[Code of Federal Regulations] [Title 50, Volume 7] [Revised as of January 1, 2007] From the U.S. Government Printing Office via GPO Access [CITE: 50CFR229.2] [Page 594-598] TITLE 50--WILDLIFE AND FISHERIES CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE PART 229_AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE Subpart A_General Provisions Sec. 229.2 Definitions. In addition to the definitions contained in the Act and Sec. 216.3 of this chapter, and unless otherwise defined in this chapter, the terms in this chapter have the following meaning: Act or MMPA means the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.). American lobster or lobster means Homarus americanus. Anchored gillnet means any gillnet gear, including a sink gillnet or stab net, that is set anywhere in the water column and which is anchored, secured or weighted to the bottom of the sea. Also called a set gillnet. Assistant Administrator means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration. Authorization Certificate means a document issued by the Assistant Administrator, or designee, under the authority of section 118 of the Act that authorizes the incidental, but not intentional, taking of marine mammals in Category I or II fisheries. Breaking strength means the highest tensile force which an object can withstand before breaking. Bridle means the lines connecting a gillnet to an anchor or buoy line. Buoy line means a line connecting fishing gear in the water to a buoy at the surface of the water. Category I fishery means a commercial fishery determined by the Assistant Administrator to have frequent incidental mortality and serious injury of marine mammals. A commercial fishery that frequently causes mortality or serious injury of marine mammals is one that is by itself responsible for the annual removal of 50 percent or more of any stock's potential biological removal level. Category II fishery means a commercial fishery determined by the Assistant Administrator to have occasional incidental mortality and serious injury of marine mammals. A commercial fishery that occasionally causes mortality or serious injury of marine mammals is one that, collectively with other fisheries, is responsible for the annual removal of more than 10 percent of any marine mammal stock's potential biological removal level and that is by itself responsible for the annual removal of between 1 and 50 percent, exclusive, of any stock's potential biological removal level. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, the [[Page 595]] Assistant Administrator will determine whether the incidental serious injury or mortality is ``occasional'' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator. Eligible commercial fisheries not specifically identified in the list of fisheries are deemed to be Category II fisheries until the next list of fisheries is published. Category III fishery means a commercial fishery determined by the Assistant Administrator to have a remote likelihood of, or no known incidental mortality and serious injury of marine mammals. A commercial fishery that has a remote likelihood of causing incidental mortality and serious injury of marine mammals is one that collectively with other fisheries is responsible for the annual removal of: (1) Ten percent or less of any marine mammal stock's potential biological removal level, or (2) More than 10 percent of any marine mammal stock's potential biological removal level, yet that fishery by itself is responsible for the annual removal of 1 percent or less of that stock's potential biological removal level. In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, the Assistant Administrator will determine whether the incidental serious injury or mortality is ``remote'' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area or at the discretion of the Assistant Administrator. Commercial fishing operation means the catching, taking, or harvesting of fish from the marine environment (or other areas where marine mammals occur) that results in the sale or barter of all or part of the fish harvested. The term includes licensed commercial passenger fishing vessel (as defined in Sec. 216.3 of this chapter) activities and aquaculture activities. Depleted species means any species or population that has been designated as depleted under the Act and is listed in Sec. 216.15 of this chapter or part 18, subpart E of this title, or any endangered or threatened species of marine mammal. Driftnet, drift gillnet, or drift entanglement gear means a gillnet or gillnets that is/are unattached to the ocean bottom and not anchored, secured or weighted to the bottom, regardless of whether attached to a vessel. Fisher or fisherman means the vessel owner or operator, or the owner or operator of gear in a nonvessel fishery. Fishery has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802). Fishing or to fish means any commercial fishing operation activity that involves: (1) The catching, taking, or harvesting of fish; (2) The attempted catching, taking, or harvesting of fish; (3) Any other activity that can reasonably be expected to result in the catching, taking, or harvesting of fish; or (4) Any operations at sea in support of, or in preparation for, any activity described in paragraphs (1), (2), or (3) of this definition. Fishing trip means any time spent away from port actively engaged in commercial fishing operations. The end of a fishing trip will be the time of a fishing vessel's return to port or the return of a fisher from tending gear in a nonvessel fishery. Fishing vessel or vessel means any vessel, boat, ship, or other craft that is used for, equipped to be used for, or of a type normally used for, fishing. Float-line means the rope at the