Endangered and Threatened Wildlife; Final Rule To Revise the Code of Federal Regulations for Species Under the Jurisdiction of the National Marine Fisheries Service, 20802-20817 [2014-08347]
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Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Rules and Regulations
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[FR Doc. 2014–08190 Filed 4–11–14; 8:45 am]
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Background
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 223 and 224
[Docket No. 130501429–4198–02]
RIN 0648–XC659
Endangered and Threatened Wildlife;
Final Rule To Revise the Code of
Federal Regulations for Species Under
the Jurisdiction of the National Marine
Fisheries Service
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
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§ 18.3 Official, unofficial or misuse of HHS
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We, NMFS, announce
revisions to the Code of Federal
Regulations (CFR) to clarify and update
the descriptions of species under NMFS’
jurisdiction that are currently listed as
threatened or endangered under the
Endangered Species Act of 1973 (ESA).
Revisions include format changes to our
lists of threatened and endangered
species, revisions to regulatory language
explaining our lists, updates to the
descriptions of certain listed West Coast
salmonid species to add or remove
hatchery stocks consistent with our
recently completed 5-year reviews
under ESA section 4(c)(2), and
corrections to regulatory text to fix
inadvertent errors from previous
rulemakings, update cross-references,
and provide consistent language. We are
not adding or removing any species to
or from our lists, changing the status of
any listed species, or adding or revising
any critical habitat designation.
DATES: This final rule is effective on
April 14, 2014.
ADDRESSES: Information concerning this
final rule may be obtained by contacting
SUMMARY:
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Office of Protected Resources, NMFS,
1315 East-West Highway, Silver Spring,
MD 20910. Copies of the 5-year status
reviews can be found on our Web sites
at https://www.nmfs.noaa.gov/pr/listing/
reviews.htm and https://
www.westcoast.fisheries.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: For
further information regarding this rule
contact Maggie Miller, NMFS, Office of
Protected Resources (301) 427–8403; for
information on the 5-year status reviews
of Pacific salmonids, contact Steve
Stone, NMFS, West Coast Region (503)
231–2317.
SUPPLEMENTARY INFORMATION:
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Section 4 of the ESA provides for both
NMFS and the U.S. Fish and Wildlife
Service (FWS) to make determinations
as to the endangered or threatened
status of ‘‘species’’ in response to
petitions or on their own initiative. In
accordance with the ESA, we (NMFS)
make determinations as to the
threatened or endangered status of
species by regulation. These regulations
provide the text for each species listing
and include the content required by the
ESA section 4(c)(1). We enumerate and
maintain a list of species under our
jurisdiction which we have determined
to be threatened or endangered at 50
CFR 223.102 (threatened species) and 50
CFR 224.101 (endangered species)
(hereafter referred to as the ‘‘NMFS
Lists’’). The FWS maintains two master
lists of all threatened and endangered
species, i.e., both species under NMFS’
jurisdiction and species under FWS’
jurisdiction (the ‘‘FWS Lists’’), at 50
CFR 17.11 (threatened and endangered
animals) and 50 CFR 17.12 (threatened
and endangered plants). The term
‘‘species’’ for listing purposes under the
ESA includes the following entities:
species, subspecies, and, for vertebrates
only, ‘‘distinct population segments
(DPSs).’’ Pacific salmon are listed as
‘‘evolutionarily significant units
(ESUs),’’ which are essentially
equivalent to DPSs for the purpose of
the ESA. For West Coast salmon and
steelhead, many of the ESU and DPS
descriptions include fish originating
from specific artificial propagation
programs (e.g., hatcheries) that, along
with their naturally-produced
counterparts, are included as part of the
listed species.
We recently completed a 5-year
review of the status of ESA-listed
salmon ESUs and steelhead DPSs in
California (76 FR 50447, August 15,
2011; and 76 FR 76386, December 7,
2011) and in Oregon, Idaho, and
Washington (76 FR 50448; August 15,
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2011). The ESA requires this regular
review of listed species to determine
whether a species should be delisted,
reclassified, or whether the current
classification should be retained (16
U.S.C. 1533(c)(2)). As a result of our
review, we identified several errors,
omissions, and updates that warrant
revising the NMFS and FWS Lists for
the sake of accuracy and improved
readability. We also identified crossreferencing errors in our regulations at
50 CFR 223. On June 26, 2013, we
proposed to revise the NMFS Lists
based on the aforementioned review and
additionally proposed to correct or
clarify text and update the list formats
for all species under our jurisdiction (78
FR 38270), and solicited public
comments.
Summary of Comments Received in
Response to the Proposed Rule
We received a single comment from
an individual and a number of
comments from the Washington
Department of Fish and Wildlife
(WDFW) during the public comment
period. A summary of the comments
and our responses is provided below.
Comment 1: One commenter objects
to listing the species in the NMFS lists
alphabetically by common name and
states that in a list of this sort, a
phylogenetic sequence should be used,
and there are a number of published
references that provide such lists. In this
way, the agency would avoid the
problem of taxa in a single genus being
separated in the list by taxa of other
genera. Listing some taxa by their
common names and other taxa by their
scientific names is confusing and
inconsistent. As it stands, subspecific
taxa are separated in the lists by other
species. For example, bearded seal and
Guadalupe fur seal are listed among
three subspecies of ringed seals. The
proposed rule calls for ordering the
species alphabetically (not species and
subspecies mixed together); therefore
the three ringed seal subspecies should
follow the Guadalupe fur seal in the list.
Response: We acknowledge the
presence of lists that use phylogenetic
sequences and alphabetize taxa by their
scientific names, and note that common
names may vary in local usage;
however, we want to make this list a
resource that is easily accessible and
searchable by a wide variety of
audiences, including the general public.
We are acting under the assumption that
the general public would be more likely
to search by common name, for
example, ‘‘salmon’’ or ‘‘salmon,
Chinook,’’ rather than search under
‘‘Oncorhynchus tshawytscha’’ in order
to learn more about a listing
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determination or critical habitat for a
species. In this way, we are also making
our lists consistent with the format of
the FWS List for threatened and
endangered wildlife (50 CFR 17.11). The
threatened and endangered wildlife on
the FWS List are listed alphabetically by
common name. Additionally, we have
created headings in the tables (such as
‘‘Marine Mammals,’’ ‘‘Sea Turtles,’’ and
‘‘Fishes’’) that should make searching
for specific species less confusing. We
are also removing the heading ‘‘Marine
Invertebrates’’ and adding the new
headings of ‘‘Corals’’ and ‘‘Molluscs’’ for
increased specificity of the listed
animals. This is not a substantive
change, but having these more specific
headings will help the public identify
and locate species of interest in a more
efficient manner.
The ESA defines ‘‘species’’ to include
subspecies or a DPS of any vertebrate
species which interbreeds when mature
(16 U.S.C. 1532(16)). As such, the
ordering of the ‘‘species’’ alphabetically,
as mentioned in the proposed rule, also
includes ordering subspecies
alphabetically as well. However, we
agree that subspecies of the same
species should not be separated by other
species within the list order. Therefore,
we will revise the listed subspecies by
placing the subspecies’ common name
within parentheses, similar to the way
we have listed DPSs, and alphabetizing
by the species’ common name. As an
example, ‘‘Seal, Arctic ringed’’ will be
revised to read ‘‘Seal, ringed (Arctic
subspecies).’’
Comment 2: WDFW recommends
identifying listed stocks by naming
them individually by basin (noting that
this convention was used for the Puget
Sound steelhead DPS).
Response: We believe that our current
approach remains the best way to
describe Pacific salmon and steelhead
species listed under the ESA. In our
experience, identifying an ESU or DPS
using boundary streams or prominent
geographic features (e.g., Cape Blanco)
allows for concise and intuitive
descriptions. As the commenter notes,
there are a few cases where the unique
geography of a species’ range (e.g., the
inland waters of Puget Sound) may call
for some additional description.
However, in most cases ESA-listed ESUs
and DPSs of salmonids under our
jurisdiction are easily described using
just a few boundary streams/features.
More detailed information about finerscale species distribution can be found
in the critical habitat designations and
in population delineations described in
ESA recovery plans and supporting
technical documents for each listed
salmon ESU and steelhead DPS.
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Comment 3: The Federal Register
notice states revisions to the listing
descriptions are ‘‘to take into account
the addition or termination of specific
artificial propagation programs which
contribute individuals to that ESU or
DPS.’’ WDFW recommends excluding
segregated stocks meeting the following
criteria: (i) Returning adults from the
program do not contribute to the ESU;
(ii) are within basins where wild stocks
of the same species and run type do not
occur; (iii) there is no historical natural
population; (iv) the program is harvest
oriented using an introduced stock to
support a terminal fishery. As such,
WDFW believes that the Lower
Columbia River isolated (segregated)
programs should be excluded from the
listing.
Response: For the issues raised in this
comment we rely on our 2005 ‘‘Policy
on the Consideration of Hatchery-Origin
Fish in Endangered Species Act Listing
Determinations for Pacific Salmon and
Steelhead’’ (‘‘Hatchery Listing Policy’’;
70 FR 37204, June 28, 2005). The
Hatchery Listing Policy establishes
criteria for (1) determining when
hatchery stocks should be considered
part of the listed ESU/DPS; and (2) in
evaluating the effect of hatcheryproduced fish on the extinction risk of
an ESU/DPS. Delineating the ‘‘species’’
under consideration and then evaluating
the species’ risk of extinction are
distinct considerations in our ESA
listing determinations, as reflected in
the Hatchery Listing Policy. Some of
WDFW’s recommended criteria are
consistent with the Hatchery Listing
Policy and pertinent to the
determination of hatchery membership
in an ESU/DPS. Some of the criteria,
however, are not pertinent to the
determination of hatchery membership
but would inform an evaluation of the
effects of hatchery fish on overall ESU/
DPS extinction risk.
The Hatchery Listing Policy states
that hatchery stocks will be considered
part of an ESU/DPS if they exhibit a
level of genetic divergence relative to
the local natural population(s) that is
not more than what occurs within the
ESU/DPS. We evaluate the relatedness
of each hatchery stock to the natural
component of an ESU/DPS on the basis
of stock origin and the degree of known
or inferred genetic divergence between
the hatchery stock and the local natural
population(s). Several of the criteria that
WDFW recommends for excluding
segregated hatchery stocks are valid
considerations for evaluating the level
of divergence between a hatchery stock
and the local natural population(s).
Whether a hatchery stock is released in
a basin where wild populations of the
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same species and run type do not occur,
whether natural populations exist in the
basin (historically or currently), and
whether a program propagates an
introduced stock, are each important
considerations in evaluating the level of
divergence of a hatchery stock relative
to the local natural population(s).
However, whether a hatchery stock is
contributing to natural productivity
does not inform our determination of
hatchery membership in a listed ESU/
DPS. Rather, such information would
inform our evaluation of the effects of
the hatchery stock on overall ESU/DPS
extinction risk. Similarly, the
management purpose of a hatchery
stock in-and-of-itself (e.g., if it is
intended to support a terminal fishery)
would not inform our determination of
ESU/DPS membership. However, the
interaction of the hatchery stock with
natural populations, and any impacts on
natural populations of a fishery the
hatchery stock supports, are valid
considerations in evaluating overall
ESU/DPS extinction risk. We do not
believe criteria relating to a hatchery
stock’s impacts on ESU/DPS extinction
risk are valid considerations in
determining whether a hatchery stock
should be included as part of the listing.
As such, we are not excluding the
Lower Columbia River isolated
(segregated) programs from the listing.
For more discussion of this issue, the
reader is referred to the response to
comments in the Hatchery Listing
Policy final rule (see Issue 6 and
response, 70 FR at 37209).
Comment 4: WDFW recommends that
the Upper Columbia River Spring-Run
Chinook Salmon ESU include the recent
Nason Creek Program which was
implemented in 2013.
Response: Our review of the
membership of hatchery programs in
listed ESUs/DPS was conducted as part
of the ESA 5-year reviews completed
2011 (76 FR 50448; August 15, 2011).
Hatchery programs implemented or
modified after our previous review will
be evaluated as part of the next ESA 5year reviews scheduled for 2015.
Comment 5: WDFW notes that fall-run
Chinook salmon originating from Upper
Columbia River ‘‘bright’’ hatchery stocks
(referred to as ‘‘brights’’ because they
maintain their silvery color throughout
the upstream migration) that spawn in
the mainstem Columbia River below
Bonneville Dam are excluded from the
Lower Columbia River Chinook Salmon
ESU. Because this bright stock has been
documented spawning in Hamilton
Creek and is likely present in other
Washington and Oregon Lower Gorge
tributaries as well, WDFW
recommended that this exclusion to the
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listing be expanded to include the
Lower Gorge tributaries adjacent to the
Columbia River mainstem.
Response: We agree that fall-run
Chinook salmon originating from the
Upper Columbia River bright hatchery
stocks that spawn in the Columbia River
Gorge area tributaries below Bonneville
Dam should also be excluded from the
ESU. We have refined the definition for
the Lower Columbia River Chinook ESU
to exclude 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.
Comment 6: WDFW notes that the Sea
Resources Tule Chinook Program was
terminated over 5 years ago, and
recommends that this program be
deleted from the Lower Columbia River
Chinook Salmon ESU.
Response: We agree. At the time of
our 2011 ESA 5-year reviews the Sea
Resources Tule Chinook Program had
been terminated, but there were still
returning adults. At this time, however,
no more adult returns are expected. We
have removed the Sea Resources Tule
Chinook Program from the ESU
definition.
