Subpart C-Threatened Marine and Anadromous Fish 227.21 Threatened salmon. (a) Prohibitions. The prohibitions of section 9 of the Act (16 U.S.C. 1539) relating to endangered species apply to threatened species of salmon listed in $227.4(f) and (g), except as provided in E paragraph (b) of this section. 2 (b) Exceptions. The exceptions of section 10 of the Act (16 U.S.C. 1538) and other exceptions under the Act relating to endangered species, including regu:lations implementing such exceptions, also apply to the threatened species of salmon listed in §227.4(f) and (g). This section supersedes other restrictions on the applicability of parts 217 through 222 of this chapter, including, but not limited to, the restrictions specified in §§ 217.2, 222.2(a) and 222.22(a) of this chapter with respect to the species identified in paragraph (a) of this section. 1 [60 FR 19342, Apr. 17, 1995] Subpart D-Threatened Marine $227.71 Prohibitions. (a) Except as provided in §227.72, the prohibitions of section 9 of the Act (16 U.S.C. 1538) relating to endangered species apply to any species of sea turtle enumerated in § 227.4. (b) Except as provided in §227.72, it is unlawful for any person subject to the jurisdiction of the United States to do any of the following: (1) Own, operate, or be on board a vessel, except if that vessel is in compliance with all applicable provisions of § 227.72(e); (2) Fish for, catch, take, harvest, or possess, fish or wildlife while on board a vessel, except if that vessel is in compliance with all applicable provisions Sp of $227.72(e); (3) Fish for, catch, take, harvest, or possess, fish or wildlife contrary to any notice of tow-time or other restriction y specified in, or issued under, §227.72(e) Ri (3) or (6); 1 (4) Possess fish or wildlife taken in violation of paragraph (b) of this section; (5) Fail to follow any of the sea turtle handling and resuscitation requirements specified in § 227.72(e)(1); (6) Possess a sea turtle in any manner contrary to the handling and resuscitation requirements of § 227.72(e) (1); (7) Fail to comply immediately, in the manner specified at 50 CFR 620.8 (b)(d), with instructions and signals specified therein issued by an authorized officer, including instructions and signals to haul back a net for inspection; (8) Refuse to allow an authorized officer to board a vessel, or to enter an area where fish or wildlife may be found, for the purpose of conducting a boarding, search, inspection, seizure, investigation, or arrest in connection with enforcement of this section; (9) Destroy, stave, damage, or dispose of in any manner, fish or wildlife, gear, cargo, or any other matter after a communication or signal from an authorized officer, or upon the approach of such an officer or of an enforcement vessel or aircraft, before the officer has an opportunity to inspect same, or in contravention of directions from the officer; (10) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, prevent, or interfere with an authorized officer in the conduct of any boarding, search, inspection, seizure, investigation, or arrest in connection with enforcement of this section; (11) Interfere with, delay, or prevent by any means, the apprehension of another person, knowing that such person committed an act prohibited by this section; (12) Resist a lawful arrest for an act prohibited by this section; (13) Make a false statement, oral or written, to an authorized officer or to the agency concerning the fishing for, catching, taking, harvesting, landing, purchasing, selling, or transferring fish or wildlife, or concerning any other matter subject to investigation under this section by such officer, or required to be submitted under this part 227; (14) Sell, barter, trade or offer to sell, barter, or trade, a TED that is not an approved TED; or (15) Attempt to do, solicit another to do, or cause to be done, any of the foregoing. (c) In connection with any action alleging a violation of this section, any person claiming the benefit of any exemption, exception, or permit under this subpart D has the burden of proving that the exemption, exception, or permit is applicable, was granted, and was valid and in force at the time of the alleged violation. Further, any person claiming that a modification made to a TED that is the subject of such an action complies with the requirements of $227.72(e) (4)(iii) has the burden of proving such claim. [57 FR 57354, Dec. 4, 1992] $227.72 Exceptions to prohibitions. (a) Scientific, propagation, or survival permits. (1) The Assistant Administrator may issue permits authorizing activities which would otherwise be prohibited under §227.71 for scientific purposes or to enhance the propagation or survival of such species. Applications for these permits are subject to the provisions of part 220 of this chapter II. (2) Ongoing scientific, propagation, or survival projects, which would otherwise be prohibited by §227.71 may continue without a permit until an application for a permit has been denied or 90 days from the effective date of the listing of the effected species, whichever