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(a) Moray eels—Any species of the Family Muraenidae.
(b) Snake eels—Any species of the Genera Myrichthys and Myrophis of the Family Ophichthidae.
(c) Toadfish—Any species of the Family Batrachoididae.
(d) Frogfish—Any species of the Family Antennariidae.
(e) Batfish—Any species of the Family Ogcocephalidae.
(f) Clingfish—Any species of the Family Gobiesocidae.
(g) Trumpetfish—Any species of the Family Aulostomidae.
(h) Cornetfish—Any species of the Family Fistulariidae.
(i) Pipefish/seahorses—Any species of the Family Syngnathidae.
(j) Hamlet/seabass—Any species of the Family Serranidae, except groupers of the genera Epinephalus and Mycteroperca, and seabass of the genus Centropristis.
(k) Basslets—Any species of the Family Grammistidae.
(l) Cardinalfish—Any species of the Family Apogonidae.
(m) High-hat, Jackknife-fish, Spotted drum, Cubbyu—Any species of the genus Equetus of the Family Sciaenidae.
(n) Reef Croakers—Any of the species Odontocion dentex.
(o) Sweepers—Any species of the Family Pempherididae.
(p) Butterflyfish—Any species of the Family Chaetodontidae.
(q) Angelfish—Any species of the Family Pomacanthidae.
(r) Damselfish—Any species of the Family Pomacentridae.
(s) Hawkfish—Any species of the Family Cirrhitidae.
(t) Wrasse/hogfish/razorfish—Any species of the Family Labridae, except hogfish, Lachnolaimus maximus.
(u) Parrotfish—Any species of the Family Scaridae.
(v) Jawfish—Any species of the Family Opistognathidae.
(w) Blennies—Any species of the Families Clinidae or Blenniidae.
(x) Sleepers—Any species of the Family Eleotrididae.
(y) Gobies—Any species of the Family Gobiidae.
(z) Tangs and surgeonfish—Any species of the Family Acanthuridae.
(aa) Filefish/triggerfish—Any species of the Family Balistes, except gray triggerfish, Balistidae capriscus.
(bb) Trunkfish/cowfish—Any species of the Family Ostraciidae.
(cc) Pufferfish/burrfish/balloonfish—Any of the following species:
1. Balloonfish—Diodon holocanthus.
2. Sharpnose puffer—Canthigaster rostrata.
3. Striped burrfish—Chilomycterus schoepfi.
(3) The following invertebrate species, as they occur in waters of the state and in federal Exclusive Economic Zone (EEZ) waters adjacent to state waters, are hereby designated as restricted species pursuant to Section 370.01(20), Florida Statutes:
(a) Sponges—Any species of the Class Demospongia, except sheepswool, yellow, grass, glove, finger, wire, reef, and velvet sponges, Order Dictyoceratida.
(b) Upside-down jellyfish—Any species of the Genus Cassiopeia.
(c) Siphonophores/hydroids—Any species of the Class Hydrozoa, except fire corals, Order Milleporina.
(d) Soft corals—Any species of the Subclass Octocorallia, except sea fans Gorgonia flabellum and Gorgonia ventalina.
(e) Sea anemones—Any species of the Orders Actinaria, Zoanthidea, Corallimorpharia, and Ceriantharia.
(f) Featherduster worms/calcareous tubeworms—Any species of the Families Sabellidae and Serpulidae.
(g) Star-shells—Any of the species Astraea americana or Astraea phoebia.
(h) Nudibranchs/sea slugs—Any species of the Subclass Opisthobranchia.
(i) Fileclams—Any species of the Genus Lima.
(j) Octopods—Any species of the Order Octopoda, except the common octopus, Octopodus vulgaris.
(k) Shrimp—Any of the following species:
1. Cleaner shrimp and peppermint shrimp—Any species of the Genera Periclimenes or Lysmata.
2. Coral shrimp—Any species of the Genus Stenopus.
3. Snapping shrimp—Any species of the Genus Alpheus.
(l) Crabs—Any of the following species:
1. Yellowline arrow crab—Stenorhynchus seticornis.
2. Furcate spider or decorator crab—Stenocionops furcata.
3. Thinstripe hermit crab—Clibanarius vittatus.
4. Polkadotted hermit crab—Phimochirus operculatus.
5. Spotted porcelain crab—Porcellana sayana.
6. Nimble spray or urchin crab—Percnon gibbesi.
7. False arrow crab—Metoporhaphis calcarata.
(m) Starfish—Any species of the Class Asteroidea, except the Bahama starfish, Oreaster reticulatus.
(n) Brittlestars—Any species of the Class Ophiuroidea.
(o) Sea urchins—Any species of the Class Echinoidea, except longspine urchin, Diadema antillarum, and sand dollars and sea biscuits, Order Clypeasteroida.
