excessive sedimentation from mining, livestock grazing, road construction, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances. We note that such actions in the upper watershed (beyond the riparian area) may also destroy or adversely modify critical habitat. For example, timber harvest activities and associated road construction in upland areas can lead to changes in channel morphology by altering sediment production, debris loading, and peak flows.
(4)Detrimental alterations to the water chemistry in any of the designated stream segments. Possible actions would include release of chemical or biological pollutants into the surface water or connected groundwater at a point source or by dispersed releases (nonpoint).
(5)Proposed activities that are likely to result in the introduction, spread, or augmentation of nonnative species in any of the designated stream segments. Possible actions would include fish stocking, use of live bait fish, aquaculture, improper construction and operation of canals, and interbasin water transfers.
(6)Proposed activities that are likely to create significant instream barriers to bull trout movement. Possible actions would include water diversions, impoundments, and hydropower generation where effective fish passage facilities, mechanisms, or procedures are not provided. We consider all 32 CHUs to contain features essential to the conservation of the bull trout. All units are within the geographic range of the species, and portions of all units were occupied by the species at the time of listing (based on observations made within the last 20 years). All units are likely to be used by the bull trout for foraging, migrating, overwintering, spawning, or rearing. Federal agencies already consult with us on activities in areas currently occupied by the bull trout to ensure that their actions do not jeopardize the continued existence of the bull trout. These agencies may need to request reinitiation on some of their existing activities if the agency has continued discretional involvement or control and if the activity may affect designated critical habitat. However, we anticipate the burden of reinitiation will be minor because of the aforementioned similarity between measures needed to avoid the destruction or adverse modification of critical habitat and measures needed to avoid jeopardizing the species. In addition, consultation tools such as streamlining and programmatic consultations are commonly implemented to minimize the administrative costs associated with consultation within the range of the bull trout. We expect these tools will continue be used for any reinitiations of consultation for bull trout critical habitat, thereby minimizing any additional administrative costs associated with designating the critical habitat. Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. § 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an Integrated Natural Resources Management Plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: • An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; • A statement of goals and priorities; • A detailed description of management actions to be implemented to provide for these ecological needs; and A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Publ. L. 108-136) amended the Act to limit areas eligible for designation of critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. § 1533(a)(3)(B)(i)) now provides, “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. § 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations located within the range of the Columbia and Coastal-Puget Sound populations of bull trout and which contain those features essential to the species' conservation, to determine if these installations may warrant consideration for exemption under section 4(a)(3) of the Act. Each of the Department of Defense
(DOD)installations identified below has been conducting surveys and habitat management to benefit the bull trout, and reporting the results of their efforts to the Service. Cooperation between the DOD installations and the Service on specific conservation measures continues. Approved Integrated Natural Resources Management Plans We have examined the INRMPs for each of these military installations to determine whether they provide benefits to bull trout. Acoustic Research Detachment
(ARD)Naval Surface Warfare Center The Bayview Acoustic Research Detachment
(ARD)Naval Surface Warfare Center, Bayview, Idaho, has an approved INRMP. This property includes approximately 9.0 ha (22.0 ac) of developed land on the shore of Lake Pend Oreille and 7.0 ha (17.3 ac) of lake area. There are no tributary streams within this area utilized by bull trout for spawning or early life rearing, but the lake area does contain important FMO habitat for bull trout. Bayview ARD's INRMP outlines protection and management strategies for natural resources on the center, including fish species and their habitats. The plan benefits bull trout through the protection of kokanee salmon spawning habitat, a primary food source for bull trout. The Bayview ARD property in Scenic Bay hosts from 40 to 70 percent of the kokanee spawning activity in Lake Pend Oreille, depending on the year. The INRMP includes measures to minimize impacts to kokanee habitat by limiting facility boat traffic during spawning periods (November-December) and implementing sediment control measures. Furthermore, interpretive signs have been placed throughout the property to educate employees and the public regarding various aspects of the region's natural resources, threatened or endangered species (including bull trout), and geological history. The INRMP requires the natural resource manager to provide ARD INRMP awareness training to facilitate INRMP implementation. Based on the above considerations and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Bayview ARD INRMP and that conservation efforts identified in the INRMP will provide a benefit to bull trout occurring in habitats within or adjacent to Bayview ARD. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 7 ha (16 ac) of habitat in this proposed critical habitat designation because of this exemption. Naval Radio Station Jim Creek, Naval Station Everett, Naval Air Station Whidbey Island, and U.S. Army Fort Lewis Installation Naval Radio Station Jim Creek in western Washington has an approved INRMP. The Naval Radio Station Jim Creek occurs in the Jim Creek watershed. The lower reaches of Jim Creek provide foraging habitat for subadult and adult bull trout. The Naval Radio Station Jim Creek INRMP provides benefits to bull trout through
(1)restoration of riparian buffers along Jim Creek,
(2)protection of Jim Creek from erosion and sedimentation, and
(3)protection of Jim Creek from contaminants and herbicides. Naval Station Everett in western Washington has an approved INRMP. The Naval Station Everett property includes land on or near the shores of Puget Sound that contain important foraging and migration habitat for amphidromous (fish that move between fresh and salt water but not to breed) bull trout. The Naval Station Everett's INRMP benefits bull trout by providing
(1)protection to bull trout in the marine environment from oil spills around berthing naval vessels;
(2)bioswales to prevent the release of toxins, contaminants, and oils from reaching the water column through storm drains; and
(3)restoration of riparian habitat on Navy lands located along the Middle Fork Quilceda Creek. Naval Air Station Whidbey Island in western Washington has an approved INRMP. The Naval Station Whidbey Island property includes land on or near the shores of Puget Sound that contain important foraging and migration habitat for amphidromous bull trout. Naval Aviation Station Whidbey Island's INRMP benefits bull trout through
(1)monitoring and managing livestock grazing,
(2)managing road building and maintenance to prevent erosion and sedimentation of bull trout habitat,
(3)assuring proper disposal of hazardous materials, and
(4)implementation of their Integrated Pest Management Plan's best management practices to protect aquatic environments. The U.S. Army Fort Lewis Installation (Fort Lewis) located in western Washington has an approved INRMP. Fort Lewis borders the Nisqually River and Puget Sound near important foraging and migration habitat for amphidromous bull trout. The INRMP for Fort Lewis benefits bull trout through
(1)protecting and enhancing wetlands (e.g., all wetlands-marshes, lakes, rivers, and streams are protected with 300-foot-wide riparian buffers to maintain cold water temperatures, prevent sediment from entering the streams, and to provide for woody debris);
(2)controlling invasive plant species that often diminish water quality and impact native plants and animals; and
(3)restoring salmon spawning habitat and access to increase salmon productivity, which contributes to and enhances the bull trout prey base. Habitat features essential to bull trout conservation are present within or immediately adjacent to each of these DOD installations, and each installation has an approved INRMP. Activities occurring on these installations are being conducted in a manner that provides a benefit to bull trout. In addition, these installations already consult with us under section 7 of the Act on their actions (including those occurring in the open water training and testing areas) that may adversely affect bull trout and their habitat. Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Naval Radio Station Jim Creek, Naval Station Everett, Naval Air Station Whidbey Island, and U.S. Army Fort Lewis Installation INRMPs and that conservation efforts identified in the INRMPs will provide a benefit to bull trout occurring in habitats within or adjacent to DOD installations. Therefore, lands within these installations are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately a total of 40 km (24.9 mi) of habitat determined to contain features essential to the conservation of the bull trout in this proposed critical habitat designation because of these exemptions. . Exclusions Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary must designate or make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts to national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If based on this analysis, we make this determination, then we can exclude the area only if such exclusion would not result in the extinction of the species. When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in the overall conservation of the bull trout through the continuation, strengthening, or encouragement of partnerships and the implementation of management plans or programs that provide equal to or more conservation for the bull trout than could be achieved through a designation of critical habitat. In the case of bull trout, where there may be little additional regulatory effects in areas occupied by the species resulting from the designation, the benefits of critical habitat include educational benefits resulting from identification of the features essential to the conservation of bull trout and the delineation of the areas important for its recovery. Further, there may be additional benefits realized by providing landowners, stakeholders, and project proponents greater certainty about which specific areas are important for bull trout that should be effectively addressed through coordination and consultation of activities that may affect those areas or essential features contained therein. Thus, critical habitat designation increases public awareness of bull trout presence and the importance of habitat protection and, in cases where a Federal nexus exists, increases habitat protection for bull trout due to the protection from adverse modification or destruction of critical habitat. When we evaluate the existence of a conservation plan when considering the benefits of exclusion, we consider a variety of factors including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical and biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information. The Secretary can consider the existence of conservation agreements and other land management plans with Federal, private, State, and Tribal entities when making decisions under section 4(b)(2) of the Act. The Secretary may also consider voluntary partnerships and conservation plans, and weigh the implementation and effectiveness of these against that of designation. Consideration of relevant impacts of designation or exclusion under section 4(b)(2) may include, but is not limited to, any of the following factors:
(1)whether the plan provides specific information on how it protects the species and the physical and biological features, and whether the plan is at a geographic scope commensurate with the species;
(2)whether the plan is complete and will be effective at conserving and protecting of the physical and biological features;
(3)whether a reasonable expectation exists that conservation management strategies and actions will be implemented, that those responsible for implementing the plan are capable of achieving the objectives, that an implementation schedule exists, and that adequate funding exists;
(4)whether the plan provides assurances that the conservation strategies and measures will be effective (i.e., identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan);
(5)whether the plan has a monitoring program or adaptive management to ensure that the conservation measures are effective;
(6)the degree to which the record supports a conclusion that a critical habitat designation would impair the benefits of the plan;
(7)the extent of public participation;
(8)demonstrated track record of implementation success;
(9)level of public benefits derived from encouraging collaborative efforts and encouraging private and local conservation efforts; and
(10)the effect designation would have on partnerships. After evaluating the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to determine whether the benefits of excluding a particular area outweigh the benefits of its inclusion in critical habitat. If we determine that the benefits of excluding a particular area outweigh the benefits of its inclusion, then the Secretary can exercise his discretion to exclude the area, provided that the exclusion will not result in the extinction of the species. Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we will evaluate whether certain lands in proposed critical habitat may be appropriate for exclusion from the final designation. If our analysis results in a determination that the benefits of excluding particular areas from the final designation outweigh the benefits of designating those areas as critical habitat, then the Secretary may exercise his discretion to exclude the particular areas from the final designation. Under section 4(b)(2) of the Act, we must consider all relevant impacts, including economic impacts. In addition to economic impacts (discussed in **Economics Analysis** section below), we consider a number of factors in a section 4(b)(2) analysis. For example, we consider whether there are lands owned by the DOD where a national security impact might exist. We also consider whether Federal or private landowners or other public agencies have developed management plans or HCPs for the area or whether there are conservation partnerships that would be encouraged or discouraged by designation of, or exclusion from, critical habitat in an area. In addition, we look at the presence of tribal lands or Tribal trust resources that might be affected, and consider the government-to-government relationship of the United States with the tribal entities. We also consider any social impacts that might occur because of the designation. To ensure that our final determination is based on the best available information, we are inviting comments on any foreseeable economic, national security, or other potential impacts resulting from this proposed designation of critical habitat from governmental, business, or private interests and, in particular, any potential impacts on small businesses. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. The Navy conducts essential training and testing within the marine waters of Crescent Harbor and Dabob Bay in western Washington. These activities are conducted in open marine waters not controlled by the military and are not included in adjacent military INRMPs. However, because these training and testing activities may be essential for national security, we are evaluating whether it may be appropriate to consider the particular areas where these activities occur for exclusion from the final designation of critical habitat under section 4(b)(2) of the Act. Exclusions Based on Other Relevant Factors Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts to national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation. Most federally-listed species in the United States will not recover without cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned (Lubowski *et al* . 2006, p. 35), and at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse *et al* .2002, p. 720). Stein *et al* . (1995, p. 400) found that only about 12 percent of listed species were found almost exclusively on Federal lands (90 to 100 percent of their known occurrences restricted to Federal lands) and that 50 percent of federally-listed species are not known to occur on Federal lands at all. Given the distribution of listed species with respect to landownership, conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners (Wilcove and Chen 1998, p. 1407; Crouse *et al* .2002, p. 720; James 2002, p. 271). Building partnerships and promoting voluntary cooperation of landowners is essential to understanding the status of species on non-Federal lands and necessary to implement recovery actions, such as the reintroduction of listed species, habitat restoration, and habitat protection. Many non-Federal landowners derive satisfaction from contributing to endangered species recovery. Conservation agreements with non-Federal landowners, safe harbor agreements, other conservation agreements, easements, and State and local regulations enhance species conservation by extending species protections beyond those available through section 7 consultations. We encourage non-Federal landowners to enter into conservation agreements based on a view that we can achieve greater species conservation on non-Federal land through such partnerships than we can through regulatory methods (61 FR 63854). Many private landowners, however, are wary of the possible consequences of attracting endangered species to their property. Mounting evidence suggests that some regulatory actions by the government, while well intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on private lands (Wilcove *et al* .1996, pp. 5-6; Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp. 270-271; Koch 2002, pp. 2-3; Brook *et al* .2003, pp. 1639-1643). Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where threatened or endangered species are found. Consequently, harboring endangered species is viewed by many landowners as a liability. This perception results in anti-conservation incentives because maintaining habitats that harbor endangered species represents a risk to future economic opportunities (Main *et al* .1999, pp. 1264-1265; Brook *et al* .2003, pp. 1644-1648). According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main *et al* .1999, p. 1263; Bean 2002, p. 2; Brook *et al* .2003, pp. 1644-1648). The magnitude of this negative outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, and control of invasive species) are necessary for species conservation (Bean 2002, pp. 3-4). We believe the judicious exclusion of specific areas of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone. The purpose of designating critical habitat is to contribute to the conservation of threatened and endangered species and the ecosystems upon which they depend. The outcome of the designation, triggering regulatory requirements for actions funded, authorized, or carried out by Federal agencies under section 7(a)(2) of the Act, can sometimes be counterproductive to its intended purpose on non-Federal lands. Thus, the benefits of excluding areas that are covered by partnerships or voluntary conservation efforts can, in specific circumstances, be high. Benefits of Excluding Lands with Habitat Conservation Plans The benefits of excluding lands with approved HCPs from critical habitat designation include relieving landowners, communities, and counties of any additional regulatory burden that might be imposed as a result of the critical habitat designation. Many HCPs take years to develop and, upon completion, are consistent with the recovery objectives for listed species covered within the plan area. Many conservation plans also provide conservation benefits to unlisted sensitive species. A related benefit of excluding lands covered by approved HCPs from critical habitat designation is that it can make it easier for us to seek new partnerships with future plan participants, including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. HCPs often cover a wide range of species, including species that are not State and federally-listed and would otherwise receive little protection from development. By excluding these lands, we preserve our current partnerships and encourage additional future conservation actions. We also note that permit issuance in association with HCP applications requires consultation under section 7(a)(2) of the Act, which would include the review of the effects of all HCP-covered activities that might adversely impact the species under a jeopardy standard, including possibly significant habitat modification (see definition of “harm” at 50 CFR 17.3), even without the critical habitat designation. In addition, all other Federal actions that may affect the listed species would still require consultation under section 7(a)(2) of the Act, and we would review these actions for possible significant habitat modification in accordance with the definition of harm referenced above. For the reasons discussed under the “Application of Section 4(b)(2) of the Act” section of this rule, if the Secretary decides to exercise his discretion under section 4(b)(2) of the Act, we have identified certain areas that we are considering excluding from the final revised critical habitat designation for bull trout. However, we solicit comments on the inclusion or exclusion of such particular areas (see Public Comments section). During the development of the final revised designation, we will consider economic impacts, public comments, and other new information. As a result, additional particular areas, in addition to those identified below for potential exclusion in this proposed rule, may be excluded from the final critical habitat designation under section 4(b)(2) of the Act. We consider a current plan to be appropriate for consideration for exclusion from a final critical habitat designation under section 4(b)(2) of the Act if:
(1)It provides for the conservation of the essential physical and biological features;
(2)there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; and
(3)the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information. Below is a brief description of each plan and the lands proposed as critical habitat covered by each plan that we are considering for exclusion from critical habitat designation under section 4(b)(2) of the Act. Plum Creek Native Fish Habitat Conservation Plan The Service is considering excluding bull trout habitat occurring on lands managed under the Plum Creek Native Fish Habitat Conservation Plan in the Kootenai and Clark Fork CHUs in the Columbia Headwaters draft recovery unit in Montana. Plum Creek Timber Company initiated an effort in 1997 to develop a conservation strategy for native salmonids (including bull trout) occurring on 647,500 ha (1.6 million ac) of Plum Creek's timberlands in Montana, Idaho, and Washington. The stated purpose of the Plum Creek Native Fish Habitat Conservation Plan (NFHCP) was to help conserve native salmonids and their ecosystems while allowing Plum Creek to continue to conduct commercial timber harvest within a framework of long-term regulatory certainty and flexibility. The NFHCP was permitted in 2000; Plum Creek no longer owns any of the lands that were covered under that HCP in the States of Idaho and Washington. Currently, there are 392,393 ha (969,624 ac) of remaining Plum Creek land in Montana that are still covered by the original permit under the NFHCP. The NFHCP provisions cover approximately 550,700 ha (1.4 million ac) in western Montana and within its headwaters of the Columbia River basin (Clark Fork and Kootenai River watersheds). In 2003-2004, when the Stimson Lumber Company (Stimson) acquired about 32,650 ha (80,681 ac) of lands previously owned by Plum Creek, Stimson legally assumed all of the Plum Creek NFHCP commitments in that area by executing an assignment and assumption agreement. In 2008, the Montana Working Forests Project was initiated, which will result in the transfer of over 125,580 ha (310,312 ac) of Plum Creek NFHCP lands to The Nature Conservancy (TNC). Funds for the acquisition were obtained through a provision within the 2008 Farm Bill, and most of those lands are destined to eventually be transferred to either the Service or the Montana Department of Natural Resources and Conservation
