50 CFR Ch. II (10–1–19 Edition)

National Marine Fisheries Service/NOAA, Commerce § 223.101

System as now or hereafter con- FIGURE 13 TO PART 223—SINGLE GRID HARD stituted, shall be treated for purposes TED ESCAPE OPENING of section 7 of the Act as a threatened FIGURE 14a TO PART 223—MAXIMUM ANGLE OF species, and the provisions of section DEFLECTOR BARS WITH STRAIGHT BARS 7(a)(2) of the Act shall apply. ATTACHED TO THE BOTTOM OF THE FRAME (c) For purposes of section 7 of the FIGURE 14b TO PART 223—MAXIMUM ANGLE OF Act, any consultation on a proposed DEFLECTOR BARS WITH BENT BARS AT- TACHED TO THE BOTTOM OF THE FRAME Federal action that may affect both an FIGURE 15 TO PART 223—WEEDLESS TED experimental and a nonexperimental BRACE BAR DESCRIPTION population of the same species should FIGURE 16 TO PART 223—ESCAPE OPENING AND consider that species’ experimental and FLAP DIMENSIONS FOR THE DOUBLE COVER nonexperimental populations to con- FLAP TED stitute a single listed species for the FIGURE 17 TO PART 223—BOONE WEDGE CUT purposes of conducting the analyses ESCAPE OPENING under section 7 of the Act. FIGURES 18a, 18b AND 18c TO PART 223—LARGE FRAME TED ESCAPE OPENING; MINIMUM PART 223—THREATENED MARINE DIMENSIONS USING ALL-BAR CUTS (TRI- AND ANADROMOUS SPECIES ANGULAR CUTS); LARGE FRAME TED ES- CAPE OPENING; MINIMUM DIMENSIONS USING ALL-BAR CUTS AND LEADING EDGE Subpart A—General Provisions CUT; LARGE FRAME TED ESCAPE OPENING; Sec. MINIMUM DIMENSIONS USING ALL-POINTS 223.101 Purpose and scope. SIDE CUTS (RECTANGULAR CUT) 223.102 Enumeration of threatened marine FIGURES 19a AND 19b TO PART 223—CHAUVIN and anadromous species. SHRIMP DEFLECTOR INSTALLATION DE- TAILS Subpart B—Restrictions Applicable to AUTHORITY: 16 U.S.C. 1531 1543; subpart B, Threatened Marine and Anadromous § 223.201–202 also issued under 16 U.S.C. 1361 et Species seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).

223.201 Guadalupe fur seal. SOURCE: 43 FR 32809, July 28, 1978, unless 223.202 [Reserved] otherwise noted. Redesignated at 64 FR 14068, 223.203 Anadromous fish. Mar. 23, 1999. 223.204 Tribal plans. 223.205 Sea turtles. 223.206 Exceptions to prohibitions relating Subpart A—General Provisions to sea turtles. 223.207 Approved TEDs. § 223.101 Purpose and scope. 223.208 Corals. (a) The regulations contained in this 223.209 [Reserved] 223.210 Green sturgeon. part identify the species under the ju- 223.211 Atlantic sturgeon. risdiction of the Secretary of Com- 223.212 Southern DPS of spotted seal. merce that have been determined to be 223.213 Humpback whales. threatened species pursuant to section 223.214 Approaching threatened humpback 4(a) of the Act, and provide for the con- whales in Alaska. servation of such species by estab- 223.215–223.300 [Reserved] 223.301 Special rules—marine and anad- lishing rules and procedures to govern romous fishes. activities involving the species. FIGURES 1–2 TO PART 223 [RESERVED] (b) The regulations contained in this FIGURE 3 TO PART 223—MATAGORDA TED part apply only to the threatened spe- FIGURE 4 TO PART 223—GEORGIA TED cies enumerated in § 223.102. FIGURE 5 TO PART 223—NET DIAGRAM FOR THE (c) The provisions of this part are in EXCLUDER PANEL OF THE PARKER SOFT addition to, and not in lieu of, other TED regulations of parts 222 through 226 of FIGURE 6 TO PART 223—TED EXTENSION IN SUMMER FLOUNDER TRAWL this chapter which prescribe additional FIGURES 7–9b TO PART 223 [RESERVED] restrictions or conditions governing FIGURE 10 TO PART 223—FLOUNDER TED threatened species. FIGURE 11 TO PART 223—MODIFIED FLOUNDER TED [64 FR 14068, Mar. 23, 1999, as amended at 79 FIGURE 12 TO PART 223—ESCAPE OPENING & FR 20806, Apr. 14, 2014] COVER DIMENSIONS FOR 71-INCH TED

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§ 223.102 Enumeration of threatened in the FEDERAL REGISTER notice(s) marine and anadromous species. cited in the ‘‘Citation(s) for listing de- (a) The table below identifies the spe- termination(s)’’ column. cies under the jurisdiction of the Sec- (c) The ‘‘Citation(s) for listing deter- retary of Commerce that have been de- mination(s)’’ column provides ref- termined to be threatened pursuant to erence to the FEDERAL REGISTER no- section 4(a) of the Act, species treated tice(s) determining the species’ status as threatened because they are suffi- under the Act. The abbreviation ciently similar in appearance to ‘‘(SPR)’’ (significant portion of its threatened species, and experimental range) after a citation indicates that populations of threatened species. the species was listed based on its sta- (b) The columns entitled ‘‘Common tus in a significant portion of its range. name,’’ ‘‘Scientific name,’’ and ‘‘De- If a citation does not include the scription of listed entity’’ define the ‘‘(SPR)’’ notation, it means that the species within the meaning of the Act. species was listed based on its status In the ‘‘Common name’’ column, exper- throughout its entire range. For imental populations are identified as ‘‘(SPR)’’ listings, a geographical de- ‘‘XE’’ for essential populations or scription of the SPR may be found in ‘‘XN’’ for nonessential populations. the referenced FEDERAL REGISTER no- Species listed based on similarity of tice. The ‘‘(SPR)’’ notation serves an appearance are identified as ‘‘S/A.’’ Al- informational purpose only and does though a column for ‘‘Common name’’ not imply any limitation on the appli- is included, common names cannot be cation of the prohibitions or restric- relied upon for identification of any tions of the Act or implementing rules. specimen, because they may vary (d) The ‘‘Critical habitat’’ and ‘‘ESA greatly in local usage. The ‘‘Scientific rules’’ columns provide cross-ref- name’’ column provides the most re- cently accepted scientific name, rely- erences to other sections in this part ing to the extent practicable on the and part 226. The term ‘‘NA’’ appearing International Code of Zoological Nomen- in the ‘‘Critical habitat’’ column indi- clature. In cases in which confusion cates that there are no critical habitat might arise, a synonym(s) will be pro- designations for that species; similarly, vided in parentheses. The ‘‘Description the term ‘‘NA’’ appearing in the ‘‘ESA of listed entity’’ column identifies rules’’ column indicates that there are whether the listed entity comprises the no ESA rules for that species. However, entire species, a subspecies, or a dis- all other applicable rules in parts 222 tinct population segment (DPS) and through 226 and part 402 still apply to provides a description for any DPSs. that species. Also, there may be other Unless otherwise indicated in the ‘‘De- rules in this title that relate to such scription of listed entity’’ column, all wildlife. The ‘‘ESA rules’’ column is individual members of the listed entity not intended to list all Federal, state, and their progeny retain their listing tribal, or local governmental regula- status wherever found, including indi- tions that may apply to the species. viduals in captivity. Information re- (e) The threatened species under the garding the general range of the spe- jurisdiction of the Secretary of Com- cies, subspecies, or DPS may be found merce are:

Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Marine Mammals

Dolphin, Hec- Cephalorhynchus Entire subspecies ...... 82 FR 43701, Sept. 19, NA NA tor’s. hectori hectori. 2017.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Seal, bearded Erignathus Bearded seals originating from 77 FR 76740, Dec. 28, NA NA. (Beringia barbatus breeding areas in the Arctic 2012. DPS). nauticus. 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. Seal, bearded Erignathus Bearded seals originating from 77 FR 76740, Dec. 28, NA NA. (Okhotsk barbatus breeding areas in the Pa- 2012. DPS). nauticus. cific Ocean west of 157° E. Long. or west of the Kamchatka Peninsula. Seal, Guada- Arctocephalus Entire species ...... 50 FR 51252, Dec. 16, NA 223.201. lupe fur. townsendi. 1985. Seal, ringed Phoca (=Pusa) Entire subspecies ...... 77 FR 76706, Dec. 28, NA NA. (Arctic sub- hispida hispida. 2012. species). Seal, ringed Phoca (=Pusa) Entire subspecies ...... 77 FR 76706, Dec. 28, NA NA. (Baltic sub- hispida botnica. 2012. species). Seal, ringed Phoca (=Pusa) Entire subspecies ...... 77 FR 76706, Dec. 28, NA NA. (Okhotsk hispida 2012. subspecies). ochotensis. Seal, spotted Phoca largha ...... Spotted seals originating from 75 FR 65239, Oct. 22, NA 223.212. (Southern breeding areas in the Pa- 2010. DPS). cific Ocean south of 43° N. Lat.

Whale, hump- Megaptera Humpback whales that breed 81 FR 62260, Sept. 8, NA 223.213. back (Mexico novaeangliae. or winter in the area of 2016. DPS). mainland Mexico and the Revillagigedos Islands, tran- sit Baja California, or feed in the North Pacific Ocean, primarily off California-Or- egon, northern Washington- southern British Columbia, northern and western Gulf of Alaska and East Bering Sea. Reptiles 2

Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green (Cen- from the Central North Pa- 2016. 223.207. tral North Pa- cific Ocean, bounded by the cific DPS). 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. Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green (East from the Eastern Indian and 2016. 223.207. Indian-West Western Pacific Oceans, Pacific DPS). 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.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green (East from the East Pacific 2016. 223.207. Pacific DPS). 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. Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, 226.208 223.205, 223.206, green (North from the North Atlantic 2016. 223.207. Atlantic DPS). 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.). Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green (North from the North Indian 2016. 223.207. Indian DPS). Ocean, bounded by: Africa and Asia in the west and north; 84° E. Long. in the east; and the equator in the south. Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green (South from the South Atlantic 2016. 223.207. Atlantic DPS). 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. Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green from the Southwest Indian 2016. 223.207. (Southwest Ocean, bounded by the fol- Indian DPS). lowing 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. Sea turtle, Chelonia mydas Green sea turtles originating 81 FR 20058, Apr. 6, NA 223.205, 223.206, green from the Southwest Pacific 2016. 223.207. (Southwest Ocean, bounded by the fol- Pacific DPS). lowing 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.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Sea turtle, log- Caretta caretta ... Loggerhead sea turtles origi- 76 FR 58868, Sept. 22, 17.95(c), 223.205, 223.206, gerhead nating from the Northwest 2011. 226.223 223.207. (Northwest Atlantic Ocean north of the Atlantic equator, south of 60° N. Ocean DPS). Lat., and west of 40° W. Long. Sea turtle, log- Caretta caretta ... Loggerhead sea turtles origi- 76 FR 58868, Sept. 22, NA 223.205, 223.206, gerhead nating from the South Atlan- 2011. 223.207. (South Atlan- tic Ocean south of the tic Ocean equator, north of 60° S. DPS). Lat., west of 20° E. Long., and east of 67° W. Long. Sea turtle, log- Caretta caretta ... Loggerhead sea turtles origi- 76 FR 58868, Sept. 22, NA 223.205, 223.206, gerhead nating from the Southeast 2011. 223.207. (Southeast Indian Ocean south of the Indo-Pacific equator, north of 60° S. Ocean DPS). 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. Sea turtle, log- Caretta caretta ... Loggerhead sea turtles origi- 76 FR 58868, Sept. 22, NA 223.205, 223.206, gerhead nating from the Southwest 2011. 223.207. (Southwest Indian Ocean south of the Indian Ocean equator, north of 60° S. DPS). Lat., east of 20° E. Long., and west of 80° E. Long. Sea turtle, olive Lepidochelys Entire species, except when 43 FR 32800, July 28, NA 223.205, 223.206, ridley. olivacea. listed as endangered under 1978. 223.207. § 224.101.

Fishes

Cardinalfish, Pterapogon Entire species ...... 81 FR 3023, Jan. 20, NA NA. Banggai. kauderni. 2016. Coelacanth, Af- Latimeria African coelacanth population 81 FR 17398, Mar. 29, NA NA. rican (Tanza- chalumnae. inhabiting deep waters off 2016. nian DPS). the coast of Tanzania. Eulachon Thaleichthys Eulachon originating from the 75 FR 13012, Mar. 18, 226.222 NA. (Southern pacificus. Skeena River in British Co- 2010. DPS). lumbia south to and including the Mad River in northern California. Grouper, island Mycteroperca Entire species ...... 81 FR 72545, Oct. 20, NA NA. fusca. 2016. Grouper, Nas- Epinephelus Entire species ...... 81 FR 42268, June 29, NA NA. sau. striatus. 2016. Guitarfish, Rhinobatos Entire species ...... 82 FR 6309, Jan. 19, NA NA. blackchin. cemciculus. 2017. Guitarfish, com- Rhinobatos Entire species ...... 82 FR 6309, Jan. 19, NA NA. mon. rhinobatos. 2017. Ray, giant Manta birostris ... Entire species ...... 83 FR 2916, Jan. 22, NA NA manta. 2018. Rockfish, Sebastes Yelloweye rockfish residing 75 FR 22276, Apr. 28, 226.224 NA. yelloweye ruberrimus. within the Puget Sound/ 2010. (Puget Georgia Basin, inclusive of Sound/Geor- the Queen Charlotte Chan- gia Basin nel to Malcom Island, in a DPS). 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″.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Salmon, Chi- Oncorhynchus Naturally spawned Chinook 70 FR 37160, June 28, 226.211 223.203. nook (Cali- tshawytscha. salmon originating from riv- 2005. fornia Coast- ers and streams south of al ESU). the Klamath River to and including the Russian River. Salmon, Chi- Oncorhynchus Naturally spawned spring-run 70 FR 37160, June 28, 226.211 223.203. nook (Central tshawytscha. Chinook salmon originating 2005. Valley spring- from the Sacramento River run ESU). and its tributaries. Also, spring-run Chinook salmon from the Feather River Hatchery Spring-run Chi- nook Program. This DPS does not include Chinook salmon that are designated as part of an experimental population. Salmon, Chi- Oncorhynchus Central Valley spring-run Chi- 78 FR 79622, Dec. 31, NA 223.301. nook (Central tshawytscha. nook salmon only when, 2013. Valley spring- and at such times as, they run ESU–XN). are found in the San Joa- quin 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.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Salmon, Chi- Oncorhynchus Naturally spawned Chinook 70 FR 37160, June 28, 226.212 223.203. nook (Lower tshawytscha. salmon originating from the 2005. Columbia Columbia River and its trib- River ESU). utaries downstream of a transitional point east of the Hood and White Salmon Rivers, and any such fish originating from the Willam- ette 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 Chi- nook 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 Na- tional Fish Hatchery and spawning in the Wind River; and (5) naturally spawning Chinook salmon originating from the Rogue River Fall Chinook Program. This DPS does include Chinook salmon from 15 artificial propagation programs: the Big Creek Tule Chinook Pro- gram; Astoria High School Salmon-Trout Enhancement Program (STEP) Tule Chi- nook Program; Warrenton High School STEP Tule Chinook Program; Cowlitz Tule Chinook Program; North Fork Toutle Tule Chi- nook Program; Kalama Tule Chinook Program; Washougal River Tule Chi- nook Program; Spring Creek National Fish Hatch- ery (NFH) Tule Chinook Program; Cowlitz Spring Chinook Program in the Upper Cowlitz River and the Cispus River; Friends of the Cowlitz Spring Chinook Pro- gram; Kalama River Spring Chinook Program; Lewis River Spring Chinook Pro- gram; Fish First Spring Chi- nook Program; and the Sandy River Hatchery (Or- egon Department of Fish and Wildlife Stock #11).

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Salmon, Chi- Oncorhynchus Naturally spawned Chinook 70 FR 37160, June 28, 226.212 223.203. nook (Puget tshawytscha. salmon originating from riv- 2005. Sound ESU). ers 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 26 artificial propagation programs: the Kendall Creek Hatchery Program; Marblemount Hatchery Pro- gram (spring subyearlings and summer-run); Harvey Creek Hatchery Program (summer-run and fall-run); Whitehorse Springs Pond Program; Wallace River Hatchery Program (year- lings and subyearlings); Tulalip Bay Program; Issaquah Hatchery Pro- gram; Soos Creek Hatchery Program; Icy Creek Hatch- ery Program; Keta Creek Hatchery Program; White River Hatchery Program; White Acclimation Pond Program; Hupp Springs Hatchery Program; Voights Creek Hatchery Program; Diru Creek Program; Clear Creek Program; Kalama Creek Program; George Adams Hatchery Program; Rick’s Pond Hatchery Pro- gram; Hamma Hamma Hatchery Program; Dunge- ness/Hurd Creek Hatchery Program; Elwha Channel Hatchery Program; and the Skookum Creek Hatchery Spring-run Program. Salmon, Chi- Oncorhynchus Naturally spawned fall-run 70 FR 37160, June 28, 226.205 223.203. nook (Snake tshawytscha. Chinook salmon originating 2005. River fall-run from the mainstem Snake ESU). River below Hells Canyon Dam and from the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clear- water River subbasins. Also, fall-run Chinook salmon from four artificial propagation programs: the Lyons Ferry Hatchery Program; Fall Chinook Acclimation Ponds Program; Nez Perce Tribal Hatchery Program; and the Oxbow Hatchery Program.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Salmon, Chi- Oncorhynchus Naturally spawned spring/ 70 FR 37160, June 28, 226.205 223.203. nook (Snake tshawytscha. summer-run Chinook salm- 2005. River spring/ on originating from the summer-run mainstem Snake River and ESU). the Tucannon River, Grande Ronde River, Imnaha River, and Salmon River subbasins. Also, spring/summer-run Chinook salmon from 11 artificial propagation programs: the Tucannon River Program; Lostine River Program; Catherine Creek Program; Lookingglass Hatchery Pro- gram; Upper Grande Ronde Program; Imnaha River Pro- gram; Big Sheep Creek Program; McCall Hatchery Program; Johnson Creek Artificial Propagation En- hancement Program; Pahsimeroi Hatchery Pro- gram; and the Sawtooth Hatchery Program. Salmon, Chi- Oncorhynchus Naturally spawned spring-run 70 FR 37160, June 28, 226.212 223.203. nook (Upper tshawytscha. Chinook salmon originating 2005. Willamette from the Clackamas River River ESU). and from the Willamette River and its tributaries above Willamette Falls. Also, spring-run Chinook salmon from six artificial propagation programs: the McKenzie River Hatchery Program (Oregon Depart- ment of Fish and Wildlife (ODFW) Stock #23); Marion Forks Hatchery/North Fork Santiam River Program (ODFW Stock #21); South Santiam Hatchery Program (ODFW Stock #24) in the South Fork Santiam River and Mollala River; Willam- ette Hatchery Program (ODFW Stock #22); and the Clackamas Hatchery Pro- gram (ODFW Stock #19). Salmon, Chi- Oncorhynchus Upper Columbia River spring- 79 FR 40004, July 11, NA 223.301. nook (Upper tshawytscha. run Chinook salmon only 2014. Columbia when, and at such times, as River spring- they are found in the run ESU–XN). mainstem or tributaries of the Okanogan River from the Canada-United States border to the confluence of the Okanogan River with the Columbia River, Wash- ington. Salmon, chum Oncorhynchus Naturally spawned chum 70 FR 37160, June 28, 226.212 223.203. (Columbia keta. salmon originating from the 2005. River ESU). Columbia River and its tributaries in Washington and Oregon. Also, chum salmon from two artificial propagation programs: the Grays River Program and the Washougal River Hatchery/ Duncan Creek Program.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Salmon, chum Oncorhynchus Naturally spawned summer- 70 FR 37160, June 28, 226.212 223.203. (Hood Canal keta. run chum salmon originating 2005. summer-run from Hood Canal and its ESU). tributaries as well as from Olympic Peninsula rivers between Hood Canal and Dungeness Bay (inclusive). Also, summer-run chum salmon from four artificial propagation programs: the Hamma Hamma Fish Hatchery Program; Lilliwaup Creek Fish Hatchery Pro- gram; Tahuya River Pro- gram; and the Jimmycomelately Creek Fish Hatchery Program. Salmon, coho Oncorhynchus Naturally spawned coho salm- 70 FR 37160, June 28, 226.212 223.203. (Lower Co- kisutch. on originating from the Co- 2005. lumbia River lumbia River and its tribu- ESU). taries downstream from the Big White Salmon and Hood Rivers (inclusive) and any such fish originating from the Willamette River and its tributaries below Wil- lamette Falls. Also, coho salmon from 21 artificial propagation programs: the Grays River Program; Peterson Coho Project; Big Creek Hatchery Program (Oregon Department of Fish and Wildlife (ODFW) Stock #13); Astoria High School Salmon-Trout Enhancement Program (STEP) Coho Pro- gram; Warrenton High School STEP Coho Pro- gram; Cowlitz Type-N Coho Program in the Upper and Lower Cowlitz Rivers; Cow- litz Game and Anglers Coho Program; Friends of the Cowlitz Coho Program; North Fork Toutle River Hatchery Program; Kalama River Type-N Coho Pro- gram; Kalama River Type-S 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 Pro- gram; Eagle Creek National Fish Hatchery Program; Sandy Hatchery Program (ODFW Stock #11); and the Bonneville/Cascade/Oxbow Complex (ODFW Stock #14) Hatchery Program.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Salmon, coho Oncorhynchus Naturally spawned coho salm- 76 FR 35755, June 20, 226.212 223.203. (Oregon kisutch. on originating from coastal 2011. Coast ESU). rivers south of the Columbia River and north of Cape Blanco. Also, coho salmon from one artificial propagation program: the Cow Creek Hatchery Program (Oregon Department of Fish and Wildlife Stock #18). Salmon, coho Oncorhynchus Naturally spawned coho salm- 70 FR 37160, June 28, 226.210 223.203. (Southern kisutch. on originating from coastal 2005. Oregon/ streams and rivers between Northern Cape Blanco, Oregon, and California Punta Gorda, California. Coast ESU). Also, coho salmon from three artificial propagation programs: the Cole Rivers Hatchery Program (ODFW Stock #52); Trinity River Hatchery Program; and the Iron Gate Hatchery Program. Salmon, sock- Oncorhynchus Naturally spawned sockeye 70 FR 37160, June 28, 226.212 223.203. eye (Ozette nerka. salmon originating from the 2005. Lake ESU). Ozette River and Ozette Lake and its tributaries. Also, sockeye salmon from two artificial propagation programs: the Umbrella Creek Hatchery Program; and the Big River Hatchery Program. Shark, Mustelus schmitti Entire species ...... 82 FR 21722, May 10, NA NA narrownose 2017. smoothhound. Shark, oceanic Carcharhinuss Entire species ...... 83 FR 4153, Jan. 30, NA NA whitetip. longimanus. 2018. Shark, scal- Sphyrna lewini .... Scalloped hammerhead 79 FR 38214, July 3, NA NA. loped ham- sharks originating from the 2014. merhead Central & Southwest Atlan- (Central & tic Ocean, including all Southwest waters of the Caribbean Atlantic DPS). 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. Shark, scal- Sphyrna lewini ... Scalloped hammerhead 79 FR 38214, July 3, NA NA. loped ham- sharks originating from the 2014. merhead Indo-West Pacific Ocean, (Indo-West delineated by the following Pacific DPS). 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.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.211 223.203. (California mykiss. romous O. mykiss 2006.. Central Val- (steelhead) originating ley DPS). below natural and manmade impassable barriers from the Sacramento and San Joaquin Rivers and their tributaries; excludes such fish originating from San Francisco and San Pablo Bays and their tributaries. This DPS does include steelhead from two artificial propagation programs: the Coleman Na- tional Fish Hatchery Pro- gram, and the Feather River Fish Hatchery Program. Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.211 223.203. (Central Cali- mykiss. romous O. mykiss 2006.. fornia Coast (steelhead) originating DPS). below natural and manmade impassable barriers from the Russian River to and including Aptos Creek, and all drainages of San Francisco and San Pablo Bays eastward to Chipps Is- land at the confluence of the Sacramento and San Joaquin Rivers. Also, steelhead from two artificial propagation programs: the Don Clausen Fish Hatchery Program, and the Kingfisher Flat Hatchery Program (Monterey Bay Salmon and Trout Project). Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.212 223.203. (Lower Co- mykiss. romous O. mykiss 2006.. lumbia River (steelhead) originating DPS). below natural and manmade impassable barriers from rivers between the Cowlitz and Wind Rivers (inclusive) and the Willam- ette and Hood Rivers (inclusive); excludes such fish originating from the upper Willamette River basin above Willamette Falls. This DPS does include steelhead from seven artificial propagation programs: the Cow- litz Trout Hatchery Late Winter-run Program (Lower Cowlitz); Kalama River Wild Winter-run and Summer-run Programs; Clackamas Hatchery Late Winter-run Program (Oregon Depart- ment of Fish and Wildlife (ODFW) Stock #122); Sandy Hatchery Late Win- ter-run Program (ODFW Stock #11); Hood River Winter-run Program (ODFW Stock #50); and the Lewis River Wild Late-run Winter Steelhead Program.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Steelhead (Mid- Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.212 223.203. dle Columbia mykiss. romous O. mykiss 2006.. River DPS). (steelhead) originating below natural and manmade impassable barriers from the Columbia River and its tributaries upstream of the Wind and Hood Riv- ers (exclusive) to and including the Yakima River; excludes such fish originating from the Snake River basin. This DPS does include steelhead from seven artificial propagation programs: the Touchet River Endemic Program; Yakima River Kelt Reconditioning Program (in Satus Creek, Toppenish Creek, Naches River, and Upper Yakima River); Umatilla River Pro- gram (Oregon Department of Fish and Wildlife (ODFW) Stock #91); and the Deschutes River Program (ODFW Stock #66). This DPS does not include steelhead that are designated as part of an experimental population. Steelhead (Mid- Oncorhynchus Middle Columbia River 78 FR 2893, Jan. 15, NA 223.301. dle Columbia mykiss. steelhead only when, and at 2013. River DPS– such times as, they are XN). found above Round Butte Dam. Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.211 223.203. (Northern mykiss. romous O. mykiss 2006.. California (steelhead) originating DPS). below natural and manmade impassable barriers in California coastal river ba- sins from Redwood Creek to and including the Gualala River. Steelhead Oncorhynchus Naturally spawned anad- 72 FR 26722, May 11, 226.212 223.203. (Puget mykiss. romous O. mykiss 2007. Sound DPS). (steelhead) originating below natural and manmade impassable barriers 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, steelhead from six artificial propagation programs: the Green River Natural Program; White River Winter Steelhead Supplementation Program; Hood Canal Steelhead Supplementation Off-station Projects in the Dewatto, Skokomish, and Duckabush Rivers; and the Lower Elwha Fish Hatchery Wild Steelhead Recovery Program.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.212 223.203. (Snake River mykiss. romous O. mykiss 2006.. Basin DPS). (steelhead) originating below natural and manmade impassable barriers from the Snake River basin. Also, steelhead from six artificial propagation programs: the Tucannon River Program; Dworshak Na- tional Fish Hatchery Pro- gram; Lolo Creek Program; North Fork Clearwater Pro- gram; East Fork Salmon River Program; and the Lit- tle Sheep Creek/Imnaha River Hatchery Program (Oregon Department of Fish and Wildlife Stock #29). Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.211 223.203. (South-Cen- mykiss. romous O. mykiss 2006.. tral California (steelhead) originating Coast DPS). below natural and manmade impassable barriers from the Pajaro River to (but not including) the Santa Maria River. Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.212 223.203. (Upper Co- mykiss. romous O. mykiss 2006.. lumbia River (steelhead) originating DPS). below natural and manmade impassable barriers from the Columbia River and its tributaries upstream of the Yakima River to the U.S.-Canada border. Also, steelhead from six artificial propagation programs: the Wenatchee River Program; Wells Hatchery Program (in the Methow and Okanogan Rivers); Winthrop National Fish Hatchery Program; Omak Creek Program; and the Ringold Hatchery Pro- gram. Steelhead Oncorhynchus Naturally spawned anad- 71 FR 834, Jan. 5, 226.212 223.203. (Upper Wil- mykiss. romous winter-run O. 2006.. lamette River mykiss (steelhead) origi- DPS). nating below natural and manmade impassable barriers from the Willamette River and its tributaries upstream of Willamette Falls to and including the Calapooia River. Sturgeon, At- Acipenser Anadromous Atlantic sturgeon 77 FR 5880, Feb. 6, NA 223.211. lantic (Atlan- oxyrinchus originating from watersheds 2012. tic sub- oxyrinchus. from the Maine/Canadian species; Gulf border and extending south- of Maine ward to include all associ- DPS). ated watersheds draining into the Gulf of Maine as far south as Chatham, Massa- chusetts. Sturgeon, At- Acipenser Entire subspecies ...... 56 FR 49653, Sept. 30, 226.214 17.44(v). lantic (Gulf oxyrinchus 1991. subspecies). desotoi.