comes first. If a permit has not been denied, ongoing projects may continue beyond this 90-day period provided that the individual responsible for such project(s) has applied for a permit and receives a letter from the Assistant Administrator stating that the application is complete and sufficient for processing within the 90-day period. Projects not receiving a permit or letter indicating sufficiency by the 90th day must cease. Within 30 days of receipt of an application, the Assistant Administrator will determine the completeness and sufficiency of the application for processing. If an application is deemed complete and sufficient for processing, a permit will be issued or denied within the next 90 days beginning with the date of the letter informing the applicant that the application is sufficient. Approved projects shall continue in accordance with the conditions of the permit. (b) Permits for zoological exhibition or educational purposes. The Assistant Administrator may issue permits authorizing activities which would be otherwise prohibited under §227.71 for zoological exhibition or educational purposes. Applications for these permits are subject to the provisions of part 220 of this chapter II. (c) Exceptions for injured, dead, or stranded specimens. If any member of any threatened species listed in §227.4 is found injured, dead, or stranded, any agent or employee of the National Marine Fisheries Service, the Fish and Wildlife Service, the U.S. Coast Guard, or any other Federal land or water management agency, or any agent or employee of a State agency responsible for fish and wildlife who is designated by his or her agency for such purposes, may, when acting in the course of his or her official duties, take such specimens without a permit if such taking is necessary to aid a sick, injured, or stranded specimen or dispose of a dead specimen or salvage a dead specimen which may be useful for scientific study. Wherever possible, live specimens shall be returned to their aquatic environment as soon as possible. Every action shall be reported in writing to the Assistant Administrator within 30 days, and reports of further occurrence shall be made as deemed appropriate by the Assistant Administrator until the specimen is either returned to its environment or disposed of. Reports shall be mailed by registered or certified mail, return receipt requested, to the Assistant Administrator for Fisheries, National Marine Fisheries Service, Washington, DC 20235, and shall contain the following information: (1) Name and position of the official or employee involved; (2) Description of the specimen(s) involved; (3) Date and location of disposal; (4) Circumstances requiring the action; (5) Method of disposal; (6) Disposition of the specimen(s), including, where the specimen(s) has been retained in captivity, a description of the place and means of confinement, and the measures taken for its maintenance and care; and (7) Such other information as the Assistant Administrator may require. (d) Exception for research or conservation. Any employee or agent of the National Marine Fisheries Service, the Fish and Wildlife Service, or a State fish and wildlife agency operating a conservation program pursuant to the terms of a Cooperative Agreement with the National Marine Fisheries Service or the Fish and Wildlife Service in accordance with section 6(c) of the Act, designated by his or her agency for such purposes, may, when acting in the course of his or her official duties, take any threatened species to carry out scientific research or conservation programs. All such takings shall be reported within 30 days of the taking to the Assistant Administrator who may request additional reports of the taking and research at his discretion. (e) Exception for incidental taking— (1) General. The prohibitions against taking in §227.71(a) do not apply to the incidental take of any member of any species of sea turtle listed in §227.4 (i.e., a take not directed toward such member) during fishing or scientific research activities, to the extent that those involved are in compliance with the requirements of paragraphs (e)(1), ́(2), (3), and (6) of this section, or in compliance with the terms and conditions of an incidental take permit issued pursuant to paragraph (e)(7) of this section. (1) Any specimen so taken must be handled with due care to prevent injury to live specimens, observed for activity, and returned to the water according to the following procedures: (A) Sea turtles that are dead or actively moving must be released over the stern of the boat. In addition, they must be released only when trawls are not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels. (B) Resuscitation must be attempted on sea turtles that are comatose or inactive but not dead by: (1) Placing the turtle on its back (carapace) and pumping its breastplate (plastron) with hand or foot; or (2) Placing the turtle on its breastplate (plastron) and elevating its hindquarter several inches for a period of 1 up to 24 hours. The amount of the elevation depends on the size of the