(DNRC)and Montana Fish, Wildlife, and Parks (FWP). Phase III of the Montana Working Forests Project is expected to close at the end of 2010 and will include an additional 28,135 ha (69,522 ac). Similar to Stimson, and through an agreement, TNC assumed the NFHCP commitments on previously owned Plum Creek lands for the first two phases of the Montana Working Forests Project and is anticipated to do the same for Phase III. Montana Department of Natural Resources and Conservation Habitat Conservation Plan The Service is considering excluding bull trout habitat occurring on 175,263 ha (433,084 ac) of lakes managed under the proposed DNRC Habitat Conservation Plan in the Kootenai, Clark Fork and Saint Mary CHUs in the Columbia Headwaters draft recovery unit, contingent on the compatibility of timing between the final HCP and the final bull trout revised critical habitat rule. The DNRC is developing an HCP for forest management activities on its forested State trust lands in Montana, which are managed by the Trust Lands Management Division (TLMD). The mission of the TLMD is to manage trust land resources to produce revenues for the trust beneficiaries while considering environmental factors and protecting the future income-generating capacity of the land. Under its forest management program, the TLMD generates revenues for trust beneficiaries through timber harvest on classified forest trust lands. DNRC manages its forested trust lands in accordance with the State Forest Land Management Plan (SFLMP) (DNRC 1996) and the Administrative Rules of Montana
(ARMs)for Forest Management (ARMs 36.11.401-456) (Forest Management ARMs). DNRC's forested trust lands also support Federally-listed threatened species. The ARMs direct DNRC to confer with the Service to develop habitat mitigation measures to address the needs of listed species. This proposed HCP is a programmatic plan that identifies DNRC's proposal for managing federally-listed species on DNRC's forested trust lands. Species covered under the HCP include bull trout, westslope cutthroat trout, Columbia redband trout, grizzly bear ( *Ursus arctos* ), and Canada lynx ( *Lynx canadensis* ). DNRC has proposed that a permit be issued under section 10(a)(1)(B) of the Act by the Service for a period of 50 years, and views the HCP as a long-term program for addressing and improving habitat needs across the landscape. DNRC evaluated which trust lands to include in the HCP by assessing where species overlapped with trust lands containing appreciable amounts of manageable forest area. This approach was adopted to ensure those lands facing the greatest risk of impacts from forest management actions were included in the plan so risks could be mitigated. The HCP project area includes primarily forested trust lands, but it contains other non-forested trust lands that are portions of, or are needed to access, forested parcels included in the HCP project area. The DNRC HCP would cover forest management activities on forested trust lands that provide habitat for the HCP species and include timber harvest (commercial timber, salvage harvest, and silvicultural treatments such as thinning); other forest management activities (slash disposal, prescribed burning, site preparation, reforestation, fertilization, forest inventory, and access to forested lands for weed control); roads (forest management road construction, reconstruction, maintenance, use, and associated gravel quarrying for forest road surface materials, as well as installation, removal, and replacement of stream crossing structures); and livestock grazing (grazing licenses on classified forest trust lands). The public comment period for the DNRC HCP closed October 6, 2009; the current schedule calls for publishing the Final Environmental Impact Statement
(FEIS)in October 2010. The Record of Decision
(ROD)would be finalized 30 days after publication of the FEIS, and a section 10(a)(1)(B) permit could be issued at that time, if the Service determines that issuance of a permit is appropriate. To be considered for exclusion from the final designation of critical habitat for the bull trout, the DNRC HCP will need to be completed and finalized prior to the finalization of critical habitat, which is due by September 30, 2010. Washington Department of Natural Resources Habitat Conservation Plan The Service is considering excluding lands managed under the Washington Department of Natural Resources
(WDNR)HCP in the Coastal Recovery Unit: Puget Sound, Olympic Peninsula, and Lower Columbia CHUs. The WDNR HCP covers State forest trust lands within the range of the northern spotted owl ( *Strix occidentalis caurina* ) in the State of Washington. The majority of the lands covered by the HCP (approximately 526,100 ha (1.3 million ac) is west of the Cascade Crest and includes the Olympic Peninsula and southwest Washington. The remainder of the lands are on the east side of the Cascade Range within the range of the northern spotted owl. The HCP covers activities primarily associated with commercial forest management. West of the Cascade Crest, the HCP covers all species, including bull trout and other salmonids. On the east side of the Cascade Crest, bull trout and other aquatic species are not covered under the HCP, and DNR follows State forest practice rules for riparian management and other forestry activities. The DNR HCP lands on the west side of the Olympic Peninsula are managed as the Olympic Experimental State Forest. The multispecies portion of the HCP depends upon several broad-scale conservation approaches: spotted owl conservation, marbled murrelet ( *Brachyramphus marmoratus* ) conservation, riparian conservation, certain species-specific protection measures, protection of uncommon habitats, and provisions to maintain a range of forest types across the HCP landscape. Green Diamond Habitat Conservation Plan The Service is considering excluding bull trout habitat on lands managed under the Green Diamond Habitat Conservation Plan in Coastal Recovery Unit, Olympic Peninsula CHU. In October 2000, Simpson Timber Company (now Green Diamond), completed an HCP, and we issued a permit authorizing incidental take associated with forestry operations on the company's Washington timberlands located on or adjacent to the Olympic Peninsula in Mason, Thurston, and Grays Harbor Counties. The HCP is designed to conserve riparian forests, improve water quality, prevent management-related hill-slope instability, and address hydrological maturity of small subbasins. The HCP addresses five listed species, including bull trout, and 46 non-listed species. The HCP covers the land owned by Green Diamond along the lower reaches of the North and South Fork Skokomish Rivers, the upper South Fork Skokomish River, West Fork Satsop River, and Canyon River. City of Seattle Cedar River Watershed Habitat Conservation Plan The Service is considering excluding bull trout habitat on lands managed under the City of Seattle Cedar River Watershed HCP in the Coastal Recovery Unit, Puget Sound CHU. In April 2000, the City of Seattle completed an HCP, and we issued an incidental take permit authorizing water withdrawal and water supply activities affecting flows in the lower Cedar River and reservoir levels in Chester Morse Lake. The plan provides for forestry restoration activities, including riparian thinning, road abandonment, and timber stand improvement in the upper Cedar River Watershed in King County. The HCP is designed to provide adequate fish flows in the lower Cedar River for the spawning and rearing of several salmonid species, manage water levels in Chester Morse Lake and Masonry Dam Reservoir to benefit instream flows in the lower Cedar River and bull trout spawning access to lake tributaries, and manage these lands in the upper Cedar River as an ecological reserve. Several research actions are directed at understanding how all life stages of bull trout use Chester Morse Lake and Masonry Pool and how adult bull trout use tributaries to the lake for spawning. The HCP covers 83 species of fish and wildlife, including bull trout and 6 other listed species. Tacoma Water Green River Water Supply Operations and Watershed Protection Habitat Conservation Plan The Service is considering excluding bull trout habitat on lands managed under the Tacoma Green River Water Supply Operations and Watershed Protection HCP in the Coastal Recovery Unit, Puget Sound CHU. The Tacoma Water Green River Water Supply Operations and Watershed Protection HCP was completed in July 2001, addressing upstream and downstream fish passage issues, flows in the Middle and lower Green River, and timber and watershed management activities on Tacoma-owned land in the upper Green River Watershed. The HCP covers 32 species (including bull trout), and includes an upstream fish passage facility that will open up 57,000 ha (140,800 ac) of previously blocked fish habitat, sponsorship and funding for a downstream fish-passage facility at the Corps of Engineers' Howard Hanson Dam, water-flow improvements, improved riparian forest management on Tacoma's lands, and several major habitat restoration projects. Washington State Forest Practices Rules and Forest Practices Regulations The Service is considering excluding all public and private lands in the State of Washington that would be managed under the Washington forest practice rules. These lands occur in the Coastal Recovery Unit (Puget Sound, Olympic Peninsula, and Lower Columbia CHUs), Mid-Columbia Recovery Unit (Snake River Basin, Walla Walla River Basins, Yakima River, and Upper Columbia River CHUs), and the Columbia Headwaters Recovery Unit (Clark Fork River Basin CHU). Beginning in late 1996, faced with the imminent listing of several salmonid species under the Act, including bull trout, a diverse group of stakeholders in Washington State agreed to address emerging riparian habitat issues. The effort resulted in the Forests and Fish Report
(FFR)in April 1999. Later that year, the Washington State Legislature passed the Forest Practices Salmon Recovery Act (Engrossed Substitute House Bill 2091), which directed the Washington Forest Practices Board to adopt new rules, encouraging the Forest Practices Board to follow the recommendations of the FFR. To further the purpose of regulatory stability, the Forest Practices Salmon Recovery Act also limited future changes to the new rules so that, outside of a court order or legislative directive, new rules could be adopted by the Forest Practices Board only if the changes or new rules are consistent with the recommendations resulting from the scientifically based adaptive management process included in the FFR. The language further solidified the adaptive management process as a key component of the FFR conservation program. Following the passage in 1999 of emergency forest practices rules based on the FFR, the Washington Forest Practices Board adopted new permanent rules in May 2001. Effective July 2001, these rules cover a wide variety of forest practices and include
(1)a new, more functional, classification of rivers and streams on non-Federal and non-tribal forestland;
(2)improved plans for properly designing, maintaining, and upgrading existing and new forest roads;
(3)additional protections for unstable slopes; and