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Species 1 Citation(s) for listing Critical ESA rules Common name Scientific name Description of listed entity determination(s) habitat

Sturgeon, Acipenser Green sturgeon originating 71 FR 17757, Apr. 7, 226.219 223.210. green medirostris. from the Sacramento River 2006; 71 FR 19241, (Southern basin and from coastal riv- Apr. 13, 2006. DPS). ers south of the Eel River (exclusive).

Molluscs

Nautilus, cham- Nautilus Entire species ...... 83 FR 48976, Sept. 28, NA NA bered. pompilius. 2018. Corals

Coral, [no com- Acropora Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. globiceps. 2014.. Coral, [no com- Acropora Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. jacquelineae. 2014. Coral, [no com- Acropora lokani .. Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. 2014. Coral, [no com- Acropora Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. pharaonis. 2014. Coral, [no com- Acropora retusa Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. 2014. Coral, [no com- Acropora rudis ... Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. 2014. Coral, [no com- Acropora Entire species...... 79 FR 53852, Sept. 10, NA NA. mon name]. speciosa. 2014. Coral, [no com- Acropora tenella Entire species...... 79 FR 53852, Sept. 10, NA NA. mon name]. 2014. Coral, [no com- Anacropora Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. spinosa. 2014. Coral, [no com- Euphyllia Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. paradivisa. 2014. Coral, [no com- Isopora Entire species...... 79 FR 53852, Sept. 10, NA NA. mon name]. crateriformis. 2014. Coral, [no com- Montipora Entire species...... 79 FR 53852, Sept. 10, NA NA. mon name]. australiensis. 2014. Coral, [no com- Pavona diffluens Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. 2014. Coral, [no com- Porites napopora Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. 2014. Coral, [no com- Seriatopora Entire species ...... 79 FR 53852, Sept. 10, NA NA. mon name]. aculeata. 2014. Coral, boulder Orbicella franksi Entire species ...... 79 FR 53852, Sept. 10, NA NA star. 2014. Coral, elkhorn Acropora palmata Entire species ...... 79 FR 53852, Sept. 10, 226.216 223.208. 2014. Coral, lobed Orbicella Entire species ...... 79 FR 53852, Sept. 10, NA NA. star. annularis. 2014. Coral, moun- Orbicella Entire species ...... 79 FR 53852, Sept. 10, NA NA tainous star. faveolata. 2014. Coral, pillar ..... Dendrogyra Entire species ...... 79 FR 53852, Sept. 10, NA NA. cylindrus. 2014. Coral, rough Mycetophyllia Entire species ...... 79 FR 53852, Sept. 10, NA NA. cactus. ferox. 2014. Coral, staghorn Acropora Entire species ...... 79 FR 53852, Sept. 10, 226.216 223.208. cervicornis. 2014. Marine Plants

Seagrass, Halophila Entire species ...... 63 FR 49035, Sept. 14, 226.213 NA. Johnson’s. johnsonii. 1998. 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Ma- rine Fisheries Service, is limited to turtles while in the water.

[79 FR 20806, Apr. 14, 2014, as amended at 79 FR 38240, July 3, 2014; 79 FR 40015, July 11, 2014; 79 FR 54122, Sept. 10, 2014; 80 FR 7978, Feb. 13, 2015; 80 FR 60564, Oct. 7, 2015; 81 FR 3030, Jan. 20, 2016; 81 FR 9276, Feb. 24, 2016; 81 FR 17403, Mar. 29, 2016; 81 FR 20089, Apr. 6, 2016; 81 FR 42284, June 29, 2016; 81 FR 62319, Sept. 8, 2016; 81 FR 72549, Oct. 20, 2016; 82 FR 6316, Jan. 19, 2017; 82 FR 7719, Jan. 23, 2017; 82 FR 21740, May 10, 2017; 82 FR 43710, Sept. 19, 2017; 83 FR 2931, Jan. 22, 2018; 83 FR 4164, Jan. 30, 2018; 83 FR 48984, Sept. 28, 2018]

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Subpart B—Restrictions Applicable steelhead DPSs (of the genus to Threatened Marine and Oncorhynchus) listed in § 223.102. Anadromous Species (b) Limits on the prohibitions. The limits to the prohibitions of paragraph § 223.201 Guadalupe fur seal. (a) of this section relating to threatened West Coast salmon ESUs and (a) Prohibitions. The prohibitions of steelhead DPSs (of the genus section 9 of the Act (16 U.S.C. 1538) re- Oncorhynchus) listed in § 223.102 are de- lating to endangered species apply to scribed in the following paragraphs: the Guadalupe fur seal except as pro- (1) The exceptions of section 10 of the vided in paragraph (b) of this section. ESA (16 U.S.C. 1539) and other excep- (b) Exceptions. (1) The Assistant Ad- tions under the Act relating to endan- ministrator may issue permits author- gered species, including regulations in izing activities which would otherwise part 222 of this chapter implementing be prohibited under paragraph (a) of such exceptions, also apply to the this section subject to the provisions of threatened West Coast salmon ESUs part 222 subpart C, General Permit Pro- and steelhead DPSs (of the genus cedures. Oncorhynchus) listed in § 223.102. (2) Any Federal, State or local gov- (2) The prohibitions of paragraph (a) ernment official, employee, or des- of this section relating to threatened ignated agent may, in the course of of- Puget Sound steelhead listed in ficial duties, take a stranded Guada- § 223.102 do not apply to: lupe fur seal without a permit if such (i) Activities specified in an applica- taking: tion for a permit for scientific purposes (i) Is accomplished in a humane man- or to enhance the conservation or sur- ner; vival of the species, provided that the (ii) Is for the protection or welfare of application has been received by the the animal, is for the protection of the Assistant Administrator for Fisheries, public health or welfare, or is for the NOAA (AA), no later than November 14, salvage or disposal of a dead specimen; 2008. The prohibitions of this section (iii) Includes steps designed to ensure apply to these activities upon the AA’s the return of the animal to its natural rejection of the application as insuffi- habitat, if feasible; and cient, upon issuance or denial of a per- (iv) Is reported within 30 days to the mit, or June 1, 2009, whichever occurs Regional Administrator, Southwest earliest, or Region, National Marine Fisheries (ii) Steelhead harvested in tribal or Service, 501 West Ocean Blvd., Suite recreational fisheries prior to June 1, 4200, Long Beach, CA 90802. 2009, so long as the harvest is author- (3) Any animal or specimen taken ized by the State of Washington or a under paragraph (b)(2) of this section tribe with jurisdiction over steelhead may only be retained, disposed of, or harvest. If NMFS does not receive a salvaged in accordance with directions fishery management plan for Puget from the Director, Southwest Region. Sound steelhead by November 14, 2008, [50 FR 51258, Dec. 16, 1985. Redesignated and subsequent take by harvest will be sub- amended at 64 FR 14068, Mar. 23, 1999, as ject to the take prohibitions. amended at 79 FR 20812, Apr. 14, 2014] (3) The prohibitions of paragraph (a) of this section relating to the threat- § 223.202 [Reserved] ened West Coast salmon ESUs and steelhead DPSs (of the genus § 223.203 Anadromous fish. Oncorhynchus) listed in § 223.102 do not Available guidance documents cited apply to any employee or designee of in the regulatory text are listed in Ap- NMFS, the United States Fish and pendix A to this section. Wildlife Service, any Federal land (a) Prohibitions. The prohibitions of management agency, the Idaho Depart- section 9(a)(1) of the ESA (16 U.S.C. ment of Fish and Game (IDFG), Wash- 1538(a)(1)) relating to endangered spe- ington Department of Fish and Wildlife cies apply to fish with an intact (WDFW), the Oregon Department of adipose fin that are part of the threat- Fish and Wildlife (ODFW), California ened West Coast salmon ESUs and Department of Fish and Game (CDFG),

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or of any other governmental entity ed ESU, respond to the scale and com- that has co-management authority for plexity of the ESU, and help ensure the listed salmonids, when the em- consistent treatment of listed ployee or designee, acting in the course salmonids across a diverse geographic of his or her official duties, takes a and jurisdictional range. threatened salmonid without a permit (B) Utilize the concepts of ‘‘viable’’ if such action is necessary to: and ‘‘critical’’ salmonid population (i) Aid a sick, injured, or stranded thresholds, consistent with the con- salmonid, cepts contained in the technical docu- (ii) Dispose of a dead salmonid, or ment entitled ‘‘Viable Salmonid Popu- (iii) Salvage a dead salmonid which lations (NMFS, 2000b).’’ The VSP paper may be useful for scientific study. provides a framework for identifying (iv) Each agency acting under this the biological requirements of listed limit on the take prohibitions of para- salmonids, assessing the effects of graph (a) of this section is to report to management and conservation actions, NMFS the numbers of fish handled and their status, on an annual basis. A des- and ensuring that such actions provide ignee of the listed entities is any indi- for the survival and recovery of listed vidual the Federal or state fishery species. Proposed management actions agency or other co-manager has au- must recognize the significant dif- thorized in writing to perform the list- ferences in risk associated with viable ed functions. and critical population threshold (4) The prohibitions of paragraph (a) states and respond accordingly to mini- of this section relating to the threat- mize the long-term risks to population ened West Coast salmon ESUs and persistence. Harvest actions impacting steelhead DPSs (of the genus populations that are functioning at or Oncorhynchus) listed in § 223.102 do not above the viable threshold must be de- apply to fishery harvest activities pro- signed to maintain the population or vided that: management unit at or above that (i) Fisheries are managed in accord- level. For populations shown with a ance with a NMFS-approved Fishery high degree of confidence to be above Management and Evaluation Plan critical levels but not yet at viable lev- (FMEP) and implemented in accord- els, harvest management must not ap- ance with a letter of concurrence from preciably slow the population’s NMFS. NMFS will approve an FMEP achievement of viable function. Har- only if it clearly defines its intended vest actions impacting populations scope and area of impact and sets forth that are functioning at or below crit- the management objectives and per- ical threshold must not be allowed to formance indicators for the plan. The appreciably increase genetic and demo- plan must adequately address the fol- graphic risks facing the population and lowing criteria: must be designed to permit the popu- (A) Define populations within af- lation’s achievement of viable func- fected listed ESUs, taking into account tion, unless the plan demonstrates that spatial and temporal distribution, ge- the likelihood of survival and recovery netic and phenotypic diversity, and of the entire ESU in the wild would not other appropriate identifiably unique be appreciably reduced by greater risks biological and life history traits. Popu- lations may be aggregated for manage- to that individual population. ment purposes when dictated by infor- (C) Set escapement objectives or mation scarcity, if consistent with sur- maximum exploitation rates for each vival and recovery of the listed ESU. In management unit or population based identifying management units, the on its status and on a harvest program plan shall describe the reasons for that assures that those rates or objec- using such units in lieu of population tives are not exceeded. Maximum ex- units, describe how the management ploitation rates must not appreciably units are defined, given biological and reduce the likelihood of survival and life history traits, so as to maximize recovery of the ESU. Management of consideration of the important biologi- fisheries where artificially propagated cal diversity contained within the list- fish predominate must not compromise

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the management objectives for com- publish notification in the FEDERAL mingled naturally spawned popu- REGISTER announcing its availability lations. for public review and comment. Such (D) Display a biologically based ra- an announcement will provide for a tionale demonstrating that the harvest comment period on the draft FMEP of management strategy will not appre- not less than 30 days. ciably reduce the likelihood of survival (iv) NMFS provides written concur- and recovery of the ESU in the wild, rence of the FMEP which specifies the over the entire period of time the pro- implementation and reporting require- posed harvest management strategy af- ments. NMFS’ approval of a plan shall fects the population, including effects be a written approval by NMFS South- reasonably certain to occur after the west or Northwest Regional Adminis- proposed actions cease. trator, as appropriate. On a regular (E) Include effective monitoring and basis, NMFS will evaluate the effec- evaluation programs to assess compli- tiveness of the program in protecting ance, effectiveness, and parameter vali- and achieving a level of salmonid pro- dation. At a minimum, harvest moni- ductivity commensurate with con- toring programs must collect catch and servation of the listed salmonids. If it effort data, information on is not, NMFS will identify ways in escapements, and information on bio- which the program needs to be altered logical characteristics, such as age, fe- or strengthened. If the responsible cundity, size and sex data, and migra- agency does not make changes to re- tion timing. spond adequately to the new informa- (F) Provide for evaluating moni- tion, NMFS will publish notification in toring data and making any revisions the FEDERAL REGISTER announcing its of assumptions, management strate- intention to withdraw the limit for ac- gies, or objectives that data show are tivities associated with that FMEP. needed. Such an announcement will provide for (G) Provide for effective enforcement a comment period of not less than 30 and education. Coordination among in- days, after which NMFS will make a volved jurisdictions is an important final determination whether to with- element in ensuring regulatory effec- draw the limit so that the prohibitions tiveness and coverage. would then apply to those fishery har- (H) Include restrictions on resident vest activities. A template for devel- and anadromous species fisheries that oping FMEPs is available from NMFS minimize any take of listed species, in- Northwest Region’s website cluding time, size, gear, and area re- (www.nwr.noaa.gov). strictions. (v) [Reserved] (I) Be consistent with plans and con- (5) The prohibitions of paragraph (a) ditions established within any Federal of this section relating to the threat- court proceeding with continuing juris- ened West Coast salmon ESUs and diction over tribal harvest allocations. steelhead DPSs (of the genus (ii) The state monitors the amount of Oncorhynchus) listed in § 223.102 do not take of listed salmonids occurring in apply to activity associated with artifi- its fisheries and provides to NMFS on a cial propagation programs provided regular basis, as defined in NMFS’ let- that: ter of concurrence for the FMEP, a re- (i) A state or Federal Hatchery and port summarizing this information, as Genetics Management Plan (HGMP) well as the implementation and effec- has been approved by NMFS as meeting tiveness of the FMEP. The state shall the following criteria: provide NMFS with access to all data (A) The HGMP has clearly stated and reports prepared concerning the goals, performance objectives, and per- implementation and effectiveness of formance indicators that indicate the the FMEP. purpose of the program, its intended (iii) The state confers with NMFS on results, and measurements of its per- its fishing regulation changes affecting formance in meeting those results. listed ESUs to ensure consistency with Goals shall address whether the pro- the approved FMEP. Prior to approving gram is intended to meet conservation a new or amended FMEP, NMFS will objectives, contribute to the ultimate

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sustainability of natural spawning pop- and genetic introgression caused by the ulations, and/or intended to augment straying of hatchery fish. tribal, recreational, or commercial (F) The HGMP describes inter- fisheries. Objectives should enumerate relationships and interdependencies the results desired from the program with fisheries management. The com- that will be used to measure the pro- bination of artificial propagation program’s success or failure. grams and harvest management must (B) The HGMP utilizes the concepts be designed to provide as many benefits of viable and critical salmonid popu- and as few biological risks as possible lation threshold, consistent with the for the listed species. For programs concepts contained in the technical whose purpose is to sustain fisheries, document entitled ‘‘Viable Salmonid HGMPs must not compromise the abil- Populations’’ (NMFS, 2000b). Listed ity of FMEPs or other management salmonids may be purposefully taken plans to conserve listed salmonids. for broodstock purposes only if the (G) Adequate artificial propagation donor population is currently at or facilities exist to properly rear progeny above the viable threshold and the col- of naturally spawned broodstock, to lection will not impair its function; if maintain population health and diver- the donor population is not currently sity, and to avoid hatchery-influenced viable but the sole objective of the cur- selection or domestication. rent collection program is to enhance (H) Adequate monitoring and evalua- the propagation or survival of the list- tion exist to detect and evaluate the ed ESU; or if the donor population is success of the hatchery program and shown with a high degree of confidence any risks potentially impairing the re- to be above critical threshold although covery of the listed ESU. not yet functioning at viable levels, (I) The HGMP provides for evaluating and the collection will not appreciably monitoring data and making any revi- slow the attainment of viable status sions of assumptions, management for that population. strategies, or objectives that data show (C) Taking into account health, are needed; abundances, and trends in the donor (J) NMFS provides written concur- population, broodstock collection pro- rence of the HGMP which specifies the grams reflect appropriate priorities. implementation and reporting require- The primary purpose of broodstock col- ments. For Federally operated or fund- lection programs of listed species is to ed hatcheries, the ESA section 7 con- reestablish indigenous salmonid popu- sultation will achieve this purpose. lations for conservation purposes. Such (K) The HGMP is consistent with programs include restoration of simi- plans and conditions set within any lar, at-risk populations within the Federal court proceeding with con- same ESU, and reintroduction of at- tinuing jurisdiction over tribal harvest risk populations to underseeded habi- allocations. tat. After the species’ conservation (ii) The state monitors the amount of needs are met and when consistent take of listed salmonids occurring in with survival and recovery of the ESU, its hatchery program and provides to broodstock collection programs may be NMFS on a regular basis a report sum- authorized by NMFS such for sec- marizing this information, and the im- ondary purposes, as to sustain tribal, plementation and effectiveness of the recreational, and commercial fisheries. HGMP as defined in NMFS’ letter of (D) The HGMP includes protocols to concurrence. The state shall provide address fish health, broodstock collec- NMFS with access to all data and re- tion, broodstock spawning, rearing and ports prepared concerning the imple- release of juveniles, deposition of mentation and effectiveness of the hatchery adults, and catastrophic risk HGMP. management. (iii) The state confers with NMFS on (E) The HGMP evaluates, minimizes, a regular basis regarding intended col- and accounts for the propagation pro- lections of listed broodstock to ensure gram’s genetic and ecological effects congruity with the approved HGMP. on natural populations, including dis- (iv) Prior to final approval of an ease transfer, competition, predation, HGMP, NMFS will publish notification

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in the FEDERAL REGISTER announcing eters set forth in United States v. Wash- its availability for public review and ington or United States v. Oregon. comment for a period of at least 30 (iii) In making that determination days. for a joint plan, the Secretary has (v) NMFS’ approval of a plan shall be taken comment on how any fishery a written approval by NMFS South- management plan addresses the cri- west or Northwest Regional Adminis- teria in § 223.203(b)(4), or on how any trator, as appropriate. hatchery and genetic management plan (vi) On a regular basis, NMFS will addresses the criteria in § 223.203(b)(5). evaluate the effectiveness of the HGMP (iv) The Secretary shall publish no- in protecting and achieving a level of tice in the FEDERAL REGISTER of any salmonid productivity commensurate determination whether or not a joint with the conservation of the listed plan, will appreciably reduce the likeli- salmonids. If the HGMP is not effec- hood of survival and recovery of af- tive, the NMFS will identify to the ju- fected threatened ESUs, together with risdiction ways in which the program a discussion of the biological analysis needs to be altered or strengthened. If underlying that determination. the responsible agency does not make (v) On a regular basis, NMFS will changes to respond adequately to the evaluate the effectiveness of the joint new information, NMFS will publish plan in protecting and achieving a notification in the FEDERAL REGISTER level of salmonid productivity com- announcing its intention to withdraw mensurate with conservation of the the limit on activities associated with listed salmonids. If the plan is not ef- that program. Such an announcement fective, then NMFS will identify to the will provide for a comment period of no jurisdiction ways in which the joint less than 30 days, after which NMFS plan needs to be altered or strength- will make a final determination wheth- ened. If the responsible agency does not er to withdraw the limit so that take make changes to respond adequately to prohibitions, likeall other activity not the new information, NMFS will pub- within a limit, would then apply to lish notification in the FEDERAL REG- that program. A template for devel- ISTER announcing its intention to with- oping HGMPs is available from NMFS draw the limit on activities associated Northwest Region’s website with that joint plan. Such an an- (www.nwr.noaa.gov). nouncement will provide for a com- (6) The prohibitions of paragraph (a) ment period of no less than 30 days, of this section relating to the threat- after which NMFS will make a final de- ened West Coast salmon ESUs and termination whether to withdraw the steelhead DPSs (of the genus limit so that take prohibitions would Oncorhynchus) listed in § 223.102 do not then apply to that joint plan as to all apply to actions undertaken in compli- other activity not within a limit. ance with a resource management plan (7) The prohibitions of paragraph (a) developed jointly by the States of of this section relating to the threat- Washington, Oregon and/or Idaho and ened West Coast salmon ESUs and the Tribes (joint plan) within the con- steelhead DPSs (of the genus tinuing jurisdiction of United States v. Oncorhynchus) listed in § 223.102 do not Washington or United States v. Oregon, apply to scientific research activities the on-going Federal court proceedings provided that: to enforce and implement reserved (i) Scientific research activities in- treaty fishing rights, provided that: volving purposeful take is conducted (i) The Secretary has determined pur- by employees or contractors of the suant to 50 CFR 223.209 and the govern- ODFW, WDFW (Agencies), IDFG, or ment-to-government processes therein CDFG (Agencies), or as a part of a that implementing and enforcing the monitoring and research program over- joint tribal/state plan will not appre- seen by or coordinated with that Agen- ciably reduce the likelihood of survival cy. and recovery of affected threatened (ii) The Agencies provide for NMFS’ ESUs. review and approval a list of all sci- (ii) The joint plan will be imple- entific research activities involving di- mented and enforced within the param- rect take planned for the coming year,

