50 CFR Part 223 — Threatened Marine and Anadromous Species

PART 223—THREATENED MARINE AND ANADROMOUS SPECIES Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; Source: 43 FR 32809, July 28, 1978, unless otherwise noted. Redesignated at 64 FR 14068, Mar. 23, 1999. Subpart A—General Provisions § 223.101 Purpose and scope. (a) The regulations contained in this part identify the species under the jurisdiction of the Secretary of Commerce that have been determined to be threatened species pursuant to section 4(a) of the Act, and provide for the conservation of such species by establishing rules and procedures to govern activities involving the species. (b) The regulations contained in this part apply only to the threatened species enumerated in § 223.102. (c) The provisions of this part are in addition to, and not in lieu of, other regulations of parts 222 through 226 of this chapter which prescribe additional restrictions or conditions governing threatened species. [64 FR 14068, Mar. 23, 1999, as amended at 79 FR 20806, Apr. 14, 2014] § 223.102 Enumeration of threatened marine and anadromous species. (a) The table below identifies the species under the jurisdiction of the Secretary of Commerce that have been determined to be threatened pursuant to section 4(a) of the Act, species treated as threatened because they are sufficiently similar in appearance to threatened species, and experimental populations of threatened species. (b) The columns entitled “Common name,” “Scientific name,” and “Description of listed entity” define the species within the meaning of the Act. In the “Common name” column, experimental populations are identified as “XE” for essential populations or “XN” for nonessential populations. Species listed based on similarity of appearance are identified as “S/A.” Although a column for “Common name” is included, common names cannot be relied upon for identification of any specimen, because they may vary greatly in local usage. The “Scientific name” column provides the most recently accepted scientific name, relying to the extent practicable on the International Code of Zoological Nomenclature. Federal Register (c) The “Citation(s) for listing determination(s)” column provides reference to the Federal Register Federal Register (d) The “Critical habitat” and “ESA rules” columns provide cross-references to other sections in this part and part 226. The term “NA” appearing in the “Critical habitat” column indicates that there are no critical habitat designations for that species; similarly, the term “NA” appearing in the “ESA rules” column indicates that there are no ESA rules for that species. However, all other applicable rules in parts 222 through 226 and part 402 still apply to that species. Also, there may be other rules in this title that relate to such wildlife. The “ESA rules” column is not intended to list all Federal, state, tribal, or local governmental regulations that may apply to the species. (e) The threatened species under the jurisdiction of the Secretary of Commerce are: Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity Marine Mammals Dolphin, Hector's Cephalorhynchus hectori hectori Entire subspecies 82 FR 43701, Sept. 19, 2017 NA NA Seal, bearded (Beringia DPS) Erignathus barbatus nauticus Bearded seals originating from breeding areas in the Arctic Ocean and adjacent seas in the Pacific Ocean between 145° E Long. (Novosibirskiye) and 130° W Long., and east of 157° E Long. or east of the Kamchatka Peninsula 77 FR 76740, Dec. 28, 2012 226.229 NA Seal, bearded (Okhotsk DPS) Erignathus barbatus nauticus Bearded seals originating from breeding areas in the Pacific Ocean west of 157° E. Long. or west of the Kamchatka Peninsula 77 FR 76740, Dec. 28, 2012 NA NA. Seal, Guadalupe fur Arctocephalus townsendi Entire species 50 FR 51252, Dec. 16, 1985 NA 223.201. Seal, ringed (Arctic subspecies) Phoca (=Pusa) hispida hispida Entire subspecies 77 FR 76706, Dec. 28, 2012 226.228 NA Seal, ringed (Baltic subspecies) Phoca (=Pusa) hispida botnica Entire subspecies 77 FR 76706, Dec. 28, 2012 NA NA. Seal, ringed (Okhotsk subspecies) Phoca (=Pusa) hispida ochotensis Entire subspecies 77 FR 76706, Dec. 28, 2012 NA NA. Seal, spotted (Southern DPS) Phoca largha Spotted seals originating from breeding areas in the Pacific Ocean south of 43° N. Lat 75 FR 65239, Oct. 22, 2010 NA 223.212. Whale, humpback (Mexico DPS) Megaptera novaeangliae Humpback whales that breed or winter in the area of mainland Mexico and the Revillagigedo Islands, transit Baja California, or feed in the North Pacific Ocean, primarily off California-Oregon, northern Washington-southern British Columbia, northern and western Gulf of Alaska and East Bering Sea 81 FR 62260, Sept. 8, 2016 226.227 223.213 Reptiles 2 Sea turtle, green (Central North Pacific DPS) Chelonia mydas Green sea turtles originating from the Central North Pacific Ocean, bounded by the following coordinates: 41° N., 169° E. in the northwest; 41° N., 143° W. in the northeast; 9° N., 125° W. in the southeast; and 9° N., 175° W. in the southwest 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, green (East Indian-West Pacific DPS) Chelonia mydas Green sea turtles originating from the Eastern Indian and Western Pacific Oceans, bounded by the following lines and coordinates: 41° N. Lat. in the north, 41° N., 146° E. in the northeast; 4.5° N., 129° E. in the southeast; along the southern coast of the island of New Guinea; along the western coast of Australia (west of 142° E. Long.); 40° S. Lat. in the south; and 84° E. Long. in the east 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, green (East Pacific DPS) Chelonia mydas Green sea turtles originating from the East Pacific Ocean, bounded by the following lines and coordinates: 41° N., 143° W. in the northwest; 41° N. Lat. in the north; along the western coasts of the Americas; 40° S. Lat. in the south; and 40° S., 96° W. in the southwest 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, green (North Atlantic DPS) Chelonia mydas Green sea turtles originating from the North Atlantic Ocean, bounded by the following lines and coordinates: 48° N. Lat. in the north, along the western coasts of Europe and Africa (west of 5.5° W. Long.); north of 19° N. Lat. in the east; bounded by 19° N., 65.1° W. to 14° N., 65.1° W. then 14° N., 77° W. in the south and west; and along the eastern coasts of the Americas (north of 7.5° N., 77° W.) 81 FR 20058, Apr. 6, 2016 226.208 223.205, 223.206, 223.207. Sea turtle, green (North Indian DPS) Chelonia mydas Green sea turtles originating from the North Indian Ocean, bounded by: Africa and Asia in the west and north; 84° E. Long. in the east; and the equator in the south 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, green (South Atlantic DPS) Chelonia mydas Green sea turtles originating from the South Atlantic Ocean, bounded by the following lines and coordinates: Along the northern and eastern coasts of South America (east of 7.5° N., 77° W.); 14° N., 77° W. to 14° N., 65.1° W. to 19° N., 65.1° W. in the north and west; 19° N. Lat. in the northeast; 40° S., 19° E. in the southeast; and 40° S. Lat. in the south 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, green (Southwest Indian DPS) Chelonia mydas Green sea turtles originating from the Southwest Indian Ocean, bounded by the following lines: The equator to the north; 84° E. Long. to the east; 40° S. Lat. to the south; and 19° E. Long (and along the eastern coast of Africa) in the west 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, green (Southwest Pacific DPS) Chelonia mydas Green sea turtles originating from the Southwest Pacific Ocean, bounded by the following lines and coordinates: Along the southern coast of the island of New Guinea and the Torres Strait (east of 142° E Long.); 13° S., 171° E. in the northeast; 40° S., 176° E. in the southeast; and 40° S., 142° E. in the southwest 81 FR 20058, Apr. 6, 2016 NA 223.205, 223.206, 223.207. Sea turtle, loggerhead (Northwest Atlantic Ocean DPS) Caretta caretta Loggerhead sea turtles originating from the Northwest Atlantic Ocean north of the equator, south of 60° N. Lat., and west of 40° W. Long 76 FR 58868, Sept. 22, 2011 17.95(c), 226.223 223.205, 223.206, 223.207. Sea turtle, loggerhead (South Atlantic Ocean DPS) Caretta caretta Loggerhead sea turtles originating from the South Atlantic Ocean south of the equator, north of 60° S. Lat., west of 20° E. Long., and east of 67° W. Long 76 FR 58868, Sept. 22, 2011 NA 223.205, 223.206, 223.207. Sea turtle, loggerhead (Southeast Indo-Pacific Ocean DPS) Caretta caretta Loggerhead sea turtles originating from the Southeast Indian Ocean south of the equator, north of 60° S. Lat., and east of 80° E. Long.; South Pacific Ocean south of the equator, north of 60° S. Lat., and west of 141° E. Long 76 FR 58868, Sept. 22, 2011 NA 223.205, 223.206, 223.207. Sea turtle, loggerhead (Southwest Indian Ocean DPS) Caretta caretta Loggerhead sea turtles originating from the Southwest Indian Ocean south of the equator, north of 60° S. Lat., east of 20° E. Long., and west of 80° E. Long 76 FR 58868, Sept. 22, 2011 NA 223.205, 223.206, 223.207. Sea turtle, olive ridley Lepidochelys olivacea Entire species, except when listed as endangered under § 224.101 43 FR 32800, July 28, 1978 NA 223.205, 223.206, 223.207. Fishes Cardinalfish, Banggai Pterapogon kauderni Entire species 81 FR 3023, Jan. 20, 2016 NA NA. Coelacanth, African (Tanzanian DPS) Latimeria chalumnae African coelacanth population inhabiting deep waters off the coast of Tanzania 81 FR 17398, Mar. 29, 2016 NA NA. Eulachon (Southern DPS) Thaleichthys pacificus Eulachon originating from the Skeena River in British Columbia south to and including the Mad River in northern California 75 FR 13012, Mar. 18, 2010 226.222 NA. Grouper, island Mycteroperca fusca Entire species 81 FR 72545, Oct. 20, 2016 NA NA. Grouper, Nassau Epinephelus striatus Entire species 81 FR 42268, June 29, 2016 226.231 NA Guitarfish, blackchin Rhinobatos cemciculus Entire species 82 FR 6309, Jan. 19, 2017 NA NA. Guitarfish, common Rhinobatos rhinobatos Entire species 82 FR 6309, Jan. 19, 2017 NA NA. Ray, giant manta Mobula birostris Entire species 83 FR 2916, Jan. 22, 2018 NA NA Rockfish, yelloweye (Puget Sound/Georgia Basin DPS) Sebastes ruberrimus Yelloweye rockfish residing within the Puget Sound/Georgia Basin, inclusive of the Queen Charlotte Channel to Malcom Island, in a straight line between the western shores of Numas and Malcom Islands—N 50 50′46″, W 127 5′55″ and N 50 36′49″, W 127 10′17″ The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N 48 7′16″, W123 17′15″ in a straight line to the Canadian side at N 48 24′40″, 123 17′38″ 75 FR 22276, Apr. 28, 2010 226.224 NA. Salmon, Chinook (California Coastal ESU) Oncorhynchus tshawytscha Naturally spawned Chinook salmon originating from rivers and streams south of the Klamath River to and including the Russian River 70 FR 37160, June 28, 2005 226.211 223.203. Salmon, Chinook (Central Valley spring-run ESU) Oncorhynchus tshawytscha Naturally spawned spring-run Chinook salmon originating from the Sacramento River and its tributaries. Also, spring-run Chinook salmon from the Feather River Hatchery Spring-run Chinook Program. This DPS does not include Chinook salmon that are designated as part of an experimental population 70 FR 37160, June 28, 2005 226.211 223.203. Salmon, Chinook (Central Valley spring-run ESU-XN) Oncorhynchus tshawytscha Central Valley spring-run Chinook salmon only when, and at such times as, they are found in the San Joaquin River from Friant Dam downstream to its confluence with the Merced River, delineated by a line between decimal latitude and longitude coordinates: 37.348930° N., 120.975174° W. and 37.349099° N., 120.974749° W., as well as all sloughs, channels, floodways, and waterways connected with the San Joaquin River that allow for Central Valley spring-run Chinook salmon access, but excluding the Merced River. Also, Central Valley spring-run Chinook salmon when found in portions of the Kings River that connect with the San Joaquin River during high water years 78 FR 79622, Dec. 31, 2013 NA 223.301. Salmon, Chinook (Central Valley spring-run ESU-XN Shasta) Oncorhynchus tshawytscha Central Valley spring-run Chinook salmon only when, and at such times as, they are found in the NEP Area (from Shasta Dam up to Pit 7 Dam on the Pit River, McCloud Dam on the McCloud River, and Box Canyon Dam on the upper Sacramento River. All other tributaries flowing into Shasta Reservoir up to the ridge line, including tributaries below Pit 7 Dam, McCloud Dam, and Box Canyon Dam, up to the ridge line would be included in the NEP Area) 88 FR 58511, Aug. 28, 2023 NA Salmon, Chinook (Central Valley spring-run ESU-XN Yuba) Oncorhynchus tshawytscha Central Valley spring-run Chinook salmon only when, and at such times as, they are found in the upper Yuba River watershed, upstream of Englebright Dam 87 FR 79808, Dec. 28, 2022 NA 223.301 Salmon, Chinook (Lower Columbia River ESU) Oncorhynchus tshawytscha Naturally spawned Chinook salmon originating from the Columbia River and its tributaries downstream of a transitional point east of the Hood and White Salmon Rivers, and any such fish originating from the Willamette River and its tributaries below Willamette Falls. Not included in this DPS are: (1) Spring-run Chinook salmon originating from the Clackamas River; (2) fall-run Chinook salmon originating from Upper Columbia River bright hatchery stocks, that spawn in the mainstem Columbia River