(4)greater protections for riparian areas intended to restore or maintain properly functioning aquatic and riparian habitat conditions. In addition to these substantive provisions, the rules adopted the procedural recommendations of the FFR that address adaptive management, training, and other features. The Washington State Legislature and the U.S. Congress continued to support the collaboration with significant funding for the research, monitoring, and adaptive management activities called for in the FFR. In May 2006, the State forest practice rules were formally incorporated into the Washington State Forest Practices HCP. Conservation Partnerships on Non-Federal Lands Lewis River Hydroelectric Project Conservation Easements The Service is considering excluding 48 km (30 mi) of bull trout habitat associated with the Lewis River Hydroelectric Project Conservation Easements in the Coastal Recovery Unit, Columbia River Basin CHU. PacifiCorp manages four projects and three dams impounding river habitat on the Lewis River in Washington, located in portions of Clark, Cowlitz, and Skamania Counties. Bull trout are present in all of the reservoirs; the upper two reservoirs are used by the majority of individuals within the spawning populations. A settlement agreement (Agreement) for the relicensing of the Yale, Merwin, Swift No. 1, and Swift No. 2 Hydroelectric Projects was signed on November 30, 2004. Conservation measures are incorporated in the Agreement to minimize or compensate for the effects of the projects on listed species, including bull trout. Conservation measures for bull trout include: perpetual conservation covenants on PacifiCorp's lands in the Cougar/Panamaker Creek area and PacifiCorp and Cowlitz PUD's lands along the Swift Creek arm of Swift Creek Reservoir, upstream and downstream fish passage improvements at all reservoirs, limiting factors analysis for bull trout to determine additional enhancement measures, public information program to protect bull trout, and monitoring and evaluation efforts for bull trout conservation measures. This agreement will also restore anadromous salmon to the upper Lewis River system, restoring a significant part of the historic forage base for bull trout. Snake River Basin Adjudication The Service is considering excluding bull trout habitat on 18,615,000 ha (46 million ac) of lands managed under the Snake River Basin Adjudication agreement in central Idaho. The stream flows in the basin were subject to litigation for 21 years. Litigants were the Federal Government, Nez Perce Tribe, and State of Idaho. In 2004, a settlement was reached by the parties in the proceeding. A Mediator's Term Sheet was developed to guide the settlement of the case, which identifies the responsibilities of the parties over the 30-year term of the agreement. The settlement was announced on May 15, 2004, by the Secretary of the Interior, Nez Perce Tribal Executive Committee Chairman, and Governor of Idaho. As part of the settlement, the parties agreed to establish a habitat fund under two separate accounts, one for the Nez Perce Tribe and one for the State. The State account is managed through cooperative agreements under section 6 of the Act, and addresses off-reservation stream flow and forestry programs. The funds will be used to conduct habitat protection and restoration projects in the Salmon and Clearwater River basins (tributaries to the Snake River), including programs intended to protect and restore listed fish and their habitat. The United States will contribute $38 million to these accounts according to a schedule determined by Congress in the enacting legislation. To date, the State has received $5 million per year for 3 years and is expected to receive an additional $5 million for the next 2 years. Most of the funds have been used to acquire conservation easements on lands with anadromous habitat and some limited habitat restoration. On December 8, 2004, the Snake River Water Rights Act of 2004 was enacted to resolve outstanding issues; reach a final settlement of tribal claims; authorize, ratify, and confirm the Agreement among the parties; direct Federal agencies to execute and perform necessary actions to carry out the agreement; and authorize actions and appropriations under the Snake River Basin Adjudication
(SRBA)and the Act for the United States to meet its obligations. On March 31, 2005, a Memorandum of Agreement was signed between the State of Idaho, Nez Perce Tribe, Service, and National Marine Fisheries Service
(NMFS)to establish a process for using the habitat trust fund accounts for habitat protection and restoration projects in the Salmon and Clearwater River basins in Idaho. In a March 2005 letter, in response to a request from the State of Idaho, the Service and NMFS provided specific information as to the standard that would be the basis for the cooperative agreement under section 6 of the Act to implement the term sheet. In that letter, the two agencies indicated that meeting the express statutory requirements in section 6 of the Act for an adequate and active program for the conservation of the species, in this case, bull trout and salmon, would be required. The Service, the National Marine Fisheries Service (NMFS), and the State are in the process of developing a Draft EIS for entering into a Cooperative Agreement on the Idaho Forestry Program. This Program would apply to private and State lands in the Clearwater and Salmon River basins. The Service will evaluate whether the Idaho Forestry Program will meet the requirements of section 6 and section 7 of the Act. At the time the negotiations on the adjudication were completed, the bull trout was a listed species, but critical habitat had not been designated. The negotiations culminating in the final term sheet were completed prior to designation of critical habitat. Tribal Lands-Exclusions under Section 4(B)(2) of the Act In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on tribal lands may be better managed under tribal authorities, policies, and programs than through Federal regulation where tribal management addresses the conservation needs of listed species. Based on this philosophy, we believe that, in many cases, designation of tribal lands as critical habitat may provide little additional benefit to threatened and endangered species. In addition, such designation may be viewed by tribes as unwarranted and an unwanted intrusion into tribal self-governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend. We will take into consideration our partnerships and existing conservation actions that tribes have or are currently implementing when conducting our exclusion analysis in the final critical habitat designation. If the Secretary decides to exercise his discretion under section 4(b)(2) of the Act, we are considering lands covered by the tribes identified below for possible exclusion from final critical habitat. We are requesting comments regarding these areas and will continue to investigate whether any Indian lands overlap, and may warrant exclusion from, critical habitat for bull trout. We also request comments and information concerning other tribal activities that may be affected in areas proposed as critical habitat on lands other than tribal lands. For this proposed critical habitat designation for bull trout, we reviewed maps indicating that some areas under consideration as critical habitat overlap with Indian lands. Indian lands are those defined in the Secretarial Order “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997), including:
(1)lands held in trust by the United States for the benefit of any Indian tribe;
(2)lands held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation;
(3)fee lands, either within or outside the reservation boundaries, owned by the tribal government; and
(4)fee lands within the reservation boundaries owned by individual Indians. Our preliminary assessment indicates that the federally-recognized tribes in Table 7 have lands that may include or be adjacent to waterbodies under consideration for designation as critical habitat for bull trout. Based on the best available information, there are approximately 683 kilometers (424 miles) of streams and shoreline areas in or adjacent to Tribal lands being proposed as critical habitat for bull trout (Table 6). Tribes have played a significant role in the development of HCPs, local watershed plans, or other habitat plans and have conducted numerous habitat restoration and research projects designed to protect or improve habitat for listed species. If such lands are identified, the benefits of exclusion could include:
(1)the furtherance of established national policies, our Federal trust obligations and our deference to management of natural resources on their lands;
(2)the maintenance of effective long-term working relationships to promote species conservation on an ecosystem-wide basis;
(3)the allowance for continued meaningful collaboration and cooperation in scientific work to learn more about the conservation needs of the species on an ecosystem-wide basis; and
(4)continued respect for tribal sovereignty over management of natural resources on Indian lands through established tribal natural resource programs. A list of tribal lands meeting the criteria of a tribal management or conservation plan, with proposed critical habitat unit and water body name, follows in Table 7. Table 7.—Tribal Lands Meeting the Criteria of a Tribal Management or Conservation Plan and the Proposed Critical Habitat Unit and Water Body Affected Tribal Nation Critical habitat unit Stream/water body name Confederated Tribes of Warm Springs Deschutes River Basin Deschutes River, Shitike Creek, Jefferson Creek, Warm Springs River, Metolius River Confederated Tribes of the Umatilla Umatilla River and Walla Walla River Basin Umatilla River, South Fork Touchet River, Meacham Creek, Squaw Creek Burns Paiute Tribe Malheur River Basin Malheur River Nez Perce Tribe Clearwater River Mainstem, North Fork, Middle Fork, and South Fork Clearwater River, Lolo Creek, Clear Creek, and Dworshak Reservoir Coeur d'Alene Tribe Coeur d'Alene River Basin Lake Coeur d'Alene and tributaries Blackfeet Nation Saint Mary River Basin Saint Mary River Confederated Salish and Kootenai Tribes Clark Fork River Basin Flathead Lake, Lower Flathead River, Jocko River, Mission Creek, Post Creek Kalispel Tribe Clark Fork River Basin Pend Oreille River Yakama Nation Yakima and Lower Columbia River Basins Yakima River, Ahtanum Creek, and South Fork Ahtanum Creek, West Fork Klikitat River, Little Muddy Creek, Crawford Creek, Clearwater Creek, Trappers Creek, Fish Lake Stream, unnamed tributary that meets Fish Lake Stream, and Two Lakes Stream Confederated Tribes of the Chehalis Olympic Peninsula Chehalis River Hoh Tribe Olympic Peninsula Hoh River and Pacific Coast nearshore Jamestown S'Klallam Tribe Olympic Peninsula Dungeness River Lower Elwha Klallam Tribe Olympic Peninsula Elwha River and Strait of Juan De Fuca Nearshore Quileute Tribe Olympic Peninsula Pacific Coast Nearshore Quinault Nation Olympic Peninsula Quinault River, Lake Quinault, Pacific Coast nearshore, Raft River, Queets River, Salmon River, Moclips River, and Cook Creek Skokomish Tribe Olympic Peninsula Skokomish River, Nalley Slough, Skobob Creek, and Hood Canal nearshore Lummi Nation Puget Sound Nooksack River and Puget Sound nearshore Muckleshoot Tribe Puget Sound White River Nisqually Tribe Puget Sound Nisqually River Nooksack Tribe Puget Sound Nooksack River Puyallup Tribe Puget Sound Puyallup River and Puget Sound nearshore Sauk-Suiattle Tribe Puget Sound Sauk River Swinomish Tribe Puget Sound Swinomish Channel and Puget Sound nearshore Tulalip Tribes Puget Sound Puget Sound nearshore Federal Lands-Exclusions under Section 4(B)(2) of the Act As noted above, Federal agencies have an independent responsibility under section 7(a)(1) of the Act to use their programs in furtherance of the Act and to utilize their authorities to carry out programs for the conservation of endangered and threatened species. We consider the development and implementation of land management plans by Federal agencies to be consistent with this statutory obligation under section 7(a)(1) of the Act. Therefore, Federal land management plans, in and of themselves, are generally not an appropriate basis for excluding essential habitat. Some broad-scale Federal resource management plans (e.g., INFISH, PACFISH, and the Northwest Forest Plan) may provide conservation benefits to bull trout as well as all other aquatic species within the plan boundaries. In addition, in some places, Federal land management agencies may actively manage for bull trout and conduct specific conservation actions for the species. We are therefore requesting comments regarding existing specific conservation actions that Federal land management agencies have or are currently implementing on their lands, and will take this information into account when conducting our exclusion analysis in the final critical habitat designation. Draft Economic Analysis Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a Draft Economic Analysis (DEA), which identifies and analyzes the potential economic impacts associated with the proposed designation of critical habitat for bull trout. The DEA quantifies the economic impacts of all potential conservation efforts for bull trout; some of these costs would likely be incurred regardless of whether or not we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat designation. The DEA estimates impacts based on activities that are reasonably foreseeable, including, but not limited to, activities that are currently authorized, permitted, or funded, or for which proposed plans are currently available to the public. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for bull trout over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to reasonably forecast activity levels for projects beyond a 20-year timeframe. The DEA identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of conservation efforts for bull trout associated with the following categories of activity:
(1)forest management practices (timber sales, fuel reduction, salvage logging);
(2)residential and commercial development;
(3)dams (hydropower and others);
(4)agriculture and agricultural diversions;
(5)roads;
(6)mining;
(7)livestock grazing; and
(8)other activities (utilities, restoration, nonnative species management, recreation, other instream activities). Of the currently proposed critical habitat areas, nearly 31,865 km (19,800 mi), or 87 percent, were previously proposed as bull trout critical habitat. Two detailed economic analyses of those past proposals were conducted in 2004 and 2005. Both of these analyses were made available for, and received, public comment. Due to extensive overlap between the current proposed critical habitat and the past proposals, the economic analysis prepared for this proposal draws heavily on still-valid data contained within the two prior economic analyses. Costs associated with bull trout conservation efforts estimated in the earlier economic analyses have been updated to current dollars, adjusted to reflect the currently proposed unit boundaries, and reported to provide context for the reported incremental costs associated with the currently proposed critical habitat designation. Total future (2012-2032) baseline impacts are estimated to be $96.3 million to $103.0 million annually (assuming a 7 percent discount rate); discount rates express future costs and benefits at today's equivalent value. This estimate includes not only conservation activity costs resulting from the bull trout being listed under the Act, but also estimated costs of related conservation activities for salmon, steelhead, and other fish species, along with water quality and habitat protection, in overlapping areas where other protected species occur with bull trout. Under the baseline scenario, nearly half of all estimated costs are due to conservation efforts imposed on forest management activities. Costs imposed on development activities and dam operations make up most of the remaining estimated costs. Costs associated with project modifications to forest management activities account for nearly 44 percent of estimated baseline impacts. These costs are expected to be associated with conservation measures imposed on timber harvest activities, including efforts to reduce sedimentation timing restrictions, elimination of fish barriers, and changes to harvest methods. Under the high cost scenario, costs associated with project modifications imposed on development activities account for 25 percent of projected baseline impacts. These costs result from implementation of stormwater control requirements. Costs associated with project modifications imposed on dam operations account for 18 percent of estimated baseline impacts under the high cost scenario. These costs result from projected conservation efforts, including providing fish passage (fish ladder or trap and haul operations), temperature control projects, habitat acquisition, and seasonal adjustments of flow. Because of all conservation measures in place for salmon, steelhead, the Klamath suckers, and other protected fish species, we believe the incremental regulatory and economic effect of critical habitat designation in areas occupied by bull trout will be small, and the most significant incremental effect will be in those areas not currently occupied (less than 4 percent of the proposed critical habitat) by the species. As a result, the DEA estimates that total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years will be $4.97 million to $7.13 million annually (assuming a 7 percent discount rate); the range of costs represents uncertainty in the types and costs of project modifications. The majority of forecast incremental costs are associated with unoccupied critical habitat in the Upper Willamette River Basin, and are associated with conservation efforts undertaken at flood control facilities. For unoccupied areas overlapping with previous bull trout critical habitat proposals, cost estimates are drawn from the previous economic analyses and assigned to the critical habitat units proposed in this rule. For newly proposed unoccupied areas, the analysis focuses on identifying additional conservation efforts that may be expected as a result of critical habitat designation for bull trout. The 116 km (72 mi) of newly proposed unoccupied critical habitat that is already designated as critical habitat for listed salmon were not included in the incremental analysis. Existing (baseline) conservation efforts required in designated salmon critical habitat areas would generally be adequate to address bull trout conservation needs, and no significant additional conservation efforts are expected to be necessary. Dam operations are expected to incur the greatest incremental economic impacts, followed by forest management and administrative costs. Estimated incremental costs associated with dam project modifications range from $2.12 million to $2.52 million annually, and are primarily related to conservation efforts in the Upper Willamette River Basin. Project modifications could include fish passage (such as fish ladders and trap and haul operations), temperature control projects, and seasonal changes to flow. Estimated incremental costs associated with forest management projects range from $0.41 million to $1.65 million annually, associated with efforts to reduce sedimentation, timing restrictions, elimination of fish barriers (e.g., culverts), and changes to harvest methods. Estimated incremental costs associated with additional section 7 administrative efforts (Federal agency consultations) are expected to be $1.99 million annually. Absent reasonably foreseeable economic impacts that are distinctly attributable to the critical habitat portion of the analysis, economic impacts from conservation efforts that avoid adverse modification of critical habitat coincidental to avoiding jeopardizing the species would be coextensive with the impacts of bull trout listing and within the regulatory baseline. Benefits, as well as costs, can result from critical habitat designation. Bull trout conservation efforts for critical habitat may lead to improved water quality, increased open space, flood control, or aesthetic benefits. Indirect use benefits may also result (e.g., increased hiking or wildlife-viewing activities). Conservation efforts for bull trout critical habitat have the potential to result in increased bull trout populations, which in turn could result in increases in recreational fishing opportunities over the long term. In addition, increased bull trout population size could result in enhanced non-use value by the public (e.g., existence value). Existing studies support the conclusion that preservation of fish species in general is likely to generate substantial benefits to the public. However, absent information on the long term biological or physical changes expected to occur in bull trout critical habitat areas as a result of critical habitat designation, the DEA does not quantify these benefits. The DEA is available for review at *http://www.regulations.gov* . We are seeking data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period, including information received during, or in response to, the public hearing. Peer Review In accordance with our joint policy published in the **Federal Register** on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during this public comment period on our specific assumptions and conclusions in this proposed designation of critical habitat. We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal. Public Hearings The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the **Federal Register** . Such requests must be sent to the address shown in the ADDRESSES section. In anticipation of the interest in this proposed rule, we have already scheduled the public hearing and several public meetings. See the **DATES** and ADDRESSES section of this proposed rule for information regarding the scheduled public hearing and public meetings. Required Determinations Regulatory Planning and Review—Executive Order 12866 The Office of Management and Budget
(OMB)has determined that this rule is significant and has reviewed this proposed rule under Executive Order 12866 (E.O. 12866). OMB based its determination upon the following four criteria:
(1)Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;
(2)Whether the rule will create inconsistencies with other Federal agencies' actions;
(3)Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; or
(4)Whether the rule raises novel legal or policy issues. Regulatory Flexibility Act Under the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations. To determine whether a designation of critical habitat could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (e.g., housing development, grazing, oil and gas production, timber harvesting). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement. Under the Act, designation of critical habitat only affects activities carried out, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so would not result in any additional effects under the Act. However, there are some state laws that limit activities in designated critical habitat even where there is no federal nexus. If there is a Federal nexus, Federal agencies will be required to consult with us under section 7 of the Act on activities they fund, permit, or carry out that may affect critical habitat. If we conclude, in a biological opinion, that a proposed action is likely to destroy or adversely modify critical habitat, we can offer “reasonable and prudent alternatives.” Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid destroying or adversely modifying critical habitat. A Federal agency and an applicant may elect to implement a reasonable and prudent alternative associated with a biological opinion that has found adverse modification of critical habitat. An agency or applicant could alternatively choose to seek an exemption from the requirements of the Act or proceed without implementing the reasonable and prudent alternative. However, unless an exemption were obtained, the Federal agency or applicant would be at risk of violating section 7(a)(2) of the Act if it chose to proceed without implementing the reasonable and prudent alternatives. We may also identify discretionary conservation recommendations designed to minimize or avoid the adverse effects of a proposed action on critical habitat, help implement recovery plans, or to develop information that could contribute to the recovery of the species. Within the proposed critical habitat designation, the types of actions or authorized activities that we have identified as potential concerns and that may be subject to consultation under section 7 if there is a Federal nexus are: operation of dams; forest management practices; livestock grazing; agriculture and irrigation diversions; management of roads; mining; and management of nonnative species. Any existing and planned projects, land uses, and activities that could affect the proposed critical habitat but have no Federal involvement would not require section 7 consultation with the Service, so they are not restricted by the requirements of the Act. Federal agencies may need to reinitiate a previous consultation if discretionary involvement or control over the Federal action has been retained or is authorized by law and the activities may affect critical habitat. The DEA and its associated Initial Regulatory Flexibility Analysis