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including an estimate of the total di- (ii) The State’s watershed conserva- rect take that is anticipated, a description plan guidelines have been found by tion of the study design, including a NMFS to provide for plans that: justification for taking the species and (A) Take into account the potential a description of the techniques to be severity of direct, indirect, and cumu- used, and a point of contact. lative impacts of proposed activities in (iii) The Agencies annually provide light of the status of affected species to NMFS the results of scientific re- and populations. search activities directed at threatened (B) Will not reduce the likelihood of salmonids, including a report of the di- either survival or recovery of listed rect take resulting from the studies species in the wild. and a summary of the results of such (C) Ensure that any taking will be incidental. studies. (D) Minimize and mitigate any ad- (iv) Scientific research activities verse impacts. that may incidentally take threatened (E) Provide for effective monitoring salmonids are either conducted by and adaptive management. agency personnel, or are in accord with (F) Use the best available science and a permit issued by the Agency. technology, including watershed anal- (v) The Agencies provide NMFS an- ysis. nually, for its review and approval, a (G) Provide for public and scientific report listing all scientific research ac- review and input. tivities it conducts or permits that (H) Include any measures that NMFS may incidentally take threatened determines are necessary or appro- salmonids during the coming year. priate. Such reports shall also contain the (I) Include provisions that clearly amount of incidental take of threat- identify those activities that are part ened salmonids occurring in the pre- of plan implementation. vious year’s scientific research activi- (J) Control risk to listed species by ties and a summary of the results of ensuring funding and implementation such research. of the above plan components. (vi) Electrofishing in any body of (iii) NMFS will periodically review water known or suspected to contain state certifications of Watershed Con- threatened salmonids is conducted in servation Plans to ensure adherence to accordance with NMFS ‘‘Guidelines for approved watershed conservation plan Electrofishing Waters Containing guidelines. Salmonids Listed Under the Endan- (iv) ‘‘Habitat restoration activity’’ is gered Species Act’’ (NMFS, 2000a). defined as an activity whose primary purpose is to restore natural aquatic or (vii) NMFS’ approval of a research riparian habitat conditions or proc- program shall be a written approval by esses. ‘‘Primary purpose’’ means the NMFS Northwest or Southwest Re- activity would not be undertaken but gional Administrator. for its restoration purpose. (8) The prohibitions of paragraph (a) (v) Prior to approving watershed con- of this section relating to the threat- servation plan guidelines under para- ened West Coast salmon ESUs and graph (b)(8)(ii) of this section, NMFS steelhead DPSs (of the genus will publish notification in the FED- Oncorhynchus) listed in § 223.102 do not ERAL REGISTER announcing the avail- apply to habitat restoration activities, ability of the proposed guidelines for as defined in paragraph (b)(8)(iv) of this public review and comment. Such an section, provided that the activity is announcement will provide for a com- part of a watershed conservation plan, ment period on the draft guidelines of and: no less than 30 days. (i) The watershed conservation plan (9) The prohibitions of paragraph (a) has been certified by the State of of this section relating to the threat- Washington, Oregon, Idaho, or Cali- ened West Coast salmon ESUs and fornia (State) to be consistent with the steelhead DPSs (of the genus state’s watershed conservation plan Oncorhynchus) listed in § 223.102 do not guidelines. apply to the physical diversion of

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water from a stream or lake, provided by ODOT employees or agents that that: complies with ODOT’s Transportation (i) NMFS’ engineering staff or any re- Maintenance Management System source agency or tribe NMFS des- Water Quality and Habitat Guide ignates (authorized officer) has agreed (July, 1999); or by employees or agents in writing that the diversion facility is of a state, county, city or port that screened, maintained, and operated in complies with a program substantially compliance with Juvenile Fish Screen similar to that contained in the ODOT Criteria, National Marine Fisheries Guide that is determined to meet or ex- Service, Northwest Region, Revised ceed the protections provided by the February 16, 1995, with Addendum of ODOT Guide; or by employees or May 9, 1996, or in California with agents of a state, county, city or port NMFS’ Southwest Region ‘‘Fish that complies with a routine road Screening Criteria for Anadromous maintenance program that meets prop- Salmonids, January 1997’’ or with any er functioning habitat conditions as de- subsequent revision. scribed further in subparagraph (ii) fol- (ii) The owner or manager of the di- lowing. NMFS’ approval of state, city, version allows any NMFS engineer or county, or port programs that are authorized officer access to the diver- equivalent to the ODOT program, or of sion facility for purposes of inspection any amendments, shall be a written ap- and determination of continued com- proval by NMFS Northwest or South- pliance with the criteria. west Regional Administrator, which- (iii) On a case by case basis, NMFS or ever is appropriate. Any jurisdiction an Authorized Officer will review and desiring its routine road maintenance approve a juvenile fish screen design activities to be within this limit must and construction plan and schedule first commit in writing to apply man- that the water diverter proposes for agement practices that result in pro- screen installation. The plan and tections equivalent to or better than schedule will describe interim oper- those provided by the ODOT Guide, de- ation measures to avoid take of threat- tailing how it will assure adequate ened salmonids. NMFS may require a training, tracking, and reporting, and commitment of compensatory mitiga- describing in detail any dust abate- tion if implementation of the plan and ment practices it requests to be cov- schedule is terminated prior to comple- ered. tion. If the plan and schedule are not (ii) NMFS finds the routine road met, or if a schedule modification is maintenance activities of any state, made that is not approved by NMFS or city, county, or port to be consistent Authorized Officer, or if the screen in- with the conservation of listed stallation deviates from the approved salmonids’ habitat when it contributes, design, the water diversion will be sub- as does the ODOT Guide, to the attain- ject to take prohibitions and mitiga- ment and maintenance of properly tion. functioning condition (PFC). NMFS de- (iv) This limit on the prohibitions of fines PFC as the sustained presence of paragraph (a) of this section does not natural habitat-forming processes that encompass any impacts of reduced are necessary for the long-term sur- flows resulting from the diversion or vival of salmonids through the full impacts caused during installation of range of environmental variation. Ac- the diversion device. These impacts are tions that affect salmonid habitat subject to the prohibition on take of must not impair properly functioning listed salmonids. habitat, appreciably reduce the func- (10) The prohibitions of paragraph (a) tioning of already impaired habitat, or of this section relating to the threat- retard the long-term progress of im- ened West Coast salmon ESUs and paired habitat toward PFC. Periodi- steelhead DPSs (of the genus cally, NMFS will evaluate an approved Oncorhynchus) listed in § 223.102 do not program for its effectiveness in main- apply to routine road maintenance ac- taining and achieving habitat function tivities provided that: that provides for conservation of the (i) The activity results from routine listed salmonids. Whenever warranted, road maintenance activity conducted NMFS will identify to the jurisdiction

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ways in which the program needs to be Garlon 3A, Surfactant LI–700, altered or strengthened. Changes may Napropamide, Cutrine Plus, and be identified if the program is not pro- Aquashade. tecting desired habitat functions, or (ii) Any chemical use is initiated in where even with the habitat character- accord with the priorities and decision istics and functions originally tar- processes of the Department’s Pest geted, habitat is not supporting popu- Management Policy, including the Wa- lation productivity levels needed to terways Pest Management Policy, up- conserve the ESU. If any jurisdiction dated December 1, 1999. within the limit does not make (iii) Any chemical use within a 25 ft. changes to respond adequately to the (7.5 m) buffer complies with the buffer new information in the shortest application constraints contained in amount of time feasible, but not longer PP&R’s Waterways Pest Management than one year, NMFS will publish noti- Policy (update December 1, 1999). fication in the FEDERAL REGISTER an- (iv) Prior to implementing any nouncing its intention to withdraw the changes to this limit, the PP&R pro- limit so that take prohibitions would vides NMFS with a copy of the pro- then apply to the program as to all posed change for review and approval other activity not within a limit. Such as within this limit. an announcement will provide for a (v) Prior to approving any sub- comment period of no less than 30 days, stantive change in a program within after which NMFS will make a final de- this limit, NMFS will publish notifica- termination whether to subject the action in the FEDERAL REGISTER an- tivities to the ESA section 9(a)(1) pro- nouncing the availability of the prohibitions. gram or the draft changes for public re- (iii) Prior to implementing any view and comment. Such an announce- changes to a program within this limit ment will provide for a comment pe- the jurisdiction provides NMFS a copy riod of no less than 30 days. of the proposed change for review and (vi) NMFS’ approval of amendments approval as within this limit. shall be a written approval by NMFS (iv) Prior to approving any state, Northwest Regional Administrator. city, county, or port program as within (vii) NMFS finds the PP&R Pest this limit, or approving any sub- Management Program activities to be stantive change in a program within consistent with the conservation of this limit, NMFS will publish notifica- listed salmonids’ habitat by contrib- tion in the FEDERAL REGISTER an- uting to the attainment and mainte- nouncing the availability of the pro- nance of properly functioning condi- gram or the draft changes for public re- tion (PFC). NMFS defines PFC as the view and comment. Such an announce- sustained presence of a watershed’s ment will provide for a comment pe- natural habitat-forming processes that riod of not less than 30 days. are necessary for the long-term sur- (v) Pesticide and herbicide spraying vival of salmonids through the full is not included within this limit, even range of environmental variation. Ac- if in accord with the ODOT guidance. tions that affect salmonid habitat (11) The prohibitions of paragraph (a) must not impair properly functioning of this section relating to the threat- habitat, appreciably reduce the func- ened West Coast salmon ESUs and tioning of already impaired habitat, or steelhead DPSs (of the genus retard the long-term progress of im- Oncorhynchus) listed in § 223.102 do not paired habitat toward PFC. Periodi- apply to activities within the City of cally, NMFS will evaluate the effec- Portland, Oregon Parks and Recreation tiveness of an approved program in Department’s (PP&R) Pest Manage- maintaining and achieving habitat ment Program (March 1997), including function that provides for conservation its Waterways Pest Management Pol- of the listed salmonids. Whenever war- icy updated December 1, 1999, provided ranted, NMFS will identify to the ju- that: risdiction ways in which the program (i) Use of only the following chemi- needs to be altered or strengthened. cals is included within this limit on the Changes may be identified if the pro- take prohibitions: Round Up, Rodeo, gram is not protecting desired habitat

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functions, or where even with the habi- stable slopes, wetlands, areas of high tat characteristics and functions origi- habitat value, and similarly con- nally targeted, habitat is not sup- strained sites. porting population productivity levels (B) MRCI development ordinance or needed to conserve the ESU. If any ju- plan adequately avoids stormwater dis- risdiction within the limit does not charge impacts to water quality and make changes to respond adequately to quantity or to the hydrograph of the the new information in the shortest watershed, including peak and base amount of time feasible, but not longer flows of perennial streams. than 1 year, NMFS will publish notifi- (C) MRCI development ordinance or cation in the FEDERAL REGISTER an- plan provides adequately protective ri- nouncing its intention to withdraw the parian area management requirements limit so that take prohibitions would to attain or maintain PFC around all then apply to the program as to all rivers, estuaries, streams, lakes, deep- other activity not within a limit. Such water habitats, and intermittent an announcement will provide for a streams. Compensatory mitigation is comment period of no less than 30 days, provided, where necessary, to offset un- after which NMFS will make a final de- avoidable damage to PFC due to MRCI termination whether to subject the ac- development impacts to riparian man- tivities to the ESA section 9(a)(1) pro- agement areas. hibitions. (D) MRCI development ordinance or (12) The prohibitions of paragraph (a) plan avoids stream crossings by roads, of this section relating to the threat- utilities, and other linear development ened West Coast salmon ESUs and wherever possible, and, where crossings steelhead DPSs (of the genus must be provided, minimize impacts Oncorhynchus) listed in § 223.102 do not through choice of mode, sizing, and apply to municipal, residential, com- placement. mercial, and industrial (MRCI) devel- (E) MRCI development ordinance or opment (including redevelopment) ac- plan adequately protects historical tivities provided that: stream meander patterns and channel (i) Such development occurs pursuant migration zones and avoids hardening to city, county, or regional govern- of stream banks and shorelines. ment ordinances or plans that NMFS (F) MRCI development ordinance or has determined are adequately protec- plan adequately protects wetlands and tive of listed species; or within the ju- wetland functions, including isolated risdiction of the Metro regional gov- wetlands. ernment in Oregon and pursuant to or- (G) MRCI development ordinance or dinances that Metro has found comply plan adequately preserves the hydro- with its Urban Growth Management logic capacity of permanent and inter- Functional Plan (Functional Plan) fol- mittent streams to pass peak flows. lowing a determination by NMFS that (H) MRCI development ordinance or the Functional Plan is adequately pro- plan includes adequate provisions for tective. NMFS approval or determina- landscaping with native vegetation to tions about any MRCI development or- reduce need for watering and applica- dinances or plans, including the Func- tion of herbicides, pesticides, and fer- tional Plan, shall be a written approval tilizer. by NMFS Northwest or Southwest Re- (I) MRCI development ordinance or gional Administrator, whichever is ap- plan includes adequate provisions to propriate. NMFS will apply the fol- prevent erosion and sediment run-off lowing 12 evaluation considerations during construction. when reviewing MRCI development or- (J) MRCI development ordinance or dinances or plans to assess whether plan ensures that water supply de- they adequately conserve listed mands can be met without impacting salmonids by maintaining and restor- flows needed for threatened salmonids ing properly functioning habitat condi- either directly or through groundwater tions: withdrawals and that any new water (A) MRCI development ordinance or diversions are positioned and screened plan ensures that development will in a way that prevents injury or death avoid inappropriate areas such as un- of salmonids.

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(K) MRCI development ordinance or new information in the shortest plan provides necessary enforcement, amount of time feasible, but not longer funding, reporting, and implementa- than 1 year, NMFS will publish notifi- tion mechanisms and formal plan eval- cation in the FEDERAL REGISTER an- uations at intervals that do not exceed nouncing its intention to withdraw the 5 years. limit so that take prohibitions would (L) MRCI development ordinance and then apply to the program as to all plan complies with all other state and other activity not within a limit. Such Federal environmental and natural re- an announcement will provide for a source laws and permits. comment period of no less than 30 days, (ii) The city, county or regional gov- after which NMFS will make a final de- ernment provides NMFS with annual termination whether to subject the ac- reports regarding implementation and tivities to the ESA section 9(a)(1) pro- effectiveness of the ordinances, includ- hibitions. ing: any water quality monitoring in- (iv) Prior to approving any city, formation the jurisdiction has avail- county, or regional government ordi- able; aerial photography (or some other nances or plans as within this limit, or graphic display) of each MRCI develop- approving any substantive change in ment or MRCI expansion area at suffi- an ordinance or plan within this limit, cient detail to demonstrate the width NMFS will publish notification in the and vegetation condition of riparian FEDERAL REGISTER announcing the set-backs; information to demonstrate availability of the ordinance or plan or the success of stormwater management the draft changes for public review and and other conservation measures; and a comment. Such an announcement will summary of any flood damage, mainte- provide for a comment period of no less nance problems, or other issues. than 30 days. (iii) NMFS finds the MRCI develop- (13) The prohibitions of paragraph (a) ment activity to be consistent with the of this section relating to the threat- conservation of listed salmonids’ habi- ened West Coast salmon ESUs and tat when it contributes to the attain- steelhead DPSs (of the genus ment and maintenance of PFC. NMFS Oncorhynchus) listed in § 223.102 do not defines PFC as the sustained presence apply to non-Federal forest manage- of a watershed’s habitat-forming proc- ment activities conducted in the State esses that are necessary for the long- of Washington provided that: term survival of salmonids through the full range of environmental variation. (i) The action is in compliance with Actions that affect salmonid habitat forest practice regulations adopted and must not impair properly functioning implemented by the Washington Forest habitat, appreciably reduce the func- Practices Board that NMFS has found tioning of already impaired habitat, or are at least as protective of habitat retard the long-term progress of im- functions as are the regulatory ele- paired habitat toward PFC. Periodi- ments of the Forests and Fish Report cally, NMFS will evaluate an approved dated April 29, 1999, and submitted to program for its effectiveness in main- the Forest Practices Board by a containing and achieving habitat function sortium of landowners, tribes, and that provides for conservation of the state and Federal agencies. listed salmonids. Whenever warranted, (ii) All non-regulatory elements of NMFS will identify to the jurisdiction the Forests and Fish Report are being ways in which the program needs to be implemented. altered or strengthened. Changes may (iii) Actions involving use of herbi- be identified if the program is not pro- cides, pesticides, or fungicides are not tecting desired habitat functions, or included within this limit. where even with the habitat character- (iv) Actions taken under alternative istics and functions originally tar- plans are included in this limit pro- geted, habitat is not supporting popu- vided that the Washington Department lation productivity levels needed to of Natural Resources (WDNR) finds conserve the ESU. If any jurisdiction that the alternate plans protect phys- within the limit does not make ical and biological processes at least as changes to respond adequately to the well as the state forest practices rules

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and provided that NMFS, or any re- intention to withdraw the limit on ac- source agency or tribe NMFS des- tivities associated with the program. ignates, has the opportunity to review Such an announcement will provide for the plan at every stage of the develop- a comment period of no less than 30 ment and implementation. A plan may days, after which NMFS will make a be excluded from this limit if, after final determination whether to subject such review, WDNR determines that the activities to the ESA section 9(a)(1) the plan is not likely to adequately take prohibitions. protect listed salmon. (vii) NMFS approval of regulations (v) Prior to determining that regula- shall be a written approval by NMFS tions adopted by the Forest Practice Northwest Regional Administrator. Board are at least as protective as the (c) Affirmative Defense. In connection elements of the Forests and Fish Re- with any action alleging a violation of port, NMFS will publish notification in the prohibitions of paragraph (a) of the FEDERAL REGISTER announcing the this section with respect to the threat- availability of the Report and regula- ened West Coast salmon ESUs and tions for public review and comment. steelhead DPSs (of the genus (vi) NMFS finds the activities to be Oncorhynchus) listed in § 223.102, any consistent with the conservation of person claiming the benefit of any listed salmonids’ habitat by contrib- limit listed in paragraph (b) of this sec- uting to the attainment and mainte- tion or § 223.204(a) shall have a defense nance of PFC. NMFS defines PFC as where the person can demonstrate that the sustained presence of a watershed’s the limit is applicable and was in force, natural habitat-forming processes that and that the person fully complied are necessary for the long-term sur- with the limit at the time of the al- vival of salmonids through the full leged violation. This defense is an af- range of environmental variation. Ac- firmative defense that must be raised, tions that affect salmonid habitat pleaded, and proven by the proponent. must not impair properly functioning If proven, this defense will be an abso- habitat, appreciably reduce the func- lute defense to liability under section tioning of already impaired habitat, or 9(a)(1)(G) of the ESA with respect to retard the long-term progress of im- the alleged violation. paired habitat toward PFC. Programs (d) Severability. The provisions of this must meet this biological standard in section and the various applications order for NMFS to find they qualify for thereof are distinct and severable from a habitat-related limit. NMFS uses the one another. If any provision or the ap- best available science to make these plication thereof to any person or cir- determinations. NMFS may review and cumstances is stayed or determined to revise previous findings as new sci- be invalid, such stay or invalidity shall entific information becomes available. not affect other provisions, or the ap- NMFS will evaluate the effectiveness plication of such provisions to other of the program in maintaining and persons or circumstances, which can be achieving habitat function that pro- given effect without the stayed or in- vides for conservation of the listed valid provision or application. salmonids. If the program is not adequate, NMFS will identify to the juris- APPENDIX A TO § 223.203—LIST OF GUIDANCE diction ways in which the program DOCUMENTS needs to be altered or strengthened. The following is a list of documents cited Changes may be identified if the pro- in the regulatory text. Copies of these docu- gram is not protecting desired habitat ments may be obtained upon request from functions or where even with the habi- the Northwest or Southwest Regional Ad- tat characteristics and functions origi- ministrators (see Table 1 in § 600.502 of this nally targeted, habitat is not sup- title). porting population productivity levels 1. Oregon Department of Transportation (ODOT) Maintenance Management System needed to conserve the ESU. If Wash- Water Quality and Habitat Guide (July, ington does not make changes to re- 1999). spond adequately to the new informa- 2. Guidelines for Electrofishing Waters tion, NMFS will publish notification in Containing Salmonids Listed Under the En- the FEDERAL REGISTER announcing its dangered Species Act.