Comment 7: WDFW notes that the
Bonneville Hatchery Tule Fall Chinook
Program (a portion of the Spring Creek
NFH Tule Chinook Program transferred
to Bonneville Hatchery) and that portion
of the Big Creek Tule Chinook Program
transferred to Youngs Bay for Select
Area Fishery Enhancement do not
support wild tule Chinook populations
in these areas. WDFW also notes that it
does not operate these programs (or
portions of programs), but recommends
they be considered for exclusion from
the Lower Columbia River Chinook
Salmon ESU.
Response: In our 2011 ESA 5-year
reviews we determined that the
Bonneville Hatchery Tule Fall Chinook
Program did not merit inclusion in the
ESU. This program was listed as being
part of the ESU in the proposed rule by
error. It has been removed from the
definition of the Lower Columbia River
Chinook ESU.
Comment 8: WDFW recommends
excluding portions of the Big Creek and
Spring Creek NFH Tule Chinook
Programs from the Lower Columbia
River Chinook Salmon ESU based on
their release location because they do
not support wild populations in those
locations.
Response: As noted previously, we
rely on our 2005 Hatchery Listing Policy
when considering hatchery-origin fish
in ESA listing determinations for Pacific
salmon and steelhead. That policy does
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not contemplate excluding hatchery
stocks, or portions thereof, based on
their release location or whether they
are effectively contributing to the
natural production of local populations.
A key premise of the policy is that
genetic resources represent the
ecological diversity and evolutionary
legacy of the species, and that these
genetic resources can reside in hatchery
fish as well as in natural fish. As such,
excluding hatchery fish based on their
release location or reproductive success
would not recognize the genetic
resource the hatchery stock represents
to the ESU as a whole. In this final rule,
we have therefore continued to include
the Big Creek and Spring Creek NFH
Tule Chinook Programs as part of the
Lower Columbia River Chinook Salmon
ESU.
Comment 9: WDFW notes that the
Friends of the Cowlitz Spring Chinook
Program and the Kalama River Spring
Chinook Program are isolated programs
and recommends deleting them from the
Lower Columbia River Chinook Salmon
ESU.
Response: The shift in these programs
toward segregation and not using
natural-origin fish in the broodstock is
relatively recent. Our 2011 ESA 5-year
reviews noted that these programs are
trending toward divergence and should
be reevaluated during the next 5-year
review. We are not removing these
programs from the ESU definition at this
time, but these programs will be
evaluated as part of the next ESA 5-year
reviews scheduled for 2015.
Comment 10: WDFW disagrees with
our proposal to include the Deep River
Net Pens Tule Fall Chinook Program in
the Lower Columbia River Chinook
Salmon ESU, noting that it is an isolated
program currently using broodstock
from the Washougal Hatchery and does
not support a wild tule Chinook
population in Deep River.
Response: In our 2011 ESA 5-year
reviews we determined that a number of
tule fall Chinook programs did not merit
inclusion in the ESU: The Deep River
Net Pens Tule Fall Chinook Program;
the Klaskanine Hatchery Tule Fall
Chinook Program; the Bonneville
Hatchery Tule Fall Chinook Program;
and the Little White Salmon NFH Tule
Fall Chinook Program. In the proposed
rule these programs were erroneously
listed as being part of the ESU. In this
final rule we have corrected the ESU
definition by removing these programs
from the definition of the Lower
Columbia River Chinook ESU.
Comment 11: WDFW concurs with
our deletion of the now-terminated
Elochoman River Tule Chinook Program
from the Lower Columbia River Chinook
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Salmon ESU. However, WDFW notes
that it is in the process of developing a
conservation level integrated tule fall
Chinook program on the Elochoman to
be operated from the Beaver Creek
Hatchery and recommended this new
program be added to the ESU.
Response: Hatchery programs
implemented or modified after our 2011
ESA 5-year reviews will be evaluated as
part of the next ESA 5-year reviews
scheduled for 2015. Accordingly, we are
not adding the Beaver Creek Hatchery
Tule Fall Chinook Program to the
definition of the Lower Columbia River
Chinook Salmon ESU at this time.
Comment 12: WDFW notes that the
spring yearling Chinook program has
been terminated at Marblemount
Hatchery and recommends that this
program be deleted from the Puget
Sound Chinook Salmon ESU.
Response: We agree that it is
appropriate to delete the spring
yearlings component of the
Marblemount Hatchery Program from
the description of the Puget Sound
Chinook listing. As such, we have
struck the phrase ‘‘spring yearlings’’
from the description in this final rule so
that the definition for the Puget Sound
Chinook listing states the ‘‘Marblemount
Hatchery Program (spring subyearlings
and summer-run).’’
Comment 13: WDFW notes that the
Chinook River (Sea Resources Hatchery)
Chum Salmon Program was terminated
over 5 years ago and recommends that
this program be deleted from the
Columbia River Chum Salmon ESU.
Response: We agree. At the time of
our 2011 ESA 5-year reviews the
Chinook River (Sea Resources Hatchery)
Chum Salmon Program had been
terminated, but there were still
returning adults. At this time, however,
no more adult returns are expected. We
have removed the Chinook River (Sea
Resources Hatchery) Chum Salmon
Program from the ESU definition.
Comment 14: WDFW recommends
that the Washougal River Hatchery/
Duncan Creek Hatchery Program (part of
the Columbia River Chum Salmon ESU)
be revised to read as the ‘‘Washougal
River Hatchery/Duncan Creek Program,’’
because there is no hatchery on Duncan
Creek.
Response: We agree and have made
the correction in this final rule.
Comment 15: WDFW notes that the
Sea Resources Hatchery Program and
the Cathlamet High School Future
Farmers of America Program were
terminated over 5 years ago, and
recommends that these programs be
deleted from the Lower Columbia River
Coho Salmon ESU.
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Response: We agree. At the time of
our 2011 ESA 5-year reviews the Sea
Resources Hatchery Program and the
Cathlamet High School Future Farmers
of America Type-N Coho Program had
been terminated, but there were still
returning adult fish. At this time,
however, no more adult returns are
expected, and we have removed these
two programs from the ESU definition.
Comment 16: WDFW comments that
the following are isolated programs and
recommends deleting them from the
Lower Columbia River Coho Salmon
ESU: Peterson Coho Program; Cowlitz
Game & Anglers Coho Program; Friends
of the Cowlitz Coho Program; Fish First
Type N Program (used for the mainstem
Lewis River); and Syverson Project
Type-N Coho Program.
Response: These programs were not
identified as segregated during our 2011
ESA 5-year review. Hatchery programs
implemented or modified after the 2011
review will be evaluated as part of the
next ESA 5-year reviews, which are
scheduled for 2015.
Comment 17: WDFW concurs with
our inclusion of the Cowlitz Trout
Hatchery Late Winter-run Program in
the Lower Columbia River Steelhead
DPS, and further recommends that two
additional integrated late-winter
programs in the Tilton River and the
Upper Cowlitz River be added to this
DPS.
Response: The Tilton and Upper
Cowlitz programs are relatively new
(since our 2011 ESA 5-year reviews);
hatchery programs implemented or
modified after our previous review will
be evaluated as part of the next ESA 5year reviews in 2015.
Summary of Changes From the
Proposed Rule
Based on the comments received and
our review of the proposed rule, we
made the changes listed below.
1. We revised the common names of
listed subspecies by placing the
subspecies’ common name within
parentheses and alphabetizing by the
species’ common name.
2. We removed the heading ‘‘Marine
Invertebrates’’ from both the threatened
species list at 50 CFR 223.102 and the
endangered species list at 50 CFR
224.101. We created a new ‘‘Corals’’
heading for the threatened species list at
50 CFR 223.102 and a ‘‘Molluscs’’
heading for the endangered species list
at 50 CFR 224.101.
3. We revised the description of the
‘‘Salmon, Chinook (Lower Columbia
River ESU)’’ by excluding Upper
Columbia River bright hatchery stocks
that spawn in the mainstem Columbia
River below Bonneville Dam and in
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other tributaries upstream from the
Sandy River to the Hood and White
Salmon Rivers, and by removing the
following artificial propagation
programs from inclusion in the DPS: Sea
Resources Tule Chinook Program,
Bonneville Hatchery Tule Fall Chinook
Program, Deep River Net Pens Tule Fall
Chinook Program, Klaskanine Hatchery
Tule Fall Chinook Program, and Little
White Salmon NFH Tule Fall Chinook
Program.
4. We revised the description of the
‘‘Salmon, Chinook (Puget Sound ESU)’’
by deleting reference to the spring
yearling component of the Marblemount
Hatchery Program.
5. We revised the description of the
‘‘Salmon, chum (Columbia River ESU)’’
by removing the Chinook River Program
(Sea Resources Hatchery) from the
included artificial propagation
programs, and by revising the name of
the Washougal River Hatchery/Duncan
Creek Hatchery Program to read
‘‘Washougal River Hatchery/Duncan
Creek Program.’’
6. We revised the description of the
‘‘Salmon, coho (Lower Columbia River
ESU)’’ by removing the Sea Resources
Hatchery Program and the Cathlamet
High School Future Farmers of America
Type-N Coho Program from the
included artificial propagation
programs.
7. We made a few additional technical
corrections to the regulatory text to
provide consistent language. These
minor edits do not affect the substance
of the regulations.
More information regarding the other
administrative changes and technical
corrections to the Code of Federal
Regulations that will clarify and update
the descriptions of species under NMFS’
jurisdiction, and which are being
finalized with this rulemaking, can be
found in the proposed rulemaking (78
FR 38270, June 26, 2013).
References
Copies of previous Federal Register
notices and related reference materials
are available on the Internet at https://
www.nmfs.noaa.gov/pr/listing/
reviews.htm, https://www.westcoast.
fisheries.noaa.gov/, or upon request (see
FOR FURTHER INFORMATION CONTACT
section above).
Classification
Regulatory Flexibility Act (5 U.S.C. 601
et seq.) and Executive Order 13211
This final rule simply updates
sections 223 and 224 of the CFR
pursuant to prior agency determinations
or involves format changes, none of
which could result in economic
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impacts. Therefore, the economic
analysis requirements of the Regulatory
Flexibility Act and Executive Order
12866 are not applicable.
Federalism
In accordance with Executive Order
13132, we determined that this final
rule does not have significant
Federalism effects and that a Federalism
assessment is not required. The
revisions may have some benefit to state
and local resource agencies in that the
ESA-listed species addressed in this
rulemaking are more clearly and
consistently described.
Civil Justice Reform
The Department of Commerce has
determined that this final rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of Executive Order 12988. In
keeping with that Order, we are revising
our descriptions of ESA-listed species to
improve the clarity and general
draftsmanship of our regulations.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This final rule does not contain new
or revised information collection
requirements for which Office of
Management and Budget (OMB)
approval is required under the
Paperwork Reduction Act. This final
rule will not impose recordkeeping or
reporting requirements on state or local
governments, individuals, businesses, or
organizations. Notwithstanding any
other provision of the law, no person is
required to respond to, nor shall any
person be subject to a penalty for failure
to comply with, a collection of
information subject to the requirements
of the PRA, unless that collection of
information displays a currently valid
OMB Control Number.
mstockstill on DSK4VPTVN1PROD with RULES
National Environmental Policy Act of
1969 (NEPA)
This final rule clarifies and updates
the descriptions of species under NMFS’
jurisdiction that are currently listed as
threatened or endangered under the
ESA and thus is primarily
administrative in nature. As such,
NMFS has determined this final rule is
categorically excluded from further
NEPA review by NOAA Administrative
Order 216–6, paragraph 6.03c.3(i). No
extraordinary circumstances concerning
this action exist. Therefore, NMFS will
not prepare an Environmental
Assessment or Environmental Impact
Statement for the rule.
VerDate Mar<15>2010
16:13 Apr 11, 2014
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Government-to-Government
Relationship With Tribes
§ 223.101
Executive Order 13084 requires that if
NMFS issues a regulation that
significantly or uniquely affects the
communities of Indian tribal
governments and imposes substantial
direct compliance costs on those
communities, NMFS must consult with
those governments or the Federal
government must provide the funds
necessary to pay the direct compliance
costs incurred by the tribal
governments. This final rule does not
impose substantial direct compliance
costs on Indian tribal governments or
communities. Accordingly, the
requirements of section 3(b) of E.O.
13084 do not apply to this final rule.
Nonetheless, during our 5-year review
of salmon and steelhead we solicited
information from the tribes, met with
several tribal governments and
associated tribal fisheries commissions,
and provided the opportunity for all
interested tribes to comment on the
proposed changes to the species’ status
and descriptions and discuss any
concerns they may have. We will
continue to inform potentially affected
tribal governments, solicit their input,
and coordinate on future management
actions pertaining to the listed species
addressed in this rule.
List of Subjects
50 CFR Part 223
Endangered and threatened species,
Exports, Imports, Transportation.
50 CFR Part 224
Administrative practice and
procedure, Endangered and threatened
species, Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Dated: April 8, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR parts 223 and 224 is
amended as follows:
PART 223—THREATENED MARINE
AND ANADROMOUS SPECIES
1. The authority citation for part 223
continues to read as follows:
■
Authority: 16 U.S.C. 1531 et seq.; subpart
B, §§ 223.201 and 223.202 also issued under
16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
§ 223.206(d)(9).
2. Revise § 223.101(a) to read as
follows:
■
PO 00000
Frm 00054
Fmt 4700
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Purpose and scope.
(a) The regulations contained in this
part identify the species under the
jurisdiction of the Secretary of
Commerce that have been determined to
be threatened species pursuant to
section 4(a) of the Act, and provide for
the conservation of such species by
establishing rules and procedures to
govern activities involving the species.