turtle; greater elevations are needed for larger turtles. Sea turtles being resuscitated must be shaded and kept wet or moist. Those that revive and become active must be released over the stern of the boat only when trawls are not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels. Similarly, sea turtles that fail to move within several hours (up to 24, if possible) must be returned to the water in the same manner. (ii) Any specimen so taken must not be consumed, sold, landed, offloaded, transshipped, or kept below deck. (2) Gear requirements—(i) TED requirement. Except as provided in paragraph (e)(2)(ii) of this section, any shrimp trawler that is in the Atlantic Area or Gulf Area must have an approved TED (as defined in §217.12 of this subchapter) installed in each net that is rigged for fishing. A net is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to the shrimp trawler. (ii) Exemptions from the TED requirement. (A) A shrimp trawler is exempt from the TED requirements of paragraph (e)(2)(i) of this section if it complies with the alternative tow-time restrictions in paragraph (e)(3)(i) of this section and if it: (1) Has on board no power or mechanical-advantage trawl retrieval system (i.e., any device used to haul any part of the net aboard); (2) Is a bait shrimper that retains all live shrimp on board in a container with a circulating seawater system, if it does not possess more than 32 pounds (14.5 kg) of dead shrimp on board, and if it has on board a valid original state bait-shrimp license (if in a state that requires such a license); (3) Has only a pusher-head trawl, skimmer trawl, or wing net rigged for fishing: (4) Is in an area during a period for which tow-time restrictions apply under paragraphs (e)(3)(ii) or (iii) of this section, if it complies with all ap (5) Prior to December 1, 1994, is in inshore waters, if it has no more than one net rigged for fishing (other than a test (or try) net), if that net has both a headrope length of less than 35 feet (10.7 m) and a footrope length of less than 44 feet (13.4 m). (B) The following fishing gear or activities are exempted from the TED requirements of paragraph (e)(2)(i) of this section: (1) A single test net (try net) with a headrope length of 20 feet (6.1 m) or less, if it is either pulled immediately in front of another net or is not connected to another net in any way, if no more than one test net is used at a time, and if it is not towed as a primary net; (2) A beam or roller trawl fished without doors, boards, or similar devices, that has a mouth formed by a rigid frame and rigid vertical bars, if none of the spaces between the bars, or between the bars and the frame, exceed 4 inches (10.2 cm); and (3) A shrimp trawler fishing for, or possessing, royal red shrimp, if at least 90 percent (by weight) of all shrimp either found on board, or offloaded from that shrimp trawler, is royal red shrimp. (iii) Gear requirement—summer flounder trawlers-(A) TED requirement. Except as provided in paragraph (e)(2)(iii)(B) of this section, any summer flounder trawler in the summer flounder fishery-sea turtle protection area must have an approved TED (as defined in §217.12 of this subchapter) installed in each net that is rigged for fishing. A net is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to the summer flounder trawler. (iv) Gear requirement—leatherback conservation zone-(A) Leatherback surveys. From January 1 through June 30 of each year, weekly aerial surveys will be conducted (contingent upon weather conditions) by NMFS or state agents in the leatherback conservation zone (defined in §217.12 of this chapter). If sighting rates of greater than 10 leatherback turtles per 50 nautical miles (92.6 km) of trackline are observed, the aerial surveys of that area will be replicated within 24 hours, or as soon as practicable thereafter. (B) TED requirements and registration. If surveys pursuant to (e)(2)(iv)(A) of this section indicate a sighting rate within the leatherback conservation zone of greater than 10 leatherback sea turtles per 50 nautical miles (92.6 km) of trackline, NMFS will close, for a 2week period, an area of the leatherback conservation zone encompassing all, or a portion of, inshore waters and offshore waters 10 nautical miles (18.5 km) seaward of the COLREGS demarcation line, bounded by 1° lat. coinciding with the trackline, within the leatherback conservation zone. Within such closed area, fishing by any shrimp trawler required to have a NMFS-approved TED installed in each net rigged for fishing is prohibited, unless the TED installed is one described at paragraph (e)(4)(i)(G)(2)(ii) paragraph (e)(4)(iii)(E) of this section, and the owner or operator of the shrimp trawler has notified the Director, Southeast Region, NMFS (Regional Director) of his or her intention to fish in that area, in accordance with the procedure provided in paragraphs (e)(6)(iv) (A) through (F) of this section. If requested in writing from the Regional Director, owners and operators of shrimp trawlers in the leatherback conservation zone must carry NMFS-approved