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3. Fish Screening Criteria for Anadromous implemented within the ongoing Fed- Salmonids, National Marine Fisheries Serv- eral Court proceeding. In such cir- ice, Southwest Region, 1997. cumstances, compliance with the Trib- 4. Viable Salmonid Populations and the al Plan’s terms shall be determined Recovery of Evolutionarily Significant Units. (June 2000). within that Federal Court proceeding. (3) The Secretary shall seek com- [65 FR 42475, July 10, 2000, as amended at 67 ment from the public on the Sec- FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12, retary’s pending determination wheth- 2002; 70 FR 37202, 37203, June 28, 2005; 71 FR 5180, Feb. 1, 2006; 73 FR 7843, Feb. 11, 2008; 73 er or not implementation of a Tribal FR 55455, Sept. 25, 2008; 76 FR 12293, Mar. 7, Plan will appreciably reduce the likeli- 2011; 79 FR 20812, Apr. 14, 2014] hood of survival and recovery of the listed salmonids. § 223.204 Tribal plans. (4) The Secretary shall publish notifi- (a) Limits on the prohibitions. The pro- cation in the FEDERAL REGISTER of any hibitions of § 223.203(a) of this subpart determination regarding a Tribal Plan relating to threatened species of and the basis for that determination. salmonids listed in § 223.102 do not [65 FR 42485, July 10, 2000. Redesignated at 70 apply to any activity undertaken by a FR 37203, June 28, 2005] tribe, tribal member, tribal permittee, tribal employee, or tribal agent in § 223.205 Sea turtles. compliance with a tribal resource man- (a) The prohibitions of section 9 of agement plan (Tribal Plan), provided the Act (16 U.S.C. 1538) relating to en- that the Secretary determines that im- dangered species apply to threatened plementation of such Tribal Plan will species of sea turtle, except as provided not appreciably reduce the likelihood in § 223.206. of survival and recovery of the listed (b) Except as provided in § 223.206, it salmonids. In making that determina- is unlawful for any person subject to tion the Secretary shall use the best the jurisdiction of the United States to available biological data (including do any of the following: any tribal data and analysis) to deter- (1) Own, operate, or be on board a mine the Tribal Plan’s impact on the vessel, except if that vessel is in com- biological requirements of the species, pliance with all applicable provisions and will assess the effect of the Tribal of § 223.206(d); Plan on survival and recovery, con- (2) Fish for, catch, take, harvest, or sistent with legally enforceable tribal possess, fish or wildlife while on board rights and with the Secretary’s trust a vessel, except if that vessel is in com- responsibilities to tribes. pliance with all applicable provisions (b) Consideration of a Tribal Plan. (1) A of § 223.206(d); Tribal Plan may include but is not lim- (3) Fish for, catch, take, harvest, or ited to plans that address fishery har- possess, fish or wildlife contrary to any vest, artificial production, research, or notice of tow-time or other restriction water or land management, and may be specified in, or issued under, developed by one tribe or jointly with § 223.206(d)(3) or (d)(4); other tribes. The Secretary will con- (4) Possess fish or wildlife taken in sult on a government-to-government violation of paragraph (b) of this sec- basis with any tribe that so requests tion; and will provide to the maximum ex- (5) Fail to follow any of the sea turtle tent practicable technical assistance in handling and resuscitation require- examining impacts on listed salmonids ments specified in § 223.206(d)(1); and other salmonids as tribes develop (6) Possess a sea turtle in any man- tribal resource management plans that ner contrary to the handling and resus- meet the management responsibilities citation requirements of § 223.206(d)(1); and needs of the tribes. A Tribal Plan (7) Fail to comply immediately, in must specify the procedures by which the manner specified at § 600.730 (b) the tribe will enforce its provisions. through (d) of this Title, with instruc- (2) Where there exists a Federal court tions and signals specified therein proceeding with continuing jurisdic- issued by an authorized officer, includ- tion over the subject matter of a Tribal ing instructions and signals to haul Plan, the plan may be developed and back a net for inspection;

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(8) Refuse to allow an authorized offi- 223.206(d)(10) at any time from May 6 cer to board a vessel, or to enter an through July 15 unless the pound net area where fish or wildlife may be licensee and the vessel operator meet found, for the purpose of conducting a the modified pound net leader compli- boarding, search, inspection, seizure, ance training requirements in accord- investigation, or arrest in connection ance with § 223.206(d)(10)(vii). with enforcement of this section; (18) Alter or replace any portion of a (9) Destroy, stave, damage, or dispose modified pound net leader so that the of in any manner, fish or wildlife, gear, altered or replaced portion no longer cargo, or any other matter after a com- meets the modified pound net leader munication or signal from an author- definition in 50 CFR 222.102, unless that ized officer, or upon the approach of alteration or replacement occurs out- such an officer or of an enforcement vessel or aircraft, before the officer has side the regulated period of May 6 an opportunity to inspect same, or in through July 15. contravention of directions from the (19) Set, fish with, or fail to remove a officer; modified pound net leader at any time (10) Assault, resist, oppose, impede, from May 6 through July 15 in Pound intimidate, threaten, obstruct, delay, Net Regulated Area I or Pound Net prevent, or interfere with an author- Regulated Area II unless the fisherman ized officer in the conduct of any has on board the vessel a valid modi- boarding, search, inspection, seizure, fied pound net leader compliance train- investigation, or arrest in connection ing certificate issued by NMFS. with enforcement of this section; (20) Set, fish with, or fail to remove (11) Interfere with, delay, or prevent pound net gear in Pound Net Regulated by any means, the apprehension of an- Area I or Pound Net Regulated Area II, other person, knowing that such person unless it has the all three continuous committed an act prohibited by this sections as defined in 50 CFR 222.102, section; except that one or more sections may (12) Resist a lawful arrest for an act be missing for a maximum period of 10 prohibited by this section; days for purposes of setting, removing, (13) Make a false statement, oral or and/or repairing pound nets. written, to an authorized officer or to (21) Fail to comply with the restric- the agency concerning the fishing for, catching, taking, harvesting, landing, tions set forth in § 223.206(d)(11) regard- purchasing, selling, or transferring fish ing sea scallop dredges; or or wildlife, or concerning any other (22) Attempt to do, solicit another to matter subject to investigation under do, or cause to be done, any of the fore- this section by such officer, or required going. to be submitted under this part 223; (c) In connection with any action al- (14) Sell, barter, trade or offer to sell, leging a violation of this section, any barter, or trade, a TED that is not an person claiming the benefit of any ex- approved TED; emption, exception, or permit under (15) Fail to comply with the restric- this subpart B has the burden of prov- tions set forth in § 223.206(d)(10) regarding that the exemption, exception, or ing pound net leaders; permit is applicable, was granted, and (16) Set, use, or fail to remove a was valid and in force at the time of pound net leader in Pound Net Regu- the alleged violation. Further, any per- lated Area I or Pound Net Regulated son claiming that a modification made Area II at any time from May 6 to a TED that is the subject of such an through July 15 that does not meet the action complies with the requirements leader construction specifications de- of § 223.207 (c) or (d) has the burden of scribed in 50 CFR 223.206(d)(10) and 50 proving such claim. CFR 222.102; (17) Set, fish with, or fail to remove a [64 FR 14069, Mar. 23, 1999, as amended at 67 modified pound net leader in Pound FR 41203, June 17, 2002; 69 FR 25012, May 5, Net Regulated Area I or Pound Net 2004; 71 FR 50372, Aug. 25, 2006; 73 FR 68354, Regulated Area II defined in 50 CFR Nov. 18, 2008; 80 FR 6928, Feb. 9, 2015] 222.102 and referenced in 50 CFR

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§ 223.206 Exceptions to prohibitions the Assistant Administrator and shall relating to sea turtles. contain the following information: (a) Permits—(1) Scientific research, edu- (1) Name and position of the official cation, zoological exhibition, or species or employee involved; enhancement permits. The Assistant Ad- (2) Description of the specimen(s) in- ministrator may issue permits author- volved; izing activities which would otherwise (3) Date and location of disposal; be prohibited under § 223.205(a) for sci- (4) Circumstances requiring the ac- entific or educational purposes, for zoo- tion; logical exhibition, or to enhance the (5) Method of disposal; propagation or survival of threatened (6) Disposition of the specimen(s), in- species of sea turtles, in accordance cluding, where the specimen(s) has with and subject to the conditions of been retained in captivity, a descrip- part 222, subpart C—General Permit tion of the place and means of confine- Procedures. ment, and the measures taken for its (2) Incidental-take permits. The Assist- maintenance and care; and ant Administrator may issue permits (7) Such other information as the As- authorizing activities that would oth- sistant Administrator may require. erwise be prohibited under § 223.205(a) (c) Exception for research or conserva- in accordance with section 10(a)(1)(B) tion. Any employee or agent of the Na- of the Act (16 U.S.C. 1539(a)(1)(B)), and tional Marine Fisheries Service, the in accordance with, and subject to, the Fish and Wildlife Service, or a state implementing regulations in part 222 of fish and wildlife agency operating a this chapter. Such permits may be conservation program pursuant to the issued for the incidental taking of terms of a Cooperative Agreement with threatened and endangered species of the National Marine Fisheries Service sea turtles. or the Fish and Wildlife Service in ac- (b) Exception for injured, dead, or cordance with section 6(c) of the Act, stranded specimens. If any member of designated by his or her agency for any threatened species of sea turtle is such purposes, may, when acting in the found injured, dead, or stranded, any course of his or her official duties, take agent or employee of the National Ma- any threatened species to carry out sci- rine Fisheries Service, the Fish and entific research or conservation pro- Wildlife Service, the U.S. Coast Guard, grams. All such takings shall be re- or any other Federal land or water ported within 30 days of the taking to management agency, or any agent or the Assistant Administrator who may employee of a state agency responsible request additional reports of the tak- for fish and wildlife who is designated ing and research at the Assistant Ad- by his or her agency for such purposes, ministrator’s discretion. may, when acting in the course of his (d) Exception for incidental taking. The or her official duties, take such speci- prohibitions against taking in mens without a permit if such taking § 223.205(a) do not apply to the inci- is necessary to aid a sick, injured, or dental take of any member of a threat- stranded specimen or dispose of a dead ened species of sea turtle (i.e., a take specimen or salvage a dead specimen not directed towards such member) which may be useful for scientific during fishing or scientific research ac- study. Whenever possible, live speci- tivities, to the extent that those in- mens shall be returned to their aquatic volved are in compliance with all appli- environment as soon as possible. Every cable requirements of paragraphs (d)(1) action shall be reported in writing to through (d)(11) of this section, or in the Assistant Administrator within 30 compliance with the terms and condi- days, and reports of further occurrence tions of an incidental take permit shall be made as deemed appropriate issued pursuant to paragraph (a)(2) of by the Assistant Administrator until this section. the specimen is either returned to its (1) Handling and resuscitation require- environment or disposed of. Reports ments. (i) Any specimen taken inciden- shall be mailed by registered or cer- tally during the course of fishing or tified mail, return receipt requested, to scientific research activities must be

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handled with due care to prevent in- comatose or inactive and resuscitation jury to live specimens, observed for ac- attempts are necessary. tivity, and returned to the water ac- (ii) In addition to the provisions of cording to the following procedures: paragraph (d)(1)(i) of this section, a (A) Sea turtles that are actively person aboard a vessel in the Atlantic, moving or determined to be dead as de- including the Caribbean Sea and the scribed in paragraph (d)(1)(i)(C) of this Gulf of Mexico, that has pelagic or bot- section must be released over the stern tom longline gear on board and that of the boat. In addition, they must be has been issued, or is required to have, released only when fishing or scientific a limited access permit for highly mi- collection gear is not in use, when the gratory species under § 635.4 of this engine gears are in neutral position, title, must comply with the handling and in areas where they are unlikely to and release requirements specified in be recaptured or injured by vessels. § 635.21 of this title. (B) Resuscitation must be attempted (iii) Any specimen taken incidentally on sea turtles that are comatose, or in- during the course of fishing or sci- active, as determined in paragraph entific research activities must not be (d)(1) of this section, by: consumed, sold, landed, offloaded, (1) Placing the turtle on its bottom transshipped, or kept below deck. shell (plastron) so that the turtle is (2) Gear requirements for trawlers—(i) right side up and elevating its TED requirement for shrimp trawlers. hindquarters at least 6 inches (15.2 cm) Any shrimp trawler that is in the At- for a period of 4 up to 24 hours. The lantic Area or Gulf Area must have an amount of the elevation depends on the approved TED installed in each net size of the turtle; greater elevations that is rigged for fishing. A net is are needed for larger turtles. Periodi- rigged for fishing if it is in the water, cally, rock the turtle gently left to or if it is shackled, tied, or otherwise right and right to left by holding the connected to any trawl door or board, outer edge of the shell (carapace) and or to any tow rope, cable, pole or ex- lifting one side about 3 inches (7.6 cm) tension, either on board or attached in then alternate to the other side. Gent- any manner to the shrimp trawler. Ex- ly touch the eye and pinch the tail (re- ceptions to the TED requirement for flex test) periodically to see if there is shrimp trawlers are provided in para- a response. graph (d)(2)(ii) of this section. (2) Sea turtles being resuscitated (ii) Exemptions from the TED require- must be shaded and kept damp or ment—(A) Alternative tow-time restric- moist but under no circumstance be tions. A shrimp trawler is exempt from placed into a container holding water. the TED requirements of paragraph A water-soaked towel placed over the (d)(2)(i) of this section if it complies head, carapace, and flippers is the most with the alternative tow-time restric- effective method in keeping a turtle tions in paragraph (d)(3)(i) of this sec- moist. tion and if it: (3) Sea turtles that revive and be- (1) Has on board no power or mechan- come active must be released over the ical-advantage trawl retrieval system stern of the boat only when fishing or (i.e., any device used to haul any part scientific collection gear is not in use, of the net aboard); when the engine gears are in neutral (2) Is a bait shrimper that retains all position, and in areas where they are live shrimp on board with a circulating unlikely to be recaptured or injured by seawater system, if it does not possess vessels. Sea turtles that fail to respond more than 32 lb. (14.5 kg) of dead to the reflex test or fail to move within shrimp on board, if it has a valid origi- 4 hours (up to 24, if possible) must be nal state bait-shrimp license, and if the returned to the water in the same man- state license allows the licensed vessel ner as that for actively moving turtles. to participate in the bait shrimp fish- (C) A turtle is determined to be dead ery exclusively; if the muscles are stiff (rigor mortis) (3) Has only a pusher-head trawl, and/or the flesh has begun to rot; oth- skimmer trawl, or wing net rigged for erwise the turtle is determined to be fishing;

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(4) Is in an area during a period for must extend at least 24 inches (61.0 cm) which tow-time restrictions apply but not more than 36 inches (91.4 cm) under paragraphs (d)(3)(ii) or (iii) of forward of the leading edge of the TED this section, if it complies with all ap- and aft of the trailing edge of the grid. plicable provisions imposed under (B) Exemptions from the TED require- those paragraphs; or ment. Any summer flounder trawler (5) Is using a single test net (try net) north of 35°46.1′ N. lat. (Oregon Inlet, with a headrope length of 12 ft (3.6 m) NC) from January 15 through March 15 or less and with a footrope length of 15 annually is exempt from the TED re- ft (4.6 m) or less, if it is pulled imme- quirement of paragraph (d)(2)(iii)(A) of diately in front of another net or is not this section, unless the Assistant Ad- connected to another net in any way, if ministrator determines that TED use no more than one test net is used at a is necessary to protect sea turtles or time, and if it is not towed as a pri- ensure compliance, pursuant to the mary net, in which case the exemption procedures of paragraph (d)(4) of this under this paragraph (d)(2)(ii)(A) ap- section. plies to the test net. (C) Monitoring. Summer flounder (B) Exempted gear or activities. The fol- trawlers must carry onboard a NMFS- lowing fishing gear or activities are ex- approved observer if requested by the empted from the TED requirements of Southeast Regional Administrator or paragraph (d)(2)(i) of this section: the Northeast Regional Administrator. (1) A beam or roller trawl, if the A written notification will be sent to frame is outfitted with rigid vertical the address specified for the vessel in bars, and if none of the spaces between either the NMFS or state fishing per- the bars, or between the bars and the mit application, or to the address spec- frame, exceeds 4 inches (10.2 cm); and ified for registration or documentation (2) A shrimp trawler fishing for, or purposes, or upon written notification possessing, royal red shrimp, if royal otherwise served on the owner or oper- red shrimp constitutes at least 90 per- ator of the vessel. Owners and opera- cent (by weight) of all shrimp either tors must comply with the terms and found on board, or offloaded from that conditions specified in such written no- shrimp trawler. tification. All NMFS-approved observ- (iii) Gear requirement—summer floun- ers will report any violations of this der trawlers—(A) TED requirement. (1) section, or other applicable regulations Any summer flounder trawler in the and laws. Information collected by ob- summer flounder fishery-sea turtle pro- servers may be used for enforcement tection area must have an approved purposes. TED installed in each net that is (D) Additional sea turtle conservation rigged for fishing. A net is rigged for measures. The Assistant Administrator fishing if it is in the water, or if it is may impose other such restrictions shackled, tied, or otherwise connected upon summer flounder trawlers as the to any trawl door or board, or to any Assistant Administrator deems nec- tow rope, cable, pole or extension, ei- essary or appropriate to protect sea ther on board or attached in any man- turtles and ensure compliance, pursu- ner to the summer flounder trawler. ant to the procedures of paragraph Exceptions to the TED requirement for (d)(4) of this section. Such measures summer flounder trawlers are provided may include, but are not limited to, a in paragraph (d)(2)(iii)(B) of this sec- requirement to use TEDs in areas other tion. than summer flounder fishery-sea tur- (2) Any approved hard TED or special tle protection area, a requirement to hard TED installed in a summer floun- use limited tow-times, and closure of der trawl must be installed in a TED the fishery. extension. The TED extension is a cy- (3) Tow-time restrictions—(i) Duration lindrical piece of webbing distinct from of tows. If tow-time restrictions are uti- the main trawl’s body, wings, codend, lized pursuant to paragraph (d)(2)(ii), and any other net extension(s). The (d)(3)(ii), or (d)(3)(iii) of this section, a TED extension must be constructed of shrimp trawler must limit tow times. webbing no larger than 3.5 inch (8.9 cm) The tow time is measured from the stretched mesh. The TED extension time that the trawl door enters the

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water until it is removed from the (v) Procedures. The Assistant Admin- water. For a trawl that is not attached istrator will consult with the appro- to a door, the tow time is measured priate fishery officials (state or Fed- from the time the codend enters the eral) where the affected shrimp fishery water until it is removed from the is located in issuing a notification con- water. Tow times may not exceed: cerning tow-time restrictions. An (A) 55 minutes from April 1 through emergency notification can be effective October 31; and for a period of up to 30 days and may be (B) 75 minutes from November 1 renewed for additional periods of up to through March 31. 30 days each if the Assistant Adminis- (ii) Alternative—special environmental trator finds that the conditions neces- conditions. The Assistant Adminis- sitating the imposition of tow-time re- trator may allow compliance with tow- strictions continue to exist. The As- time restrictions, as an alternative to the TED requirement of paragraph sistant Administrator may invite com- (d)(2)(i) of this section, if the Assistant ments on such an action, and may Administrator determines that the withdraw or modify the action by fol- presence of algae, seaweed, debris or lowing procedures similar to those for other special environmental conditions implementation. The Assistant Admin- in a particular area makes trawling istrator will implement any permanent with TED-equipped nets impracticable. tow-time restriction through rule- (iii) Substitute—ineffectiveness of making. TEDs. The Assistant Administrator (4) Limitations on incidental takings may require compliance with tow-time during fishing activities—(i) Limitations. restrictions, as a substitute for the The exemption for incidental takings TED requirement of paragraph (d)(2)(i) of sea turtles in paragraph (d) of this of this section, if the Assistant Admin- section does not authorize incidental istrator determines that TEDs are inef- takings during fishing activities if the fective in protecting sea turtles. takings: (iv) Notice; applicability; conditions. (A) Would violate the restrictions, The Assistant Administrator will pub- terms, or conditions of an incidental lish notification concerning any tow- take statement or biological opinion; time restriction imposed under para- (B) Would violate the restrictions, graph (d)(3)(ii) or (iii) of this section in terms, or conditions of an incidental the FEDERAL REGISTER and will announce it in summary form on channel take permit; or 16 of the marine VHF radio. A notifica- (C) May be likely to jeopardize the tion of tow-time restrictions will in- continued existence of a species listed clude findings in support of these re- under the Act. strictions as an alternative to, or as (ii) Determination; restrictions on fish- substitute for, the TED requirements. ing activities. The Assistant Adminis- The notification will specify the effec- trator may issue a determination that tive dates, the geographic area where incidental takings during fishing ac- tow-time restrictions apply, and any tivities are unauthorized. Pursuant applicable conditions or restrictions thereto, the Assistant Administrator that the Assistant Administrator de- may restrict fishing activities in order termines are necessary or appropriate to conserve a species listed under the to protect sea turtles and ensure com- Act, including, but not limited to, re- pliance, including, but not limited to, a strictions on the fishing activities of requirement to carry observers, to reg- vessels subject to paragraph (d)(2) of ister vessels in accordance with proce- this section. The Assistant Adminis- dures at paragraph (d)(5) of this sec- trator will take such action if the As- tion, or for all shrimp trawlers in the sistant Administrator determines that area to synchronize their tow times so restrictions are necessary to avoid un- that all trawl gear remains out of the authorized takings that may be likely water during certain times. A notification withdrawing tow-time restrictions to jeopardize the continued existence will include findings in support of that of a listed species. The Assistant Ad- action. ministrator may withdraw or modify a

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determination concerning unauthor- restriction of fishing activities. An ized takings or any restriction on fish- emergency notification will be effec- ing activities if the Assistant Adminis- tive for a period of up to 30 days and trator determines that such action is may be renewed for additional periods warranted. of up to 30 days each, except that emer- (iii) Notice; applicability; conditions. gency placement of observers will be The Assistant Administrator will pub- effective for a period of up to 180 days lish a notification of a determination and may be renewed for an additional concerning unauthorized takings or a period of 60 days. The Assistant Admin- notification concerning the restriction istrator may invite comments on such of fishing activities in the FEDERAL action, and may withdraw or modify REGISTER. The Assistant Administrator the action by following procedures will provide as much advance notice as similar to those for implementation. possible, consistent with the require- The Assistant Administrator will im- ments of the Act, and will announce plement any permanent determination the notification in summary form on or restriction through rulemaking. channel 16 of the marine VHF radio. (5)–(6) [Reserved] Notification of a determination con- (7) Restrictions applicable to gillnet cerning unauthorized takings will in- fisheries in North Carolina. No person clude findings in support of that deter- may fish with gillnet fishing gear mination; specify the fishery, including which has a stretched mesh size larger the target species and gear used by the than 4 1⁄4 inches (10.8 cm), annually fishery, the area, and the times, for from September 1 through December which incidental takings are not au- 15, in the inshore waters of Pamlico thorized; and include such other condi- Sound, North Carolina, and all contig- tions and restrictions as the Assistant uous tidal waters, bounded on the Administrator determines are nec- north by 35°46.3′ N. lat., on the south by essary or appropriate to protect sea 35°00′ N. lat., and on the west by 76°30′ turtles and ensure compliance. Notifi- W. long. cation of restriction of fishing activi- (8) Restrictions applicable to large mesh ties will include findings in support of gillnet fisheries in the mid-Atlantic re- the restriction, will specify the time gion. No person may fish with or pos- and area where the restriction is appli- sess on board a boat, any gillnet with a cable, and will specify any applicable stretched mesh size 7–inches (17.8 cm) conditions or restrictions that the As- or larger, unless such gillnets are cov- sistant Administrator determines are ered with canvas or other similar ma- necessary or appropriate to protect sea terial and lashed or otherwise securely turtles and ensure compliance. Such fastened to the deck or the rail, and all conditions and restrictions may in- buoys larger than 6–inches (15.2 cm) in clude, but are not limited to, limita- diameter, high flyers, and anchors are tions on the types of fishing gear that disconnected. This restriction applies may be used, tow-time restrictions, al- in the Atlantic Exclusive Economic teration or extension of the periods of Zone (as defined in 50 CFR 600.10) dur- time during which particular tow-time ing the following time periods and in requirements apply, requirements to the following area: use TEDs, registration of vessels in ac- (i) Waters north of 33°51.0′ N. (North cordance with procedures at paragraph Carolina/South Carolina border at the (d)(5) of this section, and requirements coast) and south of 35°46.0′ N. (Oregon to provide observers. Notification of Inlet) at any time; withdrawal or modification will in- (ii) Waters north of 35°46.0′ N. (Oregon clude findings in support of that ac- Inlet) and south of 3°22.5′ N. (Currituck tion. Beach Light, NC) from March 16 (iv) Procedures. The Assistant Admin- through January 14; istrator will consult with the appro- (iii) Waters north of 36°22.5′ N. priate fisheries officials (state or Fed- (Currituck Beach Light, NC) and south eral) where the fishing activities are of 37°34.6′ N. (Wachapreague Inlet, VA) located in issuing notification of a de- from April 1 through January 14; and termination concerning unauthorized (iv) Waters north of 37°34.6′ N. takings or notification concerning the (Wachapreague Inlet, VA) and south of

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37°56.0′ N. (Chincoteague, VA) from prior to May 6 and may not be reset April 16 through January 14. until July 16. (9) Restrictions applicable to Pacific pe- (ii) Nearshore pound net leaders in lagic longline vessels. In addition to the Pound Net Regulated Area I and all general prohibitions specified in pound net leaders in Pound Net Regu- § 600.725 of chapter VI of this title, it is lated Area II. During the time period of unlawful for any person who is not op- May 6 to July 15 each year, any near- erating under a western Pacific shore pound net leader in Pound Net longline permit under § 665.801 of this Regulated Area I and any pound net title to do any of the following on the leader in Pound Net Regulated Area II high seas of the Pacific Ocean east of must have only mesh size less than 12 ° 150 W. long. and north of the Equator inches (30.5 cm) stretched mesh and ° (0 N. lat.): may not employ stringers. Any near- (i) Direct fishing effort toward the shore pound net leader in Pound Net harvest of swordfish (Xiphias gladius) Regulated Area I or any pound net using longline gear. leader in Pound Net Regulated Area II (ii) Possess a light stick on board a with stretched mesh measuring 12 longline vessel. A light stick as used in inches (30.5 cm) or greater, or with this paragraph is any type of light stringers, must be removed from the emitting device, including any fluores- water prior to May 6 and may not be cent glow bead, chemical, or elec- reset until July 16. A pound net leader trically powered light that is affixed is exempt from these measures only if underwater to the longline gear. it meets the definition of a modified (iii) An operator of a longline vessel pound net leader. subject to this section may land or possess no more than 10 swordfish from a (iii) Protocol for measuring mesh size. fishing trip where any part of the trip This protocol applies to measuring included fishing east of 150° W. long. mesh size in leaders described in 50 and north of the equator (0° N. lat.). CFR 223.206(d)(10)(i) and (iv) Fail to employ basket-style 223.206(d)(10)(ii). Mesh sizes are meas- longline gear such that the mainline is ured by a wedge-shaped gauge having a deployed slack when fishing. taper of 0.79 in. (2 cm) in 3.15 in. (8 cm) (v) When a conventional and a thickness of 0.09 in. (2.3 mm) in- monofilament longline is deployed by a serted into the meshes under a pressure vessel, no fewer than 15 branch lines or pull of 11.02 lb. (5 kg). The mesh size may be set between any two floats. is the average of the measurement of Vessel operators using basket-style any series of 20 consecutive meshes. longline gear must set a minimum of 10 The mesh in the leader is measured at branch lines between any 2 floats. or near the horizontal and vertical cen- (vi) Longline gear must be deployed ter of a leader panel. such that the deepest point of the main (iv) Reporting requirement. At any longline between any two floats, i.e., time during the year, if a sea turtle is the deepest point in each sag of the taken live and uninjured in a pound net main line, is at a depth greater than operation, the operator of the vessel 100 m (328.1 ft or 54.6 fm) below the sea must report the incident to the NMFS surface. Northeast Regional Office, (978) 281– (10) Restrictions applicable to pound 9328 or fax (978) 281–9394, within 24 nets in Virginia—(i) Offshore pound net hours of returning from the trip in leaders in Pound Net Regulated Area I. which the incidental take was discov- During the time period of May 6 ered. The report shall include a de- through July 15 each year, any offshore scription of the sea turtles condition at pound net leader in Pound Net Regu- the time of release and the measures lated Area I must meet the definition taken as required in paragraph (d)(1) of of a modified pound net leader. Any off- this section. At any time during the shore pound net leader in Pound Net year, if a sea turtle is taken in a pound Regulated Area I that does not meet net operation, and is determined to be the definition of a modified pound net leader must be removed from the water injured, or if a turtle is captured dead,