(p) Sea cucumbers—Any species of the Class Holothuroidea.
(q) Sea lillies—Any species of the Class Crinoidea.
(4) The following species of plants, as they occur in waters of the state and in federal Exclusive Economic Zone (EEZ) waters adjacent to state waters, are hereby designated as restricted species pursuant to Section 370.01(20), Florida Statutes:
(a) Caulerpa—Any species of the Family Caulerpaceae.
(b) Halimeda/mermaid's fan/mermaid's shaving brush—Any species of the Family Halimedaceae.
(c) Coralline red algae—Any species of the Family Corallinaceae.
(5) For the purposes of Section 370.06(2)(d), Florida Statutes, the term “marine life species” is defined to mean those species designated as restricted species in subsections (2), (3), and (4) of this rule.
Specific Authority 370.01(20), 370.027(2), 370.06(2)(d), F.S. Law Implemented 370.01(20), 370.025, 370.027, 370.06(2)(d), F.S. History—New 1–1–91, Amended 7–1–92, 1–1–95.
46–42.002 Definitions.—As used in this rule chapter:
(1) “Barrier net,” also known as a “fence net,” means a seine used beneath the surface of the water by a diver to enclose and concentrate tropical fish and which may be made of either nylon or monofilament.
(2) “Drop net” means a small, usually circular, net with weights attached along the outer edge and a single float in the center, used by a diver to enclose and concentrate tropical fish.
(3) “Hand held net” means a landing or dip net as defined in Rule 46–4.002(4), except that a portion of the bag may be constructed of clear plastic material, rather than mesh.
(4) “Harvest” means the catching or taking of a marine organism by any means whatsoever, followed by a reduction of such organism to possession. Marine organisms that are caught but immediately returned to the water free, alive, and unharmed are not harvested. In addition, temporary possession of a marine animal for the purpose of measuring it to determine compliance with the minimum or maximum size requirements of this chapter shall not constitute harvesting such animal, provided that it is measured immediately after taking, and immediately returned to the water free, alive, and unharmed if undersize or oversize.
(5) “Harvest for commercial purposes” means the taking or harvesting of any tropical ornamental marine life species or tropical ornamental marine plant for purposes of sale or with intent to sell. The harvest of tropical ornamental marine life species or tropical ornamental marine plants in excess of the bag limit shall constitute prima facie evidence of intent to sell.
(6) “Land,” when used in connection with the harvest of marine organisms, means the physical act of bringing the harvested organism ashore.
(7) “Live rock” means rock with living marine organisms attached to it.
(8) “Octocoral” means any erect, nonencrusting species of the Subclass Octocorallia, except the species Gorgonia flabellum and Gorgonia ventalina.
(9) “Slurp gun” means a self-contained, handheld device that captures tropical fish by rapidly drawing seawater containing such fish into a closed chamber.
(10) “Total length” means the length of a fish as measured from the tip of the snout to the tip of the tail.
(11) “Trawl” means a net in the form of an elongated bag with the mouth kept open by various means and fished by being towed or dragged on the bottom. “Roller frame trawl” means a trawl with all of the following features and specifications:
(a) A rectangular rigid frame to keep the mouth of the trawl open while being towed.
(b) The lower horizontal beam of the frame has rollers to allow the trawl to roll over the bottom and any obstructions while being towed.
(c) The trawl opening is shielded by a grid of vertical bars spaced no more than 3 inches apart.
(d) The trawl is towed by attaching a line or towing cable to a tongue located above yor at the center of the upper horizontal beam of the frame.
(e) The trawl has no doors attached to keep the mouth of the trawl open.
(12) “Tropical fish” means any species included in subsection (2) of Rule 46–42.001, or any part thereof.
(13) “Tropical ornamental marine life species” means any species included in subsections (2) or (3) of Rule 46–42.001, or any part thereof.
(14) “Tropical ornamental marine plant” means any species included in subsection (4) of Rule 46–42.001.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 1–1–91, Amended 7–1–92, 1–1–95.
46–42.003 Prohibition of Harvest: Longspine Urchin, Bahama Starfish.—No person shall harvest, possess while in or on the waters of the state, or land any of the following species:
(1) Longspine urchin, Diadema antillarum.
(2) Bahama starfish, Oreaster reticulatus.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 1–1–91, Amended 7–1–92.
46–42.0035 Live Landing and Live Well Requirements.—
(1) Each person harvesting any tropical ornamental marine life species or any tropical ornamental marine plant shall land such marine organism alive.
(2) Each person harvesting any tropical ornamental marine life species or any tropical ornamental marine plant shall have aboard the vessel being used for such harvest a continuously circulating live well or aeration or oxygenation system of adequate size and capacity to maintain such harvested marine organisms in a healthy condition.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 7–1–92.