(IRFA)estimate that total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years will be $4.97 to $7.13 million annually, assuming a 7 percent discount rate. Incremental impacts are expected to consist of:
(1)project modifications occurring within newly proposed unoccupied areas; and
(2)administrative costs associated with consultations under section 7 of the Act. In total, third parties (some of which may be small entities) may bear a total annual impact of up to $5.6 million in incremental impacts. In unoccupied areas, project modifications may be associated with dam modifications, bridge replacement, grazing lease modification, road maintenance, and changes to timber harvest. In total, annual incremental costs associated with project modifications are forecast at $5.1 million (discounted at 7 percent). The DEA also forecasts the number of additional section 7 consultations that may take place as a result of critical habitat. Based on this forecast, annual incremental consultation costs that may be borne by third parties are forecast at $441,000 in total (discounted at 7 percent). Of the potentially affected entities in the proposed critical habitat areas, 97 percent are small entities, and depending on the unit, small entities may bear between 93 and 100 percent of the estimated impacts. The Small Business Size Standard for the industry sectors that could potentially be affected by the proposed critical habitat designation are as follows: • Dams and Water Diversions Category: Electric Power Generation, Transmission and Distribution-4 million megawatts for the preceding year, and Water supply and Irrigation Systems-$7.0 million average annual receipts. • Agriculture Category: Crop Production (Oilseed and Grain Farming; Vegetable and Melon Farming; and Fruit and Tree Nut Farming-$750,000 average annual receipts; and Food Manufacturing-500 employees. • Grazing Category: Beef Cattle Ranching and Farming-$750,000 average annual receipts. • Roads Category: Highway, Street and Bridge Construction-$33.5 million average annual receipts. • Development Category: New Single-Family Housing Construction (except Operative Builders); New Multifamily Housing Construction (except Operative Builders); New Housing Operative Builders-$33.5 million average annual receipts; and Land Subdivision-$7.0 million. • Forest Managent Category: Logging-500 employees; Timber Tract Operations, and Support Activities for Forestry-$7.0 million average annual receipts. • Mining Category: Mining (except Oil and Gas), and Construction Sand and Gravel Mining-500 employees. • Other Activities Category: Oil and Gas Pipeline and Related Structures Construction; Power and Communication Line and Related Structures Construction; and Other Heavy and Civil Engineering Construction-$33.5 million average annual receipts; Marinas-$7.0 million average annual receipts; Water and Sewer Line and Related Structures Construction-$33.5 million average annual receipts; and Sewage Treatment Facilities-$7.0 million average annual receipts. If each of the 23,800 small entities located within the study area were to share the annualized costs, they could bear from $0 up to $60,300 per entity, depending on the affected industry. This would translate into an annual average cost of $234 per entity. This in turn translates into a projected range of impacts from 0.0007 to 0.03 percent, or in other words, less than 1 percent impact for all sectors. The expected annual impacts to the affected industries are significantly less than the annual revenues that could be garnered by a single small operator in those industries, and as such, impacts are low relative to potential revenues. We are seeking public comments regarding the estimated incremental impacts of this critical habitat designation on small entities. Specifically, we are interested in whether there is evidence suggesting that the economic impact of section 7(a)(2) consultations in areas currently occupied by the species is expected to be larger or smaller than estimated in this analysis. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ), we make the following findings:
(a)This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(b)As discussed in the DEA of the proposed designation of critical habitat for bull trout, we do not believe that this rule would significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The DEA concludes that incremental impacts may occur due to project modifications occurring within newly proposed, unoccupied areas and administrative costs associated with section 7 consultations. The DEA estimates that total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years will be $4.97 to $7.13 million annually, assuming a 7 percent discount rate. Based on the range of potential incremental costs that have been identified, we do not believe that this rule will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required. Takings In accordance with Executive Order (E.O.) 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for bull trout in a takings implications assessment. The takings implications assessment concludes that this designation of critical habitat for bull trout does not pose significant takings implications for lands within or affected by the designation. Federalism In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Washington, Oregon, Idaho, Montana, and Nevada. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the physical and biological features within the designated areas to assist the public in understanding the habitat needs of the bull trout. Paperwork Reduction Act of 1995 This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by National Environmental Policy Act
(NEPA)(42 U.S.C. 4321 *et seq.* ) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. court of Appeals for the Ninth Circuit ( *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).] Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a)Be logically organized;
(b)Use the active voice to address readers directly;
(c)Use clear language rather than jargon;
(d)Be divided into short sections and sentences; and
(e)Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the “ ADDRESSES ” section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Government-to-Government Relationship with Tribes Our preliminary assessment indicates that 24 Federally-recognized Tribes in Table 7 have lands that may include or be adjacent to waterbodies under consideration for designation as critical habitat for bull trout. Based on the best available information, there are approximately 683 kilometers (424 miles) of streams and shoreline areas in or adjacent to Tribal lands being proposed as critical habitat for bull trout (Table 6). In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. Maintaining an effective trust relationship between the Federal government and Tribes promotes
(1)the furtherance of established national policies, our Federal trust obligations and our deference to management of natural resources on their lands;
(2)the maintenance of effective long-term working relationships to promote species conservation on an ecosystem-wide basis;
(3)the allowance for continued meaningful collaboration and cooperation in scientific work to learn more about the conservation needs of the species on an ecosystem-wide basis; and
(4)continued respect for Tribal sovereignty over management of natural resources on Indian lands through established tribal natural resource programs. We have engaged in preliminary discussions and coordination with our Tribal partners during development of the proposed rule, and are soliciting specific comments and information from tribes on areas being proposed as critical habitat on tribal land and on lands other than Tribal lands. The final rule will fully consider the Federal government's obligations to Federally-recognized Tribes, and comments and information received from the Tribes regarding the actions being implemented to conserve bull trout on Tribal lands and lands other than Tribal lands. Energy Supply, Distribution, or Use Executive Order E.O. 13211 pertains to regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The Office of Management and Budget
(OMB)provides guidance for implementing this Executive Order, outlining nine outcomes (criteria) that may constitute “a significant adverse effect” when compared with the regulatory action under consideration. Two of these criteria are relevant to the bull trout economic analysis:
(1)reduction in electricity production in excess of one billion kilowatts-hours per year or in excess of 500 megawatts of installed capacity and
(2)increases in the cost of energy production in excess of one percent. The two primary activities that might lead to reduced energy generation are operation of the Federal Columbia River Power System (FCRPS) and operation of FERC-licensed hydroelectric dams. Incremental impacts to dam operations are expected to consist largely of the costs of installing fish passage capabilities. Some dam operators may also undertake relatively minor movements of peak energy production during the year. This practice does not reduce average energy production, but rather changes the temporal distribution of that power. Therefore, no impacts to electricity production or installed capacity are forecast. Given the high thresholds defined in the OMB guidance (i.e., reduction in electricity production in excess of one billion kilowatts-hours per year, increases in the cost of energy production in excess of one percent) and the fact that bull trout is unlikely to be the primary species leading to changes in flow regimes (because of the presence of listed salmon), it is unlikely the electricity industry will experience a “significant adverse effect” as a result of critical habitat designation for bull trout. The protection of bull trout stream and lake habitats should not require significant changes to energy management, and because bull trout have been listed under the Endangered Species Act for the past 10 years, with critical habitat designated over parts of its range for the past four years, and there have been no actions that have significantly affected energy supply, distribution or use over that time. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. References Cited A complete list of references cited is available on the Internet at *http://www.regulations.gov* and upon request from the Idaho Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). Author(s) The primary authors of this package are the staff members of the following Fish and Wildlife Offices: Idaho, Montana, Washington, Oregon, Nevada, and Klamath Falls. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17; subchapter B of Chapter I, title 50 of the Code of Federal Regulations as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. Amend § 17.95(e) by revising critical habitat for “Bull Trout ( *Salvelinus confluentus* )” as follows: § 17.95 Critical habitat—fish and wildlife.
(e)Fishes. Bull trout ( *Salvelinus confluentus* )
(1)*Locations of critical habitat* : Critical habitat units are depicted in the following States and counties on the maps and as described below: State Counties
(i)Idaho Adams, Benewah, Blaine, Boise, Bonner, Boundary, Butte, Camas, Canyon, Clearwater, Custer, Elmore, Gem, Idaho, Kootenai, Lemhi, Lewis, Nez Perce, Owyhee, Shoshone, Valley, Washington
(ii)Montana Deer, Lodge, Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Mineral, Missoula, Powell, Ravalli, Sanders
(iii)Nevada Elko
(iv)Oregon Baker, Clatsop, Columbia, Deschutes, Gilliam, Grant, Harney, Hood River, Jefferson, Klamath, Lake, Lane, Linn, Malheur, Morrow, Multnomah, Sherman, Umatilla, Union, Wallowa, Wasco, Wheeler
(v)Washington Asotin, Benton, Chelan, Clallam, Clark, Columbia, Cowlitz, Douglas, Franklin, Garfield, Grant, Grays Harbor, Island, Jefferson, King, Kittitas, Klickitat, Mason, Okanogan, Pend Oreille, Pierce, Skagit, Skamania, Snohomish, Thurston, Wahkiakum, Walla Walla, Whatcom, Whitman, Yakima
(2)*Topographic features included in the critical habitat designation.* Critical habitat includes the stream channels within the designated stream reaches; designated lakes and reservoirs; and inshore portions of marine nearshore areas, including tidally influenced freshwater heads of estuaries indicated on the maps beginning with paragraph (e)(6) of this section.