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the operator of the vessel shall imme- limited circumstances where appro- diately notify NMFS Northeast Re- priate. Notice will be given by NMFS gional Office and the appropriate reha- announcing the times and locations of bilitation or stranding network, as de- modified pound net leader compliance termined by NMFS Northeast Regional training. Office. (11) Restrictions applicable to sea scal- (v) Monitoring. Owners or operators of lop dredges in the mid-Atlantic—(i) Gear pound net fishing operations must Modification. During the time period of allow access to the pound net gear so it May 1 through November 30, any vessel may be observed by a NMFS-approved with a sea scallop dredge and required observer if requested by the Northeast to have a Federal Atlantic sea scallop Regional Administrator. All NMFS-ap- fishery permit, regardless of dredge proved observers will report any viola- size or vessel permit category, that en- tions of this section, or other applica- ters waters west of 71° W. long., from ble regulations and laws. Information the shoreline to the outer boundary of collected by observers may be used for the Exclusive Economic Zone must law enforcement purposes. have on each dredge a chain mat de- (vi) Expedited modification of restric- scribed as follows. The chain mat must tions and effective dates. From May 6 to be composed of horizontal (‘‘tickler’’) July 15 of each year, if NMFS receives chains and vertical (‘‘up-and-down’’) information that one sea turtle is en- chains that are configured such that tangled alive or that one sea turtle is the openings formed by the inter- entangled dead, and NMFS determines secting chains have no more than four that the entanglement contributed to sides. The vertical and horizontal its death, in pound net leaders that are chains must be hung to cover the open- in compliance with the restrictions de- ing of the dredge bag such that the scribed in paragraph (d)(10)(ii) of this vertical chains extend from the back of section, NMFS may issue a final rule the cutting bar to the sweep. The hori- modifying the restrictions on pound zontal chains must intersect the net leaders as necessary to protect vertical chains such that the length of threatened sea turtles. Such modifica- each side of the openings formed by the tions may include, but are not limited to, reducing the maximum allowable intersecting chains is less than or mesh size of pound net leaders and pro- equal to 14 inches (35.5 cm) with the ex- hibiting the use of pound net leaders ception of the side of any individual regardless of mesh size. In addition, if opening created by the sweep. The information indicates that a signifi- chains must be connected to each other cant level of sea turtle entanglements, with a shackle or link at each intersec- impingements or strandings will likely tion point. The measurement must be continue beyond July 15, NMFS may taken along the chain, with the chain issue a final rule extending the effec- held taut, and include one shackle or tive date of the restrictions, including link at the intersection point and all any additional restrictions imposed links in the chain up to, but excluding, under this paragraph (d)(10)(vi), for an the shackle or link at the other inter- additional 15 days, but not beyond July section point. 30, to protect threatened sea turtles. (ii) Any vessel that enters the waters (vii) Modified pound net leader compli- described in paragraph (d)(11)(i) of this ance training. Any pound net licensee section and that is required to have a and any vessel operator who have Federal Atlantic sea scallop fishery modified pound net leaders set in permit must have the chain mat con- Pound Net Regulated Area I or Pound figuration installed on all dredges for Net Regulated Area II at any time the duration of the trip. from May 6 through July 15 must have (iii) Vessels subject to the require- completed modified pound net leader ments in paragraphs (d)(11)(i) and (ii) compliance training and possess on of this section transiting waters west board the vessel a valid modified pound of 71° W. long., from the shoreline to net leader compliance training certifi- the outer boundary of the Exclusive cate issued by NMFS. NMFS retains Economic Zone, will be exempted from discretion to provide exemptions in the chain-mat requirements provided

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the dredge gear is not available for im- ance with this section is subject to mediate use as defined by § 648.2 of this measurement, regardless of whether it title and there are no scallops on- is wet or dry. Any such measurement board. will be of the stretched mesh size. [64 FR 14070, Mar. 23, 1999] (a) Hard TEDs. Hard TEDs are TEDs with rigid deflector grids and are cat- EDITORIAL NOTE: For FEDERAL REGISTER ci- tations affecting § 223.206, see the List of CFR egorized as ‘‘hooped hard TEDs’’ and Sections Affected, which appears in the ‘‘single-grid hard TEDs’’ such as the Finding Aids section of the printed volume Matagorda and Georgia TED (Figures 3 and at www.govinfo.gov. & 4 to this part). Hard TEDs complying EFFECTIVE DATE NOTES: 1. At 64 FR 14070, with the following generic design cri- Mar. 23, 1999, § 223.206 was revised. Paragraph teria are approved TEDs: (d)(5) contains information collection and (1) Construction materials—(i) Single- recordkeeping requirements and will not be- grid and inshore hooped hard TED. A come effective until approval has been given by the Office of Management and Budget. single-grid hard TED or an inshore 2. At 67 FR 41203, June 17, 2002, § 223.206 was hooped hard TED must be constructed amended by adding paragraph (d)(2)(v). This of one or a combination of the fol- paragraph contains information collection lowing materials, unless otherwise spe- and recordkeeping requirements and will not cifically restricted below, with min- become effective until approval has been given by the Office of Management and imum dimensions as follows: Budget. (A) Solid steel rod with a minimum 3. At 84 FR 70063, Dec. 20, 2019, in § 223.206, outside diameter of 1⁄4 inch (0.64 cm); paragraphs (d)(2)(ii)(A)(3) and (d)(3)(i) intro- (B) Fiberglass or aluminum rod with ductory text were revised, effective Apr. 1, a minimum outside diameter of 1⁄2 inch 2021. For the convenience of the user, the revised text is set forth as follows: (1.27 cm); or (C) Steel or aluminum round, oval, or § 223.206 Exceptions to prohibitions relating rectangular tubing with a minimum to sea turtles. outside diameter or width of 1⁄2 inch (1.27 cm) and a minimum wall thick- * * * * * ness of 1⁄8 inch (0.32 cm; also known as (d) * * * schedule 40 tubing). (2) * * * (D) Steel or aluminum flat bar with (ii) * * * 1 (A) * * * dimensions no less than ⁄4 inch (0.64 (3) Has only a pusher-head trawl or a wing cm) in thickness by 11⁄2 inches (3.85 cm) net, or has a skimmer trawl on a vessel less in depth. For flat bar less than 3⁄8 inch than 40 ft (12.2 m) in length as indicated on (0.95 cm) in thickness, a horizontal the vessel’s state vessel registration or U.S. brace bar to reinforce the deflector Coast Guard vessel documentation. bars must be permanently attached to the frame and the rear face of each of * * * * * the deflector bars within 4 inches (10.2 (3) Tow-time restrictions—(i) Duration of cm) of the midpoint of the TED frame. tows. If tow-time restrictions are used pursu- The horizontal brace bar must be con- ant to paragraph (d)(2)(ii), (d)(3)(ii), or structed of approved material con- (d)(3)(iii) of this section, a shrimp trawler must limit tow times. The tow time begins sistent with paragraph (a)(1)(i) of this at the time the trawl door enters the water section. The horizontal brace bar may and ends at the time the trawl door is re- be offset behind the deflector bars, moved from the water. For a trawl that is using spacer bars, not to exceed 5 not attached to a door, the tow time begins inches (12.7 cm) in length and con- at the time the codend enters the water and structed of the same size or larger flat ends at the time the codend is emptied of catch on deck. Tow times may not exceed: bar as the deflector bars. (ii) Offshore hooped hard TED. An off- * * * * * shore hooped hard TED must be constructed of aluminum, with minimum § 223.207 Approved TEDs. dimensions as follows: Any netting, webbing, or mesh that (A) Solid rod with a minimum out- may be measured to determine compli- side diameter of 5⁄8 inch (1.59 cm); or

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(B) Tubing with a minimum outside mouth of the trawl through the escape diameter of 1 inch (2.54 cm) and a min- opening must be completely clear of imum wall thickness of 1⁄8 inch (0.32 any obstruction or modification, other cm). than those specified in paragraph (d) of (2) Method of attachment. A hard TED this section. must be sewn into the trawl around the (7) Size of escape opening—(i) Hooped entire circumference of the TED with hard TEDs—(A) Escape opening for heavy twine. inshore hooped hard TED. The inshore (3) Angle of deflector bars. (i) The hooped hard TED escape opening must angle of the deflector bars must be be- have a horizontal measurement of no tween 30° and 55° from the normal, hor- less than 35 inches (89 cm) wide and a izontal flow through the interior of the forward measurement of no less than 27 trawl, except as provided in paragraph inches (69 cm). A hinged door frame (a)(3)(ii) of this section. may be used to partially cover the es- (ii) For any shrimp trawler fishing in cape opening as provided in paragraph the Gulf SFSTCA or the Atlantic (d)(7) of this section. Alternatively, a SFSTCA, a hard TED with the position webbing flap may be used as provided of the escape opening at the bottom of in paragraph (d)(3)(i) of this section. the net when the net is in its deployed The resultant opening with a webbing position, the angle of the deflector bars flap must be a minimum width of 35 from the normal, horizontal flow inches (89 cm) and a minimum height through the interior of the trawl, at of 20 inches (51 cm), with each measure- ° any point, must not exceed 55 , and the ment taken simultaneously. This open- angle of the bottom-most 4 inches (10.2 ing may only be used in inshore waters, cm) of each deflector bar, measured except it may not be used in the ° along the bars, must not exceed 45 inshore waters of Georgia and South (Figures 14a and 14b to this part). Carolina. (4) Space between bars. The space be- (B) Escape opening for offshore hooped tween deflector bars and the deflector hard TED. The offshore hooped hard bars and the TED frame must not ex- TED escape opening must have a hori- ceed 4 inches (10.2 cm). zontal measurement of no less than 40 (5) Direction of bars. The deflector bars must run from top to bottom of inches (102 cm) wide and a forward the TED, as the TED is positioned in measurement of no less than 35 inches the net, except that up to four of the (89 cm). A hinged door frame may be bottom bars and two of the top bars, used to partially cover the escape open- including the frame, may run from side ing as provided in paragraph (d)(7) of to side of the TED. The deflector bars this section. Alternatively, a webbing must be permanently attached to the flap may be used as provided in para- TED frame or to the horizontal bars, if graph (d)(3)(ii) of this section. The re- used, at both ends. sultant escape opening with a webbing (6) Position of the escape opening. The flap must have a stretched mesh cir- escape opening must be made by re- cumference of no less than 142 inches moving a rectangular section of web- (361 cm). bing from the trawl, except for a TED (ii) Single-grid hard TEDs. On a single- with an escape opening size described grid hard TED, the horizontal cut(s) for at paragraph (a)(7)(ii)(A) for which the the escape opening may not be nar- escape opening may alternatively be rower than the outside width of the made by making a horizontal cut along TED frame minus 4 inches (10.2 cm) on the same plane as the TED. The escape both sides of the grid, when measured opening must be centered on and im- as a straight line width. Fore-and-aft mediately forward of the frame at ei- cuts to remove a rectangular piece of ther the top or bottom of the net when webbing must be made from the ends of the net is in the deployed position. The the horizontal cuts along a single row escape opening must be at the top of of meshes along each side. The overall the net when the slope of the deflector size of the escape opening must match bars from forward to aft is upward, and one of the following specifications: must be at the bottom when such slope (A) 44–inch inshore opening. The es- is downward. The passage from the cape opening must have a minimum

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width of 44 inches (112 cm) and a min- runs to the same point on the opposite imum height of 20 inches (51 cm) with side of the grid. The fore and aft cut each measurement taken separately. A begins in the middle of the horizontal webbing flap, as described in paragraph cut and runs forward 49.5 inches (125.7 (d)(3)(i) of this section, may be used cm) toward the front edge of the TED with this escape hole, so long as this extension. The added wedge of webbing minimum opening size is achieved. is attached along its two leading edges This opening may only be used in to the edges of the fore and aft cut. The inshore waters, except it may not be webbing wedge is made of 17⁄8 inch (4.8 used in the inshore waters of Georgia cm) webbing and must have at least 41 and South Carolina. meshes measuring at least 72 inches (B) The 71–inch offshore opening: The wide (182.9 cm) along its base (aft edge). two forward cuts of the escape opening The height of the wedge must measure must not be less than 26 inches (66 cm) at least 48.5 inches (123 cm). The top of long from the points of the cut imme- the wedge is two bars across the lead- diately forward of the TED frame. The ing edge then cut with a 1 point then 6 resultant length of the leading edge of bar taper. A webbing flap, as described the escape opening cut must be no less in paragraph (d)(3)(iv) of this section, than 71 inches (181 cm) with a resultant may be used with this escape opening, circumference of the opening being 142 so long as the minimum opening size is inches (361 cm) (Figure 12 to this part). achieved. A webbing flap, as described in para- (E) Large TED openings. (Figures 18a, graph (d)(3)(ii) of this section, may be 18b, and 18c to this part). Large TED used with this escape hole, so long as escape openings may be utilized in the this minimum opening size is achieved. following configurations: Either this opening or the one described in paragraph (a)(7)(ii)(C) of this (1) A triangular cut (Figure 18a to section must be used in all offshore this part), where the base of the tri- waters and in all inshore waters in angle is defined by a straight-line Georgia and South Carolina, but may measurement of the opening between also be used in other inshore waters. the webbing attachment points on the (C) Double cover offshore opening. The TED frame that is no less than 40 two forward cuts of the escape opening inches (102 cm). The two side cuts of must not be less than 20 inches (51 cm) the triangle must be an all-bar taper long from the points of the cut imme- from the point at which the webbing diately forward of the TED frame. The attaches to the TED frame to the apex resultant length of the leading edge of of the triangle cut. Each side cut of the the escape opening cut must be no less triangle must measure no less than 53 than 56 inches (142 cm)(Figure 16 to inches (135 cm). The sum of the this part illustrates the dimensions of straight-line base measurement and these cuts). A webbing flap, as de- two side cuts must be no less than 147 scribed in paragraph (d)(3)(iii) of this inches (373 cm). The side cuts of the section, may be used with this escape triangular opening may be reinforced hole. Either this opening or the one de- using rib lines attached from the TED scribed in paragraph (a)(7)(ii)(B) of this frame to the apex of the opening. A section must be used in all offshore webbing flap, as described in either waters but also in all inshore waters in paragraph (d)(3)(ii) or (d)(3)(iii) of this Georgia and South Carolina, and may section, may be used with this escape be used in other inshore waters. opening, so long as the minimum open- (D) Boone Wedge Cut opening. (Figure ing size is achieved. 17 to this part). The escape opening is (2) All-bar or all-points side cuts and made by making two cuts in the TED a horizontal leading edge cut (Figures extension; one cut is fore and aft (i.e., 18b and 18c to this part), where the along the length of the extension) and straight-line measurement of the open- the other cut is horizontal to the ex- ing between the webbing attachment tension. The horizontal cut is 50 points on the TED frame may not be meshes long and begins at a point 4 less than 40 inches (102 cm), and the inches (10.2 cm) inward from the out- two side cuts of the escape opening side edge of the grid on one side and must not be less than 26 inches (66 cm)

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long from the points of the cut imme- the buoyancy-dimension requirements diately forward of the TED frame. Only of paragraph (a)(9)(iii) of this section. all-bar or all-points side cuts may be If roller gear is used pursuant to para- used; no combination tapers may be graph (d)(5) of this section, the roller used when making the side cuts. The gear must be included in the circum- sum of the straight-line base measure- ference measurement of the TED or the ment and the stretched measurements total weight of the TED. of the side cuts and leading edge cut (i) Float dimension requirements. (A) must be no less than 147 inches (373 For hard TEDs with a circumference of cm). A webbing flap, as described in ei- 120 inches (304.8 cm) or more, a min- ther paragraph (d)(3)(ii) or (d)(3)(iii) of imum of either one round, aluminum this section, may be used with this es- or hard plastic float, no smaller than cape opening, so long as the minimum 9.8 inches (25.0 cm) in diameter, or two opening size is achieved. expanded polyvinyl chloride or ex- (8) Size of hoop or grid—(i) Hooped panded ethylene vinyl acetate floats, hard TED—(A) Inshore hooped hard each no smaller than 6.75 inches (17.2 TED. The front hoop on an inshore cm) in diameter by 8.75 inches (22.2 cm) hooped hard TED must have an inside in length, must be attached. horizontal measurement of at least 35 (B) For hard TEDs with a circum- inches (89 cm) and an inside vertical ference of less than 120 inches (304.8 measurement of at least 30 inches (76 cm), a minimum of either one round, cm). The minimum clearance between aluminum or hard plastic float, no the deflector bars and the forward edge smaller than 9.8 inches (25.0 cm) in di- of the escape opening must be at least ameter, or one expanded polyvinyl 20 inches (51 cm). chloride or expanded ethylene vinyl ac- (B) Offshore hooped hard TED. The etate float, no smaller than 6.75 inches front hoop on an offshore hooped hard (17.2 cm) in diameter by 8.75 inches TED must have an inside horizontal (22.2 cm) in length, must be attached. measurement of at least 40 inches (102 (ii) Float buoyancy requirements. cm) and an inside vertical measure- Floats of any size and in any combina- ment of at least 30 inches (76 cm). The tion must be attached such that the minimum clearance between the de- combined buoyancy of the floats, as flector bars and the forward edge of the marked on the floats, equals or exceeds escape opening must be at least 231⁄4 the weight of the hard TED, as marked inches (59 cm). on the TED. The buoyancy of the floats (ii) Single-grid hard TED. A single- and the weight of the TED must be grid hard TED must have a minimum clearly marked on the floats and the outside horizontal and vertical meas- TED as follows: urement of 32 inches (81 cm). The re- (A) Float buoyancy markings. Mark- quired outside measurements must be ings on floats must be made in clearly at the mid-point of the deflector grid. legible raised or recessed lettering by (9) Flotation. Floats must be attached the original manufacturer. The mark- to the top one-half of all hard TEDs ing must identify the buoyancy of the with bottom escape openings. The float in water, expressed in grams or floats may be attached either outside kilograms, and must include the met- or inside the net, but not to a flap. ric unit of measure. The marking may Floats attached inside the net must be additionally include the buoyancy in behind the rear surface of the TED. English units. The marking must iden- Floats must be attached with heavy tify the nominal buoyancy for the twine or rope. Floats must be con- manufactured float. structed of aluminum, hard plastic, ex- (B) TED weight markings. The mark- panded polyvinyl chloride, or expanded ing must be made by the original TED ethylene vinyl acetate unless otherwise manufacturer and must be permanent specified. The requirements of this and clearly legible. The marking must paragraph may be satisfied by compli- identify the in-air, dry weight of the ance with either the dimension require- TED, expressed in grams or kilograms, ments of paragraph (a)(9)(i) of this sec- and must include the metric unit of tion, or the buoyancy requirements of measure. The marking may addition- paragraph (a)(9)(ii) of this section, or ally include the weight in English

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units. The marked weight must rep- than 4 inches (10.2 cm). The vertical resent the actual weight of the indi- bars must be connected to the top of vidual TED as manufactured. Pre- the frame and to a single horizontal viously manufactured TEDs may be bar near the bottom. The horizontal marked upon return to the original bar must be connected at both ends to manufacturer. Where a TED is com- the sides of the frame and parallel to prised of multiple detachable compo- the bottom bar of the frame. There nents, the weight of each component must be a space no larger than 10 must be separately marked. inches (25.4 cm) between the horizontal (iii) Buoyancy-dimension requirements. bar and the bottom bar of the frame. Floats of any size and in any combina- One or more additional vertical bars tion, provided that they are marked running from the bottom bar to the pursuant to paragraph (a)(9)(ii)(A) of horizontal bar must divide the opening this section, must be attached such at the bottom into two or more rectan- that the combined buoyancy of the gles, each with a maximum height of 10 floats equals or exceeds the following inches (25.4 cm) and a maximum width values: of 141⁄2 inches (36.8 cm). This TED must (A) For floats constructed of alu- comply with paragraph (a)(2) of this minum or hard plastic, regardless of section. The angle of the deflector bars the size of the TED grid, the combined must be between 30 and 55 from the buoyancy must equal or exceed 14 lb normal, horizontal flow through the in- (6.4 kg); terior of the trawl. The entire width of (B) For floats constructed of ex- the escape opening from the trawl panded polyvinyl chloride or expanded must be centered on and immediately ethylene vinyl acetate, where the cir- forward of the frame at the top of the cumference of the TED is 120 inches net when the net is in its deployed po- (304.8 cm) or more, the combined buoy- sition. The escape opening must be at ancy must equal or exceed 20 lb (9.1 the top of the net and the slope of the kg); or deflector bars from forward to aft is (C) For floats constructed of ex- upward. The escape opening must be panded polyvinyl chloride or expanded cut horizontally along the same plane ethylene vinyl acetate, where the cir- as the TED, and may not be cut in a cumference of the TED is less than 120 fore-and-aft direction. The cut in the inches (304.8 cm), the combined buoy- trawl webbing for the escape opening ancy must equal or exceed 10 lb (4.5 cannot be narrower than the outside kg). width of the grid minus 4 inches (10.2 (b) Special Hard TEDs. Special hard cm) on both sides of the grid, when TEDs are hard TEDs which do not meet measured as a straight line width. The all of the design and construction cri- resulting escape opening in the net teria of the generic standards specified webbing must measure at least 35 in paragraph (a) of this section. The inches (88.9 cm) in horizontal taut following special hard TEDs are ap- length and, simultaneously, 12 inches proved TEDs: (30.5 cm) in vertical taut height. The (1) Flounder TED. (Figure 10 to this vertical measurement must be taken at part). The Flounder TED is approved the midpoint of the horizontal meas- for use only in the Atlantic summer urement. This TED may not be config- flounder bottom trawl fishery. The ured with a bottom escape opening. In- Flounder TED is not an approved TED stallation of an accelerator funnel is for use by shrimp trawlers. The Floun- not permitted with this TED. der TED must be constructed of at (2) Weedless TED. The weedless TED least 11⁄4 inch (3.2 cm) outside diameter must meet all the requirements of aluminum or steel pipe with a wall paragraph (a) of this section for single- thickness of at least 1⁄8 inch (0.3 cm). It grid hard TEDs, with the exception of must have a rectangular frame with paragraphs (a)(1) and (a)(5) of this sec- outside dimensions which can be no tion. The weedless TED must be con- less than 51 inches (129.5 cm) in length structed of at least 1–1/4 inch (3.2 cm) and 32 inches (81.3 cm) in width. It outside diameter aluminum with a wall must have at least five vertical deflec- thickness of at least 1⁄8 inch (0.3 cm). tor bars, with bar spacings of no more The deflector bars must run from top