46–42.004 Size Limits.—
(1) Angelfishes.—
(a) No person harvesting for commercial purposes shall harvest, possess while in or on the waters of the state, or land any of the following species of angelfish, of total length less than that set forth below:
1. One-and-one-half (1 1/2) inches for:
a. Gray angelfish (Pomacanthus arcuatus).
b. French angelfish (Pomacanthus paru).
2. One-and-three-quarters (1 3/4) inches for:
a. Blue angelfish (Holacanthus bermudensis).
b. Queen angelfish (Holacanthus ciliaris).
3. Two (2) inches for rock beauty (Holacanthus tricolor).
(b) No person shall harvest, possess while in or on the waters of the state, or land any angelfish (Family Pomacanthidae), of total length greater than that specified below:
1. Eight (8) inches for angelfish, except rock beauty (Holacanthus tricolor).
2. Five (5) inches for rock beauty.
(c) Except as provided herein, no person shall purchase, sell, or exchange any angelfish smaller than the limits specified in paragraph (a) or larger than the limits specified in paragraph (b). This prohibition shall not apply to angelfish legally harvested outside of state waters or federal Exclusive Economic Zone (EEZ) waters adjacent to state waters, which angelfish are entering Florida in interstate or international commerce. The burden shall be upon any person possessing such angelfish for sale or exchange to establish the chain of possession from the initial transaction after harvest, by appropriate receipt(s), bill(s) of sale, or bill(s) of lading, and any customs receipts, and to show that such angelfish originated from a point outside the waters of the State of Florida or federal Exclusive Economic Zone (EEZ) waters adjacent to Florida waters and entered the state in interstate or international commerce. Failure to maintain such documentation or to promptly produce same at the request of any duly authorized law enforcement officer shall constitute prima facie evidence that such angelfish were harvested from Florida waters or adjacent EEZ waters for purposes of this paragraph.
(2) Butterflyfishes.—
(a) No person harvesting for commercial purposes shall harvest, possess while in or on the waters of the state, or land any butterflyfish (Family Chaetodontidae) of total length less than one (1) inch.
(b) No person shall harvest, possess while in or on the waters of the state, or land any butterflyfish of total length greater than 4 inches.
(3) Gobies—No person shall harvest, possess while in or on the waters of the state, or land any gobie (Family Gobiidae) of total length greater than 2 inches.
(4) Jawfishes—No person shall harvest, possess while in or on the waters of the state, or land any jawfish (Family Opistognathidae) of total length greater than 4 inches.
(5) Spotfin and Spanish hogfish—
(a) No person shall harvest, possess while in or on the waters of this state, or land any Spanish hogfish (Bodianus rufus) of total length less than 2 inches.
(b) No person shall harvest, possess while in or on the waters of this state, or land any Spanish hogfish (Bodianus rufus) or spotfin hogfish (Bodianus pulchellus) of total length greater than 8 inches.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 1–1–91, Amended 7–1–92, 1–1–95.
46–42.005 Bag limit.—
(1) Except as provided in Rule 46–42.006 or subsections (3) or (4) of this rule, no person shall harvest, possess while in or on the waters of the state, or land more than 20 individuals per day of tropical ornamental marine life species, in any combination.
(2) Except as provided in Rule 46–42.006, no person shall harvest, possess while in or on the waters of the state, or land more than one (1) gallon per day of tropical ornamental marine plants, in any combination of species.
(3) Except as provided in Rule 46–42.006, no person shall harvest, possess while in or on the waters of the state, or land more than 5 angelfishes (Family Pomacanthidae) per day. Each angelfish shall be counted for purposes of the 20 individual bag limit specified in subsection (1) of this rule.
(4)(a) Unless the season is closed pursuant to paragraph (b), no person shall harvest, possess while in or on the waters of the state, or land more than 6 colonies per day of octocorals. Each colony of octocoral or part thereof shall be considered an individual of the species for purposes of subsection (1) of this rule and shall be counted for purposes of the 20 individual bag limit specified therein. Each person harvesting any octocoral as authorized by this rule may also harvest substrate within 1 inch of the perimeter of the holdfast at the base of the octocoral, provided that such substrate remains attached to the octocoral.
(b) If the harvest of octocorals in federal Exclusive Economic Zone (EEZ) waters adjacent to state waters is closed to all harvesters prior to September 30 of any year, the season for harvest of octocorals in state waters shall also close until the following October 1, upon notice given by the Secretary of the Department of Environmental Protection, in the manner provided in s.120.52(16)(d), Florida Statutes.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 1–1–91, Amended 1–1–95.