top of a gillnet from which the mesh portion of the net is hung. Gillnet means fishing gear consisting of a wall of webbing (meshes) or nets, designed or configured so that the webbing (meshes) or nets are placed in the water column, usually held approximately vertically, and are designed to capture fish by entanglement, gilling, [[Page 596]] or wedging. The term ``gillnet'' includes gillnets of all types, including but not limited to sink gillnets, other anchored gillnets (e.g. stab and set nets), and drift gillnets. Gillnets may or may not be attached to a vessel. Groundline, with reference to lobster trap gear, means a line connecting lobster traps in a lobster trap trawl, and, with reference to gillnet gear, means a line connecting a gillnet or gillnet bridle to an anchor or buoy line. Incidental means, with respect to an act, a non-intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action. Injury means a wound or other physical harm. Signs of injury to a marine mammal include, but are not limited to, visible blood flow, loss of or damage to an appendage or jaw, inability to use one or more appendages, asymmetry in the shape of the body or body position, noticeable swelling or hemorrhage, laceration, puncture or rupture of eyeball, listless appearance or inability to defend itself, inability to swim or dive upon release from fishing gear, or signs of equilibrium imbalance. Any animal that ingests fishing gear, or any animal that is released with fishing gear entangling, trailing or perforating any part of the body will be considered injured regardless of the absence of any wound or other evidence of an injury. Insignificance threshold means the upper limit of annual incidental mortality and serious injury of marine mammal stocks by commercial fisheries that can be considered insignificant levels approaching a zero mortality and serious injury rate. An insignificance threshold is estimated as 10 percent of the Potential Biological Removal level for a stock of marine mammals. If certain parameters (e.g., maximum net productivity rate or the recovery factor in the calculation of the stock's potential biological removal level) can be estimated or otherwise modified from default values, the Assistant Administrator may use a modification of the number calculated from the simple formula for the insignificance threshold. The Assistant Administrator may also use a modification of the simple formula when information is insufficient to estimate the level of mortality and serious injury that would have an insignificant effect on the affected population stock and provide a rationale for using the modification. Interaction means coming in contact with fishing gear or catch. An interaction may be characterized by a marine mammal entangled, hooked, or otherwise trapped in fishing gear, regardless of whether injury or mortality occurs, or situations where marine mammals are preying on catch. Catch means fish or shellfish that has been hooked, entangled, snagged, trapped or otherwise captured by commercial fishing gear. Large mesh gillnet means a gillnet constructed with a mesh size of 7 inches (17.78 cm) to 18 inches (45.72 cm). Lead-line means the rope, weighted or otherwise, to which the bottom edge of a gillnet is attached. List of Fisheries means the most recent final list of commercial fisheries published in the Federal Register by the Assistant Administrator, categorized according to the likelihood of incidental mortality and serious injury of marine mammals during commercial fishing operations. Lobster trap means any trap, pot or other similar type of enclosure that is placed on the ocean bottom and is designed to or is capable of catching lobsters. This definition includes but is not limited to lobster pots, black sea bass pots and scup pots. Lobster trap trawl means two or more lobster traps attached to a single groundline. Mesh size means the distance between inside knot to inside knot. Mesh size is measured as described in Sec. 648.80(f)(1) of this title. Mid-Atlantic coastal waters means waters bounded by the line defined by the following points: The southern shoreline of Long Island, New York at 72[deg]30[min]W, then due south to 33[deg]51[min]N lat., thence west to the North Carolina/South Carolina border. Minimum population estimate means an estimate of the number of animals in a stock that: [[Page 597]] (1) Is based on the best available scientific information on abundance, incorporating the precision and variability associated with such information; and (2) Provides reasonable assurance that the stock size is equal to or greater than the estimate. Mudhole means waters off New Jersey bounded as follows: From the point 40[deg]30[min] N. latitude where it intersects with the shoreline of New Jersey east to its intersection with 73[deg]20[min] W. longitude, then south to its intersection with 40[deg]05[min] N. latitude, then west to its intersection with the shoreline of New Jersey. Negligible impact has the same meaning as in Sec. 216.103 of this chapter. Net productivity rate means the annual per capita rate of increase in a stock resulting from additions due to reproduction, less losses due to mortality. Neutrally buoyant line means line with a specific gravity near that of sea water, so that the line neither sinks to the ocean floor nor floats at the surface, but remains close to the bottom. Night means any time between one half hour before sunset and one half hour after sunrise. NMFS means the National Marine Fisheries Service. Nonvessel fishery means a commercial fishing operation that uses fixed or other gear without a vessel, such as gear used in set gillnet, trap, beach seine, weir, ranch, and pen fisheries. Observer means an individual authorized by NMFS, or