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to bottom of the TED, as the TED is from the requirements of paragraph positioned in the net. The ends of the (a)(3)(ii) of this section, and may be in- deflectors bars on the side of the frame stalled at 55° when fishing in the Gulf opposite to the escape opening must be SFSTCA or the Atlantic SFSTCA. permanently attached to the frame. (4) Modified flounder TED. (Figure 11 The ends of the deflector bars nearest to this part). The modified flounder the escape opening are not attached to TED is approved for use only in the At- the frame and must lie entirely for- lantic summer flounder bottom trawl ward of the leading edge of the outer fishery. The modified flounder TED is frame. The ends of the unattached de- not an approved TED for use by shrimp flector bars must be no more than 4 trawlers. The modified flounder TED inches (10.2 cm) from the frame and incorporates two separate grid frames may not extend past the frame. A hori- that are attached together. The frames zontal brace bar to reinforce the deflec- of the grids must be constructed of at tor bars, constructed of the same size least 11⁄4 inch (3.2 cm) outside diameter or larger pipe as the deflector bars, aluminum or steel pipe with a wall must be permanently attached to the thickness of at least 1⁄8 inch (0.32 cm). frame and the rear face of each of the Each of the two grids of the modified deflector bars at a position anywhere flounder TED must have outside di- between the vertical mid-point of the mensions of at least 36 inches (91.4 cm) frame and the unattached ends of the in height and at least 48 inches (121.9 deflector bars. The horizontal brace bar cm) in width. The upper grid is may be offset behind the deflector bars, equipped with vertical deflector bars, using spacer bars, not to exceed 5 which must be constructed of alu- inches (12.7 cm) in length and con- minum or steel flat bar with a min- structed of the same size or larger pipe imum depth of 11⁄4 inches (3.2 cm) and a as the deflector bars. See Figure 15. minimum thickness of 3⁄8 inch (0.95 cm). (3) Boone Big Boy TED. The Boone Big Vertical deflector bars must be con- Boy TED is a single-grid hard TED nected to the top and bottom of the with a minimum outside horizontal upper grid. The space between the de- and vertical measurement of 36.5 flector bars of the upper grid must not inches (92.7 cm) and 48 inches (121.9 exceed 4 inches (10.2 cm). The lower cm), respectively. The frame must be grid is fabricated with both horizontal constructed of steel rod with a min- and vertical deflector bars, creating imum outside diameter of 3⁄8 inch (0.95 four narrow horizontal openings at the cm). The deflector bars must be con- top, and three large rectangular open- structed of steel rod with a minimum ings along the bottom of the grid. The outside diameter of 1⁄4 inch (0.64 cm). lower grid must have at least three The space between the deflector bars horizontal deflector bars, constructed must not exceed 4 inches (10.2 cm). A of aluminum or steel flat bar with a horizontal brace bar constructed of at minimum depth of 11⁄2 inches (3.8 cm) least 1⁄4-inch (0.64-cm) steel rod must be and a minimum thickness of 3⁄8 inch permanently attached to the frame and (0.95 cm), which are connected to each the rear face of each of the deflector side of the grid and angled at 30° from bars within 4 inches (10.2 cm) of the the horizontal plane. Below this, a midpoint of the TED frame. The hori- fourth horizontal deflector bar must be zontal brace bar may be offset behind constructed of aluminum or steel pipe the deflector bars, using spacer bars, with a wall thickness of at least 1⁄8 inch not to exceed 5 inches (12.7 cm) in (0.32 cm) and with a 11⁄4 inch (3.2 cm) length and must be constructed of the outside diameter. These horizontal de- same size or larger material as the deflector bars must yield maximum flector bars. The Boone Big Boy TED spacings of 41⁄2 inches (11.4 cm), 51⁄2 must be used with the Boone Wedge inches (14.0 cm), 51⁄2 inches (14.0 cm), Cut escape opening specified in and 41⁄2 inches (11.4 cm), as constructed (a)(7)(ii)(D) of this section. The angle of from top to bottom and measured be- the deflector bars must be between 30° tween the leading edges of adjacent de- and 55° from the normal, horizontal flector bars. There must be a maximum flow through the interior of the trawl. 10-inch (25.4 cm) space between the bot- The Boone Big Boy TED is exempt tom-most horizontal deflector pipe bar

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and the grid frame bottom. Two addi- or larger polypropylene or poly- tional vertical pipe sections running ethylene webbing that is heat-set knot- from the bottom of the grid frame to ted or braided. The leading edge of the the bottom-most horizontal deflector 8-inch (20.3-cm) mesh panel must be 36 pipe bar must divide the opening at the meshes wide. The 8-inch (20.3-cm) mesh bottom into three rectangles, each panel must be tapered on each side with a maximum height of 10 inches with all-bar cuts to converge on an (25.4 cm) and a maximum width of 14 apex, such that the length of each side inches (35.6 cm). This TED must com- is 36 bars. The leading edges of the 4- ply with paragraph (a)(2) of this sec- inch (10.2-cm) mesh panels must be 8 tion. The upper and lower grids of this meshes wide. The edges of the 4-inch TED must be laced together with (10.2-cm) mesh panels must be cut with heavy twine no less than 1⁄4 inch (0.64 all-bar cuts running parallel to each cm) in diameter in order to maintain a other, such that the length of the inner consistent angle in both sections. edge is 72 bars and the length of the There may be a gap between the two outer edge is 89 bars and the resulting sections not to exceed 1 inch (2.54 cm). fore-and-aft edge is 8 meshes deep. The The angle of the entire TED frame two 4-inch (10.2-cm) mesh panels must must be between 30° and 45° from the be sewn to the 8-inch (20.3-cm) mesh normal, horizontal flow through the in- panel to create a single triangular exterior of the trawl. The entire width of cluder panel. The 72-bar edge of each 4- the escape opening from the trawl inch (10.2-cm) mesh panel must be se- must be centered on and immediately curely joined with twine to one of the forward of the frame at the top of the 36-bar edges of the 8-inch (20.3-cm) net when the net is in its deployed po- mesh panel, tied with knots at each sition. The slope of the grids and the knot of the 4-inch (10.2-cm) webbing vertical deflector bars from forward to and at least two wraps of twine around aft is upward. The modified flounder each bar of 4-inch (10.2-cm) mesh and TED must use an escape opening con- the adjoining bar of the 8-inch (20.3-cm) sistent with paragraph (a)(7)(ii)(B), (C), mesh. The adjoining fore-and-aft edges (D), or (E) of this section. A webbing of the two 4-inch (10.2-cm) mesh panels flap, as described in paragraphs must be sewn together evenly. (d)(3)(ii), (iii), or (iv) of this section, (ii) Limitations on which trawls may may be used with this escape opening, have a Parker TED installed. The Parker so long as the minimum opening size is TED must not be installed or used in a achieved. This TED may not be config- two-seam trawl with a tongue, nor in a ured with a bottom escape opening. In- triple-wing trawl (a trawl with a stallation of an accelerator funnel is tongue along the headrope and a sec- not permitted with this TED. ond tongue along the footrope). The (c) Soft TEDs. Soft TEDs are TEDs Parker TED may be installed and used with deflector panels made from poly- in any other trawl if the taper of the propylene or polyethylene netting. The body panels of the trawl does not ex- following soft TEDs are approved ceed 4b1p and if it can be properly in- TEDs: stalled in compliance with paragraph (1) Parker TED. The Parker TED is a (c)(1)(iii) of this section. soft TED, consisting of a single tri- (iii) Panel installation—(A) Leading angular panel, composed of webbing of edge attachment. The leading edge of two different mesh sizes, that forms a the excluder panel must be attached to complete barrier inside a trawl and the inside of the bottom of the trawl that angles toward an escape opening across a straight row of meshes. For a in the top of the trawl. two-seam trawl or a four-seam, ta- (i) Excluder Panel. (Figure 5 to this pered-wing trawl, the row of meshes for part) The excluder panel of the Parker attachment to the trawl must run the TED must be constructed of a single entire width of the bottom body panel, triangular piece of 8-inch (20.3 cm) from seam to seam. For a four-seam, stretched mesh webbing and two trape- straight-wing trawl, the row of meshes zoidal pieces of 4-inch (10.2-cm) for attachment to the trawl must run stretched mesh webbing. The webbing the entire width of the bottom body must consist of number 48 (3-mm thick) panel and half the height of each wing

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panel of the trawl. Every mesh of the to the inside of the trawl from the out- leading edge of the excluder panel must side attachment points of the excluder be evenly sewn to this row of meshes; panel’s leading edge to the apex of the meshes may not be laced to the trawl. excluder panel. Each side must be sewn The row of meshes for attachment to with the same sewing sequence, and, if the trawl must contain the following the sides of the excluder panel cross number of meshes, depending on the rows of bars in the trawl, the crossings stretched mesh size used in the trawl: must be distributed evenly over the (1) For a mesh size of 21⁄4 inches (5.7 length of the side attachment. cm), 152–168 meshes; (iv) Escape opening. The escape open- (2) For a mesh size of 21⁄8 inches (5.4 ing for the Parker soft TED must cm), 161–178 meshes; match one of the following specifica- (3) For a mesh size of 2 inches (5.1 tions: cm), 171–189 meshes; (A) Inshore opening. This opening is (4) For a mesh size of 17⁄8 inches (4.8 the minimum size opening that may be cm), 182–202 meshes; used in inshore waters, except it may (5) For a mesh size of 13⁄4 inches (4.4 not be used in the inshore waters of cm), 196–216 meshes; Georgia and South Carolina, in which a (6) For a mesh size of 15⁄8 inches (4.1 larger minimum opening is required. A cm), 211–233 meshes; slit at least 56 inches (1.4 m) in taut (7) For a mesh size of 11⁄2 inches (3.8 length must be cut along the centerline cm), 228–252 meshes; of the top body panel of the trawl net (8) For a mesh size of 13⁄8 inches (3.5 immediately forward of the apex of the cm), 249–275 meshes; and panel webbing. The slit must not be (9) For a mesh size of 11⁄4 inches (3.2 covered or closed in any manner. The cm), 274–302 meshes. edges and end points of the slit must (B) Apex attachment. The apex of the not be reinforced in any way; for exam- triangular excluder panel must be at- ple, by attaching additional rope or tached to the inside of the top body webbing or by changing the orientation panel of the trawl at the centerline of of the webbing. the trawl. The distance, measured aft (B) Offshore opening. A horizontal cut along the centerline of the top body extending from the attachment of one panel from the same row of meshes for side of the deflector panel to the trawl attachment of the excluder panel to to the attachment of the other side of the bottom body panel of the trawl, to the deflector panel to the trawl must the apex attachment point must con- be made in a single row of meshes tain the following number of meshes, across the top of the trawl and measure depending on the stretched mesh size at least 96 inches (243.8 cm) in taut used in the trawl: width. All trawl webbing above the de- (1) For a mesh size of 21⁄4 inches (5.7 flector panel between the 96-inch (243.8- cm), 78–83 meshes; cm) cut and edges of the deflector (2) For a mesh size of 21⁄8 inches (5.4 panel must be removed. A rectangular cm), 83–88 meshes; flap of nylon webbing not larger than 2- (3) For a mesh size of 2 inches (5.1 inch (5.1-cm) stretched mesh may be cm), 87–93 meshes; sewn to the forward edge of the escape (4) For a mesh size of 17⁄8 inches (4.8 opening. The width of the flap must cm), 93–99 meshes; not be larger than the width of the for- (5) For a mesh size of 13⁄4 inches (4.4 ward edge of the escape opening. The cm), 100–106 meshes; flap must not extend more than 12 (6) For a mesh size of 15⁄8 inches (4.1 inches (30.5 cm) beyond the rear point cm), 107–114 meshes; of the escape opening. The sides of the (7) For a mesh size of 11⁄2 inches (3.8 flap may be attached to the top of the cm), 114–124 meshes; trawl but must not be attached farther (8) For a mesh size of 13⁄8 inches (3.5 aft than the row of meshes through the cm), 127–135 meshes; and rear point of the escape opening. One (9) For a mesh size of 11⁄4 inches (3.2 row of steel chain not larger than 1⁄4 cm), 137–146 meshes. inch (0.64 cm) may be sewn evenly to (C) Side attachment. The sides of the the back edge of the flap. The stretched excluder panel must be attached evenly length of the chain must not exceed 96

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inches (244 cm). A Parker TED using under the following conditions: No de- the escape opening described in this vice holds it closed or otherwise re- paragraph meets the requirements of stricts the opening; it is constructed of § 223.206(d)(2)(iv)(B). This opening or webbing with a stretched mesh size no one that is larger must be used in all larger than 2 inches (5.1 cm); it lies on offshore waters and in the inshore the outside of the trawl; it is attached waters of Georgia and South Carolina. along its entire forward edge forward of It also may be used in other inshore the escape opening; it is not attached waters.. on the sides beyond the row of meshes (2) [Reserved] that lies 6 inches (15.2 cm) behind the (d) Allowable modifications to hard posterior edge of the grid; the sides of TEDs and special hard TEDs. Unless the flap are sewn on the same row of otherwise prohibited in paragraph (b) meshes fore and aft; and the flap does of this section, only the following not overlap the escape hole cut by modifications may be made to an ap- more than 5 inches (12.7 cm) on either proved hard TED or an approved spe- side. cial hard TED: (i) 44–inch inshore TED flap. This flap (1) Floats. In addition to floats re- may not extend more than 24 inches (61 quired pursuant to paragraph (a)(9) of cm) beyond the posterior edge of the this section, floats may be attached to grid. the top one-half of the TED, either out- (ii) 71–inch offshore TED Flap. The side or inside the net, but not to a flap. flap must be a 133–inch (338–cm) by 52– Floats attached inside the net must be inch (132–cm) piece of webbing. The 133– behind the rear surface at the top of inch (338–cm) edge of the flap is at- the TED. tached to the forward edge of the open- (2) Accelerator funnel. An accelerator ing (71–inch (180–cm) edge). The flap funnel may be installed in the trawl, if may extend no more than 24 inches (61 it is made of net webbing material with cm) behind the posterior edge of the a stretched mesh size of not greater grid (Figure 12 to this part illustrates than 15⁄8 inches (4 cm), if it is inserted this flap). in the net immediately forward of the (iii) Double cover offshore TED flap. TED, and if its rear edge does not ex- This flap must be composed of two tend past the bars of the TED. The equal size rectangular panels of web- trailing edge of the accelerator funnel bing. Each panel must be no less than may be attached to the TED on the 58 inches (147.3 cm) wide and may over- side opposite the escape opening if not lap each other no more than 15 inches more than one-third of the circum- (38.1 cm). The panels may only be sewn ference of the funnel is attached, and if together along the leading edge of the the inside horizontal opening as de- cut. The trailing edge of each panel scribed above in maintained. In a bot- must not extend more than 24 inches tom opening TED only the top one- (61 cm) past the posterior edge of the third of the circumference of the fun- grid (Figure 16 to this part). Each panel nel may be attached to the TED. In a may be sewn down the entire length of top opening TED only the bottom one- the outside edge of each panel. Para- third of the circumference of the fun- graph (d)(3) of this section notwith- nel may be attached to the TED. standing, this flap may be installed on (i) In inshore waters, other than the either the outside or inside of the TED inshore waters of Georgia and South extension. For interior installation, Carolina in which a larger opening is the flap may be sewn to the interior of required, the inside horizontal opening the TED extension along the leading of the accelerator funnel must be at edge and sides to a point intersecting least 44 inches (112 cm). the TED frame; however, the flap must (ii) In offshore waters and the inshore be sewn to the exterior of the TED ex- waters of Georgia and South Carolina, tension from the point at which it the inside horizontal opening of the ac- intersects the TED frame to the trail- celerator funnel must be at least 71 ing edge of the flap. Chafing webbing inches (180 cm). described in paragraph (d)(4) of this (3) Webbing flap. A webbing flap may section may not be used with this type be used to cover the escape opening of flap.

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(iv) Boone Wedge Cut opening flap. rod, so that the roller can roll freely (Figure 17 to this part). This escape about the axle. The maximum diame- opening flap is attached to the trailing ter of the roller shall be 6 inches (15.24 edge of the horizontal cut and the cm), and the maximum width of the wedge. The flap is made from a piece of axle rod shall be 12 inches (30.4 cm). 17⁄8 inch (4.8 cm) webbing that is trape- The axle rod must be attached to the zoid in shape. The leading edge must be TED by two support rods. The max- at least 94 meshes wide, stretching to imum clearance between the roller and at least 164.5 inches (417.8 cm). The the TED shall not exceed 1 inch (2.5 trailing edge is at least 87 meshes wide cm) at the center of the roller. The and at least 152 inches (386.1 cm). The support rods and axle rod must be two sides are at least 8 meshes long made from solid steel or solid alu- and at least 15 inches (38.1 cm). The es- minum rod no larger than 1⁄2 inch (1.28 cape opening flap is attached only to cm) in diameter. The attachment of the leading edge of the escape opening the support rods to the TED shall be cut and is not attached along its sides. such that there are no protrusions (A) Edge lines. Optional edge lines can (lips, sharp edges, burrs, etc.) on the be used in conjunction with this flap. front face of the grid. The axle rod and The line must be made of polyethylene support rods must lie entirely behind with a maximum diameter of 3⁄8 inches the plane of the face of the TED grid. (.95 cm). A single length of line must be (ii) A single roller consisting of hard used for each flap panel. The line must plastic tubing shall be tightly tied to be sewn evenly to the unattached, in- the back face of the TED grid with rope side edges and trailing edges, of each or heavy twine passed through the cen- flap panel. When edge lines are inter of the roller tubing. The roller shall stalled, the outside edge of each flap lie flush against the TED. The max- panel must be attached along the en- imum outside diameter of the roller tire length of the flap panel. shall be 31⁄2 inches (8.0 cm), the min- (B) [Reserved] imum outside diameter of the roller (4) Chafing webbing. A single piece of shall be 2 inches (5.1 cm), and the max- nylon webbing, with a twine size no imum length of the roller shall be 12 smaller than size 36 (2.46 mm in diame- inches (30.4 cm). The roller must lie enter), may be attached outside of the es- tirely behind the plane of the face of cape opening webbing flap to prevent the grid. chafing on bottom opening TEDs. This (6) Water deflector fin for hooped hard webbing may be attached along its TEDs. On a hooped hard TED, a water leading edge only. This webbing may deflector fin may be welded to the for- not extend beyond the trailing edge or ward edge of the escape opening. The sides of the existing escape opening fin must be constructed of a flat alu- webbing flap, and it must not interfere minum bar, up to 3⁄8 inch (0.95 cm) or otherwise restrict the turtle escape thick and up to 4 inches (10.2 cm) deep. opening. The fin may be as wide as the width of (5) Roller gear. Roller gear may be at- the escape opening, minus 1 inch (2.5 tached to the bottom of a TED to pre- cm). The fin must project aft into the vent chafing on the bottom of the TED TED with an angle between 5° and 45° and the trawl net. When a webbing flap from the normal, horizontal plane of is used in conjunction with roller gear, the trawl. On an inshore hooped hard the webbing flap must be of a length TED, the clearance between the deflec- such that no part of the webbing flap tor bars and the posterior edge of the can touch or come in contact with any deflector fin must be at least 20 inches part of the roller gear assembly or the (51 cm). On an offshore hooped hard means of attachment of the roller gear TED, the clearance between the deflec- assembly to the TED, when the trawl tor bars and the posterior edge of the net is in its normal, horizontal posi- deflector fin must be at least 23–1/4 tion. Roller gear must be constructed inches (59 cm). according to one of the following de- (7) Hinged door frame for hooped hard sign criteria: TEDs. A hinged door frame may be at- (i) A single roller consisting of hard tached to the forward edge of the es- plastic shall be mounted on an axle cape opening on a hooped hard TED.

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The door frame must be constructed of (8) Chauvin shrimp deflector. (Figures materials specified at paragraphs 19a and 19b to this part). The Chauvin (a)(1)(i) or (a)(1)(ii) of this section for shrimp deflector may be used on any inshore and offshore hooped hard approved TED design, but its installa- TEDs, respectively. The door frame tion must not reduce the minimum may be covered with a single panel of stretched measurements of the TED mesh webbing that is taut and securely opening. The Chauvin shrimp deflector attached with twine to the perimeter may not be installed with a bottom es- of the door frame, with a mesh size not cape opening. The Chauvin shrimp de- greater than that used for the TED ex- flector is constructed from a single tension webbing. The door frame must piece of 3-inch (7.6-cm) inside diameter be at least as wide as the TED escape PVC pipe which measures 30 inches opening. The door frame may be a max- (76.2 cm) in length; the ends of the PVC imum of 24 inches (61 cm) long. The pipe are left uncapped. A webbing or door frame must be connected to the mesh bag is made and is used to encase forward edge of the escape opening by a the PVC pipe (Figure 19a to this part). hinge device that allows the door to The mesh bag is created using a single open outwards freely. The posterior piece of 15⁄8 inch (4.1 cm) stretched- edge of the door frame, in the closed mesh webbing made of nylon or poly- position, must lie at least 12 inches (30 ethylene with dimensions 57 meshes cm) forward of the posterior edge of the wide by 10 meshes deep. The leading escape opening. A water deflector fin edge of the 57-mesh piece of webbing is may be welded to the posterior edge of attached around the PVC pipe and back the hinged door frame. The fin must be to the row of meshes located 7 meshes constructed of a flat aluminum bar, up down the 10-mesh length. The ends of to 3⁄8 inch (0.95 cm) thick and up to four the webbing are sewn together on each inches (10.2 cm) deep. The fin may be as wide as the width of the escape open- end forming a webbing bag to assure ing, minus one inch (2.5 cm). The fin the PVC pipe remains encased in the must project aft into the TED with an webbing. This leaves a 3-mesh tail angle between 5° and 45° from the nor- hanging from the encased PVC pipe. mal, horizontal plane of the trawl, The 3-mesh tail of the encased PVC when the door is in the closed position. pipe is then sewn to a single row of The clearance between the posterior meshes on the inside of the trawl along edge of the escape opening and the pos- the 57-mesh edge, 3 meshes ahead of the terior edge of the door frame or the forward cut of the TED escape opening. posterior edge of the water deflector This would allow a 3-mesh overlap to fin, if installed, must be no less than 12 the left and right of the forward cut inches (30 cm), when the door is in the (Figure 19b to this part). closed position. Two stopper ropes or a (9) Brace bar. (Figure 14a of this part). hinge limiter may be used to limit the A horizontal brace bar may be added to maximum opening height of the hinged a TED if the brace bar is constructed of door frame, as long as they do not ob- aluminum or steel rod or tubing speci- struct the escape opening in any way fied in 50 CFR 223.207(a)(1)(i)(A) or restrict the free movement of the through (C), or flat bar 3⁄8-inch (0.95 cm) door to its fully open position. When or more in thickness, and is perma- the door is in its fully open position, nently attached to the rear of the the minimum clearance between any outer frame; for TEDs constructed of part of the deflector bars and any part flat bar less than 3⁄8-inch (0.95 cm) in of the door, including a water deflector thickness, the regulations specified in fin if installed, must be at least 20 50 CFR 223.207(a)(1)(i)(D) apply. The inches (51 cm) for an inshore hooped horizontal brace bar may be perma- hard TED and at least 231⁄4 inches (59 nently secured to the rear face of each cm) for an offshore hooped hard TED. of the deflector bars. The horizontal The hinged door frame may not be used brace bar may be offset behind the de- in combination with a webbing flap flector bars, using spacer bars attached specified at paragraph (d)(3) of this sec- to the rear face of each of the deflector tion or with a water deflection fin spec- bars, not to exceed 5 inches (12.7 cm) in ified at paragraph (d)(6) of this section. length, and must be constructed of the