46–42.006 Commercial Season, Harvest Limits.—
(1) Except as provided in Rule 46–42.008(7), no person shall harvest, possess while in or on the waters of the state, or land quantities of tropical ornamental marine life species or tropical ornamental marine plants in excess of the bag limits established in Rule 46–42.005 unless such person possesses a valid saltwater products license with both a marine life fishery endorsement and a restricted species endorsement issued by the Department of Environmental Protection.
(2) Persons harvesting tropical ornamental marine life species or tropical ornamental marine plants for commercial purposes shall have a season that begins on October 1 of each year and continues through September 30 of the following year. These persons shall not harvest, possess while in or on the waters of the state, or land tropical ornamental marine life species in excess of the following limits:
(a) A limit of 75 angelfish (Family Pomacanthidae) per person per day or 150 angelfish per vessel per day, whichever is less.
(b) A limit of 75 butterflyfishes (Family Chaetodontidae) per vessel per day.
(c) There shall be no limits on the harvest for commercial purposes of octocorals unless and until the season for all harvest of octocorals in federal Exclusive Economic Zone (EEZ) waters adjacent to state waters is closed. At such time, the season for harvest of octocorals in state waters shall also close until the following October 1, upon notice given by the Secretary of the Department of Environmental Protection, in the manner provided in Section 120.52(16)(d), Florida Statutes. Each person harvesting any octocoral as authorized by this rule may also harvest substrate within 1 inch of the perimeter of the holdfast at the base of the octocoral, provided that such substrate remains attached to the octocoral.
(d) A limit of 400 giant Caribbean or “pink-tipped” anemones (Genus Condylactus) per vessel per day.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 1–1–91, Amended 7–1–92, 1–1–95.
46–42.007 Gear Specifications and Prohibited Gear.—
(1) The following types of gear shall be the only types allowed for the harvest of any tropical fish, whether from state waters or from federal Exclusive Economic Zone (EEZ) waters adjacent to state waters:
(a) Hand held net.
(b) Barrier net, with a mesh size not exceeding 3/4 inch stretched mesh.
(c) Drop net, with a mesh size not exceeding 3/4 inch stretched mesh.
(d) Slurp gun.
(e) Quinaldine may be used for the harvest of tropical fish if the person using the chemical or possessing the chemical in or on the waters of the state meets each of the following conditions:
1. The person also possesses and maintains aboard any vessel used in the harvest of tropical fish with quinaldine a special activity license authorizing the use of quinaldine, issued by the Division of Marine Resources of the Department of Environmental Protection pursuant to Section 370.08(8), Florida Statutes.
2. The quinaldine possessed or applied while in or on the waters of the state is in a diluted form of no more than 2% concentration in solution with seawater. Prior to dilution in seawater, quinaldine shall only be mixed with isopropyl alcohol or ethanol.
(f) A roller frame trawl operated by a person possessing a valid live bait shrimping license issued by the Department of Environmental Protection pursuant to Section 370.15, Florida Statutes, if such tropical fish are taken as an incidental bycatch of shrimp lawfully harvested with such trawl.
(g) A trawl meeting the following specifications used to collect live specimens of the dwarf seahorse, Hippocampus zosterae, if towed by a vessel no greater than 15 feet in length at no greater than idle speed:
1. The trawl opening shall be no larger than 12 inches by 48 inches.
2. The trawl shall weigh no more than 5 pounds wet when weighed out of the water.
(2) This rule shall not be construed to prohibit the use of any bag or container used solely for storing collected specimens or the use of a single blunt rod in conjunction with any allowable gear, which rod meets each of the following specifications:
(a) The rod shall be made of nonferrous metal, fiberglass, or wood.
(b) The rod shall be no longer than 36 inches and have a diameter no greater than 3/4 inch at any point.
(3) No person shall harvest in or from state waters any tropical fish by or with the use of any gear other than those types specified in subsection (1); provided, however, that tropical fish harvested as an incidental bycatch of other species lawfully harvested for commercial purposes with other types of gear shall not be deemed to be harvested in violation of this rule, if the quantity of tropical fish so harvested does not exceed the bag limits established in Rule 46–42.005.
Specific Authority 370.027(2), F.S. Law Implemented 370.025, 370.027, F.S. History—New 1–1–91, Amended 7–1–92, 1–1–95.
46–42.009 Prohibition on the Taking, Destruction, or Sale of Marine Corals and Sea Fans; Exception; Repeal of Section 370.114, Florida Statutes.—
(1) Except as provided in subsection (2), no person shall take, attempt to take, or otherwise destroy, or sell, or attempt to sell, any sea fan of the species Gorgonia flabellum or of the species Gorgonia ventalina, or any hard or stony coral (Order Scleractinia) or any fire coral (Genus Millepora). No person shall possess any such fresh, uncleaned, or uncured sea fan, hard or stony coral, or fire coral.