*
*
*
*
*
■ 3. Revise § 223.102 to read as follows:
§ 223.102 Enumeration of threatened
marine and anadromous species.
(a) The table below identifies the
species under the jurisdiction of the
Secretary of Commerce that have been
determined to be threatened pursuant to
section 4(a) of the Act, species treated
as threatened because they are
sufficiently similar in appearance to
threatened species, and experimental
populations of threatened species.
(b) The columns entitled ‘‘Common
name,’’ ‘‘Scientific name,’’ and
‘‘Description of listed entity’’ define the
species within the meaning of the Act.
In the ‘‘Common name’’ column,
experimental populations are identified
as ‘‘XE’’ for essential populations or
‘‘XN’’ for nonessential populations.
Species listed based on similarity of
appearance are identified as ‘‘S/A.’’
Although a column for ‘‘Common
name’’ is included, common names
cannot be relied upon for identification
of any specimen, because they may vary
greatly in local usage. The ‘‘Scientific
name’’ column provides the most
recently accepted scientific name,
relying to the extent practicable on the
International Code of Zoological
Nomenclature. In cases in which
confusion might arise, a synonym(s)
will be provided in parentheses. The
‘‘Description of listed entity’’ column
identifies whether the listed entity
comprises the entire species, a
subspecies, or a distinct population
segment (DPS) and provides a
description for any DPSs. Unless
otherwise indicated in the ‘‘Description
of listed entity’’ column, all individual
members of the listed entity and their
progeny retain their listing status
wherever found, including individuals
in captivity. Information regarding the
general range of the species, subspecies,
or DPS may be found in the Federal
Register notice(s) cited in the
‘‘Citation(s) for listing determination(s)’’
column.
(c) The ‘‘Citation(s) for listing
determination(s)’’ column provides
reference to the Federal Register
notice(s) determining the species’ status
under the Act. The abbreviation ‘‘(SPR)’’
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(significant portion of its range) after a
citation indicates that the species was
listed based on its status in a significant
portion of its range. If a citation does not
include the ‘‘(SPR)’’ notation, it means
that the species was listed based on its
status throughout its entire range. For
‘‘(SPR)’’ listings, a geographical
description of the SPR may be found in
the referenced Federal Register notice.
The ‘‘(SPR)’’ notation serves an
informational purpose only and does
not imply any limitation on the
application of the prohibitions or
restrictions of the Act or implementing
rules.
(d) The ‘‘Critical habitat’’ and ‘‘ESA
rules’’ columns provide cross-references
to other sections in this part and part
226. The term ‘‘NA’’ appearing in the
‘‘Critical habitat’’ column indicates that
there are no critical habitat designations
for that species; similarly, the term
‘‘NA’’ appearing in the ‘‘ESA rules’’
column indicates that there are no ESA
rules for that species. However, all other
Species 1
Common name
Scientific name
applicable rules in parts 222 through
226 and part 402 still apply to that
species. Also, there may be other rules
in this title that relate to such wildlife.
The ‘‘ESA rules’’ column is not
intended to list all Federal, state, tribal,
or local governmental regulations that
may apply to the species.
(e) The threatened species under the
jurisdiction of the Secretary of
Commerce are:
Citation(s) for listing
determination(s)
Description of listed entity
Critical
habitat
ESA rules
Marine Mammals
Seal, bearded (Beringia
DPS).
Erignathus barbatus
nauticus.
Seal, bearded (Okhotsk
DPS).
Erignathus barbatus
nauticus.
Seal, Guadalupe fur .....
Arctocephalus
townsendi.
Phoca (=Pusa) hispida
hispida.
Phoca (=Pusa) hispida
botnica.
Phoca (=Pusa) hispida
ochotensis.
Phoca largha ................
Seal, ringed (Arctic subspecies).
Seal, ringed (Baltic subspecies).
Seal, ringed (Okhotsk
subspecies).
Seal, spotted (Southern
DPS).
Bearded seals originating from breeding areas
in the Arctic Ocean and adjacent seas in the
Pacific Ocean between 145° E. Long.
(Novosibirskiye) and 130° W. Long., and east
of 157° E. Long. or east of the Kamchatka
Peninsula.
Bearded seals originating from breeding areas
in the Pacific Ocean west of 157° E. Long. or
west of the Kamchatka Peninsula.
Entire species .....................................................
Entire subspecies ...............................................
Entire subspecies ...............................................
Entire subspecies ...............................................
Spotted seals originating from breeding areas
in the Pacific Ocean south of 43° N. Lat.
77 FR 76740, Dec 28,
2012.
NA
NA.
77 FR 76740, Dec 28,
2012.
NA
NA.
50 FR 51252,
1985.
77 FR 76706,
2012.
77 FR 76706,
2012.
77 FR 76706,
2012.
75 FR 65239,
2010.
Dec 16,
NA
223.201.
Dec 28,
NA
NA.
Dec 28,
NA
NA.
Dec 28,
NA
NA.
Oct 22,
NA
223.212.
43 FR 32800, Jul 28,
1978.
76 FR 58868, Sep 22,
2011.
226.208
76 FR 58868, Sep 22,
2011.
NA
223.205, 223.206,
223.207.
76 FR 58868, Sep 22,
2011.
NA
223.205, 223.206,
223.207.
76 FR 58868, Sep 22,
2011.
NA
223.205, 223.206,
223.207.
43 FR 32800, Jul 28,
1978.
NA
223.205, 223.206,
223.207.
Sea Turtles 2
Sea turtle, green ...........
Chelonia mydas ...........
Sea turtle, loggerhead
(Northwest Atlantic
Ocean DPS).
Sea turtle, loggerhead
(South Atlantic Ocean
DPS).
Sea turtle, loggerhead
(Southeast Indo-Pacific Ocean DPS).
Caretta caretta .............
Sea turtle, loggerhead
(Southwest Indian
Ocean DPS).
Sea turtle, olive ridley ...
Caretta caretta .............
Caretta caretta .............
Caretta caretta .............
Lepidochelys olivacea ..
Entire species, except when listed as endangered under § 224.101.
Loggerhead sea turtles originating from the
Northwest Atlantic Ocean west of 40° W.
Long.
Loggerhead sea turtles originating from the
South Atlantic Ocean west of 20° E. Long.
and east of 67° W. Long.
Loggerhead sea turtles originating from the
Southeast Indian Ocean east of 80° E. Long.
and from the South Pacific Ocean west of
141° E. Long.
Loggerhead sea turtles originating from the
Southwest Indian Ocean west of 80° E. Long.
and east of 20° E. Long.
Entire species, except when listed as endangered under § 224.101.
NA
223.205, 223.206,
223.207.
223.205, 223.206,
223.207.
Fishes
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Eulachon (Southern
DPS).
Thaleichthys pacificus ..
Rockfish, canary (Puget
Sound/Georgia Basin
DPS).
Rockfish, yelloweye
(Puget Sound/Georgia Basin DPS).
Salmon, Chinook (California Coastal ESU).
Sebastes pinniger ........
Salmon, Chinook (Central Valley spring-run
ESU).
Oncorhynchus
tshawytscha.
VerDate Mar<15>2010
Eulachon originating from the Skeena River in
British Columbia south to and including the
Mad River in northern California.
Canary rockfish originating from Puget Sound
and the Georgia Basin.
75 FR 13012, Mar 18,
2010.
226.222
NA.
75 FR 22276, Apr 28,
2010.
NA
NA.
Sebastes ruberrimus ....
Yelloweye rockfish originating
Sound and the Georgia Basin.
Puget
75 FR 22276, Apr 28,
2010.
NA
NA.
Oncorhynchus
tshawytscha.
Naturally spawned Chinook salmon originating
from rivers and streams south of the Klamath
River to and including the Russian River.
Naturally spawned spring-run Chinook salmon
originating from the Sacramento River and its
tributaries. Also, spring-run Chinook salmon
from the Feather River Hatchery Spring-run
Chinook Program. This DPS does not include
Chinook salmon that are designated as part
of an experimental population.
70 FR 37160, Jun 28,
2005.
226.211
223.203.
70 FR 37160, Jun 28,
2005.
226.211
223.203.
16:13 Apr 11, 2014
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Species 1
Common name
Scientific name
Oncorhynchus
tshawytscha.
Salmon, Chinook
(Lower Columbia
River ESU).
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Salmon, Chinook (Central Valley spring-run
ESU–XN).
Oncorhynchus
tshawytscha.
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16:13 Apr 11, 2014
Jkt 232001
Citation(s) for listing
determination(s)
Description of listed entity
Central Valley spring-run Chinook salmon only
when, and at such times as, they are found
in the San Joaquin River from Friant Dam
downstream to its confluence with the
Merced River, delineated by a line between
decimal latitude and longitude coordinates:
37.348930° N., 120.975174° W. and
37.349099° N., 120.974749° W., as well as
all sloughs, channels, floodways, and waterways connected with the San Joaquin River
that allow for Central Valley spring-run Chinook salmon access, but excluding the
Merced River. Also, Central Valley spring-run
Chinook salmon when found in portions of
the Kings River that connect with the San
Joaquin River during high water years.
Naturally spawned Chinook salmon originating
from the Columbia River and its tributaries
downstream of a transitional point east of the
Hood and White Salmon Rivers, and any
such fish originating from the Willamette
River and its tributaries below Willamette
Falls. Not included in this DPS are: (1)
spring-run Chinook salmon originating from
the Clackamas River; (2) fall-run Chinook
salmon originating from Upper Columbia
River bright hatchery stocks, that spawn in
the mainstem Columbia River below Bonneville Dam, and in other tributaries upstream
from the Sandy River to the Hood and White
Salmon Rivers; (3) spring-run Chinook salmon originating from the Round Butte Hatchery
(Deschutes River, Oregon) and spawning in
the Hood River; (4) spring-run Chinook salmon originating from the Carson National Fish
Hatchery and spawning in the Wind River;
and (5) naturally 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 Program; Astoria High School Salmon-Trout Enhancement Program (STEP) Tule Chinook
Program; Warrenton High School STEP Tule
Chinook Program; Cowlitz Tule Chinook Program; North Fork Toutle Tule Chinook Program; Kalama Tule Chinook Program;
Washougal River Tule Chinook Program;
Spring Creek National Fish Hatchery (NFH)
Tule Chinook Program; Cowlitz Spring Chinook Program in the Upper Cowlitz River and
the Cispus River; Friends of the Cowlitz
Spring Chinook Program; Kalama River
Spring Chinook Program; Lewis River Spring
Chinook Program; Fish First Spring Chinook
Program; and the Sandy River Hatchery (Oregon Department of Fish and Wildlife Stock
#11).
PO 00000
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Critical
habitat
ESA rules
78 FR 79622, Dec 31,
2013.
NA
223.301.
70 FR 37160, Jun 28,
2005.
226.212
223.203.
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Species 1
Common name
Scientific name
Oncorhynchus
tshawytscha.
Salmon, Chinook
(Snake River fall-run
ESU).
Oncorhynchus
tshawytscha.
Salmon, Chinook
(Snake River spring/
summer-run ESU).
Oncorhynchus
tshawytscha.
Salmon, Chinook
(Upper Willamette
River ESU).
Oncorhynchus
tshawytscha.
Salmon, chum (Columbia River ESU).
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Salmon, Chinook (Puget
Sound ESU).
Oncorhynchus keta ......
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Citation(s) for listing
determination(s)
Description of listed entity
Naturally spawned Chinook salmon originating
from rivers flowing into Puget Sound from the
Elwha River (inclusive) eastward, including
rivers in Hood Canal, South Sound, North
Sound and the Strait of Georgia. Also, Chinook salmon from 26 artificial propagation
programs: the Kendall Creek Hatchery Program; Marblemount Hatchery Program
(spring subyearlings and summer-run); Harvey Creek Hatchery Program (summer-run
and fall-run); Whitehorse Springs Pond Program; Wallace River Hatchery Program
(yearlings and subyearlings); Tulalip Bay Program; Issaquah Hatchery Program; Soos
Creek Hatchery Program; Icy Creek Hatchery
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 Program; Hamma Hamma Hatchery
Program; Dungeness/Hurd Creek Hatchery
Program; Elwha Channel Hatchery Program;
and the Skookum Creek Hatchery Spring-run
Program.
Naturally spawned fall-run Chinook salmon
originating from the mainstem Snake River
below Hells Canyon Dam and from the
Tucannon River, Grande Ronde River,
Imnaha River, Salmon River, and Clearwater
River subbasins. Also, fall-run Chinook salmon from four artificial propagation programs:
the Lyons Ferry Hatchery Program; Fall Chinook Acclimation Ponds Program; Nez Perce
Tribal Hatchery Program; and the Oxbow
Hatchery Program.
Naturally spawned spring/summer-run Chinook
salmon originating from the mainstem Snake
River and the Tucannon River, Grande
Ronde River, Imnaha River, and Salmon
River subbasins. Also, spring/summer-run
Chinook salmon from 11 artificial propagation
programs: the Tucannon River Program;
Lostine River Program; Catherine Creek Program; Lookingglass Hatchery Program;
Upper Grande Ronde Program; Imnaha River
Program; Big Sheep Creek Program; McCall
Hatchery Program; Johnson Creek Artificial
Propagation
Enhancement
Program;
Pahsimeroi Hatchery Program; and the Sawtooth Hatchery Program.