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same size or larger material as the de- lection and recordkeeping requirements and flector bars. will not become effective until approval has (e) Revision of generic design criteria, been given by the Office of Management and Budget. and approval of TEDs, of allowable modi- 2. At 84 FR 70063, Dec. 20, 2019, In § 223.207, fications of hard TEDs, and of special paragraphs (a)(4), (a)(6), (a)(7)(ii)(B) and (C), hard TEDs. (1) The Assistant Adminis- and (d)(3)(ii) and (iii) were revised and trator may revise the generic design (d)(3)(v) was added, effective Apr. 1, 2021. For criteria for hard TEDs set forth in the convenience of the user, the revised and paragraph (a) of this section, may ap- added text is set forth as follows: prove special hard TEDs in addition to § 223.207 Approved TEDs. those listed in paragraph (b) of this section, may approve allowable modi- * * * * * fications to hard TEDs in addition to those authorized in paragraph (d) of (a) * * * this section, or may approve other (4) Space between bars. The space between TEDs, by regulatory amendment, if, deflector bars and the deflector bars and the TED frame must not exceed 4 inches (10.2 according to a NMFS-approved sci- cm), except for TEDs required to be installed entific protocol, the TED demonstrates in skimmer trawls, where the space between a sea turtle exclusion rate of 97 percent deflector bars and the deflector bars and the or greater (or an equivalent exclusion TED frame must not exceed 3 inches (7.6 cm). rate). Two such protocols have been published by NMFS (52 FR 24262, June * * * * * 29, 1987; and 55 FR 41092, October 9, (6) Position of the escape opening. The escape 1990) and will be used only for testing opening must be made by removing a rectan- relating to hard TED designs. Testing gular section of webbing from the trawl, ex- under any protocol must be conducted cept for a TED with an escape opening size under the supervision of the Assistant described at paragraph (a)(7)(ii)(A) of this Administrator, and shall be subject to section for which the escape opening may al- all such conditions and restrictions as ternatively be made by making a horizontal the Assistant Administrator deems ap- cut along the same plane as the TED. A TED propriate. Any person wishing to par- installed in a skimmer trawl rigged for fishing must have the escape opening oriented at ticipate in such testing should contact the top of the net. For TEDs installed in all the Director, Southeast Fisheries other trawls, the escape opening must be Science Center, NMFS, 75 Virginia centered on and immediately forward of the Beach Dr., Miami, FL 33149–1003. frame at either the top or bottom of the net (2) Upon application, the Assistant when the net is in the deployed position. The Administrator may issue permits, sub- escape opening must be at the top of the net ject to such conditions and restrictions when the slope of the deflector bars from for- as the Assistant Administrator deems ward to aft is upward, and must be at the bottom when such slope is downward. The appropriate, authorizing public or pri- passage from the mouth of the trawl through vate experimentation aimed at improv- the escape opening must be completely clear ing shrimp retention efficiency of ex- of any obstruction or modification, other isting approved TEDs and at devel- than those specified in paragraph (d) of this oping additional TEDs, or conducting section. fishery research, that would otherwise (7) * * * be subject to § 223.206(d)(2). Applica- (ii) * * * tions should be made to the Southeast (B) The 71-inch opening. The two forward cuts of the escape opening must not be less Regional Administrator (see § 222.102 than 26 inches (66 cm) long from the points of definition of ‘‘Southeast Regional Ad- the cut immediately forward of the TED ministrator’’). frame. The resultant length of the leading edge of the escape opening cut must be no [64 FR 14073, Mar. 23, 1999, as amended at 64 less than 71 inches (181 cm) with a resultant FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; circumference of the opening being 142 66 FR 24288, May 14, 2001; 68 FR 8467, Feb. 21, inches (361 cm) (Figure 12 to this part). A 2003; 68 FR 51514, Aug. 27, 2003; 68 FR 54934, webbing flap, as described in paragraph Sept. 19, 2003; 69 FR 31037, June 2, 2004; 77 FR (d)(3)(ii) or (v) of this section, may be used 29907, May 21, 2012; 77 FR 48106, Aug. 13, 2012] with this escape hole, so long as this min- EFFECTIVE DATE NOTES: 1. At 64 FR 14073, imum opening size is achieved. Either this Mar. 23, 1999, § 223.207 was added. Paragraphs opening or the one described in paragraph (a)(9)(ii) (A) and (B) contain information col- (a)(7)(ii)(C) of this section must be used in all

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offshore waters and in all inshore waters in bing flaps described in paragraph (d)(3)(i), Georgia and South Carolina, but may also be (ii), (iii), or (iv) of this section. used in other inshore waters. (C) Double cover opening. The two forward cuts of the escape opening must not be less * * * * * than 20 inches (51 cm) long from the points of 3. At 85 FR 59199, Sept. 21, 2020, In § 223.207, the cut immediately forward of the TED paragraph (d)(3)(v) was corrected, effective frame. The resultant length of the leading Apr. 1, 2021. For the convenience of the user, edge of the escape opening cut must be no the corrected text is set forth as follows: less than 56 inches (142 cm) (Figure 16 to this part illustrates the dimensions of these § 223.207 Approved TEDs. cuts). A webbing flap, as described in paragraph (d)(3)(iii) or (v) of this section, may be used with this escape hole. Either this open- * * * * * ing or the one described in paragraph (v) Small turtle TED flap. If the angle of the (a)(7)(ii)(B) of this section must be used in deflector bars of a TED used by a skimmer all offshore waters and in all inshore waters trawl exceeds 45°, or if a double cover open- in Georgia and South Carolina, but may also ing straight bar TED (at any allowable be used in other inshore waters. angle) is used by a skimmer trawl, the flap must consist of twine size not greater than * * * * * number 15 (1.32-mm thick) on webbing flaps described in paragraphs (d)(3)(i), (d)(3)(ii), (d) * * * (d)(3)(iii), or (d)(3)(iv) of this section. (3) * * * (ii) 71-inch TED flap. The flap must be a § 223.208 Corals. 133-inch (338-cm) by 52-inch (132-cm) piece of webbing. The 133-inch (338-cm) edge of the (a) Prohibitions. (1) The prohibitions flap is attached to the forward edge of the of section 9(a)(1) of the ESA (16 U.S.C. opening (71-inch (180-cm) edge). The flap may 1538(a)(1)) relating to endangered spe- extend no more than 24 inches (61 cm) behind cies apply to elkhorn (Acropora the posterior edge of the grid (Figure 12 to this part illustrates this flap). palmata) and staghorn (A. cervicornis) (iii) Double cover TED flap. This flap must corals listed as threatened in § 223.102, be composed of two equal size rectangular except as provided in § 223.208(c). panels of webbing. Each panel must be no (2) It is unlawful for any person sub- less than 58 inches (147.3 cm) wide and may ject to the jurisdiction of the United overlap each other no more than 15 inches States to do any of the following: (38.1 cm). The panels may only be sewn together along the leading edge of the cut. The (i) Fail to comply immediately, in trailing edge of each panel must not extend the manner specified at § 600.730 (b) more than 24 inches (61 cm) past the pos- through (d) of this title, with instruc- terior edge of the grid (Figure 16 to this tions and signals specified therein part). Each panel may be sewn down the en- issued by an authorized officer, includ- tire length of the outside edge of each panel. ing instructions and signals to haul This paragraph (d)(3) of this section notwith- back a net for inspection; standing, this flap may be installed on either the outside or inside of the TED extension. (ii) Refuse to allow an authorized of- For interior installation, the flap may be ficer to board a vessel, or to enter an sewn to the interior of the TED extension area where fish or wildlife may be along the leading edge and sides to a point found, for the purpose of conducting a intersecting the TED frame; however, the boarding, search, inspection, seizure, flap must be sewn to the exterior of the TED investigation, or arrest in connection extension from the point at which it inter- with enforcement of this section; sects the TED frame to the trailing edge of (iii) Destroy, stave, damage, or dis- the flap. Chafing webbing described in paragraph (d)(4) of this section may not be used pose of in any manner, fish or wildlife, with this type of flap. gear, cargo, or any other matter after a communication or signal from an au- * * * * * thorized officer, or upon the approach of such an officer or of an enforcement (v) Small turtle TED flap. If the angle of the vessel or aircraft, before the officer has deflector bars of a bent bar TED used by a an opportunity to inspect same, or in skimmer trawl exceeds 45°, or if a double cover opening straight bar TED (at any al- contravention of directions from the lowable angle) is used by a skimmer trawl, officer; the flap must consist of twine size not great- (iv) Assault, resist, oppose, impede, er than number 15 (1.32-mm thick) on web- intimidate, threaten, obstruct, delay,

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prevent, or interfere with an author- Service National Marine Sanctuary ized officer in the conduct of any Program, National Park Service, U.S. boarding, search, inspection, seizure, Fish and Wildlife Service, Florida Fish investigation, or arrest in connection and Wildlife Conservation Commission, with enforcement of this section; Puerto Rico Department of Natural (v) Interfere with, delay, or prevent and Environmental Resources, or the by any means, the apprehension of an- U.S. Virgin Islands Department of other person, knowing that such person Planning and Natural Resources. The committed an act prohibited by this exportation or take must be in compli- section; ance with the applicable terms and (vi) Resist a lawful arrest for an act conditions of the applicable research or prohibited by this section; enhancement permit, and the permit (vii) Make a false statement, oral or must be in the possession of the per- written, to an authorized officer or to mittee while conducting the activity. the agency concerning applicability of Export of elkhorn or staghorn corals the exceptions enumerated in para- from the United States to conduct ex- graph (c) of this section relating to elk- cepted research or enhancement activi- horn and staghorn corals; ties requires a CITES export permit (viii) Make a false statement, oral or from the U.S. Fish and Wildlife Service written, to an authorized officer or to in addition to the research permit for the agency concerning the fishing for, collection. Import of elkhorn or catching, taking, harvesting, landing, staghorn corals into the United States purchasing, selling, or transferring fish to conduct excepted research or en- or wildlife, or concerning any other hancement activities must be in com- matter subject to investigation under pliance with the provisions of section this section by such officer, or required 9(c) of the ESA. to be submitted under this part 223; or (2) Restoration activities. Any agent (ix) Attempt to do, solicit another to or employee of governmental agencies do, or cause to be done, any of the fore- listed in Table 1 may take listed elk- going. horn or staghorn corals without a per- (b) Affirmative defense. In connection mit, when acting in the course of con- with any action alleging a violation of ducting a restoration activity directed this section, any person claiming the at elkhorn or staghorn coral which is benefit of any exception, exemption, or authorized by an existing authority permit under this section has the bur- (see Table 1 to this section). Take of den of proving that the exception, ex- elkhorn or staghorn corals during such emption, or permit is applicable, was restoration activity is excepted from granted, and was valid and in force at the prohibitions in ESA sections the time of the alleged violation, and 9(a)(1)(B) and (C). An excepted restora- that the person fully complied with the tion activity is defined as the methods exception, exemption, or permit. and processes used to provide aid to in- (c) Exceptions. Exceptions to the pro- jured individual elkhorn or staghorn hibitions of section 9(a)(1) of the ESA coral. (16 U.S.C. 1538(a)(1)) applied in para- (3) Section 10 scientific and enhance- graph (a) of this section relating to ment permits. The Assistant Adminis- elkhorn and staghorn corals are de- trator may issue permits authorizing scribed in the following paragraphs (1) activities that would otherwise be pro- through (6): hibited under § 223.208(a) for scientific (1) Permitted scientific research and purposes or to enhance the propagation enhancement. Any export or take of or survival of elkhorn or staghorn cor- elkhorn or staghorn corals resulting als, in accordance with and subject to from conducting scientific research or the conditions of part 222, subpart C- enhancement directed at elkhorn and General Permit Procedures. staghorn corals is excepted from the (4) Section 10 incidental take per- prohibitions in ESA sections 9(a)(1)(A), mits. The Assistant Administrator (B) and (C) provided a valid research or may issue permits authorizing activi- enhancement permit has been obtained ties that would otherwise be prohibited from one of the following Federal or under § 223.208(a) in accordance with state agencies: NOAA National Ocean section 10(a)(1)(B) of the ESA (16 U.S.C.

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1539(a)(1)(B)), and in accordance with, elkhorn and staghorn corals pursuant and subject to the conditions of part to paragraph (o)(2) of section 7 of the 222 of this chapter. Such permits may ESA (16 U.S.C. 1536(o)(2)). be issued for the incidental taking of (6) Importation under the Convention elkhorn and staghorn corals. on International Trade of Endangered (5) Section 7 Interagency consulta- Species. Any importation of elkhorn or tion. Any incidental taking that is in staghorn corals in compliance with the compliance with the terms and condi- provisions of section 9(c) of the ESA (16 tions specified in a written statement U.S.C. 1538(c)) shall not be considered a provided under section 7(b)(4)(C) of the violation of any provision of the ESA ESA (16 U.S.C. 1536(b)(4)(C)) shall not or any regulation issued pursuant to be considered a prohibited taking of the ESA.

TABLE 1 TO § 223.208. AGENCIES AND AUTHORIZING STATUTES WHOSE CORAL RESTORATION ACTIVITIES ARE EXCEPTED FROM CERTAIN PROHIBITIONS IN PARAGRAPH (a) OF THIS SECTION.

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 rep- ‘‘Oil Pollution Act’’ resentatives of States or Indian Tribes. 33 U.S.C. 2702

Designated Federal, State or Indian tribal natural resources 33 U.S.C. 2706 trustees, including NOAA, Department of Interior (DOI), Florida Department of Environmental Protection (FDEP), Puerto Rico Department of Natural and Environmental Re- sources (DNER), and U.S. Virgin Islands Department of Planning and Natural Resources (DPNR)

Administrator, Environmental Protection Agency (EPA) or ″Clean Water Act″ Commandant, USCG; Authorized representatives of States. 33 U.S.C. 1321

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 coopera- ″Superfund Act″ (CERCLA) tive agreements with EPA; Heads of other Federal agencies 42 U.S.C. 9604 where release is from vessel or facility solely under their control.

Administrator of the EPA 42 U.S.C. 9606

Designated Federal, State or Indian tribal natural resources 42 U.S.C. 9607 trustees, including NOAA, DOI, FDEP, DNER, and DPNR

DOI, National Park Service (NPS) Park System Resource Protection Act, 16 U.S.C. 19jj 16 U.S.C. 668dd–668ee (National Wildlife Refuge System)

DOI National Wildlife Refuge System Administration Act, 16 U.S.C. 668

FLORIDA:

The Board of Trustees of the Internal Improvement Trust State Lands; Board of Trustees to Administer Fund FL Statute § 253.03

Duty of Board to Protect, etc. FL Statute. § 253.04 FDEP

Governor and Cabinet; FDEP Land Acquisition for Conservation or Recreation; Conserva- tion and Recreation Lands Trust Fund FL Statute § 259.032

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TABLE 1 TO § 223.208. AGENCIES AND AUTHORIZING STATUTES WHOSE CORAL RESTORATION AC- TIVITIES ARE EXCEPTED FROM CERTAIN PROHIBITIONS IN PARAGRAPH (a) OF THIS SECTION.—Con- tinued

FEDERAL: Agency/Person Statute and Specific Provision(s)

FDEP Pollutant Discharge Prevention and Removal; Liability for Damage to Natural Resources FL Statute § 376.121

FDEP Land and Water Management; Coral Reef Restoration FL Statute § 390.0558

Florida Fish and Wildlife Conservation Commission Fish and Wildlife Conservation Commission FL Statute § 20.331

U.S. VIRGIN ISLANDS:

DPNR DPNR; Powers and Duties of Department 3 V.I.C. § 401

DPNR Conservation; Croix East End Marine Park Established; 12 V.I.C. § 98

PUERTO RICO:

DNER Conservation; Protection, Conservation and Management of Coral Reefs 12 L.P.R.A. §§ 241-241g et seq.

DNER Conservation; Natural Patrimony Program 12 L.P.R.A. § 1225 et seq.

DNER Conservation; Natural Resources; Declarations of Marine Re- serves (and other protected areas) containing elkhorn and staghorn corals 12 L.P.R.A.; Subtitle 6A; Chapter 252; §§ 5011 et seq.

[73 FR 64276, Oct. 29, 2008, as amended at 79 FR 20813, Apr. 14, 2014]

§ 223.209 [Reserved] (1) Scientific Research and Moni- toring Exceptions. The prohibitions of § 223.210 Green sturgeon. paragraph (a) of this section relating to (a) Prohibitions. The prohibitions of the threatened Southern DPS listed in section 9(a)(1) of the ESA (16 U.S.C. § 223.102(c)(1) do not apply to ongoing or 1538(a)(1)) relating to endangered spe- future Federal, state, or private-spon- cies apply to the threatened Southern sored scientific research or monitoring Distinct Population Segment (DPS) of activities if: green sturgeon listed in § 223.102. (i) The scientific research or moni- (b) Exceptions. Exceptions to the take toring activity complies with required prohibitions described in section 9(a)(1) state reviews or permits; of the ESA (16 U.S.C. 1538(a)(1)) applied (ii) The research or monitoring activ- in paragraph (a) of this section to the ity is directed at the Southern DPS threatened Southern DPS listed in and is not incidental to research or § 223.102 are described in the following monitoring of another species; paragraphs (b)(1) through (b)(3). (iii) Take of live mature adults in the (1) Scientific research and monitoring lower Feather River from the con- exceptions. The prohibitions of para- fluence with the Sacramento River to graph (a) of this section relating to the the Oroville Dam (rkm 116), the lower threatened Southern DPS listed in Yuba River from the confluence with § 223.102 do not apply to ongoing or fu- the Feather River to the Daguerre Dam ture Federal, state, or private-spon- (rkm 19), or Suisun, San Pablo, and sored scientific research or monitoring San Francisco Bays or the Sac- activities if: ramento-San Joaquin Delta from the

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Golden Gate Bridge up into the Sac- § 223.102 do not apply to emergency fish ramento River to Keswick Dam (rkm rescue and salvage activities that in- 483) occurs from July 1 through March clude aiding sick, injured, or stranded 1 so as to substantially increase the fish, disposing of dead fish, or sal- likelihood that uninterrupted up- vaging dead fish for use in scientific stream spawning migrations of adults studies, if: will occur; (i) The activity complies with re- (iv) Take is non-lethal; quired state or other Federal reviews (v) Take involving the removal of or permits; any life stage of the Southern DPS (ii) The activity is conducted by an from the wild does not exceed 60 min- employee or designee of NMFS or the utes; U.S. Fish and Wildlife Service (vi) Take does not involve artificial (USFWS), any Federal land manage- spawning or enhancement activities; ment agency, or California Department (vii) A description of the study objec- of Fish and Game, Oregon Department tives and justification, a summary of of Fish and Wildlife, Washington De- the study design and methodology, es- partment of Fish and Wildlife, or Alas- timates of the total non-lethal take of ka Department of Fish and Game; Southern DPS fish anticipated, esti- (iii) The activity benefits the South- mates of incidental take of other ESA ern DPS; and listed species anticipated and proof (iv) Those carrying out the activity that those takes have been authorized submit a report to the NMFS South- by NMFS or the USFWS, identification of funding sources, and a point of con- west Regional Office in Long Beach tact is reported to the NMFS South- that includes, at a minimum, the num- west Regional Office in Long Beach at ber and status of fish handled, the loca- least 60 days prior to the start of the tion of rescue and/or salvage oper- study, or by August 31, 2010 for ongoing ations, and the potential causes(s) of studies; the emergency situation within 10 days (viii) Reports that include the total after conducting the emergency rescue. number of Southern DPS and any other (4) Habitat restoration exceptions. The ESA listed species taken, information prohibitions of paragraph (a) of this that supports that take was non-lethal, section relating to the threatened and a summary of the project results is Southern DPS listed in § 223.102 do not submitted to the NMFS Southwest Re- apply to habitat restoration activities gional Office in Long Beach on a sched- including barrier removal or modifica- ule to be determined by NMFS; and tion to restore water flows, riverine or (ix) Research or monitoring that in- estuarine bed restoration, natural bank volves action, permitting, or funding stabilization, restoration of native by a Federal agency still complies with vegetation, removal of non-native spe- the requirements of ESA section 7(a)(2) cies, or removal of contaminated sedi- in order to ensure that the action will ments, that reestablish self-sustaining not jeopardize the continued existence habitats for the Southern DPS, if: of the threatened Southern DPS. (i) The activity complies with re- (2) Enforcement exception. The prohibi- quired state and Federal reviews and tions of paragraph (a) of this section permits; relating to the threatened Southern (ii) Those carrying out the activity DPS listed in § 223.102 do not apply to submit a detailed description of the any employee of NMFS, when the em- restoration activity to the NMFS ployee, acting in the course of his or Southwest Regional Office in Long her official duties, takes a Southern Beach at least 60 days prior to the start DPS fish listed in § 223.102 without a of the restoration project, or, for ongo- permit, if such action is necessary for ing studies, by August 31, 2010, which purposes of enforcing the ESA or its includes: the geographic area affected; implementing regulations. when activities will occur; how they (3) Emergency fish rescue and salvage will be conducted; and the severity of exceptions. The prohibitions of para- direct, indirect, and cumulative im- graph (a) of this section relating to the pacts of activities on the Southern threatened Southern DPS listed in DPS; identification of funding sources;

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demonstration that all state and Fed- ordinated by, one of these agencies. eral regulatory requirements have been State 4(d) research programs must met; a description of methods used to meet the following criteria: ensure that the likelihood of survival (i) Descriptions of the ongoing and or recovery of the listed species is not future 4(d) research or monitoring ac- reduced; a plan for minimizing and tivity, as described in paragraph mitigating any adverse impacts to (c)(1)(ii) of this section, must be re- Southern DPS spawning or rearing ceived by the NMFS Southwest Re- habitat; an estimate of the amount of gional Office in Long Beach during the incidental take of the listed species mid-September through mid-October that may occur and a description of 2010 application period. This exception how that estimate was made; a plan for to the section 9 take prohibitions ex- effective monitoring and adaptive man- pires if the proposal is rejected as in- agement; a pledge to use best available sufficient or is denied. If the state 4(d) science and technology when con- research program package is received ducting restoration activities; and a during the mid-September to mid-Octo- point of contact; ber application period, ongoing state- (iii) Those carrying out the activity supported scientific research activities submit progress reports that include may continue until NMFS issues a the total number of Southern DPS fish written decision of approval or denial. taken, information regarding whether If approved, the state 4(d) program au- the take was lethal or non-lethal, a thorization will cover one calendar summary of the status of the project, year and state-supported researchers and any changes in the methods being would have to renew authorizations an- used, to the NMFS Southwest Regional nually during subsequent application Office in Long Beach on a schedule to periods. be determined by NMFS; and (ii) Descriptions of ongoing and fu- (iv) An activity that involves action, ture state-supported research activities permitting, or funding by a Federal must include the following information agency complies with the requirements and should be submitted to NMFS by of ESA section 7(a)(2) in order to en- the State: an estimate of total direct sure that the action will not jeopardize or incidental take; a description of the the continued existence of the threat- study design and methodology; a jus- ened Southern DPS. tification for take and the techniques (c) Exemptions via ESA 4(d) Program employed; and a point of contact. Approval. Exemptions from the take (iii) NMFS will provide written ap- prohibitions described in section 9(a)(1) proval of a state 4(d) research program. of the ESA (16 U.S.C. 1538(a)(1)) applied (iv) The State agency will provide an in paragraph (a) of this section to the annual report to NMFS that, at a min- threatened Southern DPS listed in imum, summarizes the number of § 223.102 are described in the following Southern DPS green sturgeon taken di- paragraphs: rectly or incidentally, and summarizes (1) Scientific research and monitoring the results of the project. exemptions. The prohibitions of para- (2) Fisheries exemptions. The prohibi- graph (a) of this section relating to the tions of paragraph (a) of this section threatened Southern DPS listed in relating to the threatened Southern § 223.102 do not apply to ongoing or fu- DPS listed in § 223.102 do not apply to ture state-sponsored scientific research fisheries activities that are conducted or monitoring activities that are part in accordance with a NMFS-approved of a NMFS-approved, ESA-compliant Fishery Management and Evaluation state 4(d) research program conducted Plan (FMEP). If NMFS finds that an by, or in coordination with, state fish- FMEP meets the criteria listed below, ery management agencies (California a letter of concurrence which sets forth Department of Fish and Game, Oregon the terms of the FMEP’s implementa- Department of Fish and Wildlife, Wash- tion and the duties of the parties pur- ington Department of Fish and Wild- suant to the FMEP, will be issued to life, or Alaska Department of Fish and the applicant. Game), or as part of a monitoring and (i) An FMEP must prohibit retention research program overseen by, or co- of green sturgeon (i.e., zero bag limit);

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set maximum incidental take levels, in Willapa Bay, WA, Grays Harbor, WA, include restrictions to minimize inci- Coos Bay, OR, Winchester Bay, OR, dental take of the green sturgeon (e.g., Humboldt Bay, CA, and any other area temporal/spatial restrictions, size of where tribal treaty fishing occurs, if fish, gear used); provide a biologically those activities are compliant with a based rationale demonstrating that the tribal resource management plan incidental take management strategy (Tribal Plan), provided that the Sec- will not significantly reduce the likeli- retary determines that implementa- hood of survival or recovery of the tion of such Tribal Plan will not appre- Southern DPS; include effective moni- ciably reduce the likelihood of survival toring and evaluation plans; provide and recovery of the Southern DPS. In for evaluating monitoring data and making that determination the Sec- making revisions to the FMEP; provide retary shall use the best available bio- for effective enforcement and edu- logical data (including any tribal data cation; provide a timeframe for FMEP and analysis) to determine the Tribal implementation; and report the Plan’s impact on the biological re- amount of incidental take and summa- quirements of the species, and will as- rize the effectiveness of the FMEP to sess the effect of the Tribal Plan on NMFS on a biannual basis. survival and recovery, consistent with (ii) The ESA section 9(a)(1)(B) and legally enforceable tribal rights and (a)(1)(C) take prohibitions will not with the Secretary’s trust responsibil- apply to ongoing commercial and rec- ities to tribes. reational fisheries activities until Sep- (i) A Tribal Plan may include, but is tember 30, 2010 if a letter of intent to not limited to, plans that address fish- develop an FMEP that is protective of ery harvest, artificial production, re- green sturgeon has been received by search, or water or land management, NMFS by July 2, 2010. The exemption and may be developed by one tribe or will expire if the letter of intent is re- jointly with other tribes. The Sec- jected without further review of a retary will consult on a government- FMEP. If the letter of intent is re- to-government basis with any tribe ceived by August 31, 2010, a draft FMEP that so requests and will provide, to must be received by NMFS within 6 the maximum extent practicable, tech- months from the date of receipt of the nical assistance in examining impacts letter of intent. A final FMEP must be on the Southern DPS as tribes develop received by NMFS within 3 months Tribal Plans. A Tribal Plan must speci- from the date of receipt of NMFS’ com- fy the procedures by which the tribe ments on the draft FMEP. Ongoing will enforce its provisions. commercial and recreational fisheries activities may continue until NMFS (ii) Where there exists a Federal issues a letter of concurrence or denial court proceeding with continuing juris- for final FMEPs. diction over the subject matter of a (iii) NMFS will provide a public com- Tribal Plan, the plan may be developed ment period (≥30 days) before approval and implemented within the ongoing of new or amended FMEPs; provide a Federal Court proceeding. In such cir- letter of concurrence for approved cumstances, compliance with the Trib- FMEPs that specifies the implementa- al Plan’s terms shall be determined tion and reporting requirements; evalu- within that Federal Court proceeding. ate FMEPs every 5 years and identify (iii) The Secretary shall seek com- changes that would improve their ef- ment from the public on the Sec- fectiveness; and provide a public com- retary’s pending determination wheth- ment period (≥30 days) before with- er implementation of a Tribal Plan will drawing approval of an FMEP. appreciably reduce the likelihood of (3) Tribal exemptions. The prohibitions survival and recovery of the listed of paragraph (a) of this section relating Southern DPS. to the threatened Southern DPS listed (iv) The Secretary shall publish noti- in § 223.102 do not apply to fishery har- fication in the FEDERAL REGISTER of vest or other activities undertaken by any determination regarding a Tribal a tribe, tribal member, tribal per- Plan and the basis for that determina- mittee, tribal employee, or tribal agent tion.

