§ 206.40

Bays and estuaries tributary to the Atlantic Ocean between Montauk Point, N.Y., and Cape Charles, Va., and in the State of New York, tributary to Long Island Sound; fishing. The placing and maintenance of fishing structures in the waters of the bays and estuaries tributary to the Atlantic Ocean between Montauk Point, N.Y., and Cape Charles, Va., and of the bays and estuaries in the State of New York tribtary to Long Island Sound, will hereafter be governed by the following regulations:

(a) Regulations.

(1) Subject to the provisions of this section the placing and maintenance of fishing structures having been recommended by the Chief of Engineers is authorized by the Secretary of the Army in the waters of the bays and estuaries tributary to the Atlantic Ocean between Montauk Point, N. Y., and Cape Charles, Va., and of the bays and estuaries in the State of New York tributary to Long Island Sound within areas previously approved by the Secretary of the Army as areas within which fish pounds may be permitted: Provided, That no such structure shall be erected until a permit therefor, in accordance with the conditions specified in this section, shall have been issued by the District Engineer, U.S. Army Engineer District, in charge of the coasts and waters within which said structure is located; and the said district engineers are hereby charged with the duty of supervising the enforcement of the spirit and letter of the law and this section.

(2) The permits will be issued for a period of 1 year, renewable to the same permittee: Provided, That his application is made before January 1 of the succeeding year. The location of any pound is to be considered open if no application is made by January 1.

(3) The District Engineer concerned will settle all questions of priority in those districts where no State licenses are issued, but in those States in which licenses are issued the State will decide the question of priority.

(4) Any person desiring to place and operate fish traps, weirs, or pounds in the approved areas in the waters of the bays and estuaries tributary to the Atlantic Ocean between Montauk Point,

N.Y., and Cape Charles, Va., and of the bays and estuaries in the State of New York tributary to Long Island Sound, should make application to the District Engineer, Corps of Engineers in charge of the locality as indicated at the end of this section.

(5) The applicant must furnish with his application the necessary State 11cense which will be returned to him by the District Engineer when decision is made concerning the issuance of Federal authority for the structure.

(6) No permit will be issued to any applicant until he has removed to the satisfaction of the District Engineer, and under the supervision of an inspector from his office, all piles or other obstructions to navigation for which the applicant is responsible and which are unfit for further use for fishing purposes: Provided, That if the structure for which application is made is to be placed on the location of an old structure, serviceable piles left standing on that location need not be removed if the District Engineer consents to their use in the new structure.

(7) A map showing the location in which the structure is to be placed will be attached to each permit.

(b) Conditions. Every permit will be governed by the following conditions:

(1) That this authority does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. It merely expresses the assent of the Federal Government so far as concerns the public rights of navigation. (See Cummings v. Chicago, 188 U. S. 410)

(2) That the establishment of fishing areas and their publication upon charts or otherwise does not relieve the owner of the pound authorized by this permit from responsibility in case his structure or work in connection therewith causes damage to a vessel.

(3) That the work authorized in this section, both construction and maintenance, shall be subject to the supervision and approval of, and all apparatus to inspection by, the District Engineer,

U.S. Army Engineer District, in charge of the locality, who is charged with the duty of supervising the enforcement of the law and regulations, and who may temporarily suspend any or all classes of the work at any time if, in his judgment, the interests of navigation so require.

(4) That the fish pound hereby authorized, unless located in Raritan Bay or Sandy Hook Bay, shall not be set before February 15 of each year, and shall be completely removed by the permittee at his own expense on or before December 31 of each year.

(5) That the fish pound hereby authorized shall be in position and the completed structure ready for inspection within 90 days after the date of this permit. Failure to have the structure in position and ready for inspection on the date specified shall render this permit null and void, unless the said district engineer shall have extended the time for completion in writing.

(6) That the pound must be constructed strictly on the location indicated on the map attached to and forming a part of this permit.

(7) That an opening for small craft shall be placed about 400 feet offshore in all pounds between Culloden and Shagwong Points, in those pounds placed off Rocky Point on the west side of Fort Pond Bay, at the east end of Long Island, N. Y. On the offshore sides of these openings signboards 3 feet long and 1 foot wide shall be placed at an elevation of 8 feet above high water. They shall be painted black and shall bear the following notice on each side:

'OPENINGS FOR SMALL BOATS"

These notices shall be painted in white letters 4 inches high and white arrows shall be placed underneath them indicating the position of the opening.

(8) That the permittee shall report to the said District Engineer all changes in the number of State or municipal licenses and 10 days in advance, any desired change of location, transfer of location or ownership to other parties, or abandonment of the structure hereby authorized None of the above changes except that which refers to State and municipal licenses shall be made prior to surrender of this permit to the said Dis

trict Engineer and the formal approval of the change by him. This permit is not transferable.

(9) Fishing structures and appliances in navigable waters of the United States are required to be lighted for the safety of navigation as provided in § 209.130 (q) of this chapter.

The permittee shall use lights having a capacity to burn for at least 8 days untended, and visible in clear weather at least 3 miles. The lights shall be securely placed on piles at an elevation of at least 10 feet above high water and be visible from all points of the compass. They shall be subject to inspection and approval of the said District Engineer before use, and at any time during use; and the permittee shall make provision, by watchman or otherwise, for their proper attendance, so that they shall be in effective condition and properly lighted at all times between sunset and sunrise. Flashlights shall not be used. In case of removal of the pound under the provisions of subparagraphs 13 and 14 of this paragraph lights as prescribed in this paragraph shall be maintained until the removal of the last pile.

(10) That there shall be installed and maintained on the structure covered by this permit, by and at the expense of the permittee, such additional lights and signals, if any, as may be prescribed by the U.S. Coast Guard.

(11) That the permittee shall maintain on the offshore pile of the pound a metal plate not less than 6 inches square, on which shall be legibly stamped in letters not less than one half inch high, the name and address of the owner of the pound. In addition to this plate, a board or metal plate, at least 1 foot high and 3 feet long, shall be placed on the same pile, and shall show by letters and figures such identification marks as have been assigned to the pound by the said district engineer. These letters and figures shall be painted black on white background, or vice versa, and shall be of such size that they can easily be read from passing vessels at a distance of 100 feet.

(12) That if inspections or any other operations by the United States are necessary in the interests of navigation, all expenses connected therewith shall be borne by the permittee.