Naturally spawned spring-run Chinook salmon
originating from the Clackamas River and
from the Willamette River and its tributaries
above Willamette Falls. Also, spring-run Chinook salmon from six artificial propagation
programs: the McKenzie River Hatchery Program (Oregon Department 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; Willamette Hatchery Program (ODFW Stock
#22); and the Clackamas Hatchery Program
(ODFW Stock #19).
Naturally spawned chum salmon originating
from the 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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Critical
habitat
ESA rules
70 FR 37160, Jun 28,
2005.
226.212
223.203.
70 FR 37160, Jun 28,
2005.
226.205
223.203.
70 FR 37160, Jun 28,
2005.
226.205
223.203.
70 FR 37160, Jun 28,
2005.
226.212
223.203.
70 FR 37160, Jun 28,
2005.
226.212
223.203.
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Species 1
Citation(s) for listing
determination(s)
Scientific name
Description of listed entity
Salmon, chum (Hood
Canal summer-run
ESU).
Oncorhynchus keta ......
Salmon, coho (Lower
Columbia River ESU).
Oncorhynchus kisutch ..
Salmon, coho (Oregon
Coast ESU).
Oncorhynchus kisutch ..
Salmon, coho (Southern
Oregon/Northern California Coast ESU).
Oncorhynchus kisutch ..
Salmon, sockeye
(Ozette Lake ESU).
Oncorhynchus nerka ....
Steelhead (California
Central Valley DPS).
mstockstill on DSK4VPTVN1PROD with RULES
Common name
Oncorhynchus mykiss ..
Naturally spawned summer-run chum salmon
originating from Hood Canal and its tributaries as well as from Olympic Peninsula rivers between Hood Canal and Dungeness
Bay (inclusive). Also, summer-run chum
salmon from four artificial propagation programs: the Hamma Hamma Fish Hatchery
Program; Lilliwaup Creek Fish Hatchery Program; Tahuya River Program; and the
Jimmycomelately Creek Fish Hatchery Program.
Naturally spawned coho salmon originating
from the Columbia River and its tributaries
downstream from the Big White Salmon and
Hood Rivers (inclusive) and any such fish
originating from the Willamette River and its
tributaries below Willamette Falls. Also, coho
salmon from 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 Program; Warrenton High School
STEP Coho Program; Cowlitz Type-N Coho
Program in the Upper and Lower Cowlitz Rivers; Cowlitz Game and Anglers Coho Program; Friends of the Cowlitz Coho Program;
North Fork Toutle River Hatchery Program;
Kalama River Type-N Coho Program;
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 Program;
Eagle Creek National Fish Hatchery Program; Sandy Hatchery Program (ODFW
Stock #11); and the Bonneville/Cascade/
Oxbow Complex (ODFW Stock #14) Hatchery Program.
Naturally spawned coho salmon originating
from coastal 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).
Naturally spawned coho salmon originating
from coastal streams and rivers between
Cape Blanco, Oregon, and Punta Gorda,
California. 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.
Naturally spawned sockeye salmon originating
from the 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.
Naturally spawned anadromous O. mykiss
(steelhead) originating 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 National Fish Hatchery
Program, and the Feather River Fish Hatchery Program.
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Critical
habitat
ESA rules
70 FR 37160, Jun 28,
2005.
226.212
223.203.
70 FR 37160, Jun 28,
2005.
NA
223.203.
76 FR 35755, Jun 20,
2011.
226.212
223.203.
70 FR 37160, Jun 28,
2005.
226.210
223.203.
70 FR 37160, Jun 28,
2005.
226.212
223.203.
71 FR 834, Jan 5, 2006
226.211
223.203.
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Species 1
Citation(s) for listing
determination(s)
Scientific name
Description of listed entity
Steelhead (Central California Coast DPS).
Oncorhynchus mykiss ..
Steelhead (Lower Columbia River DPS).
Oncorhynchus mykiss ..
Steelhead (Middle Columbia River DPS).
Oncorhynchus mykiss ..
Steelhead (Middle Columbia River DPS–
XN).
Steelhead (Northern
California DPS).
Oncorhynchus mykiss ..
Steelhead (Puget
Sound DPS).
mstockstill on DSK4VPTVN1PROD with RULES
Common name
Oncorhynchus mykiss ..
Naturally spawned anadromous O. mykiss
(steelhead) originating 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 Island 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).
Naturally spawned anadromous O. mykiss
(steelhead) originating below natural and
manmade impassable barriers from rivers between the Cowlitz and Wind Rivers (inclusive) and the Willamette 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 Cowlitz Trout Hatchery Late
Winter-run Program (Lower Cowlitz); Kalama
River Wild Winter-run and Summer-run Programs; Clackamas Hatchery Late Winter-run
Program (Oregon Department of Fish and
Wildlife (ODFW) Stock #122); Sandy Hatchery Late Winter-run Program (ODFW Stock
#11); Hood River Winter-run Program
(ODFW Stock #50); and the Lewis River Wild
Late-run Winter Steelhead Program.
Naturally spawned anadromous O. mykiss
(steelhead) originating below natural and
manmade impassable barriers from the Columbia River and its tributaries upstream of
the Wind and Hood Rivers (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 Program (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.
Middle Columbia River steelhead only when,
and at such times as, they are found above
Round Butte Dam.
Naturally spawned anadromous O. mykiss
(steelhead) originating below natural and
manmade impassable barriers in California
coastal river basins from Redwood Creek to
and including the Gualala River.
Naturally spawned anadromous O. mykiss
(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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Critical
habitat
ESA rules
71 FR 834, Jan 5, 2006
226.211
223.203.
71 FR 834, Jan 5, 2006
226.212
223.203.
71 FR 834, Jan 5, 2006
226.212
223.203.
NA
223.301.
226.211
223.203.
NA
223.203.
78 FR 2893, Jan. 15,
2013.
71 FR 834, Jan 5, 2006
72 FR 26722, May 11,
2007.
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Species 1
Citation(s) for listing
determination(s)
Common name
Scientific name
Description of listed entity
Steelhead (Snake River
Basin DPS).
Oncorhynchus mykiss ..
Steelhead (South-Central California Coast
DPS).
Oncorhynchus mykiss ..
Steelhead (Upper Columbia River DPS).
Oncorhynchus mykiss ..
Steelhead (Upper Willamette River DPS).
Oncorhynchus mykiss ..
Sturgeon, Atlantic (Atlantic subspecies;
Gulf of Maine DPS).
Acipenser oxyrinchus
oxyrinchus.
Sturgeon, Atlantic (Gulf
subspecies).
Sturgeon, green (Southern DPS).
Acipenser oxyrinchus
desotoi.
Acipenser medirostris ..
Naturally spawned anadromous O. mykiss
(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 National Fish
Hatchery Program; Lolo Creek Program;
North Fork Clearwater Program; East Fork
Salmon River Program; and the Little Sheep
Creek/Imnaha River Hatchery Program (Oregon Department of Fish and Wildlife Stock
#29).
Naturally spawned anadromous O. mykiss
(steelhead) originating below natural and
manmade impassable barriers from the
Pajaro River to (but not including) the Santa
Maria River.
Naturally spawned anadromous O. mykiss
(steelhead) originating 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 Program.
Naturally spawned anadromous winter-run O.
mykiss (steelhead) originating below natural
and manmade impassable barriers from the
Willamette River and its tributaries upstream
of Willamette Falls to and including the
Calapooia River.
Anadromous Atlantic sturgeon originating from
watersheds from the Maine/Canadian border
and extending southward to include all associated watersheds draining into the Gulf of
Maine as far south as Chatham, Massachusetts.
Entire subspecies ...............................................
Coral, elkhorn ...............
Acropora palmata .........
Entire species .....................................................
Coral, staghorn .............
Acropora cervicornis ....
Entire species .....................................................
Green sturgeon originating from the Sacramento River basin and from coastal rivers
south of the Eel River (exclusive).
Critical
habitat
ESA rules
71 FR 834, Jan 5, 2006
226.212
223.203.
71 FR 834, Jan 5, 2006
226.211
223.203.
71 FR 834, Jan 5, 2006
226.212
223.203.
71 FR 834, Jan 5, 2006
226.212
223.203.
NA
223.211.
226.214
17.44(v).
226.219
223.210.
226.216
223.208.
226.216
223.208.
226.213
NA.
77 FR 5880, Feb 6,
2012.
56 FR 49653, Sep 30,
1991.
71 FR 17757, April 7,
2006; 71 FR 19241,
April 13, 2006.
Corals
71 FR 26852, May 9,
2006.
71 FR 26852, May 9,
2006.
Marine Plants
Seagrass, Johnson’s ....
Halophila johnsonii .......
Entire species .....................................................
63 FR 49035, Sep 14,
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 Marine Fisheries Service, is limited to turtles while in the water.
■ 4. In § 223.201, paragraph (b)(1) is
revised to read as follows:
§ 223.201
Guadalupe fur seal.
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*
*
*
*
*
(b) Exceptions. (1) The Assistant
Administrator may issue permits
authorizing activities which would
otherwise be prohibited under
paragraph (a) of this section subject to
the provisions of part 222 subpart C,
General Permit Procedures.
*
*
*
*
*
■ 5. In § 223.203:
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a. Revise paragraph (a), the
introductory text of paragraph (b),
paragraph (b)(1), and the introductory
text of paragraphs (b)(2), (b)(3), and
(b)(4);
■ b. Remove and reserve paragraph
(b)(4)(v);
■ c. Revise the introductory text of
paragraphs (b)(5) through (13); and,
■ d. Revise the first sentence of
paragraph (c).
The revisions read as follows:
■
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§ 223.203
Anadromous fish.
(a) Prohibitions. The prohibitions of
section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) relating to endangered
species apply to fish with an intact
adipose fin that are part of the
threatened West Coast salmon ESUs and
steelhead DPSs (of the genus
Oncorhynchus) listed in § 223.102.
(b) Limits on the prohibitions. The
limits to the prohibitions of paragraph
(a) of this section relating to threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
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listed in § 223.102 are described in the
following paragraphs:
(1) The exceptions of section 10 of the
ESA (16 U.S.C. 1539) and other
exceptions under the Act relating to
endangered species, including
regulations in part 222 of this chapter
implementing such exceptions, also
apply to the threatened West Coast
salmon ESUs and steelhead DPSs (of the
genus Oncorhynchus) listed in
§ 223.102.
(2) The prohibitions of paragraph (a)
of this section relating to threatened
Puget Sound steelhead listed in
§ 223.102 do not apply to:
*
*
*
*
*
(3) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to any
employee or designee of NMFS, the
United States Fish and Wildlife Service,
any Federal land management agency,
the Idaho Department of Fish and Game
(IDFG), Washington Department of Fish
and Wildlife (WDFW), the Oregon
Department of Fish and Wildlife
(ODFW), California Department of Fish
and Game (CDFG), or of any other
governmental entity that has comanagement authority for the listed
salmonids, when the employee or
designee, acting in the course of his or
her official duties, takes a threatened
salmonid without a permit if such
action is necessary to:
*
*
*
*
*
(4) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
fishery harvest activities provided that:
*
*
*
*
*
(5) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
activity associated with artificial
propagation programs provided that:
*
*
*
*
*
(6) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
actions undertaken in compliance with
a resource management plan developed
jointly by the States of Washington,
Oregon and/or Idaho and the Tribes
(joint plan) within the continuing
jurisdiction of United States v.
Washington or United States v. Oregon,
the on-going Federal court proceedings
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to enforce and implement reserved
treaty fishing rights, provided that:
*
*
*
*
*
(7) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
scientific research activities provided
that:
*
*
*
*
*
(8) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
habitat restoration activities, as defined
in paragraph (b)(8)(iv) of this section,
provided that the activity is part of a
watershed conservation plan, and:
*
*
*
*
*
(9) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to the
physical diversion of water from a
stream or lake, provided that:
*
*
*
*
*
(10) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
routine road maintenance activities
provided that:
*
*
*
*
*
(11) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
activities within the City of Portland,
Oregon Parks and Recreation
Department’s (PP&R) Pest Management
Program (March 1997), including its
Waterways Pest Management Policy
updated December 1, 1999, provided
that:
*
*
*
*
*
(12) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to
municipal, residential, commercial, and
industrial (MRCI) development
(including redevelopment) activities
provided that:
*
*
*
*
*
(13) The prohibitions of paragraph (a)
of this section relating to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102 do not apply to nonFederal forest management activities
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20813
conducted in the State of Washington
provided that:
*
*
*
*
*
(c) Affirmative Defense. In connection
with any action alleging a violation of
the prohibitions of paragraph (a) of this
section with respect to the threatened
West Coast salmon ESUs and steelhead
DPSs (of the genus Oncorhynchus)
listed in § 223.102, any person claiming
the benefit of any limit listed in
paragraph (b) of this section or
§ 223.204(a) shall have a defense where
the person can demonstrate that the
limit is applicable and was in force, and
that the person fully complied with the
limit at the time of the alleged violation.
* * *
*
*
*
*
*
■ 6. In § 223.208, paragraph (a)(1) is
revised to read as follows:
§ 223.208
Corals.
(a) * * *
(1) The prohibitions of section 9(a)(1)
of the ESA (16 U.S.C. 1538(a)(1))
relating to endangered species apply to
elkhorn (Acropora palmata) and
staghorn (A. cervicornis) corals listed as
threatened in § 223.102, except as
provided in § 223.208(c).
*
*
*
*
*
■ 7. In § 223.210:
■ a. Revise section heading;
■ b. Revise paragraphs (a) and (b)
introductory text, (b)(1) introductory
text, paragraph (b)(2), (b)(3) introductory
text, and (b)(4) introductory text;
■ c. Revise paragraph (c) introductory
text, (c)(1) introductory text, (c)(2)
introductory text, and (c)(3)
introductory text; and,
■ d. Revise paragraphs (d) and (e).