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(d) ESA section 10 permits. The excep- the Southern Distinct Population Seg- tions of section 10 of the ESA (16 U.S.C. ment of spotted seal listed in § 223.102. 1539) and other exceptions under the [79 FR 20814, Apr. 14, 2014] ESA relating to endangered species, including regulations in part 222 of this § 223.213 Humpback whales. chapter II implementing such exceptions, also apply to the threatened The prohibitions of section 9(a)(1)(A) Southern DPS listed in § 223.102. Fed- through 9(a)(1)(G) of the ESA (16 U.S.C. eral, state, and private-sponsored re- 1538) relating to endangered species search activities for scientific research apply to threatened species of the or enhancement purposes that are not humpback whale listed in § 223.102(e) covered under Scientific Research and [81 FR 62319, Sept. 8, 2016] Monitoring Exceptions as described in paragraph (b)(1) of this section or Sci- § 223.214 Approaching threatened entific Research and Monitoring Ex- humpback whales in Alaska. emptions as described in paragraph (a) Prohibitions. Except as provided (c)(1) of this section, may take South- under paragraph (b) of this section, it ern DPS fish pursuant to the specifica- is unlawful for any person subject to tions of an ESA section 10 permit. the jurisdiction of the United States to (e) Affirmative defense. In connection commit, to attempt to commit, to so- with any action alleging a violation of licit another to commit, or to cause to the prohibitions of paragraph (a) of be committed, within 200 nautical this section with respect to the threat- miles (370.4 km) of Alaska, or within ened Southern DPS listed in § 223.102, inland waters of the state, any of the any person claiming that his or her acts in paragraphs (a)(1) through (a)(3) take is excepted via methods listed in of this section with respect to threat- paragraph (b) of this section shall have ened humpback whales (Megaptera a defense where the person can dem- novaeangliae): onstrate that the exception is applica- (1) Approach, by any means, includ- ble and was in force, and that the per- ing by interception (i.e., placing a ves- son fully complied with the exception’s sel in the path of an oncoming hump- requirements at the time of the alleged back whale so that the whale surfaces violation. This defense is an affirma- within 100 yards (91.4 m) of the vessel), tive defense that must be raised, plead- within 100 yards (91.4 m) of any hump- ed, and proven by the proponent. If back whale; proven, this defense will be an absolute (2) Cause a vessel or other object to defense to liability under section approach within 100 yards (91.4 m) of a 9(a)(1)(G) of the ESA with respect to humpback whale; or the alleged violation. (3) Disrupt the normal behavior or prior activity of a whale by any other [75 FR 30728, June 2, 2010, as amended at 79 FR 20813, Apr. 14, 2014] act or omission. A disruption of normal behavior may be manifested by, among § 223.211 Atlantic sturgeon. other actions on the part of the whale, a rapid change in direction or speed; es- (a) Prohibitions. The prohibitions of cape tactics such as prolonged diving, sections 9(a)(1)(A) through 9(a)(1)(G) of underwater course changes, underwater the ESA (16 U.S.C. 1538) relating to en- exhalation, or evasive swimming pat- dangered species apply to the threat- terns; interruptions of breeding, nurs- ened Gulf of Maine Distinct Population ing, or resting activities, attempts by a Segment (Gulf of Maine DPS) of Atlan- whale to shield a calf from a vessel or tic sturgeon listed in § 223.102(c)(29). human observer by tail swishing or by (b) [Reserved] other protective movement; or the [78 FR 69315, Nov. 19, 2013] abandonment of a previously fre- quented area. § 223.212 Southern DPS of spotted (b) Exceptions. The following excep- seal. tions apply, but any person who claims The prohibitions of section 9(a)(1) of the applicability of an exception has the ESA (16 U.S.C. 1538(a)(1)) relating the burden of proving that the excep- to endangered species shall apply to tion applies:

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(1) Paragraph (a) of this section does §§ 223.215–223.300 [Reserved] not apply if an approach is authorized by the National Marine Fisheries Serv- § 223.301 Special rules—marine and ice through a permit issued under part anadromous fishes. 222, subpart C, of this chapter (General (a) Middle Columbia River steelhead Permit Procedures) or through a simi- (Oncorhynchus mykiss.) (1) The Middle lar authorization. Columbia River steelhead located in (2) Paragraph (a) of this section does the geographic areas identified in para- not apply to the extent that a vessel is graph (a)(4) of this section comprise a restricted in its ability to maneuver nonessential, experimental population and, because of the restriction, cannot (NEP). (2) Take of this species that is allowed comply with paragraph (a) of this sec- in the NEP area. (i) Taking of Middle tion. Columbia River (MCR) steelhead that (3) Paragraph (a) of this section does is otherwise prohibited by paragraph not apply to commercial fishing vessels (a)(3) of this section and 50 CFR lawfully engaged in actively setting, 223.203(a), provided that the taking is retrieving or closely tending commer- unintentional; not due to negligent cial fishing gear. For purposes of this conduct; and incidental to, and not the section, commercial fishing means tak- purpose of, the carrying out of an oth- ing or harvesting fish or fishery re- erwise lawful activity. Examples of sources to sell, barter, or trade. Com- otherwise lawful activities include rec- mercial fishing does not include com- reational fishing, recreation, agri- mercial passenger fishing operations culture, forestry, municipal usage, and (i.e. charter operations or sport fishing other similar activities, which are car- activities). ried out in accordance with Federal, (4) Paragraph (a) of this section does state, and local laws and regulations as not apply to state, local, or Federal well as applicable tribal regulations. government vessels operating in the (ii) Handling of MCR steelhead in the course of official duty. NEP area by NMFS, Oregon Depart- (5) Paragraph (a) of this section does ment of Fish and Wildlife (ODFW) and the Confederated Tribes of the Warm not affect the rights of Alaska Natives Springs Reservation of Oregon (CTWS) under 16 U.S.C. 1539(e). employees and authorized agents act- (6) This section shall not take prece- ing on their behalf for scientific pur- dence over any more restrictive con- poses and by the Portland General flicting Federal regulation pertaining Electric Company (PGE) and CTWS to humpback whales, including the reg- employees and authorized agents act- ulations at 36 CFR 13.1102–13.1188 that ing on their behalf for the purpose of pertain specifically to the waters of monitoring and evaluating the ongoing Glacier Bay National Park and Pre- reintroduction under the Federal En- serve. ergy Regulatory Commission (FERC) (c) General measures. Notwithstanding license for the Pelton Round Butte Hy- the prohibitions and exceptions in droelectric Project (FERC No. 2030). paragraphs (a) and (b) of this section, (iii) Taking of MCR steelhead inci- to avoid collisions with threatened dental to any activities related to or humpback whales, vessels must operate associated with the operation and at a slow, safe speed when near a maintenance of Pelton Round Butte humpback whale. ‘‘Safe speed’’ has the Hydroelectric Project’s (FERC Project same meaning as the term is defined in No. 2030) Round Butte Dam by PGE or 33 CFR 83.06 and the International Reg- CTWS as administered under a license ulations for Preventing Collisions at issued by FERC. Acceptable forms of taking of steelhead include, but are not Sea 1972 (see 33 U.S.C. 1602), with re- limited to, mortality, stranding, inspect to avoiding collisions with hump- jury, impingement at Round Butte back whales. Dam facilities, or delay in up- or down- [81 FR 62021, Sept. 8, 2016] stream passage associated with or caused by any of the following activities. Activities related to the operation

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and maintenance of Round Butte Dam Whychus Creek, Crooked River and include, but are not limited to: Metolius River. More specifically, the (A) Hydroelectric generation; geographic range includes all acces- (B) Maintenance of project facilities; sible reaches of the Deschutes River (C) Provision of upstream and down- downstream to Round Butte Dam; the stream fish passage, Whychus Creek subbasin; the Metolius (D) Fish handling at fish separation River subbasin; and the Crooked River and counting facilities; subbasin from Bowman Dam down- (E) Fish conservation activities; stream (including the Ochoco and (F) Fish handling, tagging, and sam- McKay Creek watersheds) to its point pling in connection with FERC ap- of confluence with the Deschutes proved studies; and River. (G) Approved resource protection, (ii) Round Butte Dam is the down- mitigation, and enhancement meas- stream terminus of this NEP. When ures. MCR steelhead are below the Round (iv) Handling MCR steelhead by Butte Dam, they will be outside the Deschutes Valley Water District em- NEP area and thus considered part of ployees and agents acting on their be- the nonexperimental population. half for the purpose of monitoring and (5) Review and evaluation of non- evaluating the Opal Springs Hydro- essential experimental population. As a electric Project (FERC No. 5891). requirement under its Federal license (v) Take incidental to any activities to operate the Pelton Round Butte related to or associated with the oper- Project, Portland General Electric ation and maintenance of the Opal Company and the Confederated Tribes Springs Hydroelectric Project (FERC of the Warm Springs Reservation of Or- Project No. 5891) as administered under egon will conduct monitoring over the a license issued by FERC and the Set- 50-year term of the license. This moni- tlement Agreement Concerning Li- toring will include collecting informa- cense Amendment for Fish Passage, tion on the reintroduction program dated October 2011. that NMFS will use in evaluating the (vi) Take of MCR steelhead by any NEP designation. person with a valid permit issued by (6) Time frame for NEP designation. NMFS and a valid permit issued by the This NEP designation will expire on ODFW for educational purposes, sci- January 15, 2025. entific purposes, and the enhancement (b) San Joaquin River Central Valley of propagation or survival of the spe- (CV) spring-run Chinook Salmon Experi- cies, zoological exhibition, and other mental Population (Oncorhynchus conservation purposes consistent with tshawytscha). (1) The San Joaquin the ESA. River CV spring-run Chinook salmon (3) Take of this species that is not al- population identified in paragraph lowed in the NEP area. (i) Except as ex- (b)(2) of this section is designated as a pressly allowed in paragraph (a)(2) of nonessential experimental population this section, the taking of MCR under section 10(j) of the ESA. steelhead is prohibited within the NEP (2) San Joaquin River CV Spring-run geographic area, as provided in 50 CFR Chinook Salmon Experimental Popu- 223.203(a). lation. All CV spring-run Chinook (ii) No person shall possess, sell, de- salmon, including those that have been liver, carry, transport, ship, import, or released or propagated, naturally or ar- export, by any means whatsoever, MCR tificially, within the experimental pop- steelhead taken in violation of this ulation area in the San Joaquin River paragraph (a)(3)(ii) and 50 CFR as defined here are considered part of 223.203(a). the San Joaquin River experimental (4) Geographic extent of the non- population. The boundaries of this ex- essential experimental population of Mid- perimental population area include the dle Columbia River steelhead. (i) The geo- San Joaquin River from Friant Dam graphic range of this experimental pop- downstream to its confluence with the ulation is all accessible reaches up- Merced River, delineated by a line be- stream of Round Butte Dam on the tween decimal latitude and longitude Deschutes River, including tributaries coordinates: 37.348930° N, 120.975174° W

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and 37.349099° N, 120.974749° W, as well (A) Scientific research activities in- as all sloughs, channels, floodways, and volving purposeful take are conducted waterways connected with the San by employees or contractors of CDFW Joaquin River that allow for CV or as a part of a monitoring and re- spring-run Chinook salmon access, but search program overseen by or coordi- excluding the Merced River. Those por- nated with CDFW. tions of the Kings River that connect (B) CDFW provides for NMFS’ review with the San Joaquin River during and approval a list of all scientific re- high water years are also part of the search activities involving direct take experimental population area. planned for the coming year, including (3) Prohibitions. Except as expressly an estimate of the total direct take allowed in paragraph (b)(4) of this sec- that is anticipated, a description of the tion, all prohibitions of section 9(a)(1) study design, including a justification of the ESA (16 U.S.C. 1538(a)(1)), except for taking the species and a description 9(a)(1)(C), apply to fish that are part of of the techniques to be used, and a the threatened, nonessential experi- point of contact. mental population of CV spring-run (C) CDFW annually provides to Chinook salmon identified in para- NMFS the results of scientific research graph (b)(2) of this section. activities directed at fish in the experi- (4) Exceptions to the Application of mental population, including a report Section 9 Take Prohibitions in the Ex- of the direct take resulting from the perimental Population Area. The fol- studies and a summary of the results of lowing forms of take in the experi- such studies. mental population area identified in (D) Scientific research activities that paragraph (b)(2) of this section are not may incidentally take fish in the ex- prohibited by this section: perimental population are either conducted by CDFW personnel, or are in (i) Any taking of CV spring-run Chi- accord with a permit issued by the nook salmon provided that it is unin- CDFW. tentional, not due to negligent con- (E) CDFW provides NMFS annually, duct, and incidental to, and not the for its review and approval, a report purpose of, the carrying out of an oth- listing all scientific research activities erwise lawful activity. it conducts or permits that may inci- (ii) Any taking of CV spring-run Chi- dentally take fish in the experimental nook salmon by an employee or des- population during the coming year. ignee of NMFS, the USFWS, other Fed- Such reports shall also contain the eral resource management agencies, amount of incidental take occurring in the California Department of Fish and the previous year’s scientific research Wildlife, or any other governmental activities and a summary of the results entity if in the course of their duties it of such research. is necessary to: aid a sick, injured or (F) Electro fishing in any body of stranded fish; dispose of a dead fish; or water known or suspected to contain salvage a dead fish which may be useful fish in the experimental population is for scientific study. Any agency acting conducted in accordance with NMFS under this provision must report to ‘‘Guidelines for Electrofishing Waters NMFS (see ADDRESSES section) the Containing Salmonids Listed Under the numbers of fish handled and their sta- Endangered Species Act’’ (NMFS, tus on an annual basis. 2000a). (iii) Any taking of CV spring-run Chi- (G) CDFW provides NMFS, for its re- nook salmon for scientific research or view and approval, the Monitoring and enhancement purposes by a person or Analysis Plan produced by the San entity with a valid section ESA Joaquin River Restoration Program, 10(a)(1)(A) permit issued by NMFS and including an estimate of the direct and a valid incidental take permit, consist- indirect take that may result from all ency determination, or other take au- scientific research activities in that thorization issued by the CDFW. plan for the period from January 30, (iv) Any taking of CV spring-run Chi- 2014 until January 30, 2015. nook salmon for scientific research (H) NMFS’ approval of a research purposes by the CDFW provided that: program shall be a written approval by

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the NMFS West Coast Regional Admin- reintroduction to the San Joaquin istrator. River. This share of take of CV spring- (5) Limited Exception to the Applica- run Chinook salmon reintroduced to tion of Section 9(a)(1) Take Prohibi- the San Joaquin River will be deducted tions Outside of the Experimental Pop- from or otherwise used to adjust the ulation Area. The following forms of operational triggers and incidental take are not prohibited: take statements associated with any (i) Any taking of CV spring-run Chi- biological opinion that is in effect at nook salmon in those portions of the the time for operations of the CVP and lower San Joaquin River and its tribu- SWP facilities. NMFS will use best taries, including the Merced River, available commercial or scientific in- downstream from its confluence with formation to inform these calculations. the Merced River to Mossdale County The technical memorandum and an- Park in San Joaquin County, that the nual determination will ensure that avoidance of which would impose more the reintroduction of CV spring-run than de minimus water supply reduc- Chinook salmon will not result in more tions, additional storage releases, or than de minimus water supply reduc- bypass flows on unwilling persons or tions, additional storage releases or by- entities diverting or receiving water pass flows of the CVP and SWP oper- pursuant to applicable State and Fed- ations under any biological opinion or eral laws. ESA section 10 permit that is in effect (ii)(A) Any taking of CV spring-run at the time for operations of the CVP Chinook salmon by the Central Valley and SWP on unwilling persons or enti- Project (CVP) and State Water Project ties diverting or receiving water pursu- (SWP) that originates from reintroduc- ant to applicable State and Federal tion to the San Joaquin River that the laws. avoidance of which would impose more (c) Okanogan River UCR spring-run than de minimus water supply reduc- Chinook Salmon Experimental Population tions, additional storage releases, or (Oncorhynchus tshawytscha). (1) The bypass flows on unwilling persons or Upper Columbia River (UCR) spring- entities diverting or receiving water run Chinook salmon population located pursuant to applicable State and Fed- in the geographic area identified in eral laws. paragraph (c)(5) of this section shall (B) NMFS will prepare a technical comprise the Okanogan River non- memorandum that describes the meth- essential experimental population odology to ensure that CV spring-run (NEP), and shall be treated as a Chinook salmon originating from re- ‘‘threatened species’’ pursuant to 16 introduction to the San Joaquin River U.S.C. 1539(j)(2)(C). do not cause more than de minimus water supply reductions, additional (2) Prohibitions. Except as provided in storage releases, or bypass flows asso- paragraph (c)(3) of this section, the ciated with the operations of the CVP prohibitions of section 9(a)(1) of the and SWP under any ESA section 7 bio- ESA (16 U.S.C. 1538(a)(1)) relating to logical opinion or section 10 permit endangered species apply to UCR that is in effect at the time for oper- spring-run Chinook salmon in the ations of the CVP and SWP. To the Okanogan River NEP Area, defined in maximum extent feasible, NMFS will paragraph (c)(5) of this section. develop this technical memorandum in (3) Exceptions to the Application of Sec- coordination with and with oppor- tion 9 Take Prohibitions in the Experi- tunity for comment by interested par- mental Population Area. Take of UCR ties. The first technical memorandum spring-run Chinook salmon that is oth- will be completed before CV spring-run erwise prohibited by paragraph (c)(2) of Chinook salmon will be released in the this section and 50 CFR 223.203(a) in the San Joaquin River. Prior to January 15 Okanogan River NEP Area is allowed, of each succeeding year, NMFS will up- except as otherwise noted, provided it date the technical memorandum and, if falls within one of the following cat- required by the methodology, deter- egories: mine the share of take at the CVP and (i) Any activity taken pursuant to a SWP facilities that originates from the valid permit issued by NMFS under

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§ 223.203(b)(1) and (7) for scientific re- tion, recreation, navigation, or for- search activities; estry practices, when such activities (ii) Aid, disposal, or salvage of fish by are in full compliance with all applica- authorized agency personnel acting in ble laws and regulations. Any fish that compliance with 50 CFR 223.203(b)(3); is incidentally taken in a manner al- (iii) Activities associated with artifi- lowed by this paragraph may not be cial propagation of the experimental collected and must be immediately re- population under an approved Hatchery turned to its habitat. Genetic Management Plan (HGMP) (4) Prohibited take outside the NEP that complies with the requirements of area. Outside the Okanogan River NEP 50 CFR 223.203(b)(5); Area, UCR spring-run Chinook salmon (iv) Any harvest-related activity un- are not considered to be part of the dertaken by a tribe, tribal member, NEP, irrespective of their origin, and tribal permittee, tribal employee, or therefore the take prohibitions for en- tribal agent consistent with tribal har- dangered UCR spring-run Chinook vest regulations and an approved Trib- salmon apply. al Resource Management Plan (TRMP) (5) Geographic extent of the Okanogan that complies with the requirements of River NEP Area. The geographic bound- 50 CFR 223.204; ary defining the Okanogan River NEP (v) Any harvest-related activity con- Area for UCR spring-run Chinook salm- sistent with state harvest regulations on is the mainstem and all tributaries and an approved Fishery Management of the Okanogan River between the Evaluation Plan (FMEP) that complies Canada-United States border to the with the requirements of 50 CFR confluence of the Okanogan River with 223.203(b)(4); or the Columbia River. All UCR spring- (vi) Any take that is incidental to an run Chinook salmon in this defined otherwise lawful activity, provided Okanogan River NEP Area are consid- that the taking is unintentional; not ered part of the NEP, irrespective of due to negligent conduct; and inci- where they originated. dental to, and not the purpose of, the [78 FR 2907, Jan. 15, 2013, as amended at 78 carrying out of the otherwise lawful FR 79632, Jan. 30, 2014; 79 FR 40015, July 11, activity. Otherwise lawful activities 2014] include, but are not limited to, agricul- tural, water management, construc- FIGURES 1–2 TO PART 223 [RESERVED]

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FIGURE 3 TO PART 223—MATAGORDA TED

[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

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FIGURE 4 TO PART 223—GEORGIA TED

[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

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FIGURE 5 TO PART 223—NET DIAGRAM FOR THE EXCLUDER PANEL OF THE PARKER SOFT TED

[63 FR 17958, Apr. 13, 1998]

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FIGURE 6 TO PART 223—TED EXTENSION IN SUMMER FLOUNDER TRAWL

[64 FR 55864, Oct. 15, 1999]

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FIGURES 7–9b TO PART 223 [RESERVED]

FIGURE 10 TO PART 223—FLOUNDER TED

[58 FR 54069, Oct. 20, 1993]

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FIGURE 11 TO PART 223—MODIFIED FLOUNDER TED

[77 FR 29910, May 21, 2012]

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FIGURE 12 TO PART 223—ESCAPE OPENING & COVER DIMENSIONS FOR 71-INCH TED

[68 FR 8469, Feb. 21, 2003]

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FIGURE 13 TO PART 223—SINGLE GRID HARD TED ESCAPE OPENING

[60 FR 15520, Mar. 24, 1995]

442

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FIGURES 14a AND 14b TO PART 223—MAXIMUM ANGLE OF DEFLECTOR BARS WITH STRAIGHT BARS ATTACHED TO THE BOTTOM OF THE FRAME AND MAXIMUM ANGLE OF DEFLECTOR BARS WITH BENT BARS ATTACHED TO THE BOTTOM OF THE FRAME

[61 FR 66946, Dec. 19, 1996]

443

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FIGURE 15 TO PART 223—WEEDLESS TED BRACE BAR DESCRIPTION

[68 FR 8469, Feb. 21, 2003]

444

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FIGURE 16 TO PART 223—ESCAPE OPENING AND FLAP DIMENSIONS FOR THE DOUBLE COVER FLAP TED

[69 FR 31037, June 2, 2004]

445

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FIGURE 17 TO PART 223—BOONE WEDGE CUT ESCAPE OPENING

[77 FR 29911, May 21, 2012]

446

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FIGURES 18a, 18b AND 18c TO PART 223—LARGE FRAME TED ESCAPE OPENING; MIN- IMUM DIMENSIONS USING ALL-BAR CUTS (TRIANGULAR CUTS); LARGE FRAME TED ESCAPE OPENING; MINIMUM DIMENSIONS USING ALL-BAR CUTS AND LEADING EDGE CUT; LARGE FRAME TED ESCAPE OPENING; MINIMUM DIMENSIONS USING ALL-POINTS SIDE CUTS (RECTANGULAR CUT)

[77 FR 29912, May 21, 2012]

447

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FIGURES 19a AND 19b TO PART 223—CHAUVIN SHRIMP DEFLECTOR INSTALLATION DETAILS

[77 FR 29912, May 21, 2012]

448

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