below Bonneville Dam, and in other tributaries upstream from the Sandy River to the Hood and White Salmon Rivers; (3) spring-run Chinook salmon originating from the Round Butte Hatchery (Deschutes River, Oregon) and spawning in the Hood River; (4) spring-run Chinook salmon originating from the Carson National Fish Hatchery and spawning in the Wind River; and (5) naturally spawned Chinook salmon originating from the Rogue River Fall Chinook Program. This DPS does include Chinook salmon from the following artificial propagation programs: The Big Creek Tule Chinook Program; Astoria High School Salmon-Trout Enhancement Program (STEP) Tule Chinook Program; Warrenton High School STEP Tule Chinook Program; Cowlitz Tule Chinook Program; North Fork Toutle Tule Chinook Program; Kalama Tule Chinook Program; Washougal River Tule Chinook Program; Spring Creek National Fish Hatchery (NFH) Tule Chinook Program; Cowlitz Spring Chinook Program in the Upper Cowlitz River and the Cispus River; Friends of the Cowlitz Spring Chinook Program; Kalama River Spring Chinook Program; Lewis River Spring Chinook Program; Fish First Spring Chinook Program; Sandy River Hatchery Program; Deep River Net Pens-Washougal Program; Klaskanine Hatchery Program; Bonneville Hatchery Program; and the Cathlamet Channel Net Pens Program 70 FR 37160, June 28, 2005 226.212 223.203 Salmon, Chinook (Puget Sound ESU) Oncorhynchus tshawytscha Naturally spawned Chinook salmon originating from rivers flowing into Puget Sound from the Elwha River (inclusive) eastward, including rivers in Hood Canal, South Sound, North Sound and the Strait of Georgia. Also, Chinook salmon from the following artificial propagation programs: The Kendall Creek Hatchery Program; Marblemount Hatchery Program (spring-run); Marblemount Hatchery Program (summer-run); Brenner Creek Hatchery Program (fall-run); Harvey Creek Hatchery Program (summer-run); Whitehorse Springs Hatchery Program (summer-run); Wallace River Hatchery Program (yearlings and subyearlings); Issaquah Creek Hatchery Program; White River Hatchery Program; White River Acclimation Pond Program; Voights Creek Hatchery Program; Clarks Creek Hatchery Program; Clear Creek Hatchery Program; Kalama Creek Hatchery Program; George Adams Hatchery Program; Hamma Hamma Hatchery Program; Dungeness/Hurd Creek Hatchery Program; Elwha Channel Hatchery Program; Skookum Creek Hatchery Spring-run Program; Bernie Kai-Kai Gobin (Tulalip) Hatchery-Cascade Program; North Fork Skokomish River Spring-run Program; Soos Creek Hatchery Program (subyearlings and yearlings); Fish Restoration Facility Program; Bernie Kai-Kai Gobin (Tulalip) Hatchery-Skykomish Program; and Hupp Springs Hatchery-Adult Returns to Minter Creek Program 70 FR 37160, June 28, 2005 226.212 223.203 Salmon, Chinook (Sacramento winter-run ESU-XN Shasta) Oncorhynchus tshawytscha Sacramento winter-run Chinook salmon only when, and at such times as, they are found in the NEP Area (from Shasta Dam up to Pit 7 Dam on the Pit River, McCloud Dam on the McCloud River, and Box Canyon Dam on the upper Sacramento River. All other tributaries flowing into Shasta Reservoir up to the ridge line, including tributaries below Pit 7 Dam, McCloud Dam, and Box Canyon Dam, up to the ridge line would be included in the NEP Area) 88 FR 58511, Aug. 28, 2023 NA Salmon, Chinook (Snake River fall-run ESU) Oncorhynchus tshawytscha Naturally spawned fall-run Chinook salmon originating from the mainstem Snake River below Hells Canyon Dam and from the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River subbasins. Also, fall-run Chinook salmon from the following artificial propagation programs: The Lyons Ferry Hatchery Program; Fall Chinook Acclimation Ponds Program; Nez Perce Tribal Hatchery Program; and the Idaho Power Program 70 FR 37160, June 28, 2005 226.205 223.203 Salmon, Chinook (Snake River spring/summer-run ESU) Oncorhynchus tshawytscha Naturally spawned spring/summer-run Chinook salmon originating from the mainstem Snake River and the Tucannon River, Grande Ronde River, Imnaha River, and Salmon River subbasins. Also, spring/summer-run Chinook salmon from the following artificial propagation programs: The Tucannon River Program; Lostine River Program; Catherine Creek Program; Lookingglass Hatchery Program; Upper Grande Ronde Program; Imnaha River Program; McCall Hatchery Program; Johnson Creek Artificial Propagation Enhancement Program; Pahsimeroi Hatchery Program; Sawtooth Hatchery Program; Yankee Fork Program; South For Salmon River Eggbox Program; and the Panther Creek Program 70 FR 37160, June 28, 2005 226.205 223.203 Salmon, Chinook (Upper Willamette River ESU) Oncorhynchus tshawytscha Naturally spawned spring-run Chinook salmon originating from the Clackamas River and from the Willamette River and its tributaries above Willamette Falls. Also, spring-run Chinook salmon from the following artificial propagation programs: The McKenzie River Hatchery Program; Willamette Hatchery Program; Clackamas Hatchery Program; North Santiam River Program; South Santiam River Program; and the Mollala River Program 70 FR 37160, June 28, 2005 226.212 223.203 Salmon, Chinook (Upper Columbia River spring-run ESU-XN) Oncorhynchus tshawytscha Upper Columbia River spring-run Chinook salmon only when, and at such times, as they are found in the mainstem or tributaries of the Okanogan River from the Canada-United States border to the confluence of the Okanogan River with the Columbia River, Washington 79 FR 40004, July 11, 2014 NA 223.301. Salmon, chum (Columbia River ESU) Oncorhynchus keta Naturally spawned chum salmon originating from the Columbia River and its tributaries in Washington and Oregon. Also, chum salmon from the following artificial propagation programs: The Grays River Program; Washougal River Hatchery/Duncan Creek Program; and the Big Creek Hatchery Program 70 FR 37160, June 28, 2005 226.212 223.203 Salmon, chum (Hood Canal summer-run ESU) Oncorhynchus keta Naturally spawned summer-run chum salmon originating from Hood Canal and its tributaries as well as from Olympic Peninsula rivers between Hood Canal and Dungeness Bay (inclusive). Also, summer-run chum salmon from the following artificial propagation programs: The Lilliwaup Creek Fish Hatchery Program; and the Tahuya River Program 70 FR 37160, June 28, 2005 226.212 223.203 Salmon, coho (Lower Columbia River ESU) Oncorhynchus kisutch Naturally spawned coho salmon originating from the Columbia River and its tributaries downstream from the Big White Salmon and Hood Rivers (inclusive) and any such fish originating from the Willamette River and its tributaries below Willamette Falls. Also, coho salmon from the following artificial propagation programs: The Grays River Program; Peterson Coho Project; Big Creek Hatchery Program; Astoria High School Salmon-Trout Enhancement Program (STEP) Coho Program; Warrenton High School STEP Coho Program; Cowlitz Type-N Coho Program in the Upper and Lower Cowlitz Rivers; Cowlitz Game and Anglers Coho Program; Friends of the Cowlitz Coho Program; North Fork Toutle River Type-S Hatchery Program; Kalama River Type-N Coho Program; Lewis River Type-N Coho Program; Lewis River Type-S Coho Program; Fish First Wild Coho Program; Fish First Type-N Coho Program; Syverson Project Type-N Coho Program; Washougal River Type-N Coho Program; Eagle Creek National Fish Hatchery Program; Sandy Hatchery Program; Bonneville/Cascade/Oxbow Complex Hatchery Program; Clatsop County Fisheries Net Pen Program; and the Clatsop County Fisheries/Klaskanine Hatchery Program 70 FR 37160, June 28, 2005 226.212 223.203 Salmon, coho (Oregon Coast ESU) Oncorhynchus kisutch Naturally spawned coho salmon originating from coastal rivers south of the Columbia River and north of Cape Blanco. Also, coho salmon from the Cow Creek Hatchery Program 76 FR 35755, June 20, 2011 226.212 223.203 Salmon, coho (Southern Oregon/Northern California Coast ESU) Oncorhynchus kisutch Naturally spawned coho salmon originating from coastal streams and rivers between Cape Blanco, Oregon, and Punta Gorda, California. Also, coho salmon from the following artificial propagation programs: The Cole Rivers Hatchery Program; Trinity River Hatchery Program; and the Iron Gate Hatchery Program 70 FR 37160, June 28, 2005 226.210 223.203 Salmon, sockeye (Ozette Lake ESU) Oncorhynchus nerka Naturally spawned sockeye salmon originating from the Ozette River and Ozette Lake and its tributaries. Also, sockeye salmon from the Umbrella Creek/Big River Hatchery Program 70 FR 37160, June 28, 2005 226.212 223.203 Shark, narrownose smoothhound Mustelus schmitti Entire species 82 FR 21722, May 10, 2017 NA NA Shark, oceanic whitetip Carcharhinuss longimanus Entire species 83 FR 4153, Jan. 30, 2018. NA NA Shark, scalloped hammerhead (Central & Southwest Atlantic DPS) Sphyrna lewini Scalloped hammerhead sharks originating from the Central & Southwest Atlantic Ocean, including all waters of the Caribbean Sea, the Bahamas' EEZ off the coast of Florida, the U.S. EEZ off Puerto Rico and the U.S. Virgin Islands, and Cuba's EEZ, and further delineated by the following boundary lines: bounded to the north by 28° N. lat., to the east by 30° W. long., and to the south by 36° S. lat 79 FR 38214, July 3, 2014 NA NA. Shark, scalloped hammerhead (Indo-West Pacific DPS) Sphyrna lewini Scalloped hammerhead sharks originating from the Indo-West Pacific Ocean, delineated by the following boundary lines: bounded to the south by 36° S. lat., to the west by 20° E. long., and to the north by 40° N. lat. In the east, the boundary line extends from 175° E. long. due south to 10° N. lat., then due east along 10° N. lat. to 150° W. long., then due south to 4° S. lat., then due east along 4° S. lat. to 130° W. long, and then extends due south along 130° W. long 79 FR 38214, July 3, 2014 NA NA. Steelhead (California Central Valley DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006 226.211 223.203 Steelhead (Central California Coast DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006 226.211 223.203 Steelhead (Lower Columbia River DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006 226.212 223.203 Steelhead (Middle Columbia River DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006 226.212 223.203 Steelhead (Middle Columbia River DPS-XN) Oncorhynchus mykiss Middle Columbia River steelhead only when, and at such times as, they are found above Round Butte Dam 78 FR 2893, Jan. 15, 2013 NA 223.301. Steelhead (Northern California DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006. 226.211 223.203. Steelhead (Puget Sound DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 72 FR 26722, May 11, 2007 226.212 223.203 Steelhead (Snake River Basin DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006 226.212 223.203 Steelhead (South-Central California Coast DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006. 226.211 223.203. Steelhead (Upper Columbia River DPS) Oncorhynchus mykiss Naturally spawned anadromous O. mykiss 71 FR 834, Jan. 5, 2006 226.212 223.203 Steelhead (Upper Willamette River DPS) Oncorhynchus mykiss Naturally spawned anadromous winter-run O. mykiss 71 FR 834, Jan. 5, 2006. 226.212 223.203. Sturgeon, Atlantic (Atlantic subspecies; Gulf of Maine DPS) Acipenser oxyrinchus oxyrinchus Anadromous Atlantic sturgeon originating from watersheds from the Maine/Canadian border and extending southward to include all associated watersheds draining into the Gulf of Maine as far south as Chatham, Massachusetts 77 FR 5880, Feb. 6, 2012 NA 223.211. Sturgeon, Atlantic (Gulf subspecies) Acipenser oxyrinchus desotoi Entire subspecies 56 FR 49653, Sept. 30, 1991 226.214 17.44(v). Sturgeon, green (Southern DPS) Acipenser medirostris Green sturgeon originating from the Sacramento River basin and from coastal rivers south of the Eel River (exclusive) 71 FR 17757, Apr. 7, 2006; 71 FR 19241, Apr. 13, 2006 226.219 223.210. Molluscs Conch, queen Aliger gigas Entire species 89 FR 11225, Feb. 14, 2024 NA NA. Nautilus, chambered Nautilus pompilius Entire species 83 FR 48976, Sept. 28, 2018 NA NA Corals Coral, [no common name] Acropora globiceps Entire species 79 FR 53852, Sept. 10, 2014 226.232 NA. Coral, [no common name] Acropora jacquelineae Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Acropora lokani Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Acropora pharaonis Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Acropora retusa Entire species 79 FR 53852, Sept. 10, 2014 226.232 NA. Coral, [no common name] Acropora rudis Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Acropora speciosa Entire species. 79 FR 53852, Sept. 10, 2014 226.232 NA. Coral, [no common name] Acropora tenella Entire species. 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Anacropora spinosa Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Fimbriaphyllia paradivisa 3 Entire species. 79 FR 53852, Sept. 10, 2014 226.232 NA. Coral, [no common name] Isopora crateriformis Entire species. 79 FR 53852, Sept. 10, 2014 226.232 NA. Coral, [no common name] Montipora australiensis Entire species. 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Pavona diffluens Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Porites napopora Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, [no common name] Seriatopora aculeata Entire species 79 FR 53852, Sept. 10, 2014 NA NA. Coral, boulder star Orbicella franksi Entire species 79 FR 53852, Sept. 10, 2014 226.230 NA Coral, elkhorn Acropora palmata Entire species 79 FR 53852, Sept. 10, 2014 226.216 223.208. Coral, lobed star Orbicella annularis Entire species 79 FR 53852, Sept. 10, 2014 226.230 NA Coral, mountainous star Orbicella faveolata Entire species 79 FR 53852, Sept. 10, 2014 226.230 NA Coral, rough cactus Mycetophyllia ferox Entire species 79 FR 53852, Sept. 10, 2014 226.230 NA Coral, staghorn Acropora cervicornis Entire species 79 FR 53852, Sept. 10, 2014 226.216 223.208. 