(i)Critical habitat includes the stream channels within the designated stream reaches and a lateral extent as defined by the bankfull elevation on one bank to the bankfull elevation on the opposite bank. Bankfull elevation is the level at which water begins to leave the channel and move into the floodplain and is reached at a discharge that generally has a recurrence interval of 1 to 2 years on the annual flood series. If bankfull elevation is not evident on either bank, the ordinary high-water line must be used to determine the lateral extent of critical habitat. The lateral extent of designated lakes is defined by the perimeter of the water body as mapped on standard 1:24,000 scale topographic maps.
(ii)Critical habitat includes the inshore extent of critical habitat for marine nearshore areas (the mean higher high-water
(MHHW)line), including tidally influenced freshwater heads of estuaries. The MHHW line refers to the average of all the higher high-water heights of the two daily tidal levels. Adjacent shoreline riparian areas, bluffs, and uplands are not designated as critical habitat. However, it should be recognized that the quality of marine habitat along shorelines is intrinsically related to the character of these adjacent features, and human activities that occur outside of the MHHW line can have major effects on physical and biological features of the marine environment. The offshore extent of critical habitat for marine nearshore areas is based on the extent of the photic zone, which is the layer of water in which organisms are exposed to light. Critical habitat extends offshore to the depth of 10 meters
(m)(33 feet (ft)) relative to the mean low low-water
(MLLW)line (average of all the lower low-water heights of the two daily tidal levels). This equates to the average depth of the photic zone and is consistent with the offshore extent of the nearshore habitat identified National Oceanic and Atmospheric Administration in the National Tidal Datum 1983 Through 2001. This area between the MHHW line and minus 10 MLLW line is considered the habitat most consistently used by bull trout in marine waters based on known use, forage fish availability, and ongoing migration studies and captures geological and ecological processes important to maintaining these habitats. This area contains essential foraging habitat and migration corridors such as estuaries, bays, inlets, shallow subtidal areas, and intertidal flats.
(3)*The Primary Constituent Elements
(PCEs)of critical habitat.* Within the critical habitat, the PCEs for bull trout are those habitat components that are essential for the primary biological needs of foraging, reproducing, rearing of young, dispersal, genetic exchange, or sheltering. The PCEs are as follows:
(i)Springs, seeps, groundwater sources, and subsurface water connectivity (hyporehic flows) to contribute to water quality and quantity and provide thermal refugia.
(ii)Migratory habitats with minimal physical, biological, or water quality impediments between spawning, rearing, overwintering, and freshwater and marine foraging habitats, including but not limited to permanent, partial, intermittent, or seasonal barriers.
(iii)An abundant food base, including terrestrial organisms of riparian origin, aquatic macroinvertebrates, and forage fish.
(iv)Complex river, stream, lake, reservoir, and marine shoreline aquatic environments and processes with features such as large wood, side channels, pools, undercut banks and substrates, to provide a variety of depths, gradients, velocities, and structure.
(v)Water temperatures ranging from 2 to 15 °C (36 to 59 °F), with adequate thermal refugia available for temperatures at the upper end of this range. Specific temperatures within this range will vary depending on bull trout life-history stage and form; geography; elevation; diurnal and seasonal variation; shade, such as that provided by riparian habitat; and local groundwater influence.
(vi)Substrates of sufficient amount, size, and composition to ensure success of egg and embryo overwinter survival, fry emergence, and young-of-the-year and juvenile survival. A minimal amount (e.g., less than 12 percent) of fine substrate less than 0.85 mm (0.03 in.) in diameter and minimal embeddedness of these fines in larger substrates are characteristic of these conditions.
(vii)A natural hydrograph, including peak, high, low, and base flows within historic and seasonal ranges or, if flows are controlled, they minimize departures from a natural hydrograph.
(viii)Sufficient water quality and quantity such that normal reproduction, growth, and survival are not inhibited.
(ix)Few or no nonnative predatory (e.g., lake trout, walleye, northern pike, smallmouth bass; inbreeding (e.g., brook trout); or competitive (e.g., brown trout) species present.
(4)Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(5)Critical habitat map units. Data layers defining map units were created using U.S. Geological Survey
(USGS)Hydrologic Unit Code maps
(HUCs)at a scale of 1:250,000 down to the 4th level cataloging unit. In some cases, 5th and 6th level HUCs were also used and some finer scale watersheds developed using United States Geological Survey 10-meter Digital Elevation Model and 1:24,000 scale hydrography layers. The marine boundaries for the Puget Sound and Olympic Peninsula critical habitat unit
(CHU)were based on Washington Department of Natural Resources 1:24,000 scale county boundaries and HUCs.
(6)Index map of critical habitat units for bull trout follows: BILLING CODE 4310-55-S EP14JA10.001
(7)Unit 1: Olympic Peninsula Unit, Washington.
(i)Dungeness River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Dungeness River Subunit, follows: EP14JA10.002
(ii)Elwha River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus),* Elwha River Subunit, follows: EP14JA10.003
(iii)Hoh River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus),* Hoh River Subunit, follows: EP14JA10.004
(iv)Queets River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus),* Queets River Subunit, follows: EP14JA10.005
(v)Quinault River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Quinault River Subunit, follows: EP14JA10.006
(vi)Skokomish River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Skokomish River Subunit, follows: EP14JA10.007
(vii)Hood Canal Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Hood Canal Subunit, follows: EP14JA10.008
(viii)Strait of Juan de Fuca Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Juan de Fuca Subunit, follows: EP14JA10.009
(ix)Pacific Coast Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Pacific Coast Subunit, follows: EP14JA10.010
(x)Chehalis River/Grays Harbor Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Chehalis River/Grays Harbor Subunit, follows: EP14JA10.011
(8)Unit 2: Puget Sound Unit, Washington.
(i)Chilliwack River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Chilliwack River Subunit, follows: EP14JA10.012
(ii)Nooksack River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Nooksack River Subunit, follows: EP14JA10.013 EP14JA10.014
(iii)Skagit River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Skagit River Subunit, follows: EP14JA10.015 EP14JA10.016
(iv)Upper Skagit River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Skagit River Subunit, follows: EP14JA10.017
(v)Stillaguamish River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Stillaguamish River Subunit, follows: EP14JA10.018
(vi)Samish River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Samish River Subunit, follows: EP14JA10.019
(vii)Snohomish-Skykomish River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Snohomish-Skykomish River Subunit, follows: EP14JA10.020
(viii)Lake Washington Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lake Washington Subunit, follows: EP14JA10.021
(ix)Lower Green River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lower Green River Subunit, follows: EP14JA10.022
(x)Lower Nisqually River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lower Nisqually River Subunit, follows: EP14JA10.023
(xi)Chester Morse Lake Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Chester Morse Lake Subunit, follows: EP14JA10.024
(xii)Puyallup River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Puyallup River Subunit, follows: EP14JA10.025 EP14JA10.026
(xiii)Puget Sound Marine Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Puget Sound Marine Subunit, follows: EP14JA10.027
(9)Unit 3: Lower Columbia River Basins Unit, Washington.
(i)Lewis River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lewis River Subunit, follows: EP14JA10.028
(ii)Klickitat River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Klickitat River Subunit, follows: EP14JA10.029
(iii)White Salmon River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), White Salmon River Subunit, follows: EP14JA10.030
(10)Unit 4: Upper Willamette River Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Willamette Unit, follows: EP14JA10.031
(11)Unit 5: Hood River Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Hood River Unit, follows: EP14JA10.032
(12)Unit 6: Lower Deschutes River Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lower Deschutes River Unit, follows: EP14JA10.033
(13)Unit 7: Odell Lake Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Odell Lake Unit, follows: EP14JA10.034
(14)Unit 8: Mainstem Lower Columbia River Unit, Oregon and Washington.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Mainstem Lower Columbia River Unit, follows: EP14JA10.035
(15)Unit 9: Klamath River Basin Unit, Oregon.
(i)Upper Klamath Lake Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Klamath Lake Subunit, follows: EP14JA10.036
(ii)Sycan River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Sycan River Subunit, follows: EP14JA10.037
(iii)Upper Sprague River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Sprague River Subunit, follows: EP14JA10.038
(16)Unit 10: Upper Columbia River Basins Unit, Washington.
(i)Methow River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Methow River Subunit, follows: EP14JA10.039
(ii)Chelan River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Chelan River Subunit, follows: EP14JA10.040
(iii)Entiat River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Entiat River Subunit, follows: EP14JA10.041
(iv)Wenatchee River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Wenatchee River Subunit, follows: EP14JA10.042
(17)Unit 11: Yakima River Unit.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ),Yakima River Unit, follows: EP14JA10.043 EP14JA10.044
(18)Unit 12: John Day River Unit, Oregon.