(2) Subsection (1) shall not apply to:
(a) Any sea fan, hard or stony coral, or fire coral legally harvested outside of state waters or federal Exclusive Economic Zone (EEZ) waters adjacent to state waters and entering Florida in interstate or international commerce. The burden shall be upon any person possessing such species to establish the chain of possession from the initial transaction after harvest, by appropriate receipt(s), bill(s) of sale, or bill(s) of lading, and any customs receipts, and to show that such species originated from a point outside the waters of the State of Florida or federal Exclusive Economic Zone (EEZ) adjacent to state waters and entered the state in interstate or international commerce. Failure to maintain such documentation or to promptly produce same at the request of any duly authorized law enforcement officer shall constitute prima facie evidence that such species were harvested from Florida waters in violation of this rule.
(b) Any sea fan, hard or stony coral, or fire coral harvested and possessed pursuant to permit issued by the Department of Environmental Protection for scientific or educational purposes as authorized in Section 370.10(2), Florida Statutes.
(c) Any sea fan, hard or stony coral, or fire coral harvested and possessed pursuant to the aquacultured live rock provisions of Rule 46–42.008(3)(a) or pursuant to a Live Rock Aquaculture Permit issued by the National Marine Fisheries Service under 50 CFR Part 638 and meeting the following requirements:
(1) Persons possessing these species in or on the waters of the state shall also possess a state submerged lands lease for live rock aquaculture and a Department of Environmental Protection permit for live rock culture deposition and removal or a federal Live Rock Aquaculture Permit. If the person possessing these species is not the person named in the documents required herein, then the person in such possession shall also possess written permission from the person so named to transport aquacultured live rock pursuant to this exception.
(2) The nearest office of the Florida Marine Patrol shall be notified at least 24 hours in advance of any transport in or on state waters of aquacultured live rock pursuant to this exception.
(3) Persons possessing these species off the water shall maintain and produce upon the request of any duly authorized law enforcement officer sufficient documentation to establish the chain of possession from harvest on a state submerged land lease for live rock aquaculture or in adjacent Exclusive Economic Zone (EEZ) waters pursuant to a federal Live Rock Aquaculture Permit.
(4) Any sea fan, hard or stony coral, or fire coral harvested pursuant to Rule 46–42.008(3)(a) shall remain attached to the cultured rock.
Specific Authority 370.027(2), F.S.; Section 6, Chapter 83–134, Laws of Florida, as amended by Chapter 84–121, Laws of Florida. Law Implemented 370.025, 370.027, F.S.; Section 6, Chapter 83–134, Laws of Florida, as amended by Chapter 84–121, Laws of Florida. History—New 1–1–95.2222
Subpart Q—Hawaiian Islands Humpback Whale National Marine Sanctuary
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Authority: 16 U.S.C. 1431 et seq. and subtitle C, title II, Pub. L. 102–587, 106 Stat. 5055.
Source: 64 FR 66570, Nov. 29, 1999, unless otherwise noted.
§ 922.180 Purpose.
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(a) The purpose of the regulations in this subpart is to implement the designation of the Hawaiian Islands Humpback Whale National Marine Sanctuary by regulating activities affecting the resources of the Sanctuary or any of the qualities, values, or purposes for which the Sanctuary was designated, in order to protect, preserve, and manage the conservation, ecological, recreational, research, educational, historical, cultural, and aesthetic resources and qualities of the area. The regulations are intended to supplement and complement existing regulatory authorities; to facilitate to the extent compatible with the primary objective of protecting the humpback whale and its habitat, all public and private uses of the Sanctuary, including uses of Hawaiian natives customarily and traditionally exercised for subsistence, cultural, and religious purposes, as well as education, research, recreation, commercial and military activities; to reduce conflicts between compatible uses; to maintain, restore, and enhance the humpback whale and its habitat; to contribute to the maintenance of natural assemblages of humpback whales for future generations; to provide a place for humpback whales that are dependent on their Hawaiian Islands wintering habitat for reproductive activities, including breeding, calving, and nursing, and for the long-term survival of their species; and to achieve the other purposes and policies of the HINMSA and NMSA.
(b) These regulations may be modified to fulfill the Secretary's responsibilities for the Sanctuary, including the provision of additional protections for humpback whales and their habitat, if reasonably necessary, and the conservation and management of other marine resources, qualities and ecosystems of the Sanctuary determined to be of national significance. The Secretary shall consult with the Governor of the State of Hawaii on any modification to the regulations contained in this part. For any modification of the regulations contained in this part that would constitute a change in a term of the designation, as contained in the Designation Document for the Sanctuary, the Secretary shall follow the applicable requirements of sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the HINMSA.