a designated contractor, to record information on marine mammal interactions, fishing operations, marine mammal life history information, and other scientific data, and collect biological specimens during commercial fishing activities. Operator, with respect to any vessel, means the master, captain, or other individual in charge of that vessel. Potential biological removal level means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors: (1) The minimum population estimate of the stock; (2) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and (3) A recovery factor of between 0.1 and 1.0. Qualified individual means an individual ascertained by NMFS to be reasonably able, though training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. Regional Fishery Management Council means a regional fishery management council established under section 302 of the Magnuson Fishery Conservation and Management Act. Reliable report means a credible right whale sighting report based upon which a DAM zone would be triggered. Seine means a net that fishes vertically in the water, is pulled by hand or by power, and captures fish by encirclement and confining fish within itself or against another net, the shore or bank as a result of net design, construction, mesh size, webbing diameter, or method in which it is used. In some regions, the net is typically constructed with a capture bag in the center of the net which concentrates the fish as the net is closed. Serious injury means any injury that will likely result in mortality. Sink gillnet or stab net means any gillnet, anchored or otherwise, that is designed to be, or is fished on or near the bottom in the lower third of the water column. Sinking line means rope that sinks and does not float at any point in the water column. Polypropylene rope is not sinking line unless it contains a lead core. Small mesh gillnet means a gillnet constructed with a mesh size of greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm). [[Page 598]] Southern Mid-Atlantic waters means all state and Federal waters off the States of Delaware, Maryland, Virginia, and North Carolina, bounded on the north by a line extending eastward from the northern shoreline of Delaware at 38[deg]47[min] N. latitude (the latitude that corresponds with Cape Henlopen, DE), east to its intersection with 72[deg]30[min] W. longitude, south to the 33[deg]51[min] N. latitude (the latitude that corresponds with the North Carolina/South Carolina border), and then west to its intersection with the shoreline of the North Carolina/South Carolina border. Spotter plane means a plane that is deployed for the purpose of locating schools of target fish for a fishing vessel that intends to set fishing gear on them. Stowed means nets that are unavailable for use and that are stored in accordance with the regulations found in Sec. 648.81(e) of this title. Strategic stock means a marine mammal stock: (1) For which the level of direct human-caused mortality exceeds the potential biological removal level; (2) Which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973 within the foreseeable future; (3) Which is listed as a threatened species or endangered species under the Endangered Species Act of 1973; or (4) Which is designated as depleted under the Marine Mammal Protection Act of 1972, as amended. Sunrise means the time of sunrise as determined for the date and location in The Nautical Almanac, prepared by the U.S. Naval Observatory. Sunset means the time of sunset as determined for the date and location in The Nautical Almanac, prepared by the U.S. Naval Observatory. Take Reduction Plan means a plan developed to reduce the incidental mortality and serious injury of marine mammals during commercial fishing operations in accordance with section 118 of the Marine Mammal Protection Act of 1972, as amended. Take Reduction Team means a team established to recommend methods of reducing the incidental mortality and serious injury of marine mammals due to commercial fishing operations, in accordance with section 118 of the Marine Mammal Protection Act of 1972, as amended. Tended gear or tend means fishing gear that is physically attached to a vessel in a way that is capable of harvesting fish, or to fish with gear attached to the vessel. Tie-down refers to twine used between the floatline and the lead line as a way to create a pocket or bag of netting to trap fish alive. U.S. waters means both state and Federal waters to the outer boundaries of the U.S. exclusive economic zone along the east coast of the United States from the Canadian/U.S. border southward to a line extending eastward from the southernmost tip of Florida on the Florida shore. Vessel owner or operator means the owner or operator of: (1) A fishing vessel that engages in a commercial fishing operation; or (2) Fixed or other commercial fishing gear that is used in a nonvessel fishery. Vessel of the United States has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802). Waters off New Jersey means all state and Federal waters off New Jersey, bounded on the north by a line extending eastward from the southern shoreline of Long Island, NY at 40[deg]40[min] N. latitude, on the south by a line extending eastward from the northern shoreline of Delaware at 38[deg]47[min] N. latitude (the latitude that corresponds with Cape Henlopen, DE), and on the east by the 72[deg]30[min] W. longitude. This area includes the Mudhole. Weak link means a breakable component of gear that will part when subject to a certain tension load. [60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1141, Jan. 9, 2002; 67 FR 1313, Jan. 10, 2002; 69 FR 6584, Feb. 11, 2004; 69 FR 43345, July 20, 2004; 71 FR 24796, Apr. 26, 2006; 72 FR 34642, June 25, 2007]