1 2 3 Euphyllia paradivisa Fimbriaphyllia paradivisa [79 FR 20806, Apr. 14, 2014] Editorial Note: For Federal Register www.govinfo.gov. Subpart B—Restrictions Applicable to Threatened Marine and Anadromous Species § 223.201 Guadalupe fur seal. (a) Prohibitions. (b) Exceptions. (2) Any Federal, State or local government official, employee, or designated agent may, in the course of official duties, take a stranded Guadalupe fur seal without a permit if such taking: (i) Is accomplished in a humane manner; (ii) Is for the protection or welfare of the animal, is for the protection of the public health or welfare, or is for the salvage or disposal of a dead specimen; (iii) Includes steps designed to ensure the return of the animal to its natural habitat, if feasible; and (iv) Is reported within 30 days to the Regional Administrator, Southwest Region, National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802. (3) Any animal or specimen taken under paragraph (b)(2) of this section may only be retained, disposed of, or salvaged in accordance with directions from the Director, Southwest Region. [50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, Mar. 23, 1999, as amended at 79 FR 20812, Apr. 14, 2014] § 223.202 [Reserved] § 223.203 Anadromous fish. Available guidance documents cited in the regulatory text are listed in Appendix A to this section. (a) Prohibitions. Oncorhynchus (b) Limits on the prohibitions. The limits to the prohibitions of paragraph (a) of this section relating to threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (1) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and other exceptions under the Act relating to endangered species, including regulations in part 222 of this chapter implementing such exceptions, also apply to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (2) The prohibitions of paragraph (a) of this section relating to threatened Puget Sound steelhead listed in § 223.102 do not apply to: (i) Activities specified in an application for a permit for scientific purposes or to enhance the conservation or survival of the species, provided that the application has been received by the Assistant Administrator for Fisheries, NOAA (AA), no later than November 14, 2008. The prohibitions of this section apply to these activities upon the AA's rejection of the application as insufficient, upon issuance or denial of a permit, or June 1, 2009, whichever occurs earliest, or (ii) Steelhead harvested in tribal or recreational fisheries prior to June 1, 2009, so long as the harvest is authorized by the State of Washington or a tribe with jurisdiction over steelhead harvest. If NMFS does not receive a fishery management plan for Puget Sound steelhead by November 14, 2008, subsequent take by harvest will be subject to the take prohibitions. (3) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) Aid a sick, injured, or stranded salmonid, (ii) Dispose of a dead salmonid, or (iii) Salvage a dead salmonid which may be useful for scientific study. (iv) Each agency acting under this limit on the take prohibitions of paragraph (a) of this section is to report to NMFS the numbers of fish handled and their status, on an annual basis. A designee of the listed entities is any individual the Federal or state fishery agency or other co-manager has authorized in writing to perform the listed functions. (4) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) Fisheries are managed in accordance with a NMFS-approved Fishery Management and Evaluation Plan (FMEP) and implemented in accordance with a letter of concurrence from NMFS. NMFS will approve an FMEP only if it clearly defines its intended scope and area of impact and sets forth the management objectives and performance indicators for the plan. The plan must adequately address the following criteria: (A) Define populations within affected listed ESUs, taking into account spatial and temporal distribution, genetic and phenotypic diversity, and other appropriate identifiably unique biological and life history traits. Populations may be aggregated for management purposes when dictated by information scarcity, if consistent with survival and recovery of the listed ESU. In identifying management units, the plan shall describe the reasons for using such units in lieu of population units, describe how the management units are defined, given biological and life history traits, so as to maximize consideration of the important biological diversity contained within the listed ESU, respond to the scale and complexity of the ESU, and help ensure consistent treatment of listed salmonids across a diverse geographic and jurisdictional range. (B) Utilize the concepts of “viable” and “critical” salmonid population thresholds, consistent with the concepts contained in the technical document entitled “Viable Salmonid Populations (NMFS, 2000b).” The VSP paper provides a framework for identifying the biological requirements of listed salmonids, assessing the effects of management and conservation actions, and ensuring that such actions provide for the survival and recovery of listed species. Proposed management actions must recognize the significant differences in risk associated with viable and critical population threshold states and respond accordingly to minimize the long-term risks to population persistence. Harvest actions impacting populations that are functioning at or above the viable threshold must be designed to maintain the population or management unit at or above that level. For populations shown with a high degree of confidence to be above critical levels but not yet at viable levels, harvest management must not appreciably slow the population's achievement of viable function. Harvest actions impacting populations that are functioning at or below critical threshold must not be allowed to appreciably increase genetic and demographic risks facing the population and must be designed to permit the population's achievement of viable function, unless the plan demonstrates that the likelihood of survival and recovery of the entire ESU in the wild would not be appreciably reduced by greater risks to that individual population. (C) Set escapement objectives or maximum exploitation rates for each management unit or population based on its status and on a harvest program that assures that those rates or objectives are not exceeded. Maximum exploitation rates must not appreciably reduce the likelihood of survival and recovery of the ESU. Management of fisheries where artificially propagated fish predominate must not compromise the management objectives for commingled naturally spawned populations. (D) Display a biologically based rationale demonstrating that the harvest management strategy will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild, over the entire period of time the proposed harvest management strategy affects the population, including effects reasonably certain to occur after the proposed actions cease. (E) Include effective monitoring and evaluation programs to assess compliance, effectiveness, and parameter validation. At a minimum, harvest monitoring programs must collect catch and effort data, information on escapements, and information on biological characteristics, such as age, fecundity, size and sex data, and migration timing. (F) Provide for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed. (G) Provide for effective enforcement and education. Coordination among involved jurisdictions is an important element in ensuring regulatory effectiveness and coverage. (H) Include restrictions on resident and anadromous species fisheries that minimize any take of listed species, including time, size, gear, and area restrictions. (I) Be consistent with plans and conditions established within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations. (ii) The state monitors the amount of take of listed salmonids occurring in its fisheries and provides to NMFS on a regular basis, as defined in NMFS' letter of concurrence for the FMEP, a report summarizing this information, as well as the implementation and effectiveness of the FMEP. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the FMEP. (iii) The state confers with NMFS on its fishing regulation changes affecting listed ESUs to ensure consistency with the approved FMEP. Prior to approving a new or amended FMEP, NMFS will publish notification in the Federal Register (iv) NMFS provides written concurrence of the FMEP which specifies the implementation and reporting requirements. NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate. On a regular basis, NMFS will evaluate the effectiveness of the program in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If it is not, NMFS will identify ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the Federal Register www.nwr.noaa.gov (v) [Reserved] (5) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) A state or Federal Hatchery and Genetics Management Plan (HGMP) has been approved by NMFS as meeting the following criteria: (A) The HGMP has clearly stated goals, performance objectives, and performance indicators that indicate the purpose of the program, its intended results, and measurements of its performance in meeting those results. Goals shall address whether the program is intended to meet conservation objectives, contribute to the ultimate sustainability of natural spawning populations, and/or intended to augment tribal, recreational, or commercial fisheries. Objectives should enumerate the results desired from the program that will be used to measure the program's success or failure. (B) The HGMP utilizes the concepts of viable and critical salmonid population threshold, consistent with the concepts contained in the technical document entitled “Viable Salmonid Populations” (NMFS, 2000b). Listed salmonids may be purposefully taken for broodstock purposes only if the donor population is currently at or above the viable threshold and the collection will not impair its function; if the donor population is not currently viable but the sole objective of the current collection program is to enhance the propagation or survival of the listed ESU; or if the donor population is shown with a high degree of confidence to be above critical threshold although not yet functioning at viable levels, and the collection will not appreciably slow the attainment of viable status for that population. (C) Taking into account health, abundances, and trends in the donor population, broodstock collection programs reflect appropriate priorities. The primary purpose of broodstock collection programs of listed species is to reestablish indigenous salmonid populations for conservation purposes. Such programs include restoration of similar, at-risk populations within the same ESU, and reintroduction of at-risk populations to underseeded habitat. After the species' conservation needs are met and when consistent with survival and recovery of the ESU, broodstock collection programs may be authorized by NMFS such for secondary purposes, as to sustain tribal, recreational, and commercial fisheries. (D) The HGMP includes protocols to address fish health, broodstock collection, broodstock spawning, rearing and release of juveniles, deposition of hatchery adults, and catastrophic risk management. (E) The HGMP evaluates, minimizes, and accounts for the propagation program's genetic and ecological effects on natural populations, including disease transfer, competition, predation, and genetic introgression caused by the straying of hatchery fish. (F) The HGMP describes interrelationships and interdependencies with fisheries management. The combination of artificial propagation programs and harvest management must be designed to provide as many benefits and as few biological risks as possible for the listed species. For programs whose purpose is to sustain fisheries, HGMPs must not compromise the ability of FMEPs or other management plans to conserve listed salmonids. (G) Adequate artificial propagation facilities exist to properly rear progeny of naturally spawned broodstock, to maintain population health and diversity, and to avoid hatchery-influenced selection or domestication. (H) Adequate monitoring and evaluation exist to detect and evaluate the success of the hatchery program and any risks potentially impairing the recovery of the listed ESU. (I) The HGMP provides for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed; (J) NMFS provides written concurrence of the HGMP which specifies the implementation and reporting requirements. For Federally operated or funded hatcheries, the ESA section 7 consultation will achieve this purpose. (K) The HGMP is consistent with plans and conditions set within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations. (ii) The state monitors the amount of take of listed salmonids occurring in its hatchery program and provides to NMFS on a regular basis a report summarizing this information, and the implementation and effectiveness of the HGMP as defined in NMFS' letter of concurrence. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the HGMP. (iii) The state confers with NMFS on a regular basis regarding intended collections of listed broodstock to ensure congruity with the approved HGMP. (iv) Prior to final approval of an HGMP, NMFS will publish notification in the Federal Register (v) NMFS' approval of a plan shall be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate. (vi) On a regular basis, NMFS will evaluate the effectiveness of the HGMP in protecting and achieving a level of salmonid productivity commensurate with the conservation of the listed salmonids. If the HGMP is not effective, the NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the Federal Register www.nwr.noaa.gov (6) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus United States Washington United States Oregon, (i) The Secretary has determined pursuant to 50 CFR 223.209 and the government-to-government processes therein that implementing and enforcing the joint tribal/state plan will not appreciably reduce the likelihood of survival and recovery of affected threatened ESUs. (ii) The joint plan will be implemented and enforced within the parameters set forth in United States Washington United States Oregon. (iii) In making that determination for a joint plan, the Secretary has taken comment on how any fishery management plan addresses the criteria in § 223.203(b)(4), or on how any hatchery and genetic management plan addresses the criteria in § 223.203(b)(5). (iv) The Secretary shall publish notice in the Federal Register (v) On a regular basis, NMFS will evaluate the effectiveness of the joint plan in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If the plan is not effective, then NMFS will identify to the jurisdiction ways in which the joint plan needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the Federal Register (7) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) Scientific research activities involving purposeful take is conducted by employees or contractors of the ODFW, WDFW (Agencies), IDFG, or CDFG (Agencies), or as a part of a monitoring and research program overseen by or coordinated with that Agency. (ii) The Agencies provide for NMFS' review and approval a list of all scientific research activities involving direct take planned for the coming year, including an estimate of the total direct take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact. (iii) The Agencies annually provide to NMFS the results of scientific research activities directed at threatened salmonids, including a report of the direct take resulting from the studies and a summary of the results of such studies. (iv) Scientific research activities that may incidentally take threatened salmonids are either conducted by agency personnel, or are in accord with a permit issued by the Agency. (v) The Agencies provide NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take threatened salmonids during the coming year. Such reports shall also contain the amount of incidental take of threatened salmonids occurring in the previous year's scientific research activities and a summary of the results of such research. (vi) Electrofishing in any body of water known or suspected to contain threatened salmonids is conducted in accordance with NMFS “Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a). (vii) NMFS' approval of a research program shall be a written approval by NMFS Northwest or Southwest Regional Administrator. (8) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) The watershed conservation plan has been certified by the State of Washington, Oregon, Idaho, or California (State) to be consistent with the state's watershed conservation plan guidelines. (ii) The State's watershed conservation plan guidelines have been found by NMFS to provide for plans that: (A) Take into account the potential severity of direct, indirect, and cumulative impacts of proposed activities in light of the status of affected species and populations. (B) Will not reduce the likelihood of either survival or recovery of listed species in the wild. (C) Ensure that any taking will be incidental. (D) Minimize and mitigate any adverse impacts. (E) Provide for effective monitoring and adaptive management. (F) Use the best available science and technology, including watershed analysis. (G) Provide for public and scientific review and input. (H) Include any measures that NMFS determines are necessary or appropriate. (I) Include provisions that clearly identify those activities that are part of plan implementation. (J) Control risk to listed species by ensuring funding and implementation of the above plan components. (iii) NMFS will periodically review state certifications of Watershed Conservation Plans to ensure adherence to approved watershed conservation plan guidelines. (iv) “Habitat restoration activity” is defined as an activity whose primary purpose is to restore natural aquatic or riparian habitat conditions or processes. “Primary purpose” means the activity would not be undertaken but for its restoration purpose. (v) Prior to approving watershed conservation plan guidelines under paragraph (b)(8)(ii) of this section, NMFS will publish notification in the Federal Register (9) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) NMFS' engineering staff or any resource agency or tribe NMFS designates (authorized officer) has agreed in writing that the diversion facility is screened, maintained, and operated in compliance with Juvenile Fish Screen Criteria, National Marine Fisheries Service, Northwest Region, Revised February 16, 1995, with Addendum of May 9, 1996, or in California with NMFS' Southwest Region “Fish Screening Criteria for Anadromous Salmonids, January 1997” or with any subsequent revision. (ii) The owner or manager of the diversion allows any NMFS engineer or authorized officer access to the diversion facility for purposes of inspection and determination of continued compliance with the criteria. (iii) On a case by case basis, NMFS or an Authorized Officer will review and approve a juvenile fish screen design and construction plan and schedule that the water diverter proposes for screen installation. The plan and schedule will describe interim operation measures to avoid take of threatened salmonids. NMFS may require a commitment of compensatory mitigation if implementation of the plan and schedule is terminated prior to completion. If the plan and schedule are not met, or if a schedule modification is made that is not approved by NMFS or Authorized Officer, or if the screen installation deviates from the approved design, the water diversion will be subject to take prohibitions and mitigation. (iv) This limit on the prohibitions of paragraph (a) of this section does not encompass any impacts of reduced flows resulting from the diversion or impacts caused during installation of the diversion device. These impacts are subject to the prohibition on take of listed salmonids. (10) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) The activity results from routine road maintenance activity conducted by ODOT employees or agents that complies with ODOT's Transportation Maintenance Management System Water Quality and Habitat Guide (July, 1999); or by employees or agents of a state, county, city or port that complies with a program substantially similar to that contained in the ODOT Guide that is determined to meet or exceed the protections provided by the ODOT Guide; or by employees or agents of a state, county, city or port that complies with a routine road maintenance program that meets proper functioning habitat conditions as described further in subparagraph (ii) following. NMFS' approval of state, city, county, or port programs that are equivalent to the ODOT program, or of any amendments, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. Any jurisdiction desiring its routine road maintenance activities to be within this limit must first commit in writing to apply management practices that result in protections equivalent to or better than those provided by the ODOT Guide, detailing how it will assure adequate training, tracking, and reporting, and describing in detail any dust abatement practices it requests to be covered. (ii) NMFS finds the routine road maintenance activities of any state, city, county, or port to be consistent with the conservation of listed salmonids' habitat when it contributes, as does the ODOT Guide, to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than one year, NMFS will publish notification in the Federal Register (iii) Prior to implementing any changes to a program within this limit the jurisdiction provides NMFS a copy of the proposed change for review and approval as within this limit. (iv) Prior to approving any state, city, county, or port program as within this limit, or approving any substantive change in a program within this limit, NMFS will publish notification in the Federal Register (v) Pesticide and herbicide spraying is not included within this limit, even if in accord with the ODOT guidance. (11) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) Use of only the following chemicals is included within this limit on the take prohibitions: Round Up, Rodeo, Garlon 3A, Surfactant LI-700, Napropamide, Cutrine Plus, and Aquashade. (ii) Any chemical use is initiated in accord with the priorities and decision processes of the Department's Pest Management Policy, including the Waterways Pest Management Policy, updated December 1, 1999. (iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with the buffer application constraints contained in PP&R's Waterways Pest Management Policy (update December 1, 1999). (iv) Prior to implementing any changes to this limit, the PP&R provides NMFS with a copy of the proposed change for review and approval as within this limit. (v) Prior to approving any substantive change in a program within this limit, NMFS will publish notification in the Federal Register (vi) NMFS' approval of amendments shall be a written approval by NMFS Northwest Regional Administrator. (vii) NMFS finds the PP&R Pest Management Program activities to be consistent with the conservation of listed salmonids' habitat by contributing to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of a watershed's natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate the effectiveness of an approved program in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than 1 year, NMFS will publish notification in the Federal Register (12) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) Such development occurs pursuant to city, county, or regional government ordinances or plans that NMFS has determined are adequately protective of listed species; or within the jurisdiction of the Metro regional government in Oregon and pursuant to ordinances that Metro has found comply with its Urban Growth Management Functional Plan (Functional Plan) following a determination by NMFS that the Functional Plan is adequately protective. NMFS approval or determinations about any MRCI development ordinances or plans, including the Functional Plan, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. NMFS will apply the following 12 evaluation considerations when reviewing MRCI development ordinances or plans to assess whether they adequately conserve listed salmonids by maintaining and restoring properly functioning habitat conditions: (A) MRCI development ordinance or plan ensures that development will avoid inappropriate areas such as unstable slopes, wetlands, areas of high habitat value, and similarly constrained sites. (B) MRCI development ordinance or plan adequately avoids stormwater discharge impacts to water quality and quantity or to the hydrograph of the watershed, including peak and base flows of perennial streams. (C) MRCI development ordinance or plan provides adequately protective riparian area management requirements to attain or maintain PFC around all rivers, estuaries, streams, lakes, deepwater habitats, and intermittent streams. Compensatory mitigation is provided, where necessary, to offset unavoidable damage to PFC due to MRCI development impacts to riparian management areas. (D) MRCI development ordinance or plan avoids stream crossings by roads, utilities, and other linear development wherever possible, and, where crossings must be provided, minimize impacts through choice of mode, sizing, and placement. (E) MRCI development ordinance or plan adequately protects historical stream meander patterns and channel migration zones and avoids hardening of stream banks and shorelines. (F) MRCI development ordinance or plan adequately protects wetlands and wetland functions, including isolated wetlands. (G) MRCI development ordinance or plan adequately preserves the hydrologic capacity of permanent and intermittent streams to pass peak flows. (H) MRCI development ordinance or plan includes adequate provisions for landscaping with native vegetation to reduce need for watering and application of herbicides, pesticides, and fertilizer. (I) MRCI development ordinance or plan includes adequate provisions to prevent erosion and sediment run-off during construction. (J) MRCI development ordinance or plan ensures that water supply demands can be met without impacting flows needed for threatened salmonids either directly or through groundwater withdrawals and that any new water diversions are positioned and screened in a way that prevents injury or death of salmonids. (K) MRCI development ordinance or plan provides necessary enforcement, funding, reporting, and implementation mechanisms and formal plan evaluations at intervals