(c) Section 304(e) of the NMSA requires the Secretary to review management plans and regulations every five years, and make necessary revisions. Upon completion of the five year review of the Sanctuary management plan and regulations, the Secretary will repropose the Sanctuary management plan and regulations in their entirety with any proposed changes thereto. The Governor of the State of Hawaii will have the opportunity to review the re-proposed management plan and regulations before they take effect and if the Governor certifies any term or terms of such management plan or regulations as unacceptable, the unacceptable term or terms will not take effect in State waters of the Sanctuary.
§ 922.181 Boundary.
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(a) Except for excluded areas described in paragraph (b) of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the shoreline, cutting across the mouths of rivers and streams:
(1) To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai;
(2) To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu;
(3) To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and westward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters seaward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui;
(4) To the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward;
(5) To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii.
(b) Excluded from the Sanctuary boundary are the following commercial ports and small boat harbors:
Hawaii (Big Island)
Kawaihae Boat Harbor & Small Boat Basin
Lanai
Kaumalapau Harbor, Manele Harbor
Maui
Lahaina Boat Harbor
Maalaea Boat Harbor
Molokai
Hale o Lono Harbor
Kaunakakai Harbor
Oahu
Kuapa Pond (Hawaii Kai)
(c) The coordinates of the lateral extents of each boundary area within the Sanctuary boundary appear in Appendix A of this subpart Q.
§ 922.182 Definitions.
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(a) Acts means the Hawaiian Islands National Marine Sanctuary Act (HINMSA; sections 2301–2307 of Pub. L. 102–587), and the National Marine Sanctuaries Act (NMSA; also known as Title III of the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16 U.S.C. 1431 et seq.).
Adverse impact means an impact that independently or cumulatively damages, diminishes, degrades, impairs, destroys, or otherwise harms.
Alteration of the seabed means drilling into, dredging, or otherwise altering a natural physical characteristic of the seabed of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary.
Habitat means those areas that provide space for individual and population growth and normal behavior of humpback whales, and include sites used for reproductive activities, including breeding, calving and nursing.
Military activities means those military activities conducted by or under the auspices of the Department of Defense and any combined military activities carried out by the Department of Defense and the military forces of a foreign nation.
Sanctuary means the Hawaiian Islands Humpback Whale National Marine Sanctuary.
Sanctuary resource means any humpback whale, or the humpback whale's habitat within the Sanctuary.
Shoreline means the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.
Take or taking a humpback whale means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure a humpback whale, or to attempt to engage in any such conduct. The term includes, but is not limited to, any of the following activities: collecting any dead or injured humpback whale, or any part thereof; restraining or detaining any humpback whale, or any part thereof, no matter how temporarily; tagging any humpback whale; operating a vessel or aircraft or doing any other act that results in the disturbing or molesting of any humpback whale.
(b) Other terms appearing in the regulations in this subpart are defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq.
§ 922.183 Allowed activities.
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(a) All activities except those prohibited by §922.184 may be undertaken in the Sanctuary subject to any emergency regulations promulgated pursuant to §922.185, subject to the interagency cooperation provisions of section 304(d) of the NMSA [16 U.S.C. 1434(d)] and §922.187 of this subpart, and subject to the liability established by section 312 of the NMSA and §922.46 of this part. All activities are also subject to all prohibitions, restrictions, and conditions validly imposed by any other Federal, State, or county authority of competent jurisdiction.
(b) Included as activities allowed under the first sentence of paragraph (a) of this §922.183 are all classes of military activities, internal or external to the Sanctuary, that are being or have been conducted before the effective date of these regulations, as identified in the Final Environmental Impact Statement/Management Plan. Paragraphs (a)(1) through (a)(5) of §922.184 do not apply to these classes of activities, nor are these activities subject to further consultation under section 304(d) of the NMSA.
(c) Military activities proposed after the effective date of these regulations are also included as allowed activities under the first sentence of paragraph (a) of this §922.183. Paragraphs (a)(1) through (a)(5) of §922.184 apply to these classes of activities unless—
(1) They are not subject to consultation under section 304(d) of the NMSA and §922.187 of this subpart, or
(2) Upon consultation under section 304(d) of the NMSA and §922.187 of this subpart, NOAA's findings and recommendations include a statement that paragraphs (a)(1) through (a)(5) of §922.184 do not apply to the military activity.
(d) If a military activity described in paragraphs (b) or (c)(2) of this §922.183 is modified such that it is likely to destroy, cause the loss of, or injure a Sanctuary resource in a manner significantly greater than was considered in a previous consultation under section 304(d) of the NMSA and §922.187 of this subpart, or if the modified activity is likely to destroy, cause the loss of, or injure any Sanctuary resource not considered in a previous consultation under section 304(d) of the NMSA and §922.187 of this subpart, the modified activity will be treated as a new military activity under paragraph (c) of this section.