observers aboard such vessel(s). A shrimp trawler in the leatherback conservation zone must comply with the terms and conditions specified in such written request, as well as provide information on trawling hours, gear modifications, and turtle captures. or (C) Notification. NMFS will immediately announce specific area closures on the NOAA weather radio channel, in newspapers, and other media. Specific area closures will be effective upon filing for public inspection at the Office of the Federal Register. Owners and operators of shrimp trawl vessels in the leatherback conservation zone are responsible for monitoring the NOAA weather radio channel for closure announcements. Shrimp trawlers may also call the Southeast Regional Office at (813) 570–5312 to receive updated area closure information. (B) Monitoring. Summer flounder =trawlers must carry onboard a NMFS approved observer if requested upon written notification from the Director, Southeast Region, NMFS, or the Director, Northeast Region, NMFS, sent to the address specified for the vessel in either the NMFS or state fishing permit application, or to the address specified for registration or documentation purposes, or upon written notification otherwise served on the owner or operator of the vessel. Owners and operators must comply with the terms and conditions specified in such written notification. All NMFS-approved observers will report any violations of this section, or other applicable regulations and laws; such information may be used for enforcement purposes. (C) Additional sea turtle conservation measures. The Assistant Administrator may impose other such restrictions upon summer flounder trawlers as he or she deems necessary or appropriate to protect sea turtles and ensure com#pliance, pursuant to the procedures of (paragraph (e)(6) of this section. Such measures may include, but are not limited to, a requirement to use TEDS in mareas other than summer flounder fishwery-sea turtle protection area, a reequirement to use limited tow-times, and closure of the fishery. |_ (3) Tow-time restrictions—(1) Duration of tows. If tow-time restrictions are utilized pursuant to paragraphs (e)(2)(ii), (e)(3)(ii), or (e)(3)(iii) of this section, a shrimp trawler must limit tow times to no more than 55 minutes from April 1 through October 31; and to no more than 75 minutes from November 1 through March 31. A shrimp trawler in the North Carolina restricted area must limit tow times to no more than 30 minutes from May 16 through August 15. The tow time is measured from the time that the trawl door enters the water until it is removed from the water. For a trawl that is not attached to a door, the tow time is measured from the time the codend enters the water until it is removed from the water. (ii) Alternative-special environmental conditions. (A) The Assistant Administrator may allow compliance with tow time restrictions, as an alternative to the TED requirement of paragraph (e)(2)(1) of this section, if he/she determines that the presence of algae, seaweed, debris or other special environmental conditions in a particular area makes trawling with TED-equipped nets impracticable. (B) North Carolina restricted area. From June 27, 1994 through November 30, 1994, a shrimp trawler in the North Carolina restricted area, as an alternative to complying with the TED requirement of paragraph (e)(2)(i) of this section, may comply with the tow-time restrictions set forth in paragraph (e)(3)(1) of this section. The owner or operator of a shrimp trawler who wishes to operate his or her shrimp trawler in the North Carolina restricted area must register pursuant to paragraph (e)(3)(v) of this section, with registration received by the Director, Southeast Region, NMFS, at least 24 hours before the first use of such tow times. Registration may be made by telephoning (813) 893-3141 or writing to 9721 Executive Center Drive, St. Petersburg, FL 33702. The owner or operator of a shrimp trawler in the North Carolina restricted area must carry onboard a NMFS-approved observer upon written notification by the Director, Southeast Region, NMFS. Notification shall be made to the address specified for the vessel in either the NMFS or state fishing permit application, the registration or documentation papers, or otherwise served upon the owner or operator of the vessel. The owner or operator must comply with the terms and conditions specified in such written notification. All observers will report any violations of this section, or other applicable regulations and laws; such information may be used for enforcement purposes. (C) North Carolina restricted area. From May 30, 1995, through November 30, 1995, a shrimp trawler in the North Carolina restricted area, as an alternative to complying with the TED requirement of paragraph (e)(2)(i) of this section, may comply with the tow-time restrictions set forth in paragraph (e)(3)(1) of this section. The owner or operator of a shrimp trawler who wishes to fish in the North Carolina restricted area must register pursuant to paragraph (e)(3)(v) of this section, with |