that do not exceed 5 years. (L) MRCI development ordinance and plan complies with all other state and Federal environmental and natural resource laws and permits. (ii) The city, county or regional government provides NMFS with annual reports regarding implementation and effectiveness of the ordinances, including: any water quality monitoring information the jurisdiction has available; aerial photography (or some other graphic display) of each MRCI development or MRCI expansion area at sufficient detail to demonstrate the width and vegetation condition of riparian set-backs; information to demonstrate the success of stormwater management and other conservation measures; and a summary of any flood damage, maintenance problems, or other issues. (iii) NMFS finds the MRCI development activity to be consistent with the conservation of listed salmonids' habitat when it contributes to the attainment and maintenance of PFC. NMFS defines PFC as the sustained presence of a watershed's habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than 1 year, NMFS will publish notification in the Federal Register (iv) Prior to approving any city, county, or regional government ordinances or plans as within this limit, or approving any substantive change in an ordinance or plan within this limit, NMFS will publish notification in the Federal Register (13) The prohibitions of paragraph (a) of this section relating to the threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus (i) The action is in compliance with forest practice regulations adopted and implemented by the Washington Forest Practices Board that NMFS has found are at least as protective of habitat functions as are the regulatory elements of the Forests and Fish Report dated April 29, 1999, and submitted to the Forest Practices Board by a consortium of landowners, tribes, and state and Federal agencies. (ii) All non-regulatory elements of the Forests and Fish Report are being implemented. (iii) Actions involving use of herbicides, pesticides, or fungicides are not included within this limit. (iv) Actions taken under alternative plans are included in this limit provided that the Washington Department of Natural Resources (WDNR) finds that the alternate plans protect physical and biological processes at least as well as the state forest practices rules and provided that NMFS, or any resource agency or tribe NMFS designates, has the opportunity to review the plan at every stage of the development and implementation. A plan may be excluded from this limit if, after such review, WDNR determines that the plan is not likely to adequately protect listed salmon. (v) Prior to determining that regulations adopted by the Forest Practice Board are at least as protective as the elements of the Forests and Fish Report, NMFS will publish notification in the Federal Register (vi) NMFS finds the activities to be consistent with the conservation of listed salmonids' habitat by contributing to the attainment and maintenance of PFC. NMFS defines PFC as the sustained presence of a watershed's natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Programs must meet this biological standard in order for NMFS to find they qualify for a habitat-related limit. NMFS uses the best available science to make these determinations. NMFS may review and revise previous findings as new scientific information becomes available. NMFS will evaluate the effectiveness of the program in maintaining and achieving habitat function that provides for conservation of the listed salmonids. If the program is not adequate, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU. If Washington does not make changes to respond adequately to the new information, NMFS will publish notification in the Federal Register (vii) NMFS approval of regulations shall be a written approval by NMFS Northwest Regional Administrator. (c) Affirmative Defense. Oncorhynchus (d) Severability. Appendix A to § 223.203—List of Guidance Documents The following is a list of documents cited in the regulatory text. Copies of these documents may be obtained upon request from the Northwest or Southwest Regional Administrators (see Table 1 in § 600.502 of this title). 1. Oregon Department of Transportation (ODOT) Maintenance Management System Water Quality and Habitat Guide (July, 1999). 2. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act. 3. Fish Screening Criteria for Anadromous Salmonids, National Marine Fisheries Service, Southwest Region, 1997. 4. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (June 2000). [65 FR 42475, July 10, 2000, as amended at 67 FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12, 2002; 70 FR 37202, 37203, June 28, 2005; 71 FR 5180, Feb. 1, 2006; 73 FR 7843, Feb. 11, 2008; 73 FR 55455, Sept. 25, 2008; 76 FR 12293, Mar. 7, 2011; 79 FR 20812, Apr. 14, 2014] § 223.204 Tribal plans. (a) Limits on the prohibitions. (b) Consideration of a Tribal Plan. (2) Where there exists a Federal court proceeding with continuing jurisdiction over the subject matter of a Tribal Plan, the plan may be developed and implemented within the ongoing Federal Court proceeding. In such circumstances, compliance with the Tribal Plan's terms shall be determined within that Federal Court proceeding. (3) The Secretary shall seek comment from the public on the Secretary's pending determination whether or not implementation of a Tribal Plan will appreciably reduce the likelihood of survival and recovery of the listed salmonids. (4) The Secretary shall publish notification in the Federal Register [65 FR 42485, July 10, 2000. Redesignated at 70 FR 37203, June 28, 2005] § 223.205 Sea turtles. (a) The prohibitions of section 9 of the Act (16 U.S.C. 1538) relating to endangered species apply to threatened species of sea turtle, except as provided in § 223.206. (b) Except as provided in § 223.206, 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 § 223.206(d); (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 of § 223.206(d); (3) Fish for, catch, take, harvest, or possess, fish or wildlife contrary to any notice of tow-time or other restriction specified in, or issued under, § 223.206(d)(3) or (d)(4); (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 § 223.206(d)(1); (6) Possess a sea turtle in any manner contrary to the handling and resuscitation requirements of § 223.206(d)(1); (7) Fail to comply immediately, in the manner specified at § 600.730 (b) through (d) of this Title, 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 223; (14) Sell, barter, trade or offer to sell, barter, or trade, a TED that is not an approved TED; (15) Fail to comply with the restrictions set forth in § 223.206(d)(10) regarding pound net leaders; (16) Set, use, or fail to remove a pound net leader in Pound Net Regulated Area I or Pound Net Regulated Area II at any time from May 6 through July 15 that does not meet the leader construction specifications described in 50 CFR 223.206(d)(10) and 50 CFR 222.102; (17) Set, fish with, or fail to remove a modified pound net leader in Pound Net Regulated Area I or Pound Net Regulated Area II defined in 50 CFR 222.102 and referenced in 50 CFR 223.206(d)(10) at any time from May 6 through July 15 unless the pound net licensee and the vessel operator meet the modified pound net leader compliance training requirements in accordance with § 223.206(d)(10)(vii). (18) Alter or replace any portion of a modified pound net leader so that the altered or replaced portion no longer meets the modified pound net leader definition in 50 CFR 222.102, unless that alteration or replacement occurs outside the regulated period of May 6 through July 15. (19) Set, fish with, or fail to remove a modified pound net leader at any time from May 6 through July 15 in Pound Net Regulated Area I or Pound Net Regulated Area II unless the fisherman has on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS. (20) Set, fish with, or fail to remove pound net gear in Pound Net Regulated Area I or Pound Net Regulated Area II, unless it has the all three continuous sections as defined in 50 CFR 222.102, except that one or more sections may be missing for a maximum period of 10 days for purposes of setting, removing, and/or repairing pound nets. (21) Fail to comply with the restrictions set forth in § 223.206(d)(11) regarding sea scallop dredges; or (22) 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 B 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 § 223.207 (c) or (d) has the burden of proving such claim. [64 FR 14069, Mar. 23, 1999, as amended at 67 FR 41203, June 17, 2002; 69 FR 25012, May 5, 2004; 71 FR 50372, Aug. 25, 2006; 73 FR 68354, Nov. 18, 2008; 80 FR 6928, Feb. 9, 2015] § 223.206 Exceptions to prohibitions relating to sea turtles. (a) Permits Scientific research, education, zoological exhibition, or species enhancement permits. (2) Incidental-take permits. (b) Exception for injured, dead, or stranded specimens. (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. (c) Exception for research or conservation. (d) Exception for incidental taking. (1) Handling and resuscitation requirements. (A) Sea turtles that are actively moving or determined to be dead as described in paragraph (d)(1)(i)(C) of this section must be released over the stern of the boat. In addition, they must be released only when fishing or scientific collection gear is 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, as determined in paragraph (d)(1) of this section, by: ( 1 ( 2 ( 3 (C) A turtle is determined to be dead if the muscles are stiff (rigor mortis) and/or the flesh has begun to rot; otherwise the turtle is determined to be comatose or inactive and resuscitation attempts are necessary. (ii) In addition to the provisions of paragraph (d)(1)(i) of this section, a person aboard a vessel in the Atlantic, including the Caribbean Sea and the Gulf of America, that has pelagic or bottom longline gear on board and that has been issued, or is required to have, a limited access permit for highly migratory species under § 635.4 of this title, must comply with the handling and release requirements specified in § 635.21 of this title. (iii) Any specimen taken incidentally during the course of fishing or scientific research activities must not be consumed, sold, landed, offloaded, transshipped, or kept below deck. (2) Gear requirements for trawlers TED requirement for shrimp trawlers. (ii) Exemptions from the TED requirement Alternative tow-time restrictions. ( 1 ( 2 ( 3 ( 4 ( 5 (B) Exempted gear or activities. ( 1 ( 2 (iii) Gear requirement—summer flounder trawlers TED requirement. 1 ( 2 (B) Exemptions from the TED requirement. (C) Monitoring. (D) Additional sea turtle conservation measures. (3) Tow-time restrictions Duration of tows. (A) 55 minutes from April 1 through October 31; and (B) 75 minutes from November 1 through March 31. (ii) Alternative—special environmental conditions. (iii) Substitute—ineffectiveness of TEDs. (iv) Notice; applicability; conditions. Federal Register (v) Procedures. (4) Limitations on incidental takings during fishing activities Limitations. (A) Would violate the restrictions, terms, or conditions of an incidental take statement or biological opinion; (B) Would violate the restrictions, terms, or conditions of an incidental take permit; or (C) May be likely to jeopardize the continued existence of a species listed under the Act. (ii) Determination; restrictions on fishing activities. (iii) Notice; applicability; conditions. Federal Register. (iv) Procedures. (5)-(6) [Reserved] (7) Restrictions applicable to gillnet fisheries in North Carolina. No person may fish with gillnet fishing gear which has a stretched mesh size larger than 4 1/4 (8) Restrictions applicable to large mesh gillnet fisheries in the mid-Atlantic region. (i) Waters north of 33°51.0′ N. (North Carolina/South Carolina border at the coast) and south of 35°46.0′ N. (Oregon Inlet) at any time; (ii) Waters north of 35°46.0′ N. (Oregon Inlet) and south of 3°22.5′ N. (Currituck Beach Light, NC) from March 16 through January 14; (iii) Waters north of 36°22.5′ N. (Currituck Beach Light, NC) and south of 37°34.6′ N. (Wachapreague Inlet, VA) from April 1 through January 14; and (iv) Waters north of 37°34.6′ N. (Wachapreague Inlet, VA) and south of 37°56.0′ N. (Chincoteague, VA) from April 16 through January 14. (9) Restrictions applicable to Pacific pelagic longline vessels. (i) Direct fishing effort toward the harvest of swordfish ( Xiphias gladius (ii) Possess a light stick on board a longline vessel. A light stick as used in this paragraph is any type of light emitting device, including any fluorescent glow bead, (iii) An operator of a longline vessel subject to this section may land or possess no more than 10 swordfish from a fishing trip where any part of the trip included fishing east of 150° W. long. and north of the equator (0° N. lat.). (iv) Fail to employ basket-style longline gear such that the mainline is deployed slack when fishing. (v) When a conventional monofilament longline is deployed by a vessel, no fewer than 15 branch lines may be set between any two floats. Vessel operators using basket-style longline gear must set a minimum of 10 branch lines between any 2 floats. (vi) Longline gear must be deployed such that the deepest point of the main longline between any two floats, i.e., the deepest point in each sag of the main line, is at a depth greater than 100 m (328.1 ft or 54.6 fm) below the sea surface. (10) Restrictions applicable to pound nets in Virginia Offshore pound net leaders in Pound Net Regulated Area I. (ii) Nearshore pound net leaders in Pound Net Regulated Area I and all pound net leaders in Pound Net Regulated Area II. (iii) Protocol for measuring mesh size. (iv) Reporting requirement. (v) Monitoring. (vi) Expedited modification of restrictions and effective dates. (vii) Modified pound net leader compliance training. (11) Restrictions applicable to sea scallop dredges in the mid-Atlantic Gear Modification. (ii) Any vessel that enters the waters described in paragraph (d)(11)(i) of this section and that is required to have a Federal Atlantic sea scallop fishery permit must have the chain mat configuration installed on all dredges for the duration of the trip. (iii) Vessels subject to the requirements in paragraphs (d)(11)(i) and (ii) of this section transiting waters west of 71° W. long., from the shoreline to the outer boundary of the Exclusive Economic Zone, will be exempted from the chain-mat requirements provided the dredge gear is not available for immediate use as defined by § 648.2 of this title and there are no scallops on-board. [64 FR 14070, Mar. 23, 1999] Editorial Note: For Federal Register www.govinfo.gov. Effective Date Notes: 1. At 64 FR 14070, Mar. 23, 1999, § 223.206 was revised. Paragraph (d)(5) contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. 