The revisions read as follows:
§ 223.210
Green sturgeon.
(a) Prohibitions. The prohibitions of
section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) relating to endangered
species apply to the threatened
Southern Distinct Population Segment
(DPS) of green sturgeon listed in
§ 223.102.
(b) Exceptions. Exceptions to the take
prohibitions described in section 9(a)(1)
of the ESA (16 U.S.C. 1538(a)(1))
applied in paragraph (a) of this section
to the threatened Southern DPS listed in
§ 223.102 are described in the following
paragraphs (b)(1) through (b)(3).
(1) Scientific research and monitoring
exceptions. The prohibitions of
paragraph (a) of this section relating to
the threatened Southern DPS listed in
§ 223.102 do not apply to ongoing or
future Federal, state, or privatesponsored scientific research or
monitoring activities if:
*
*
*
*
*
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(2) Enforcement exception. The
prohibitions of paragraph (a) of this
section relating to the threatened
Southern DPS listed in § 223.102 do not
apply to any employee of NMFS, when
the employee, acting in the course of his
or her official duties, takes a Southern
DPS fish listed in § 223.102 without a
permit, if such action is necessary for
purposes of enforcing the ESA or its
implementing regulations.
(3) Emergency fish rescue and salvage
exceptions. The prohibitions of
paragraph (a) of this section relating to
the threatened Southern DPS listed in
§ 223.102 do not apply to emergency
fish rescue and salvage activities that
include aiding sick, injured, or stranded
fish, disposing of dead fish, or salvaging
dead fish for use in scientific studies, if:
*
*
*
*
*
(4) Habitat restoration exceptions.
The prohibitions of paragraph (a) of this
section relating to the threatened
Southern DPS listed in § 223.102 do not
apply to habitat restoration activities
including barrier removal or
modification to restore water flows,
riverine or estuarine bed restoration,
natural bank stabilization, restoration of
native vegetation, removal of non-native
species, or removal of contaminated
sediments, that reestablish selfsustaining habitats for the Southern
DPS, if:
*
*
*
*
*
(c) Exemptions via ESA 4(d) Program
Approval. Exemptions from the take
prohibitions described in section 9(a)(1)
of the ESA (16 U.S.C. 1538(a)(1))
applied in paragraph (a) of this section
to the threatened Southern DPS listed in
§ 223.102 are described in the following
paragraphs:
(1) Scientific research and monitoring
exemptions. The prohibitions of
paragraph (a) of this section relating to
the threatened Southern DPS listed in
§ 223.102 do not apply to ongoing or
future state-sponsored scientific
research or monitoring activities that are
part of a NMFS-approved, ESAcompliant state 4(d) research program
conducted by, or in coordination with,
state fishery management agencies
(California Department of Fish and
Game, Oregon Department of Fish and
Wildlife, Washington Department of
Fish and Wildlife, or Alaska Department
of Fish and Game), or as part of a
monitoring and research program
overseen by, or coordinated by, one of
these agencies. State 4(d) research
programs must meet the following
criteria:
*
*
*
*
*
(2) Fisheries exemptions. The
prohibitions of paragraph (a) of this
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section relating to the threatened
Southern DPS listed in § 223.102 do not
apply to fisheries activities that are
conducted in accordance with a NMFSapproved Fishery Management and
Evaluation Plan (FMEP). If NMFS finds
that an FMEP meets the criteria listed
below, a letter of concurrence which
sets forth the terms of the FMEP’s
implementation and the duties of the
parties pursuant to the FMEP, will be
issued to the applicant.
*
*
*
*
*
(3) Tribal exemptions. The
prohibitions of paragraph (a) of this
section relating to the threatened
Southern DPS listed in § 223.102 do not
apply to fishery harvest or other
activities undertaken by a tribe, tribal
member, tribal permittee, tribal
employee, or tribal agent in Willapa
Bay, WA, Grays Harbor, WA, Coos Bay,
OR, Winchester Bay, OR, Humboldt
Bay, CA, and any other area where tribal
treaty fishing occurs, if those activities
are compliant with a tribal resource
management plan (Tribal Plan),
provided that the Secretary determines
that implementation of such Tribal Plan
will not appreciably reduce the
likelihood of survival and recovery of
the Southern DPS. In making that
determination the Secretary shall use
the best available biological data
(including any tribal data and analysis)
to determine the Tribal Plan’s impact on
the biological requirements of the
species, and will assess the effect of the
Tribal Plan on survival and recovery,
consistent with legally enforceable tribal
rights and with the Secretary’s trust
responsibilities to tribes.
*
*
*
*
*
(d) ESA section 10 permits. The
exceptions of section 10 of the ESA (16
U.S.C. 1539) and other exceptions under
the ESA relating to endangered species,
including regulations in part 222 of this
chapter II implementing such
exceptions, also apply to the threatened
Southern DPS listed in § 223.102.
Federal, state, and private-sponsored
research activities for scientific research
or enhancement purposes that are not
covered under Scientific Research and
Monitoring Exceptions as described in
paragraph (b)(1) of this section or
Scientific Research and Monitoring
Exemptions as described in paragraph
(c)(1) of this section, may take Southern
DPS fish pursuant to the specifications
of an ESA section 10 permit.
(e) Affirmative defense. In connection
with any action alleging a violation of
the prohibitions of paragraph (a) of this
section with respect to the threatened
Southern DPS listed in § 223.102, any
person claiming that his or her take is
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excepted via methods listed in
paragraph (b) of this section shall have
a defense where the person can
demonstrate that the exception is
applicable and was in force, and that the
person fully complied with the
exception’s requirements at the time of
the alleged violation. This defense is an
affirmative defense that must be raised,
pleaded, and proven by the proponent.
If proven, this defense will be an
absolute defense to liability under
section 9(a)(1)(G) of the ESA with
respect to the alleged violation.
*
*
*
*
*
■ 8. Add § 223.212 to read as follows:
§ 223.212
Southern DPS of spotted seal.
The prohibitions of section 9(a)(1) of
the ESA (16 U.S.C. 1538(a)(1)) relating
to endangered species shall apply to the
Southern Distinct Population Segment
of spotted seal listed in § 223.102.
PART 224—ENDANGERED MARINE
AND ANADROMOUS SPECIES
9. The authority citation for part 224
continues to read as follows:
■
Authority: 16 U.S.C. 1531 et seq. and 16
U.S.C. 1361 et seq.
10. Revise § 224.101 to read as
follows:
■
§ 224.101 Enumeration of endangered
marine and anadromous species
(a) The regulations in this part
identify the species under the
jurisdiction of the Secretary of
Commerce that have been determined to
be endangered species pursuant to
section 4(a) of the Act, and provide for
the conservation of such species by
establishing rules and procedures to
governing activities involving the
species.
(b) The regulations in this part apply
only to the endangered species
enumerated in this section.
(c) The provisions of this part are in
addition to, and not in lieu of, other
regulations of parts 222 through 226 of
this chapter which prescribe additional
restrictions or conditions governing
endangered species.
(d) The table below identifies the
species under the jurisdiction of the
Secretary of Commerce that have been
determined to be endangered pursuant
to section 4(a) of the Act, species treated
as endangered because they are
sufficiently similar in appearance to
endangered species, and experimental
populations of endangered species.
(e) The columns entitled ‘‘Common
name,’’ ‘‘Scientific name,’’ and
‘‘Description of listed entity’’ define the
species within the meaning of the Act.
In the ‘‘Common name’’ column,
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experimental populations are identified
as ‘‘XE’’ for essential populations or
‘‘XN’’ for nonessential populations.
Species listed based on similarity of
appearance are identified as ‘‘S/A.’’
Although a column for ‘‘Common
name’’ is included, common names
cannot be relied upon for identification
of any specimen, because they may vary
greatly in local usage. The ‘‘Scientific
name’’ column provides the most
recently accepted scientific name,
relying to the extent practicable on the
International Code of Zoological
Nomenclature. In cases in which
confusion might arise, a synonym(s)
will be provided in parentheses. The
‘‘Description of listed entity’’ column
identifies whether the listed entity
comprises the entire species, a
subspecies, or a distinct population
segment (DPS) and provides a
description for any DPSs. Unless
otherwise indicated in the ‘‘Description
of listed entity’’ column, all individual
members of the listed entity and their
progeny retain their listing status
wherever found, including individuals
in captivity. Information regarding the
general range of the species, subspecies,
or DPS may be found in the Federal
Register notice(s) cited in the
‘‘Citation(s) for listing determination(s)’’
column.
(f) The ‘‘Citation(s) for listing
determination(s)’’ column provides
reference to the Federal Register
notice(s) determining the species’ status
under the Act. The abbreviation ‘‘(SPR)’’
(significant portion of its range) after a
citation indicates that the species was
listed based on its status in a significant
portion of its range. If a citation does not
include the ‘‘(SPR)’’ notation, it means
that the species was listed based on its
status throughout its entire range. For
‘‘(SPR)’’ listings, a geographical
description of the SPR may be found in
the referenced Federal Register Notice.
The ‘‘(SPR)’’ notation serves an
informational purpose only and does
not imply any limitation on the
Species 1
Common name
Scientific name
application of the prohibitions or
restrictions of the Act or implementing
rules.
(g) The ‘‘Critical habitat’’ and ‘‘ESA
rules’’ columns provide cross-references
to other sections in this part and part
226. The term ‘‘NA’’ appearing in the
‘‘Critical habitat’’ column indicates that
there are no critical habitat designations
for that species; similarly, the term
‘‘NA’’ appearing in the ‘‘ESA rules’’
column indicates that there are no ESA
rules for that species. However, all other
applicable rules in parts 222 through
226 and part 402 still apply to that
species. Also, there may be other rules
in this title that relate to such wildlife.
The ‘‘ESA rules’’ column is not
intended to list all Federal, state, tribal,
or local governmental regulations that
may apply to the species.
(h) The endangered species under the
jurisdiction of the Secretary of
Commerce are:
Citation(s) for listing
determination(s)
Description of listed entity
Critical
habitat
ESA rules
Marine Mammals
Dolphin, Chinese River
(aka baiji).
Dolphin, South Asian
River (Indus River
subspecies).
Porpoise, Gulf of California harbor (aka
vaquita or cochito).
Sea lion, Steller (Western DPS).
Lipotes vexillifer ...........
Entire species .....................................................
Platanista gangetica
minor.
Entire subspecies ...............................................
Phocoena sinus ...........
Eumetopias jubatus .....
Seal, Hawaiian monk ...
Monachus
schauinslandi.
Monachus monachus ...
Seal, Mediterranean
monk.
Seal, ringed (Ladoga
subspecies).
Seal, ringed (Saimaa
subspecies).
Whale, beluga (Cook
Inlet DPS).
Whale, blue ..................
Phoca (=Pusa) hispida
ladogensis.
Phoca (=Pusa) hispida
saimensis.
Delphinapterus leucas
54 FR 22906, May 30,
1989.
55 FR 50835, Dec 11,
1990.
NA
NA.
NA
NA.
Entire species .....................................................
50 FR 1056, Jan 9,
1985.
NA
NA.
Steller sea lions born in the wild, west of 144°
W. Long. Also, Steller sea lions born in captivity whose mother was born in the wild,
west of 144° W. Long., and progeny of these
captives.
Entire species .....................................................
62 FR 24345, May 5,
1997.
226.202
224.103, 226.202.
41 FR 51611, Nov 23,
1976.
35 FR 8491, Jun 2,
1970.
77 FR 76706; Dec 28,
2012.
58 FR 26920, May 6,
1993.
73 FR 62919, Oct 22,
2008.
35 FR 18319, Dec 2,
1970.
35 FR 18319, Dec 2,
1970.
77 FR 70915, November 28, 2012.
226.201
NA.
NA
NA.
NA
NA.
NA
NA.
226.220
NA.
NA
NA.
NA
NA.
NA
NA.
35 FR 8491, Jun 2,
1970.
35 FR 8491, Jun 2,
1970; 59 FR 31094,
Jun 16, 1994.
35 FR 18319, Dec 2,
1970.
70 FR 69903, Nov 18,
2005.
NA
NA.
NA
NA.
NA
224.103.
226.206
224.103.
226.203
224.103, 224.105.
226.215
224.103.
Entire species .....................................................
Entire subspecies ...............................................
Entire subspecies ...............................................
Whale, bowhead ...........
Balaena mysticetus ......
Entire species .....................................................
Whale, false killer (Main
Hawaiian Islands Insular DPS).
Pseudorca crassidens ..
Whale, fin or finback ....
Balaenoptera physalus
False killer whales found from nearshore of the
main Hawaiian Islands out to 140 km (approximately 75 nautical miles) and that permanently reside within this geographic range.
Entire species .....................................................
Whale, gray (Western
North Pacific DPS).
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Balaenoptera musculus
Beluga whales originating from Cook Inlet,
Alaska.
Entire species .....................................................
Eschrichtius robustus ...
Western North Pacific (Korean) gray whales .....
Whale, humpback .........
Megaptera
novaeangliae.
Orcinus orca .................
Entire species .....................................................
Whale, killer (Southern
Resident DPS).
Whale, North Atlantic
right.
Whale, North Pacific
right.
VerDate Mar<15>2010
Eubalaena glacialis ......
Killer whales from the J, K, and L pods, except
such whales placed in captivity prior to November 2005 and their captive born progeny.
Entire species .....................................................