(e) If a proposed military activity subject to section 304(d) of the NMSA and §922.187 of this subpart is necessary to respond to an emergency situation and the Secretary of Defense determines in writing that failure to undertake the proposed activity during the period of consultation would impair the national defense, the Secretary of the military department concerned may request the Director that the activity proceed during consultation. If the Director denies such a request, the Secretary of the military department concerned may decide to proceed with the activity. In such case, the Secretary of the military department concerned shall provide the Director with a written statement describing the effects of the activity on Sanctuary resources once the activity is completed.
§ 922.184 Prohibited activities.
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(a) The following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted.
(1) Approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale except as authorized under the Marine Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., and the Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq.;
(2) Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except as necessary for takeoff or landing from an airport or runway, or as authorized under the MMPA and the ESA;
(3) Taking any humpback whale in the Sanctuary except as authorized under the MMPA and the ESA;
(4) Possessing within the Sanctuary (regardless of where taken) any living or dead humpback whale or part thereof taken in violation of the MMPA or the ESA;
(5) Discharging or depositing any material or other matter in the Sanctuary; altering the seabed of the Sanctuary; or discharging or depositing any material or other matter outside the Sanctuary if the discharge or deposit subsequently enters and injures a humpback whale or humpback whale habitat, provided that such activity:
(i) Requires a Federal or State permit, license, lease, or other authorization; and
(ii) Is conducted:
(A) Without such permit, license, lease, or other authorization, or
(B) not in compliance with the terms or conditions of such permit, license, lease, or other authorization.
(6) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of either of the Acts or any regulations issued under either of the Acts.
(b) The prohibitions in paragraphs (a)(1) through (a)(5) of this §922.184 do not apply to activities necessary to respond to emergencies threatening life, property or the environment; or to activities necessary for valid law enforcement purposes. However, while such activities are not subject to paragraphs (a)(1) through (a)(5) of this §922.184, this paragraph (b) does not exempt the activity from the underlying prohibition or restriction under other applicable laws and regulations (e.g., MMPA, ESA, and CWA).
(c) Any Sanctuary fishery regulations shall not take effect in Hawaii State waters until established by the State Board of Land and Natural Resources.
§ 922.185 Emergency regulations.
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Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. Before issuance of such regulations the Director shall consult to the extent practicable with any relevant Federal agency and the Governor of the State of Hawaii. Emergency regulations shall not take effect in State waters of the Sanctuary until approved by the Governor of Hawaii.
§ 922.186 Penalties; appeals.
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(a) Pursuant to section 307 of the NMSA, each violation of either of the Acts, or any regulation in this subpart is subject to a civil penalty of not more than $100,000. Each such violation is subject to forfeiture of property or Sanctuary resources seized in accordance with section 307 of the NMSA. Each day of a continuing violation constitutes a separate violation.
(b) Regulations setting forth the procedures governing the administrative proceedings for assessment of civil penalties for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR Part 904.
(c) A person subject to an action taken for enforcement reasons for violation of these regulations or either of the Acts may appeal pursuant to the applicable procedures in 15 CFR Part 904.
§ 922.187 Interagency Cooperation.
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Under section 304(d) of the NMSA, Federal agency actions internal or external to a national marine sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource are subject to consultation with the Director. The Federal agency proposing an action shall determine whether the activity is likely to destroy, cause the loss of, or injure a Sanctuary resource. To the extent practicable, consultation procedures under section 304(d) of the NMSA may be consolidated with interagency cooperation procedures required by other statutes, such as the ESA. The Director will attempt to provide coordinated review and analysis of all environmental requirements.
Appendix A to Subpart Q of Part 922—Hawaiian Islands Humpback Whale, National Marine Sanctuary Boundary Description and Coordinates of the Lateral Boundary Closures and Excluded Areas.
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Appendix A provides a text and pictoral (see Figures 1–3) description of the Sanctuary boundary with specific lateral closure points and exclusion areas. The lateral extents (bounds) of each boundary area are closed by straight lines defined by at least two points. It may be necessary to extend these lines beyond the defining points to intersect the actual 100 fathom contour or the shoreline. Each point corresponds to a bounds number indicated in Figure 2. Digital files of the Sanctuary boundary (available in three common formats, ESRI Shape File, MapInfo Table, and an ASCII Exchange Format) are available from the Sanctuary office in Kihei, Maui, at the address listed above or by calling (808) 879–2818. These digital geographies are the best available representation of the verbal legal delineation and were derived from: the Hawaiian shoreline as supplied by State of Hawaii through the Office of Planning GIS Office, the NOAA and State of Hawaii agreed upon lateral boundary and exclusion areas, and the 100 fathom isobath digitized from the following 1:80,000 scale NOAA nautical charts-19327—West Coast of Hawaii (9th ED, 4/29/89),
19347—Channels between Molokai, Maui, Lanai, and Kahoolawe (17th ED, 12/13/97),
19351—Channels between Oahu, Molokai, and Lanai (8th ED, 7/01/1989),
19357—Island of Oahu (20th ED, 9/21/1996), and
19381—Island of Kauai (8th ED, 7/17/1993)].