2. At 67 FR 41203, June 17, 2002, § 223.206 was amended by adding paragraph (d)(2)(v). This paragraph contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. § 223.207 Approved TEDs. Any netting, webbing, or mesh that may be measured to determine compliance with this section is subject to measurement, regardless of whether it is wet or dry. Any such measurement will be of the stretched mesh size. (a) Hard TEDs. (1) Construction materials Single-grid and inshore hooped hard TED. (A) Solid steel rod with a minimum outside diameter of 1/4 (B) Fiberglass or aluminum rod with a minimum outside diameter of 1/2 (C) Steel or aluminum round, oval, or rectangular tubing with a minimum outside diameter or width of 1/2 1/8 (D) Steel or aluminum flat bar with dimensions no less than 1/4 1/2 3/8 (ii) Offshore hooped hard TED. (A) Solid rod with a minimum outside diameter of 5/8 (B) Tubing with a minimum outside diameter of 1 inch (2.54 cm) and a minimum wall thickness of 1/8 (2) Method of attachment. (3) Angle of deflector bars. (ii) For any shrimp trawler fishing in the Gulf SFSTCA or the Atlantic SFSTCA, a hard TED with the position of the escape opening at the bottom of the net when the net is in its deployed position, the angle of the deflector bars from the normal, horizontal flow through the interior of the trawl, at any point, must not exceed 55°, and the angle of the bottom-most 4 inches (10.2 cm) of each deflector bar, measured along the bars, must not exceed 45° (Figures 14a and 14b to this part). (4) Space between bars. (5) Direction of bars. (6) Position of the escape opening. (7) Size of escape opening Hooped hard TEDs Escape opening for inshore hooped hard TED. (B) Escape opening for offshore hooped hard TED. (ii) Single-grid hard TEDs. (A) 44-inch inshore opening. (B) The 71-inch opening. (C) Double cover opening. (D) Boone Wedge Cut opening. 7/8 (E) Large TED openings. ( 1 ( 2 (8) Size of hoop or grid Hooped hard TED Inshore hooped hard TED. (B) Offshore hooped hard TED. 1/4 (ii) Single-grid hard TED. (9) Flotation. (i) Float dimension requirements. (B) For hard TEDs with a circumference of less than 120 inches (304.8 cm), a minimum of either one round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 cm) in diameter, or one expanded polyvinyl chloride or expanded ethylene vinyl acetate float, no smaller than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length, must be attached. (ii) Float buoyancy requirements. (A) Float buoyancy markings. (B) TED weight markings. (iii) Buoyancy-dimension requirements. (A) For floats constructed of aluminum or hard plastic, regardless of the size of the TED grid, the combined buoyancy must equal or exceed 14 lb (6.4 kg); (B) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate, where the circumference of the TED is 120 inches (304.8 cm) or more, the combined buoyancy must equal or exceed 20 lb (9.1 kg); or (C) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate, where the circumference of the TED is less than 120 inches (304.8 cm), the combined buoyancy must equal or exceed 10 lb (4.5 kg). (b) Special Hard TEDs. (1) Flounder TED. 1/4 1/8 1/2 (2) Weedless TED. 1/8 (3) Boone Big Boy TED. 3/8 1/4 1/4 (4) Modified flounder TED. 1/4 1/8 1/4 3/8 1/2 3/8 1/8 1/4 1/2 1/2 1/2 1/2 1/4 (c) Soft TEDs. (1) Parker TED. (i) Excluder Panel. (ii) Limitations on which trawls may have a Parker TED installed. (iii) Panel installation Leading edge attachment. ( 1 1/4 ( 2 1/8 ( 3 ( 4 7/8 ( 5 3/4 ( 6 5/8 ( 7 1/2 ( 8 3/8 ( 9 1/4 (B) Apex attachment. ( 1 1/4 ( 2 1/8 ( 3 ( 4 7/8 ( 5 3/4 ( 6 5/8 ( 7 1/2 ( 8 3/8 ( 9 1/4 (C) Side attachment. (iv) Escape opening. (A) Inshore opening. (B) Offshore opening. 1/4 (2) [Reserved] (d) Allowable modifications to hard TEDs and special hard TEDs. (1) Floats. (2) Accelerator funnel. 5/8 (i) In inshore waters, other than the inshore waters of Georgia and South Carolina in which a larger opening is required, the inside horizontal opening of the accelerator funnel must be at least 44 inches (112 cm). (ii) In offshore waters and the inshore waters of Georgia and South Carolina, the inside horizontal opening of the accelerator funnel must be at least 71 inches (180 cm). (3) Webbing flap. (i) 44-inch inshore TED flap. (ii) 71-inch TED flap. (iii) Double cover TED flap. (iv) Boone Wedge Cut opening flap. 7/8 (A) Edge lines. 3/8 (B) [Reserved] (v) Small turtle TED flap. (4) Chafing webbing. (5) Roller gear. (i) A single roller consisting of hard plastic shall be mounted on an axle rod, so that the roller can roll freely about the axle. The maximum diameter of the roller shall be 6 inches (15.24 cm), and the maximum width of the axle rod shall be 12 inches (30.4 cm). The axle rod must be attached to the TED by two support rods. The maximum clearance between the roller and the TED shall not exceed 1 inch (2.5 cm) at the center of the roller. The support rods and axle rod must be made from solid steel or solid aluminum rod no larger than 1/2 (ii) A single roller consisting of hard plastic tubing shall be tightly tied to the back face of the TED grid with rope or heavy twine passed through the center of the roller tubing. The roller shall lie flush against the TED. The maximum outside diameter of the roller shall be 3 1/2 (6) Water deflector fin for hooped hard TEDs. 3/8 (7) Hinged door frame for hooped hard TEDs. 3/8 1/4 (8) Chauvin shrimp deflector. 5/8 (9) Brace bar. 3/8 3/8 (e) Revision of generic design criteria, and approval of TEDs, of allowable modifications of hard TEDs, and of special hard TEDs. (2) Upon application, the Assistant Administrator may issue permits, subject to such conditions and restrictions as the Assistant Administrator deems appropriate, authorizing public or private experimentation aimed at improving shrimp retention efficiency of existing approved TEDs and at developing additional TEDs, or conducting fishery research, that would otherwise be subject to § 223.206(d)(2). Applications should be made to the Southeast Regional Administrator (see § 222.102 definition of “Southeast Regional Administrator”). [64 FR 14073, Mar. 23, 1999, as amended at 64 FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; 66 FR 24288, May 14, 2001; 68 FR 8467, Feb. 21, 2003; 68 FR 51514, Aug. 27, 2003; 68 FR 54934, Sept. 19, 2003; 69 FR 31037, June 2, 2004; 77 FR 29907, May 21, 2012; 77 FR 48106, Aug. 13, 2012; 84 FR 70063, Dec. 20, 2019; 85 FR 59199, Sept. 21, 2020; 86 FR 16676, Mar. 31, 2021] Effective Date Note: At 64 FR 14073, Mar. 23, 1999, § 223.207 was added. Paragraphs (a)(9)(ii) (A) and (B) contain information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget. § 223.208 Corals. (a) Prohibitions. Acropora palmata A. cervicornis (2) It is unlawful for any person subject to the jurisdiction of the United States to do any of the following: (i) Fail to comply immediately, in the manner specified at § 600.730 (b) through (d) of this title, with instructions and signals specified therein issued by an authorized officer, including instructions and signals to haul back a net for inspection; (ii) 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; (iii) 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; (iv) 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; (v) Interfere with, delay, or prevent by any means, the apprehension of another person, knowing that such person committed an act prohibited by this section; (vi) Resist a lawful arrest for an act prohibited by this section; (vii) Make a false statement, oral or written, to an authorized officer or to the agency concerning applicability of the exceptions enumerated in paragraph (c) of this section relating to elkhorn and staghorn corals; (viii) 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 223; or (ix) Attempt to do, solicit another to do, or cause to be done, any of the foregoing. (b) Affirmative defense. (c) Exceptions. (1) Permitted scientific research and enhancement. Any export or take of elkhorn or staghorn corals resulting from conducting scientific research or enhancement directed at elkhorn and staghorn corals is excepted from the prohibitions in ESA sections 9(a)(1)(A), (B) and (C) provided a valid research or enhancement permit has been obtained from one of the following Federal or state agencies: NOAA National Ocean Service National Marine Sanctuary Program, National Park Service, U.S. Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, Puerto Rico Department of Natural and Environmental Resources, or the U.S. Virgin Islands Department of Planning and Natural Resources. The exportation or take must be in compliance with the applicable terms and conditions of the applicable research or enhancement permit, and the permit must be in the possession of the permittee while conducting the activity. Export of elkhorn or staghorn corals from the United States to conduct excepted research or enhancement activities requires a CITES export permit from the U.S. Fish and Wildlife Service in addition to the research permit for collection. Import of elkhorn or staghorn corals into the United States to conduct excepted research or enhancement activities must be in compliance with the provisions of section 9(c) of the ESA. (2) Restoration activities. Any agent or employee of governmental agencies listed in Table 1 may take listed elkhorn or staghorn corals without a permit, when acting in the course of conducting a restoration activity directed at elkhorn or staghorn coral which is authorized by an existing authority (see Table 1 to this section). Take of elkhorn or staghorn corals during such restoration activity is excepted from the prohibitions in ESA sections 9(a)(1)(B) and (C). An excepted restoration activity is defined as the methods and processes used to provide aid to injured individual elkhorn or staghorn coral. (3) Section 10 scientific and enhancement permits. The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under § 223.208(a) for scientific purposes or to enhance the propagation or survival of elkhorn or staghorn corals, in accordance with and subject to the conditions of part 222, subpart C-General Permit Procedures. (4) Section 10 incidental take permits. The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under § 223.208(a) in accordance with section 10(a)(1)(B) of the ESA (16 U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to the conditions of part 222 of this chapter. Such permits may be issued for the incidental taking of elkhorn and staghorn corals. (5) Section 7 Interagency consultation. Any incidental taking that is in compliance with the terms and conditions specified in a written statement provided under section 7(b)(4)(C) of the ESA (16 U.S.C. 1536(b)(4)(C)) shall not be considered a prohibited taking of elkhorn and staghorn corals pursuant to paragraph (o)(2) of section 7 of the ESA (16 U.S.C. 1536(o)(2)). (6) Importation under the Convention on International Trade of Endangered Species. Any importation of elkhorn or staghorn corals in compliance with the provisions of section 9(c) of the ESA (16 U.S.C. 1538(c)) shall not be considered a violation of any provision of the ESA or any regulation issued pursuant to the ESA. Table 1 to § 223.208. Agencies and Authorizing Statutes Whose Coral Restoration Activities Are Excepted From Certain Prohibitions in Paragraph ( a FEDERAL: Agency/Person Statute and Specific Provision(s) NOAA, National Ocean Service (NOS) National Marine Sanctuaries Act 16 U.S.C. 1431 et seq. NOAA, NOS Coral Reef Conservation Act 16 U.S.C. 6406 Commandant, U.S. Coast Guard (USCG), Authorized representatives of States or Indian Tribes. “Oil Pollution Act” Designated Federal, State or Indian tribal natural resources trustees, including NOAA, Department of Interior (DOI), Florida Department of Environmental Protection (FDEP), Puerto Rico Department of Natural and Environmental Resources (DNER), and U.S. Virgin Islands Department of Planning and Natural Resources (DPNR) 33 U.S.C. 2706 Administrator, Environmental Protection Agency (EPA) or Commandant, USCG; Authorized representatives of States. ″Clean Water Act″ Designated Federal, State or Indian tribal natural resources trustees, including NOAA, DOI, FDEP, DNER, and DPNR. Administrator of the EPA; States