(i)Lower Mainstem John Day River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lower Mainstem John Day River Subunit follows: EP14JA10.045
(ii)Middle Fork John Day River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle Fork John Day River Subunit follows: EP14JA10.046
(iii)North Fork John Day River Subunit
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), North Fork John Day River Subunit, follows EP14JA10.047
(iv)Upper Mainstem John Day River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Mainstem John Day River Subunit, follows: EP14JA10.048
(19)Unit 13: Umatilla River Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Umatilla River Unit, follows: EP14JA10.049
(20)Unit 14: Walla Walla River Basin Critical Habitat Unit, Oregon and Washington.
(i)Walla Walla River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Walla Walla River Subunit, follows: EP14JA10.050
(ii)Touchet River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Touchet River Subunit, follows: EP14JA10.051
(21)Unit 15: Lower Snake River Basins Unit, Washington.
(i)Tucannon River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Tucannon River Subunit, follows: EP14JA10.052
(ii)Asotin Creek Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Asotin Creek Subunit, follows: EP14JA10.053
(22)Unit 16: Grande Ronde River Unit, Oregon and Washington.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Grande Ronde River Unit, follows: EP14JA10.054
(23)Unit 17: Imnaha River Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Imnaha River Unit, follows: EP14JA10.055
(24)Unit 18: Sheep and Granite Creeks Unit, Idaho.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Sheep and Granite Creeks Unit, follows: EP14JA10.056
(25)Unit 19: Hells Canyon Complex Unit, Oregon.
(i)Indian Creek Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Indian Creek Subunit, follows: EP14JA10.057
(ii)Pine Creek Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Pine Creek Subunit, follows: EP14JA10.058
(iii)Wildhorse River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Wildhorse River Subunit, follows: EP14JA10.059
(26)Unit 20: Powder River Basin Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Powder River Basin Unit, follows: EP14JA10.060
(27)Unit 21: Clearwater River Unit, Idaho.
(i)Middle-Lower Fork Clearwater River Subunit
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle-Lower Fork Clearwater River Subunit, follows: EP14JA10.061
(ii)South Fork Clearwater River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), South Fork Clearwater River Subunit, follows: EP14JA10.062 EP14JA10.063
(iii)Selway River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Selway River Subunit, follows: EP14JA10.064 EP14JA10.065
(iv)Lochsa River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lochsa River Subunit, follows: EP14JA10.066 EP14JA10.067
(v)North Fork Clearwater River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), North Fork Clearwater Subunit, follows: EP14JA10.068 EP14JA10.069
(28)Unit 22: Mainstem Upper Columbia River Unit, Oregon and Washington.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Columbia River Unit, follows: EP14JA10.070
(29)Unit 23: Mainstem Snake River Unit, Idaho, Oregon, and Washington.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Mainstem Snake River Unit, follows: EP14JA10.071
(30)Unit 24: Malheur River Basin Unit, Oregon.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Malheur River Basin Unit, follows: EP14JA10.072
(31)Unit 25: Jarbidge River Unit, Idaho and Nevada.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Jarbidge River Unit, follows: EP14JA10.073
(32)Unit 26: Southwest Idaho River Basins Unit, Idaho.
(i)Weiser River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Weiser River Subunit, follows: EP14JA10.074
(ii)Squaw Creek Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Squaw Creek Subunit, follows: EP14JA10.075
(iii)North Fork Payette River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), North Fork Payette River Subunit, follows: EP14JA10.076
(iv)Middle Fork Payette River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle Fork Payette River Subunit, follows: EP14JA10.077
(v)Upper South Fork Payette River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper South Fork Payette River Subunit, follows: EP14JA10.078 EP14JA10.079
(vi)Deadwood River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Deadwood River Subunit, follows: EP14JA10.080
(vii)Arrowrock Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Arrowrock Subunit, follows: EP14JA10.081 EP14JA10.082
(viii)Anderson Ranch Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Anderson Ranch Subunit, follows: EP14JA10.083
(33)Unit 27: Salmon River Basin Unit, Idaho.
(i)Little-Lower Salmon Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Little-Lower Salmon Subunit, follows: EP14JA10.084
(ii)South Fork Salmon River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), South Fork Salmon River Subunit, follows: EP14JA10.085 EP14JA10.086 EP14JA10.087
(iii)Middle Salmon River-Chamberlain River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle Salmon River-Chamberlain River Subunit, follows: EP14JA10.088 EP14JA10.089 EP14JA10.090
(iv)Middle Fork Salmon River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Maps of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle Fork Salmon River Subunit, follows. EP14JA10.091 EP14JA10.092 EP14JA10.093 EP14JA10.094 EP14JA10.095 EP14JA10.096
(v)Middle Salmon-Panther River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle Salmon-Panther River Subunit, follows: EP14JA10.097 EP14JA10.098
(vi)Lake Creek Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lake Creek Subunit, follows: EP14JA10.099
(vii)Opal Lake Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Opal Lake Subunit, follows: EP14JA10.100
(viii)Lemhi River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lemhi River Subunit, follows: EP14JA10.101 EP14JA10.102
(ix)Pahsimeroi River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Pahsimeroi River Subunit, follows: EP14JA10.103
(x)Upper Salmon River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Salmon River Subunit, follows: EP14JA10.104 EP14JA10.105
(34)Unit 28: Little Lost River Unit, Idaho.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Little Lost River Unit, follows: EP14JA10.106
(35)Unit 29: Coeur d'Alene River Basin Unit, Idaho.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Coeur d'Alene River Basin Unit follows: EP14JA10.107 EP14JA10.108
(36)Unit 30: Kootenai River Basin Unit, Idaho and Montana.
(i)Kootenai River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Kootenai River Subunit, follows: EP14JA10.109
(ii)Lake Koocanusa Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lake Koocanusa Subunit, follows: EP14JA10.110
(36)Unit 31: Clark Fork River Basin Unit, Idaho, Montana, and Washington.
(i)Priest Lakes and Upper Priest River (Priest Lakes) Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Priest Lakes and Upper Priest River (Priest Lakes) Subunit, follows: EP14JA10.111
(ii)Lake Pend Oreille, Pend Oreille River, and lower Priest River (Lake Pend Oreille) Subunit
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lake Pend Oreille, Pend Oreille River, and lower Priest River (Lake Pend Oreille) Subunit, follows: EP14JA10.112 EP14JA10.113
(iii)Lower Clark Fork River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Lower Clark Fork River Subunit, follows: EP14JA10.114
(iv)Middle Clark Fork River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Middle Clark Fork River Subunit, follows: EP14JA10.115
(v)Upper Clark Fork River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Upper Clark Fork River Subunit, follows: EP14JA10.116
(vi)Bitterroot River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Bitterroot River Subunit, follows: EP14JA10.117
(vii)Rock Creek Subunit
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Rock Creek Subunit, follows: EP14JA10.118
(viii)Blackfoot River Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Blackfoot River Subunit, follows: EP14JA10.119
(ix)Clearwater River and Lakes Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Clearwater River and Lakes Subunit, follows: EP14JA10.120
(x)Flathead Lake, Flathead River, and Headwater Lakes (Flathead) Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Flathead Lake, Flathead River, and Headwater Lakes (Flathead) Subunit follows: EP14JA10.121 EP14JA10.122
(xi)Swan River and Lakes
(Swan)Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Swan River and Lakes
(Swan)Subunit, follows: EP14JA10.123
(xii)Hungry Horse Reservoir, South Fork Flathead River and Headwater Lakes (South Fork Flathead) Subunit.
(A)[Reserved for textual description of unit.]
(B)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Hungry Horse Reservoir, South Fork Flathead River and Headwater Lakes (South Fork Flathead) Subunit, follows: EP14JA10.124
(37)Unit 32: Saint Mary River Basin Unit, Montana.
(i)[Reserved for textual description of unit.]
(ii)**Note:** Map of Critical Habitat for the bull trout ( *Salvelinus confluentus* ), Saint Mary River Basin Unit, follows: EP14JA10.125 Dated: December 31, 2009 Eileen Sobeck, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2010-176 Filed 1-13-10; 8:45 am]
Connectionstraces to 16
29 references not yet in our index
  • 15 CFR 902
  • 50 CFR 665
  • 50 CFR 665.18
  • 50 CFR 665.22
  • 50 CFR 665.72(d)
  • 50 CFR 660
  • 50 CFR 600
  • 50 CFR 404
  • 50 CFR 223
  • 16 USC 1531-1543
  • 15 CFR 904
  • 50 CFR 600.725
  • 50 CFR 17
  • 50 CFR 424.12(e)
  • Pub. L. 106-554
  • 50 CFR 424.12(b)
  • 50 CFR 424.12
  • 50 CFR 402.02
  • 378 F.3d 1059
  • 245 F.3d 434
  • 50 CFR 402.16
  • 50 CFR 17.3
  • 48 F.3d 1495
  • 516 U.S. 1042
  • 16 USC 1361-1407
  • 16 USC 1531-1544
  • 16 USC 4201-4245
  • Pub. L. 99-625
  • 100 Stat. 3500
Citation graph
cites case law
Presidential Documents
Final rule
C.F.R.§ 902.1
Fed. Reg.Notices
U.S.C.§ 3501
U.S.C.§ 1801
U.S.C.§ 1858
U.S.C.§ 12102
U.S.C.§ 1855
U.S.C.§ 1531
U.S.C.§ 1251
F. App'x378 F.3d 1059
F. App'x245 F.3d 434
F. App'x48 F.3d 1495
Cites 45 · showing 12Cited by 0 across 0 sources
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