For the portion of the Lanai region of the HIHWNMS west of Chart 19351,[157°42.8' west] the 100 fathom contour was derived from the 1:250,000 chart 19340—Hawaii to Oahu (24th ED, 1/09/1993).
All digital geography data have been referenced to WGS84 (NAD83) and have been converted to geographic (latitude and longitude) coordinates.
Sanctuary Boundary
A. As defined by the specific lateral boundaries in B, and except for excluded areas described in paragraph C of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the shoreline, cutting across the mouths of rivers and streams (see Figure 1):
1. To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai;
2. To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu;
3. To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and westward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters seaward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui;
4. To the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward;
5. To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii.
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B. Lateral Closure Bounds for the Hawaiian Islands Humpback Whale National Marine Sanctuary Boundary (see Figure 2).
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No. of
Bound No. (Fig. 2) Geographic name points Latitude Longitude
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1............................... Kailiu Pt., Kauai................. 2 22°13[min] -159°34[min]
24.7[sec] 52.2[sec]
22°16[min] -159°35[min]
33.5[sec] 59.4[sec]
2............................... Mokolea Pt., Kauai................ 2 22°13[min] -159°22[min]
29.9[sec] 55.8[sec]
22°14[min] -159°22[min]
55.4[sec] 19.3[sec]
3............................... Puaena Pt., N. Oahu............... 2 21°38[min] -158°8[min]2
24.6[sec] 6.0[sec]
21°36[min] -158°6[min]2
8.4[sec] 4.5[sec]
4............................... Mahie Pt., N. Oahu................ 2 21°33[min] -157°51[min]
37.3[sec] 51.9[sec]
21°35[min] -157°50[min]
32.2[sec] 5.5[sec]
5............................... Kapahulu Groin, S. Oahu........... 3 21°15[min] -157°50[min]
5.7[sec] 27.5[sec]
21°16[min] -157°49[min]
6.1[sec] 25.7[sec]
21°16[min] -157°49[min]
6.2[sec] 23.8[sec]
6............................... Makapuu Pt., S. Oahu.............. 2 21°18[min] -157°38[min]
39.6[sec] 56.7[sec]
21°19[min] -157°35[min]
44.7[sec] 46.1[sec]
7............................... Ilio Pt, Molokai.................. 2 21°13[min] -157°18[min]
25.7[sec] 45.8[sec]
21°13[min] -157°15[min]
27.0[sec] 14.4[sec]
8............................... Pailolo Channel, C. Halawa to 2 21°1[min]2 -156°38[min]
Lipoa Pt.. 9.8[sec] 22.0[sec]
21°9[min]2 -156°42[min]
9.5[sec] 37.2[sec]
9............................... Hanamanoia Lighthouse, Maui....... 2 20°34[min] -156°26[min]
21.8[sec] 51.1[sec]
20°34[min] -156°24[min]
58.4[sec] 45.2[sec]
10.............................. 3 Nmi. closure around Kahoolawe... 51 20°35[min] -156°29[min]
58.1[sec] 32.0[sec]
20°35[min] -156°29[min]
59.9[sec] 33.0[sec]
....... 20°36[min] -156°29[min]
3.9[sec] 35.5[sec]
....... 20°36[min] -156°29[min]
6.6[sec] 36.9[sec]
....... 20°36[min] -156°29[min]
16.3[sec] 43.1[sec]
....... 20°36[min] -156°29[min]
25.7[sec] 49.9[sec]
....... 20°36[min] -156°29[min]
34.6[sec] 57.3[sec]
....... 20°36[min] -156°30[min]
39.9[sec] 2.2[sec]
....... 20°36[min] -156°30[min]
43.8[sec] 5.5[sec]
....... 20°36[min] -156°30[min]
50.8[sec] 12.1[sec]
....... 20°36[min] -156°30[min]
59.0[sec] 16.5[sec]
....... 20°37[min] -156°30[min]
58.7[sec] 22.7[sec]
....... 20°37[min] -156°30[min]
18.1[sec] 29.5[sec]
....... 20°37[min] -156°30[min]
27.0[sec] 36.8[sec]
....... 20°37[min] -156°30[min]
35.5[sec] 44.8[sec]
....... 20°37[min] -156°30[min]43.4[sec] 53.4[sec] (continued)