Eubalaena japonica .....
Entire species .....................................................
16:13 Apr 11, 2014
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73 FR 12024, Mar 6,
2008.
73 FR 12024, Mar 6,
2008.
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14APR1
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Federal Register / Vol. 79, No. 71 / Monday, April 14, 2014 / Rules and Regulations
Species 1
Citation(s) for listing
determination(s)
Common name
Scientific name
Description of listed entity
Whale, sei .....................
Balaenoptera borealis ..
Entire species .....................................................
Whale, Southern right ..
Eubalaena australis .....
Entire species .....................................................
Whale, sperm ...............
Physeter
macrocephalus (=
catodon).
Entire species .....................................................
35 FR 18319, Dec 2,
1970.
35 FR 18319, Dec 2,
1970.
35 FR 18319, Dec 2,
1970.
Critical
habitat
ESA rules
NA
NA.
NA
NA.
NA
NA.
Sea Turtles 2
Sea turtle, green ...........
Chelonia mydas ...........
Sea turtle, hawksbill .....
Eretmochelys imbricata
Breeding colony populations in Florida and on
the Pacific coast of Mexico.
Entire species .....................................................
226.208
224.104.
226.209
224.104.
NA
224.104.
226.207
224.104.
Loggerhead sea turtles originating from the
Mediterranean Sea.
43 FR 32800, Jul 28,
1978.
35 FR 8491, Jun 2,
1970.
35 FR 18319, Dec 2,
1970.
35 FR 8491, Jun 2,
1970.
76 FR 58868, Sep 22,
2011.
Sea turtle, Kemp’s ridley.
Sea turtle, leatherback
Lepidochelys kempii .....
Entire species .....................................................
Dermochelys coriacea
Entire species .....................................................
Sea turtle, loggerhead
(Mediterranean Sea
DPS).
Sea turtle, loggerhead
(North Indian Ocean
DPS).
Sea turtle, loggerhead
(North Pacific Ocean
DPS).
Sea turtle, loggerhead
(Northeast Atlantic
Ocean DPS).
Caretta caretta .............
NA
224.104.
Caretta caretta .............
Loggerhead sea turtles originating from the
North Indian Ocean.
76 FR 58868, Sep 22,
2011.
NA
224.104.
Caretta caretta .............
Loggerhead sea turtles originating from the
North Pacific Ocean.
76 FR 58868, Sep 22,
2011.
NA
224.104.
Caretta caretta .............
Loggerhead sea turtles originating from the
Northeast Atlantic Ocean east of 40° W.
Long., except in the vicinity of the Strait of
Gibraltar where the eastern boundary is 5°36′
W. Long.
Loggerhead sea turtles originating from the
South Pacific Ocean west of 67° W. Long.,
and east of 141° E. Long.
Breeding colony populations on the Pacific
coast of Mexico.
76 FR 58868, Sep 22,
2011.
NA
224.104.
Sea turtle, loggerhead
(South Pacific Ocean
DPS).
Sea turtle, olive ridley ...
Caretta caretta .............
76 FR 58868, Sep 22,
2011.
NA
224.104.
43 FR 32800, Jul 28,
1978.
NA
224.104.
75 FR 22276, Apr 28,
2010.
74 FR 29344, Jun 19,
2009.
NA
NA.
226.217
NA.
70 FR 37160, Jun 28,
2005.
226.204
NA.
70 FR 37160, Jun 28,
2005.
226.212
NA.
70 FR 37160, Jun 28,
2005; 77 FR 19552,
Apr 2, 2012.
226.210
NA.
Lepidochelys olivacea ..
Fishes
Bocaccio (Puget Sound/
Georgia Basin DPS).
Salmon, Atlantic (Gulf of
Maine DPS).
Sebastes paucispinis ...
Salmon, Chinook (Sacramento River winterrun ESU).
Oncorhynchus
tshawytscha.
Salmo salar ..................
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Salmon, Chinook
Oncorhynchus
(Upper Columbia
tshawytscha.
River spring-run ESU).
Salmon, coho (Central
Oncorhynchus kisutch ..
California Coast ESU).
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16:13 Apr 11, 2014
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Bocaccio originating from Puget Sound and the
Georgia Basin.
Naturally spawned Atlantic salmon originating
from the Gulf of Maine, including such Atlantic salmon originating from watersheds from
the Androscoggin River northward along the
Maine coast to the Dennys River. Also, Atlantic salmon from two artificial propagation programs: Green Lake National Fish Hatchery
(GLNFH) and Craig Brook National Fish
Hatchery (CBNFH). This DPS does not include landlocked salmon and those salmon
raised in commercial hatcheries for aquaculture.
Naturally spawned winter-run Chinook salmon
originating from the Sacramento River and its
tributaries. Also, winter-run Chinook salmon
from one artificial propagation program: the
Livingston Stone National Fish Hatchery.
Naturally spawned spring-run Chinook salmon
originating from Columbia River tributaries
upstream of the Rock Island Dam and downstream of Chief Joseph Dam (excluding the
Okanogan River subbasin). Also, spring-run
Chinook salmon from six artificial propagation
programs: the Twisp River Program;
Chewuch River Program; Methow Program;
Winthrop National Fish Hatchery Program;
Chiwawa River Program; and the White River
Program.
Naturally spawned coho salmon originating
from rivers south of Punta Gorda, California
to and including Aptos Creek, as well as
such coho salmon originating from tributaries
to San Francisco Bay. Also, coho salmon
from three artificial propagation programs: the
Don Clausen Fish Hatchery Captive
Broodstock Program; the Scott Creek/King
Fisher Flats Conservation Program; and the
Scott Creek Captive Broodstock Program.
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Species 1
Common name
Citation(s) for listing
determination(s)
Scientific name
Description of listed entity
Salmon, sockeye
(Snake River ESU).
Oncorhynchus nerka ....
Sawfish, largetooth .......
Pristis perotteti .............
Naturally spawned anadromous and residual
sockeye salmon originating from the Snake
River basin. Also, sockeye salmon from one
artificial propagation program: the Redfish
Lake Captive Broodstock Program.
Entire species .....................................................
Sawfish, smalltooth
(United States DPS).
Steelhead (Southern
California DPS).
Pristis pectinata ............
Smalltooth sawfish originating from U.S. waters
Oncorhynchus mykiss ..
Sturgeon, Atlantic (Atlantic subspecies;
Carolina DPS).
Acipenser oxyrinchus
oxyrinchus.
Sturgeon, Atlantic (Atlantic subspecies;
Chesapeake Bay
DPS).
Acipenser oxyrinchus
oxyrinchus.
Sturgeon, Atlantic (Atlantic subspecies;
South Atlantic DPS).
Acipenser oxyrinchus
oxyrinchus.
Sturgeon, shortnose .....
Acipenser brevirostrum
Naturally spawned anadromous O. mykiss
(steelhead) originating below natural and
manmade impassable barriers from the
Santa Maria River to the U.S.-Mexico Border.
Atlantic sturgeon originating from watersheds
(including all rivers and tributaries) from Albemarle Sound southward along the southern
Virginia, North Carolina, and South Carolina
coastal areas to Charleston Harbor.
Anadromous Atlantic sturgeon originating from
watersheds that drain into the Chesapeake
Bay and into coastal waters from the Delaware-Maryland border on Fenwick Island to
Cape Henry, Virginia.
Anadromous Atlantic sturgeon originating from
watersheds that drain into coastal waters, including Long Island Sound, the New York
Bight, and Delaware Bay, from Chatham,
Massachusetts to the Delaware-Maryland
border on Fenwick Island.
Atlantic sturgeon originating from watersheds
(including all rivers and tributaries) of the
ACE (Ashepoo, Combahee, and Edisto)
Basin southward along the South Carolina,
Georgia, and Florida coastal areas to the St.
Johns River, Florida.
Entire species .....................................................
Totoaba ........................
Cynoscion macdonaldi
Entire species .....................................................
Abalone, black ..............
Haliotis cracherodii .......
Entire species .....................................................
Abalone, white ..............
Haliotis sorenseni .........
Entire species .....................................................
Sturgeon, Atlantic (AtAcipenser oxyrinchus
lantic subspecies;
oxyrinchus.
New York Bight DPS).
70 FR 37160, Jun 28,
2005.
Critical
habitat
20817
ESA rules
226.205
NA.
NA
NA.
226.218
NA.
226.211
NA.
77 FR 5914, Feb 6,
2012.
NA
NA.
77 FR 5880, Feb 6,
2012.
NA
NA.
77 FR 5880, Feb 6,
2012.
NA
NA.
77 FR 5914, Feb 6,
2012.
NA
NA.
32 FR 4001, Mar 11,
1967.
44 FR 29480, May 21,
1979.
NA
NA.
NA
NA.
74 FR 1937, Jan 14,
2009.
66 FR 29054, May, 29,
2001.
226.221
NA.
NA
NA.
76 FR 40835, Jul 12,
2011.
68 FR 15674, Apr 1,
2003.
71 FR 834, Jan 5, 2006
Molluscs
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 Marine Fisheries Service, is limited to turtles while in the water.
[FR Doc. 2014–08347 Filed 4–11–14; 8:45 am]
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]]>Agencies
[Federal Register Volume 79, Number 71 (Monday, April 14, 2014)]
[Rules and Regulations]
[Pages 20802-20817]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08347]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 130501429-4198-02]
RIN 0648-XC659
Endangered and Threatened Wildlife; Final Rule To Revise the Code
of Federal Regulations for Species Under the Jurisdiction of the
National Marine Fisheries Service
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, announce revisions to the Code of Federal
Regulations (CFR) to clarify and update the descriptions of species
under NMFS' jurisdiction that are currently listed as threatened or
endangered under the Endangered Species Act of 1973 (ESA). Revisions
include format changes to our lists of threatened and endangered
species, revisions to regulatory language explaining our lists, updates
to the descriptions of certain listed West Coast salmonid species to
add or remove hatchery stocks consistent with our recently completed 5-
year reviews under ESA section 4(c)(2), and corrections to regulatory
text to fix inadvertent errors from previous rulemakings, update cross-
references, and provide consistent language. We are not adding or
removing any species to or from our lists, changing the status of any
listed species, or adding or revising any critical habitat designation.
DATES: This final rule is effective on April 14, 2014.
ADDRESSES: Information concerning this final rule may be obtained by
contacting Office of Protected Resources, NMFS, 1315 East-West Highway,
Silver Spring, MD 20910. Copies of the 5-year status reviews can be
found on our Web sites at https://www.nmfs.noaa.gov/pr/listing/reviews.htm and https://www.westcoast.fisheries.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: For further information regarding this
rule contact Maggie Miller, NMFS, Office of Protected Resources (301)
427-8403; for information on the 5-year status reviews of Pacific
salmonids, contact Steve Stone, NMFS, West Coast Region (503) 231-2317.
SUPPLEMENTARY INFORMATION:
Background
Section 4 of the ESA provides for both NMFS and the U.S. Fish and
Wildlife Service (FWS) to make determinations as to the endangered or
threatened status of ``species'' in response to petitions or on their
own initiative. In accordance with the ESA, we (NMFS) make
determinations as to the threatened or endangered status of species by
regulation. These regulations provide the text for each species listing
and include the content required by the ESA section 4(c)(1). We
enumerate and maintain a list of species under our jurisdiction which
we have determined to be threatened or endangered at 50 CFR 223.102
(threatened species) and 50 CFR 224.101 (endangered species) (hereafter
referred to as the ``NMFS Lists''). The FWS maintains two master lists
of all threatened and endangered species, i.e., both species under
NMFS' jurisdiction and species under FWS' jurisdiction (the ``FWS
Lists''), at 50 CFR 17.11 (threatened and endangered animals) and 50
CFR 17.12 (threatened and endangered plants). The term ``species'' for
listing purposes under the ESA includes the following entities:
species, subspecies, and, for vertebrates only, ``distinct population
segments (DPSs).'' Pacific salmon are listed as ``evolutionarily
significant units (ESUs),'' which are essentially equivalent to DPSs
for the purpose of the ESA. For West Coast salmon and steelhead, many
of the ESU and DPS descriptions include fish originating from specific
artificial propagation programs (e.g., hatcheries) that, along with
their naturally-produced counterparts, are included as part of the
listed species.
We recently completed a 5-year review of the status of ESA-listed
salmon ESUs and steelhead DPSs in California (76 FR 50447, August 15,
2011; and 76 FR 76386, December 7, 2011) and in Oregon, Idaho, and
Washington (76 FR 50448; August 15,
[[Page 20803]]
2011). The ESA requires this regular review of listed species to
determine whether a species should be delisted, reclassified, or
whether the current classification should be retained (16 U.S.C.
1533(c)(2)). As a result of our review, we identified several errors,
omissions, and updates that warrant revising the NMFS and FWS Lists for
the sake of accuracy and improved readability. We also identified
cross-referencing errors in our regulations at 50 CFR 223. On June 26,
2013, we proposed to revise the NMFS Lists based on the aforementioned
review and additionally proposed to correct or clarify text and update
the list formats for all species under our jurisdiction (78 FR 38270),
and solicited public comments.
Summary of Comments Received in Response to the Proposed Rule
We received a single comment from an individual and a number of
comments from the Washington Department of Fish and Wildlife (WDFW)
during the public comment period. A summary of the comments and our
responses is provided below.