or Indian Tribes in cooperative agreements with EPA; Heads of other Federal agencies where release is from vessel or facility solely under their control. ″Superfund Act″ (CERCLA) Administrator of the EPA 42 U.S.C. 9606 Designated Federal, State or Indian tribal natural resources trustees, including NOAA, DOI, FDEP, DNER, and DPNR 42 U.S.C. 9607 DOI, National Park Service (NPS) Park System Resource Protection Act, DOI National Wildlife Refuge System Administration Act, FLORIDA: The Board of Trustees of the Internal Improvement Trust Fund State Lands; Board of Trustees to Administer Duty of Board to Protect, etc. Governor and Cabinet; FDEP Land Acquisition for Conservation or Recreation; Conservation and Recreation Lands Trust Fund FDEP Pollutant Discharge Prevention and Removal; Liability for Damage to Natural Resources FDEP Land and Water Management; Coral Reef Restoration Florida Fish and Wildlife Conservation Commission Fish and Wildlife Conservation Commission U.S. VIRGIN ISLANDS: DPNR DPNR; Powers and Duties of Department DPNR Conservation; Croix East End Marine Park Established; PUERTO RICO: DNER Conservation; Protection, Conservation and Management of Coral Reefs et seq. DNER Conservation; Natural Patrimony Program et seq. DNER Conservation; Natural Resources; Declarations of Marine Reserves (and other protected areas) containing elkhorn and staghorn corals et seq. [73 FR 64276, Oct. 29, 2008, as amended at 79 FR 20813, Apr. 14, 2014] § 223.209 [Reserved] § 223.210 Green sturgeon. (a) Prohibitions. (b) Exceptions. (1) Scientific research and monitoring exceptions. (1) Scientific Research and Monitoring Exceptions. The prohibitions of paragraph (a) of this section relating to the threatened Southern DPS listed in § 223.102(c)(1) do not apply to ongoing or future Federal, state, or private-sponsored scientific research or monitoring activities if: (i) The scientific research or monitoring activity complies with required state reviews or permits; (ii) The research or monitoring activity is directed at the Southern DPS and is not incidental to research or monitoring of another species; (iii) Take of live mature adults in the lower Feather River from the confluence with the Sacramento River to the Oroville Dam (rkm 116), the lower Yuba River from the confluence with the Feather River to the Daguerre Dam (rkm 19), or Suisun, San Pablo, and San Francisco Bays or the Sacramento-San Joaquin Delta from the Golden Gate Bridge up into the Sacramento River to Keswick Dam (rkm 483) occurs from July 1 through March 1 so as to substantially increase the likelihood that uninterrupted upstream spawning migrations of adults will occur; (iv) Take is non-lethal; (v) Take involving the removal of any life stage of the Southern DPS from the wild does not exceed 60 minutes; (vi) Take does not involve artificial spawning or enhancement activities; (vii) A description of the study objectives and justification, a summary of the study design and methodology, estimates of the total non-lethal take of Southern DPS fish anticipated, estimates of incidental take of other ESA listed species anticipated and proof that those takes have been authorized by NMFS or the USFWS, identification of funding sources, and a point of contact is reported to the NMFS Southwest Regional Office in Long Beach at least 60 days prior to the start of the study, or by August 31, 2010 for ongoing studies; (viii) Reports that include the total number of Southern DPS and any other ESA listed species taken, information that supports that take was non-lethal, and a summary of the project results is submitted to the NMFS Southwest Regional Office in Long Beach on a schedule to be determined by NMFS; and (ix) Research or monitoring that involves action, permitting, or funding by a Federal agency still complies with the requirements of ESA section 7(a)(2) in order to ensure that the action will not jeopardize the continued existence of the threatened Southern DPS. (2) Enforcement exception. (3) Emergency fish rescue and salvage exceptions. (i) The activity complies with required state or other Federal reviews or permits; (ii) The activity is conducted by an employee or designee of NMFS or the U.S. Fish and Wildlife Service (USFWS), any Federal land management agency, or California Department of Fish and Game, Oregon Department of Fish and Wildlife, Washington Department of Fish and Wildlife, or Alaska Department of Fish and Game; (iii) The activity benefits the Southern DPS; and (iv) Those carrying out the activity submit a report to the NMFS Southwest Regional Office in Long Beach that includes, at a minimum, the number and status of fish handled, the location of rescue and/or salvage operations, and the potential causes(s) of the emergency situation within 10 days after conducting the emergency rescue. (4) Habitat restoration exceptions. (i) The activity complies with required state and Federal reviews and permits; (ii) Those carrying out the activity submit a detailed description of the restoration activity to the NMFS Southwest Regional Office in Long Beach at least 60 days prior to the start of the restoration project, or, for ongoing studies, by August 31, 2010, which includes: the geographic area affected; when activities will occur; how they will be conducted; and the severity of direct, indirect, and cumulative impacts of activities on the Southern DPS; identification of funding sources; demonstration that all state and Federal regulatory requirements have been met; a description of methods used to ensure that the likelihood of survival or recovery of the listed species is not reduced; a plan for minimizing and mitigating any adverse impacts to Southern DPS spawning or rearing habitat; an estimate of the amount of incidental take of the listed species that may occur and a description of how that estimate was made; a plan for effective monitoring and adaptive management; a pledge to use best available science and technology when conducting restoration activities; and a point of contact; (iii) Those carrying out the activity submit progress reports that include the total number of Southern DPS fish taken, information regarding whether the take was lethal or non-lethal, a summary of the status of the project, and any changes in the methods being used, to the NMFS Southwest Regional Office in Long Beach on a schedule to be determined by NMFS; and (iv) An activity that involves action, permitting, or funding by a Federal agency complies with the requirements of ESA section 7(a)(2) in order to ensure that the action will not jeopardize the continued existence of the threatened Southern DPS. (c) Exemptions via ESA 4(d) Program Approval. (1) Scientific research and monitoring exemptions. (i) Descriptions of the ongoing and future 4(d) research or monitoring activity, as described in paragraph (c)(1)(ii) of this section, must be received by the NMFS Southwest Regional Office in Long Beach during the mid-September through mid-October 2010 application period. This exception to the section 9 take prohibitions expires if the proposal is rejected as insufficient or is denied. If the state 4(d) research program package is received during the mid-September to mid-October application period, ongoing state-supported scientific research activities may continue until NMFS issues a written decision of approval or denial. If approved, the state 4(d) program authorization will cover one calendar year and state-supported researchers would have to renew authorizations annually during subsequent application periods. (ii) Descriptions of ongoing and future state-supported research activities must include the following information and should be submitted to NMFS by the State: an estimate of total direct or incidental take; a description of the study design and methodology; a justification for take and the techniques employed; and a point of contact. (iii) NMFS will provide written approval of a state 4(d) research program. (iv) The State agency will provide an annual report to NMFS that, at a minimum, summarizes the number of Southern DPS green sturgeon taken directly or incidentally, and summarizes the results of the project. (2) Fisheries exemptions. (i) An FMEP must prohibit retention of green sturgeon ( i.e., e.g., (ii) The ESA section 9(a)(1)(B) and (a)(1)(C) take prohibitions will not apply to ongoing commercial and recreational fisheries activities until September 30, 2010 if a letter of intent to develop an FMEP that is protective of green sturgeon has been received by NMFS by July 2, 2010. The exemption will expire if the letter of intent is rejected without further review of a FMEP. If the letter of intent is received by August 31, 2010, a draft FMEP must be received by NMFS within 6 months from the date of receipt of the letter of intent. A final FMEP must be received by NMFS within 3 months from the date of receipt of NMFS' comments on the draft FMEP. Ongoing commercial and recreational fisheries activities may continue until NMFS issues a letter of concurrence or denial for final FMEPs. (iii) NMFS will provide a public comment period (≥30 days) before approval of new or amended FMEPs; provide a letter of concurrence for approved FMEPs that specifies the implementation and reporting requirements; evaluate FMEPs every 5 years and identify changes that would improve their effectiveness; and provide a public comment period (≥30 days) before withdrawing approval of an FMEP. (3) Tribal exemptions. (i) A Tribal Plan may include, but is not limited to, plans that address fishery harvest, artificial production, research, or water or land management, and may be developed by one tribe or jointly with other tribes. The Secretary will consult on a government-to-government basis with any tribe that so requests and will provide, to the maximum extent practicable, technical assistance in examining impacts on the Southern DPS as tribes develop Tribal Plans. A Tribal Plan must specify the procedures by which the tribe will enforce its provisions. (ii) Where there exists a Federal court proceeding with continuing jurisdiction over the subject matter of a Tribal Plan, the plan may be developed and implemented within the ongoing Federal Court proceeding. In such circumstances, compliance with the Tribal Plan's terms shall be determined within that Federal Court proceeding. (iii) The Secretary shall seek comment from the public on the Secretary's pending determination whether implementation of a Tribal Plan will appreciably reduce the likelihood of survival and recovery of the listed Southern DPS. (iv) The Secretary shall publish notification in the Federal Register (d) ESA section 10 permits. (e) Affirmative defense. [75 FR 30728, June 2, 2010, as amended at 79 FR 20813, Apr. 14, 2014] § 223.211 Atlantic sturgeon. (a) Prohibitions. (b) [Reserved] [78 FR 69315, Nov. 19, 2013] § 223.212 Southern DPS of spotted seal. The prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) relating to endangered species shall apply to the Southern Distinct Population Segment of spotted seal listed in § 223.102. [79 FR 20814, Apr. 14, 2014] § 223.213 Humpback whales. The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species apply to threatened species of the humpback whale listed in § 223.102(e). [81 FR 62319, Sept. 8, 2016] § 223.214 Approaching threatened humpback whales in Alaska. (a) Prohibitions. Megaptera novaeangliae (1) Approach, by any means, including by interception ( i.e., (2) Cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale; or (3) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movement; or the abandonment of a previously frequented area. (b) Exceptions. (1) Paragraph (a) of this section does not apply if an approach is authorized by the National Marine Fisheries Service through a permit issued under part 222, subpart C, of this chapter (General Permit Procedures) or through a similar authorization. (2) Paragraph (a) of this section does not apply to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply with paragraph (a) of this section. (3) Paragraph (a) of this section does not apply to commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commercial fishing gear. For purposes of this section, commercial fishing means taking or harvesting fish or fishery resources to sell, barter, or trade. Commercial fishing does not include commercial passenger fishing operations ( i.e. (4) Paragraph (a) of this section does not apply to state, local, or Federal government vessels operating in the course of official duty. (5) Paragraph (a) of this section does not affect the rights of Alaska Natives under 16 U.S.C. 1539(e). (6) This section shall not take precedence over any more restrictive conflicting Federal regulation pertaining to humpback whales, including the regulations at 36 CFR 13.1102-13.1188 that pertain specifically to the waters of Glacier Bay National Park and Preserve. (c) General measures. [81 FR 62021, Sept. 8, 2016] §§ 223.215-223.300 [Reserved] § 223.301 Special rules—marine and anadromous fishes. (a) Middle Columbia River steelhead (Oncorhynchus mykiss. (2) Take of this species that is allowed in the NEP area. (ii) Handling of MCR steelhead in the NEP area by NMFS, Oregon Department of Fish and Wildlife (ODFW) and the Confederated Tribes of the Warm Springs Reservation of Oregon (CTWS) employees and authorized agents acting on their behalf for scientific purposes and by the Portland General Electric Company (PGE) and CTWS employees and authorized agents acting on their behalf for the purpose of