Comment 1: One commenter objects to listing the species in the NMFS
lists alphabetically by common name and states that in a list of this
sort, a phylogenetic sequence should be used, and there are a number of
published references that provide such lists. In this way, the agency
would avoid the problem of taxa in a single genus being separated in
the list by taxa of other genera. Listing some taxa by their common
names and other taxa by their scientific names is confusing and
inconsistent. As it stands, subspecific taxa are separated in the lists
by other species. For example, bearded seal and Guadalupe fur seal are
listed among three subspecies of ringed seals. The proposed rule calls
for ordering the species alphabetically (not species and subspecies
mixed together); therefore the three ringed seal subspecies should
follow the Guadalupe fur seal in the list.
Response: We acknowledge the presence of lists that use
phylogenetic sequences and alphabetize taxa by their scientific names,
and note that common names may vary in local usage; however, we want to
make this list a resource that is easily accessible and searchable by a
wide variety of audiences, including the general public. We are acting
under the assumption that the general public would be more likely to
search by common name, for example, ``salmon'' or ``salmon, Chinook,''
rather than search under ``Oncorhynchus tshawytscha'' in order to learn
more about a listing determination or critical habitat for a species.
In this way, we are also making our lists consistent with the format of
the FWS List for threatened and endangered wildlife (50 CFR 17.11). The
threatened and endangered wildlife on the FWS List are listed
alphabetically by common name. Additionally, we have created headings
in the tables (such as ``Marine Mammals,'' ``Sea Turtles,'' and
``Fishes'') that should make searching for specific species less
confusing. We are also removing the heading ``Marine Invertebrates''
and adding the new headings of ``Corals'' and ``Molluscs'' for
increased specificity of the listed animals. This is not a substantive
change, but having these more specific headings will help the public
identify and locate species of interest in a more efficient manner.
The ESA defines ``species'' to include subspecies or a DPS of any
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)).
As such, the ordering of the ``species'' alphabetically, as mentioned
in the proposed rule, also includes ordering subspecies alphabetically
as well. However, we agree that subspecies of the same species should
not be separated by other species within the list order. Therefore, we
will revise the listed subspecies by placing the subspecies' common
name within parentheses, similar to the way we have listed DPSs, and
alphabetizing by the species' common name. As an example, ``Seal,
Arctic ringed'' will be revised to read ``Seal, ringed (Arctic
subspecies).''
Comment 2: WDFW recommends identifying listed stocks by naming them
individually by basin (noting that this convention was used for the
Puget Sound steelhead DPS).
Response: We believe that our current approach remains the best way
to describe Pacific salmon and steelhead species listed under the ESA.
In our experience, identifying an ESU or DPS using boundary streams or
prominent geographic features (e.g., Cape Blanco) allows for concise
and intuitive descriptions. As the commenter notes, there are a few
cases where the unique geography of a species' range (e.g., the inland
waters of Puget Sound) may call for some additional description.
However, in most cases ESA-listed ESUs and DPSs of salmonids under our
jurisdiction are easily described using just a few boundary streams/
features. More detailed information about finer-scale species
distribution can be found in the critical habitat designations and in
population delineations described in ESA recovery plans and supporting
technical documents for each listed salmon ESU and steelhead DPS.
Comment 3: The Federal Register notice states revisions to the
listing descriptions are ``to take into account the addition or
termination of specific artificial propagation programs which
contribute individuals to that ESU or DPS.'' WDFW recommends excluding
segregated stocks meeting the following criteria: (i) Returning adults
from the program do not contribute to the ESU; (ii) are within basins
where wild stocks of the same species and run type do not occur; (iii)
there is no historical natural population; (iv) the program is harvest
oriented using an introduced stock to support a terminal fishery. As
such, WDFW believes that the Lower Columbia River isolated (segregated)
programs should be excluded from the listing.
Response: For the issues raised in this comment we rely on our 2005
``Policy on the Consideration of Hatchery-Origin Fish in Endangered
Species Act Listing Determinations for Pacific Salmon and Steelhead''
(``Hatchery Listing Policy''; 70 FR 37204, June 28, 2005). The Hatchery
Listing Policy establishes criteria for (1) determining when hatchery
stocks should be considered part of the listed ESU/DPS; and (2) in
evaluating the effect of hatchery-produced fish on the extinction risk
of an ESU/DPS. Delineating the ``species'' under consideration and then
evaluating the species' risk of extinction are distinct considerations
in our ESA listing determinations, as reflected in the Hatchery Listing
Policy. Some of WDFW's recommended criteria are consistent with the
Hatchery Listing Policy and pertinent to the determination of hatchery
membership in an ESU/DPS. Some of the criteria, however, are not
pertinent to the determination of hatchery membership but would inform
an evaluation of the effects of hatchery fish on overall ESU/DPS
extinction risk.
The Hatchery Listing Policy states that hatchery stocks will be
considered part of an ESU/DPS if they exhibit a level of genetic
divergence relative to the local natural population(s) that is not more
than what occurs within the ESU/DPS. We evaluate the relatedness of
each hatchery stock to the natural component of an ESU/DPS on the basis
of stock origin and the degree of known or inferred genetic divergence
between the hatchery stock and the local natural population(s). Several
of the criteria that WDFW recommends for excluding segregated hatchery
stocks are valid considerations for evaluating the level of divergence
between a hatchery stock and the local natural population(s). Whether a
hatchery stock is released in a basin where wild populations of the
[[Page 20804]]
same species and run type do not occur, whether natural populations
exist in the basin (historically or currently), and whether a program
propagates an introduced stock, are each important considerations in
evaluating the level of divergence of a hatchery stock relative to the
local natural population(s). However, whether a hatchery stock is
contributing to natural productivity does not inform our determination
of hatchery membership in a listed ESU/DPS. Rather, such information
would inform our evaluation of the effects of the hatchery stock on
overall ESU/DPS extinction risk. Similarly, the management purpose of a
hatchery stock in-and-of-itself (e.g., if it is intended to support a
terminal fishery) would not inform our determination of ESU/DPS
membership. However, the interaction of the hatchery stock with natural
populations, and any impacts on natural populations of a fishery the
hatchery stock supports, are valid considerations in evaluating overall
ESU/DPS extinction risk. We do not believe criteria relating to a
hatchery stock's impacts on ESU/DPS extinction risk are valid
considerations in determining whether a hatchery stock should be
included as part of the listing. As such, we are not excluding the
Lower Columbia River isolated (segregated) programs from the listing.
For more discussion of this issue, the reader is referred to the
response to comments in the Hatchery Listing Policy final rule (see
Issue 6 and response, 70 FR at 37209).
Comment 4: WDFW recommends that the Upper Columbia River Spring-Run
Chinook Salmon ESU include the recent Nason Creek Program which was
implemented in 2013.
Response: Our review of the membership of hatchery programs in
listed ESUs/DPS was conducted as part of the ESA 5-year reviews
completed 2011 (76 FR 50448; August 15, 2011). Hatchery programs
implemented or modified after our previous review will be evaluated as
part of the next ESA 5-year reviews scheduled for 2015.
Comment 5: WDFW notes that fall-run Chinook salmon originating from
Upper Columbia River ``bright'' hatchery stocks (referred to as
``brights'' because they maintain their silvery color throughout the
upstream migration) that spawn in the mainstem Columbia River below
Bonneville Dam are excluded from the Lower Columbia River Chinook
Salmon ESU. Because this bright stock has been documented spawning in
Hamilton Creek and is likely present in other Washington and Oregon
Lower Gorge tributaries as well, WDFW recommended that this exclusion
to the listing be expanded to include the Lower Gorge tributaries
adjacent to the Columbia River mainstem.
Response: We agree that fall-run Chinook salmon originating from
the Upper Columbia River bright hatchery stocks that spawn in the
Columbia River Gorge area tributaries below Bonneville Dam should also
be excluded from the ESU. We have refined the definition for the Lower
Columbia River Chinook ESU to exclude 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.
Comment 6: WDFW notes that the Sea Resources Tule Chinook Program
was terminated over 5 years ago, and recommends that this program be
deleted from the Lower Columbia River Chinook Salmon ESU.
Response: We agree. At the time of our 2011 ESA 5-year reviews the
Sea Resources Tule Chinook Program had been terminated, but there were
still returning adults. At this time, however, no more adult returns
are expected. We have removed the Sea Resources Tule Chinook Program
from the ESU definition.
Comment 7: WDFW notes that the Bonneville Hatchery Tule Fall
Chinook Program (a portion of the Spring Creek NFH Tule Chinook Program
transferred to Bonneville Hatchery) and that portion of the Big Creek
Tule Chinook Program transferred to Youngs Bay for Select Area Fishery
Enhancement do not support wild tule Chinook populations in these
areas. WDFW also notes that it does not operate these programs (or
portions of programs), but recommends they be considered for exclusion
from the Lower Columbia River Chinook Salmon ESU.
Response: In our 2011 ESA 5-year reviews we determined that the
Bonneville Hatchery Tule Fall Chinook Program did not merit inclusion
in the ESU. This program was listed as being part of the ESU in the
proposed rule by error. It has been removed from the definition of the
Lower Columbia River Chinook ESU.
Comment 8: WDFW recommends excluding portions of the Big Creek and
Spring Creek NFH Tule Chinook Programs from the Lower Columbia River
Chinook Salmon ESU based on their release location because they do not
support wild populations in those locations.
Response: As noted previously, we rely on our 2005 Hatchery Listing
Policy when considering hatchery-origin fish in ESA listing
determinations for Pacific salmon and steelhead. That policy does not
contemplate excluding hatchery stocks, or portions thereof, based on
their release location or whether they are effectively contributing to
the natural production of local populations. A key premise of the
policy is that genetic resources represent the ecological diversity and
evolutionary legacy of the species, and that these genetic resources
can reside in hatchery fish as well as in natural fish. As such,
excluding hatchery fish based on their release location or reproductive
success would not recognize the genetic resource the hatchery stock
represents to the ESU as a whole. In this final rule, we have therefore
continued to include the Big Creek and Spring Creek NFH Tule Chinook
Programs as part of the Lower Columbia River Chinook Salmon ESU.
Comment 9: WDFW notes that the Friends of the Cowlitz Spring
Chinook Program and the Kalama River Spring Chinook Program are
isolated programs and recommends deleting them from the Lower Columbia
River Chinook Salmon ESU.
Response: The shift in these programs toward segregation and not
using natural-origin fish in the broodstock is relatively recent. Our
2011 ESA 5-year reviews noted that these programs are trending toward
divergence and should be reevaluated during the next 5-year review. We
are not removing these programs from the ESU definition at this time,
but these programs will be evaluated as part of the next ESA 5-year
reviews scheduled for 2015.
Comment 10: WDFW disagrees with our proposal to include the Deep
River Net Pens Tule Fall Chinook Program in the Lower Columbia River
Chinook Salmon ESU, noting that it is an isolated program currently
using broodstock from the Washougal Hatchery and does not support a
wild tule Chinook population in Deep River.
Response: In our 2011 ESA 5-year reviews we determined that a
number of tule fall Chinook programs did not merit inclusion in the
ESU: The Deep River Net Pens Tule Fall Chinook Program; the Klaskanine
Hatchery Tule Fall Chinook Program; the Bonneville Hatchery Tule Fall
Chinook Program; and the Little White Salmon NFH Tule Fall Chinook
Program. In the proposed rule these programs were erroneously listed as
being part of the ESU. In this final rule we have corrected the ESU
definition by removing these programs from the definition of the Lower
Columbia River Chinook ESU.
Comment 11: WDFW concurs with our deletion of the now-terminated
Elochoman River Tule Chinook Program from the Lower Columbia River
Chinook
[[Page 20805]]
Salmon ESU. However, WDFW notes that it is in the process of developing
a conservation level integrated tule fall Chinook program on the
Elochoman to be operated from the Beaver Creek Hatchery and recommended
this new program be added to the ESU.
Response: Hatchery programs implemented or modified after our 2011
ESA 5-year reviews will be evaluated as part of the next ESA 5-year
reviews scheduled for 2015. Accordingly, we are not adding the Beaver
Creek Hatchery Tule Fall Chinook Program to the definition of the Lower
Columbia River Chinook Salmon ESU at this time.
Comment 12: WDFW notes that the spring yearling Chinook program has
been terminated at Marblemount Hatchery and recommends that this
program be deleted from the Puget Sound Chinook Salmon ESU.
Response: We agree that it is appropriate to delete the spring
yearlings component of the Marblemount Hatchery Program from the
description of the Puget Sound Chinook listing. As such, we have struck
the phrase ``spring yearlings'' from the description in this final rule
so that the definition for the Puget Sound Chinook listing states the
``Marblemount Hatchery Program (spring subyearlings and summer-run).''
Comment 13: WDFW notes that the Chinook River (Sea Resources
Hatchery) Chum Salmon Program was terminated over 5 years ago and
recommends that this program be deleted from the Columbia River Chum
Salmon ESU.
Response: We agree. At the time of our 2011 ESA 5-year reviews the
Chinook River (Sea Resources Hatchery) Chum Salmon Program had been
terminated, but there were still returning adults. At this time,
however, no more adult returns are expected. We have removed the
Chinook River (Sea Resources Hatchery) Chum Salmon Program from the ESU
definition.
Comment 14: WDFW recommends that the Washougal River Hatchery/
Duncan Creek Hatchery Program (part of the Columbia River Chum Salmon
ESU) be revised to read as the ``Washougal River Hatchery/Duncan Creek
Program,'' because there is no hatchery on Duncan Creek.
Response: We agree and have made the correction in this final rule.
Comment 15: WDFW notes that the Sea Resources Hatchery Program and
the Cathlamet High School Future Farmers of America Program were
terminated over 5 years ago, and recommends that these programs be
deleted from the Lower Columbia River Coho Salmon ESU.