monitoring and evaluating the ongoing reintroduction under the Federal Energy Regulatory Commission (FERC) license for the Pelton Round Butte Hydroelectric Project (FERC No. 2030). (iii) Taking of MCR steelhead incidental to any activities related to or associated with the operation and maintenance of Pelton Round Butte Hydroelectric Project's (FERC Project No. 2030) Round Butte Dam by PGE or CTWS as administered under a license issued by FERC. Acceptable forms of taking of steelhead include, but are not limited to, mortality, stranding, injury, impingement at Round Butte Dam facilities, or delay in up- or downstream passage associated with or caused by any of the following activities. Activities related to the operation and maintenance of Round Butte Dam include, but are not limited to: (A) Hydroelectric generation; (B) Maintenance of project facilities; (C) Provision of upstream and downstream fish passage, (D) Fish handling at fish separation and counting facilities; (E) Fish conservation activities; (F) Fish handling, tagging, and sampling in connection with FERC approved studies; and (G) Approved resource protection, mitigation, and enhancement measures. (iv) Handling MCR steelhead by Deschutes Valley Water District employees and agents acting on their behalf for the purpose of monitoring and evaluating the Opal Springs Hydroelectric Project (FERC No. 5891). (v) Take incidental to any activities related to or associated with the operation and maintenance of the Opal Springs Hydroelectric Project (FERC Project No. 5891) as administered under a license issued by FERC and the Settlement Agreement Concerning License Amendment for Fish Passage, dated October 2011. (vi) Take of MCR steelhead by any person with a valid permit issued by NMFS and a valid permit issued by the ODFW for educational purposes, scientific purposes, and the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the ESA. (3) Take of this species that is not allowed in the NEP area. (ii) No person shall possess, sell, deliver, carry, transport, ship, import, or export, by any means whatsoever, MCR steelhead taken in violation of this paragraph (a)(3)(ii) and 50 CFR 223.203(a). (4) Geographic extent of the nonessential experimental population of Middle Columbia River steelhead. (ii) Round Butte Dam is the downstream terminus of this NEP. When MCR steelhead are below the Round Butte Dam, they will be outside the NEP area and thus considered part of the nonexperimental population. (5) Review and evaluation of nonessential experimental population. (6) Time frame for NEP designation. (b) San Joaquin River Central Valley (CV) spring-run Chinook Salmon Experimental Population (Oncorhynchus tshawytscha). (2) San Joaquin River CV Spring-run Chinook Salmon Experimental Population. All CV spring-run Chinook salmon, including those that have been released or propagated, naturally or artificially, within the experimental population area in the San Joaquin River as defined here are considered part of the San Joaquin River experimental population. The boundaries of this experimental population area include the San Joaquin River from Friant Dam downstream to its confluence with the Merced River, delineated by a line between decimal latitude and longitude coordinates: 37.348930° N, 120.975174° W and 37.349099° N, 120.974749° W, as well as all sloughs, channels, floodways, and waterways connected with the San Joaquin River that allow for CV spring-run Chinook salmon access, but excluding the Merced River. Those portions of the Kings River that connect with the San Joaquin River during high water years are also part of the experimental population area. (3) Prohibitions. Except as expressly allowed in paragraph (b)(4) of this section, all prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)), except 9(a)(1)(C), apply to fish that are part of the threatened, nonessential experimental population of CV spring-run Chinook salmon identified in paragraph (b)(2) of this section. (4) Exceptions to the Application of Section 9 Take Prohibitions in the Experimental Population Area. The following forms of take in the experimental population area identified in paragraph (b)(2) of this section are not prohibited by this section: (i) Any taking of CV spring-run Chinook salmon provided that it is unintentional, not due to negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. (ii) Any taking of CV spring-run Chinook salmon by an employee or designee of NMFS, the USFWS, other Federal resource management agencies, the California Department of Fish and Wildlife, or any other governmental entity if in the course of their duties it is necessary to: aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for scientific study. Any agency acting under this provision must report to NMFS (see ADDRESSES (iii) Any taking of CV spring-run Chinook salmon for scientific research or enhancement purposes by a person or entity with a valid section ESA 10(a)(1)(A) permit issued by NMFS and a valid incidental take permit, consistency determination, or other take authorization issued by the CDFW. (iv) Any taking of CV spring-run Chinook salmon for scientific research purposes by the CDFW provided that: (A) Scientific research activities involving purposeful take are conducted by employees or contractors of CDFW or as a part of a monitoring and research program overseen by or coordinated with CDFW. (B) CDFW provides for NMFS' review and approval a list of all scientific research activities involving direct take planned for the coming year, including an estimate of the total direct take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact. (C) CDFW annually provides to NMFS the results of scientific research activities directed at fish in the experimental population, including a report of the direct take resulting from the studies and a summary of the results of such studies. (D) Scientific research activities that may incidentally take fish in the experimental population are either conducted by CDFW personnel, or are in accord with a permit issued by the CDFW. (E) CDFW provides NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take fish in the experimental population during the coming year. Such reports shall also contain the amount of incidental take occurring in the previous year's scientific research activities and a summary of the results of such research. (F) Electro fishing in any body of water known or suspected to contain fish in the experimental population is conducted in accordance with NMFS “Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a). (G) CDFW provides NMFS, for its review and approval, the Monitoring and Analysis Plan produced by the San Joaquin River Restoration Program, including an estimate of the direct and indirect take that may result from all scientific research activities in that plan for the period from January 30, 2014 until January 30, 2015. (H) NMFS' approval of a research program shall be a written approval by the NMFS West Coast Regional Administrator. (5) Limited Exception to the Application of Section 9(a)(1) Take Prohibitions Outside of the Experimental Population Area. The following forms of take are not prohibited: (i) Any taking of CV spring-run Chinook salmon in those portions of the lower San Joaquin River and its tributaries, including the Merced River, downstream from its confluence with the Merced River to Mossdale County Park in San Joaquin County, that the avoidance of which would impose more than de minimus (ii)(A) Any taking of CV spring-run Chinook salmon by the Central Valley Project (CVP) and State Water Project (SWP) that originates from reintroduction to the San Joaquin River that the avoidance of which would impose more than de minimus (B) NMFS will prepare a technical memorandum that describes the methodology to ensure that CV spring-run Chinook salmon originating from reintroduction to the San Joaquin River do not cause more than de minimus de minimus (c) Okanogan River UCR spring-run Chinook Salmon Experimental Population (Oncorhynchus tshawytscha). (2) Prohibitions. (3) Exceptions to the Application of Section 9 Take Prohibitions in the Experimental Population Area. (i) Any activity taken pursuant to a valid permit issued by NMFS under § 223.203(b)(1) and (7) for scientific research activities; (ii) Aid, disposal, or salvage of fish by authorized agency personnel acting in compliance with 50 CFR 223.203(b)(3); (iii) Activities associated with artificial propagation of the experimental population under an approved Hatchery Genetic Management Plan (HGMP) that complies with the requirements of 50 CFR 223.203(b)(5); (iv) Any harvest-related activity undertaken by a tribe, tribal member, tribal permittee, tribal employee, or tribal agent consistent with tribal harvest regulations and an approved Tribal Resource Management Plan (TRMP) that complies with the requirements of 50 CFR 223.204; (v) Any harvest-related activity consistent with state harvest regulations and an approved Fishery Management Evaluation Plan (FMEP) that complies with the requirements of 50 CFR 223.203(b)(4); or (vi) Any take that is incidental to an otherwise lawful activity, provided that the taking is unintentional; not due to negligent conduct; and incidental to, and not the purpose of, the carrying out of the otherwise lawful activity. Otherwise lawful activities include, but are not limited to, agricultural, water management, construction, recreation, navigation, or forestry practices, when such activities are in full compliance with all applicable laws and regulations. Any fish that is incidentally taken in a manner allowed by this paragraph may not be collected and must be immediately returned to its habitat. (4) Prohibited take outside the NEP area. (5) Geographic extent of the Okanogan River NEP Area. (d) Upper Yuba River Central Valley spring-run Chinook salmon experimental population Oncorhynchus tshawytscha Status of Upper Yuba River Central Valley spring-run Chinook salmon under the Endangered Species Act. (2) Upper Yuba River Central Valley spring-run Chinook salmon nonessential experimental population. (3) Prohibitions. (4) Exceptions to the application of section 9 take prohibitions in the NEP area. (i) Any taking of Central Valley spring-run Chinook salmon by authorized governmental entity personnel acting in compliance with § 223.203(b)(3) to aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for scientific study; (ii) Any taking of Central Valley spring-run Chinook salmon that is unintentional, not due to negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise lawful activity; and (iii) Any taking of Central Valley spring-run Chinook salmon pursuant to a permit issued by the National Marine Fisheries Service (NMFS) under section 10 of the ESA (16 U.S.C. 1539) and regulations in part 222 of this chapter applicable to such a permit. (e) McCloud and Upper Sacramento Rivers Sacramento River winter-run and Valley spring-run Chinook salmon experimental populations Oncorhynchus tshawytscha Status of McCloud and Upper Sacramento Rivers Sacramento River winter-run and Central Valley spring-run Chinook salmon under the ESA. (2) McCloud and Upper Sacramento Rivers Sacramento River winter-run and Central Valley spring-run Chinook salmon experimental populations. (3) Prohibitions. (4) Exceptions to the application of section 9 take prohibitions in the experimental population area. (i) Any taking of experimental populations of Sacramento River winter-run or Central Valley spring-run Chinook salmon by authorized governmental entity personnel acting in compliance with § 223.203(b)(3) to aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for scientific study. (ii) Any taking of experimental populations of Sacramento River winter-run or Central Valley spring-run Chinook salmon that is unintentional, not due to negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. (iii) Any taking of experimental populations of Sacramento River winter-run or Central Valley spring-run Chinook salmon pursuant to a permit issued by NMFS under section 10 of the ESA (16 U.S.C. 1539) and regulations in part 222 of this chapter applicable to such a permit. [78 FR 2907, Jan. 15, 2013, as amended at 78 FR 79632, Jan. 30, 2014; 79 FR 40015, July 11, 2014; 87 FR 79818, Dec. 28, 2022; 88 FR 58520, Aug. 28, 2023] Figures 1-2 to Part 223 [Reserved] Figure 3 to Part 223—Matagorda TED [52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992] Figure 4 to Part 223—Georgia TED [52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992] Figure 5 to Part 223—Net Diagram for the Excluder Panel of the Parker Soft TED [63 FR 17958, Apr. 13, 1998] Figure 6 to Part 223—TED Extension in Summer Flounder Trawl [64 FR 55864, Oct. 15, 1999] Figures 7-9 b Figure 10 to Part 223—Flounder TED [58 FR 54069, Oct. 20, 1993] Figure 11 to Part 223—Modified Flounder TED [77 FR 29910, May 21, 2012] Figure 12 to Part 223—Escape Opening & Cover Dimensions for 71-inch TED [68 FR 8469, Feb. 21, 2003] Figure 13 to Part 223—Single Grid Hard TED Escape Opening [60 FR 15520, Mar. 24, 1995] Figures 14 a b [61 FR 66946, Dec. 19, 1996] Figure 15 to Part 223—Weedless TED Brace Bar Description [68 FR 8469, Feb. 21, 2003] Figure 16 to Part 223—Escape Opening and Flap Dimensions for the Double Cover Flap TED [69 FR 31037, June 2, 2004] Figure 17 to Part 223—Boone Wedge Cut Escape Opening [77 FR 29911, May 21, 2012] Figures 18 a, b c [77 FR 29912, May 21, 2012] Figures 19 a b [77 FR 29912, May 21, 2012]

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