Response: We agree. At the time of our 2011 ESA 5-year reviews the
Sea Resources Hatchery Program and the Cathlamet High School Future
Farmers of America Type-N Coho Program had been terminated, but there
were still returning adult fish. At this time, however, no more adult
returns are expected, and we have removed these two programs from the
ESU definition.
Comment 16: WDFW comments that the following are isolated programs
and recommends deleting them from the Lower Columbia River Coho Salmon
ESU: Peterson Coho Program; Cowlitz Game & Anglers Coho Program;
Friends of the Cowlitz Coho Program; Fish First Type N Program (used
for the mainstem Lewis River); and Syverson Project Type-N Coho
Program.
Response: These programs were not identified as segregated during
our 2011 ESA 5-year review. Hatchery programs implemented or modified
after the 2011 review will be evaluated as part of the next ESA 5-year
reviews, which are scheduled for 2015.
Comment 17: WDFW concurs with our inclusion of the Cowlitz Trout
Hatchery Late Winter-run Program in the Lower Columbia River Steelhead
DPS, and further recommends that two additional integrated late-winter
programs in the Tilton River and the Upper Cowlitz River be added to
this DPS.
Response: The Tilton and Upper Cowlitz programs are relatively new
(since our 2011 ESA 5-year reviews); hatchery programs implemented or
modified after our previous review will be evaluated as part of the
next ESA 5-year reviews in 2015.
Summary of Changes From the Proposed Rule
Based on the comments received and our review of the proposed rule,
we made the changes listed below.
1. We revised the common names of listed subspecies by placing the
subspecies' common name within parentheses and alphabetizing by the
species' common name.
2. We removed the heading ``Marine Invertebrates'' from both the
threatened species list at 50 CFR 223.102 and the endangered species
list at 50 CFR 224.101. We created a new ``Corals'' heading for the
threatened species list at 50 CFR 223.102 and a ``Molluscs'' heading
for the endangered species list at 50 CFR 224.101.
3. We revised the description of the ``Salmon, Chinook (Lower
Columbia River ESU)'' by excluding 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, and by removing the following artificial
propagation programs from inclusion in the DPS: Sea Resources Tule
Chinook Program, Bonneville Hatchery Tule Fall Chinook Program, Deep
River Net Pens Tule Fall Chinook Program, Klaskanine Hatchery Tule Fall
Chinook Program, and Little White Salmon NFH Tule Fall Chinook Program.
4. We revised the description of the ``Salmon, Chinook (Puget Sound
ESU)'' by deleting reference to the spring yearling component of the
Marblemount Hatchery Program.
5. We revised the description of the ``Salmon, chum (Columbia River
ESU)'' by removing the Chinook River Program (Sea Resources Hatchery)
from the included artificial propagation programs, and by revising the
name of the Washougal River Hatchery/Duncan Creek Hatchery Program to
read ``Washougal River Hatchery/Duncan Creek Program.''
6. We revised the description of the ``Salmon, coho (Lower Columbia
River ESU)'' by removing the Sea Resources Hatchery Program and the
Cathlamet High School Future Farmers of America Type-N Coho Program
from the included artificial propagation programs.
7. We made a few additional technical corrections to the regulatory
text to provide consistent language. These minor edits do not affect
the substance of the regulations.
More information regarding the other administrative changes and
technical corrections to the Code of Federal Regulations that will
clarify and update the descriptions of species under NMFS'
jurisdiction, and which are being finalized with this rulemaking, can
be found in the proposed rulemaking (78 FR 38270, June 26, 2013).
References
Copies of previous Federal Register notices and related reference
materials are available on the Internet at https://www.nmfs.noaa.gov/pr/listing/reviews.htm, https://www.westcoast.fisheries.noaa.gov/, or upon
request (see FOR FURTHER INFORMATION CONTACT section above).
Classification
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive Order
13211
This final rule simply updates sections 223 and 224 of the CFR
pursuant to prior agency determinations or involves format changes,
none of which could result in economic
[[Page 20806]]
impacts. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act and Executive Order 12866 are not
applicable.
Federalism
In accordance with Executive Order 13132, we determined that this
final rule does not have significant Federalism effects and that a
Federalism assessment is not required. The revisions may have some
benefit to state and local resource agencies in that the ESA-listed
species addressed in this rulemaking are more clearly and consistently
described.
Civil Justice Reform
The Department of Commerce has determined that this final rule does
not unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of Executive Order 12988. In keeping with
that Order, we are revising our descriptions of ESA-listed species to
improve the clarity and general draftsmanship of our regulations.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This final rule does not contain new or revised information
collection requirements for which Office of Management and Budget (OMB)
approval is required under the Paperwork Reduction Act. This final rule
will not impose recordkeeping or reporting requirements on state or
local governments, individuals, businesses, or organizations.
Notwithstanding any other provision of the law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA, unless that collection of information displays a currently
valid OMB Control Number.
National Environmental Policy Act of 1969 (NEPA)
This final rule clarifies and updates the descriptions of species
under NMFS' jurisdiction that are currently listed as threatened or
endangered under the ESA and thus is primarily administrative in
nature. As such, NMFS has determined this final rule is categorically
excluded from further NEPA review by NOAA Administrative Order 216-6,
paragraph 6.03c.3(i). No extraordinary circumstances concerning this
action exist. Therefore, NMFS will not prepare an Environmental
Assessment or Environmental Impact Statement for the rule.
Government-to-Government Relationship With Tribes
Executive Order 13084 requires that if NMFS issues a regulation
that significantly or uniquely affects the communities of Indian tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments or the Federal
government must provide the funds necessary to pay the direct
compliance costs incurred by the tribal governments. This final rule
does not impose substantial direct compliance costs on Indian tribal
governments or communities. Accordingly, the requirements of section
3(b) of E.O. 13084 do not apply to this final rule. Nonetheless, during
our 5-year review of salmon and steelhead we solicited information from
the tribes, met with several tribal governments and associated tribal
fisheries commissions, and provided the opportunity for all interested
tribes to comment on the proposed changes to the species' status and
descriptions and discuss any concerns they may have. We will continue
to inform potentially affected tribal governments, solicit their input,
and coordinate on future management actions pertaining to the listed
species addressed in this rule.
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: April 8, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 223 and 224
is amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; subpart B, Sec. Sec. 223.201
and 223.202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C.
5503(d) for Sec. 223.206(d)(9).
0
2. Revise Sec. 223.101(a) to read as follows:
Sec. 223.101 Purpose and scope.
(a) The regulations contained in this part identify the species
under the jurisdiction of the Secretary of Commerce that have been
determined to be threatened species pursuant to section 4(a) of the
Act, and provide for the conservation of such species by establishing
rules and procedures to govern activities involving the species.
* * * * *
0
3. Revise Sec. 223.102 to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
(a) The table below identifies the species under the jurisdiction
of the Secretary of Commerce that have been determined to be threatened
pursuant to section 4(a) of the Act, species treated as threatened
because they are sufficiently similar in appearance to threatened
species, and experimental populations of threatened species.
(b) The columns entitled ``Common name,'' ``Scientific name,'' and
``Description of listed entity'' define the species within the meaning
of the Act. In the ``Common name'' column, experimental populations are
identified as ``XE'' for essential populations or ``XN'' for
nonessential populations. Species listed based on similarity of
appearance are identified as ``S/A.'' Although a column for ``Common
name'' is included, common names cannot be relied upon for
identification of any specimen, because they may vary greatly in local
usage. The ``Scientific name'' column provides the most recently
accepted scientific name, relying to the extent practicable on the
International Code of Zoological Nomenclature. In cases in which
confusion might arise, a synonym(s) will be provided in parentheses.
The ``Description of listed entity'' column identifies whether the
listed entity comprises the entire species, a subspecies, or a distinct
population segment (DPS) and provides a description for any DPSs.
Unless otherwise indicated in the ``Description of listed entity''
column, all individual members of the listed entity and their progeny
retain their listing status wherever found, including individuals in
captivity. Information regarding the general range of the species,
subspecies, or DPS may be found in the Federal Register notice(s) cited
in the ``Citation(s) for listing determination(s)'' column.
(c) The ``Citation(s) for listing determination(s)'' column
provides reference to the Federal Register notice(s) determining the
species' status under the Act. The abbreviation ``(SPR)''
[[Page 20807]]
(significant portion of its range) after a citation indicates that the
species was listed based on its status in a significant portion of its
range. If a citation does not include the ``(SPR)'' notation, it means
that the species was listed based on its status throughout its entire
range. For ``(SPR)'' listings, a geographical description of the SPR
may be found in the referenced Federal Register notice. The ``(SPR)''
notation serves an informational purpose only and does not imply any
limitation on the application of the prohibitions or restrictions of
the Act or implementing rules.
(d) The ``Critical habitat'' and ``ESA rules'' columns provide
cross-references to other sections in this part and part 226. The term
``NA'' appearing in the ``Critical habitat'' column indicates that
there are no critical habitat designations for that species; similarly,
the term ``NA'' appearing in the ``ESA rules'' column indicates that
there are no ESA rules for that species. However, all other applicable
rules in parts 222 through 226 and part 402 still apply to that
species. Also, there may be other rules in this title that relate to
such wildlife. The ``ESA rules'' column is not intended to list all
Federal, state, tribal, or local governmental regulations that may
apply to the species.
(e) The threatened species under the jurisdiction of the Secretary
of Commerce are:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
-------------------------------------------------------------------------------------------- Citation(s) for listing Critical ESA rules
Common name Scientific name Description of listed entity determination(s) habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Seal, bearded (Beringia DPS)........ Erignathus barbatus Bearded seals originating 77 FR 76740, Dec 28, NA NA.
nauticus. from breeding areas in the 2012.
Arctic Ocean and adjacent
seas in the Pacific Ocean
between 145[deg] E. Long.
(Novosibirskiye) and
130[deg] W. Long., and east
of 157[deg] E. Long. or
east of the Kamchatka
Peninsula.
Seal, bearded (Okhotsk DPS)......... Erignathus barbatus Bearded seals originating 77 FR 76740, Dec 28, NA NA.
nauticus. from breeding areas in the 2012.
Pacific Ocean west of
157[deg] E. Long. or west
of the Kamchatka Peninsula.
Seal, Guadalupe fur................. Arctocephalus townsendi Entire species.............. 50 FR 51252, Dec 16, NA 223.201.
1985.
Seal, ringed (Arctic subspecies).... Phoca (=Pusa) hispida Entire subspecies........... 77 FR 76706, Dec 28, NA NA.
hispida. 2012.
Seal, ringed (Baltic subspecies).... Phoca (=Pusa) hispida Entire subspecies........... 77 FR 76706, Dec 28, NA NA.
botnica. 2012.
Seal, ringed (Okhotsk subspecies)... Phoca (=Pusa) hispida Entire subspecies........... 77 FR 76706, Dec 28, NA NA.
ochotensis. 2012.
Seal, spotted (Southern DPS)........ Phoca largha........... Spotted seals originating 75 FR 65239, Oct 22, NA 223.212.
from breeding areas in the 2010.
Pacific Ocean south of
43[deg] N. Lat.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sea Turtles \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sea turtle, green................... Chelonia mydas......... Entire species, except when 43 FR 32800, Jul 28, 226.208 223.205, 223.206,
listed as endangered under 1978. 223.207.
Sec. 224.101.
Sea turtle, loggerhead (Northwest Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 223.205, 223.206,
Atlantic Ocean DPS). originating from the 2011. 223.207.
Northwest Atlantic Ocean
west of 40[deg] W. Long.
Sea turtle, loggerhead (South Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 223.205, 223.206,
Atlantic Ocean DPS). originating from the South 2011. 223.207.
Atlantic Ocean west of
20[deg] E. Long. and east
of 67[deg] W. Long.
Sea turtle, loggerhead (Southeast Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 223.205, 223.206,
Indo-Pacific Ocean DPS). originating from the 2011. 223.207.
Southeast Indian Ocean east
of 80[deg] E. Long. and
from the South Pacific
Ocean west of 141[deg] E.
Long.
Sea turtle, loggerhead (Southwest Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 223.205, 223.206,
Indian Ocean DPS). originating from the 2011. 223.207.
Southwest Indian Ocean west
of 80[deg] E. Long. and
east of 20[deg] E. Long.
Sea turtle, olive ridley............ Lepidochelys olivacea.. Entire species, except when 43 FR 32800, Jul 28, NA 223.205, 223.206,
listed as endangered under 1978. 223.207.
Sec. 224.101.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eulachon (Southern DPS)............. Thaleichthys pacificus. Eulachon originating from 75 FR 13012, Mar 18, 226.222 NA.
the Skeena River in British 2010.
Columbia south to and
including the Mad River in
northern California.
Rockfish, canary (Puget Sound/ Sebastes pinniger...... Canary rockfish originating 75 FR 22276, Apr 28, NA NA.
Georgia Basin DPS). from Puget Sound and the 2010.
Georgia Basin.
Rockfish, yelloweye (Puget Sound/ Sebastes ruberrimus.... Yelloweye rockfish 75 FR 22276, Apr 28, NA NA.
Georgia Basin DPS). originating from Puget 2010.
Sound and the Georgia Basin.
Salmon, Chinook (California Coastal Oncorhynchus Naturally spawned Chinook 70 FR 37160, Jun 28, 226.211 223.203.
ESU). tshawytscha. salmon originating from 2005.
rivers and streams south of
the Klamath River to and
including the Russian River.
Salmon, Chinook (Central Valley Oncorhynchus Naturally spawned spring-run 70 FR 37160, Jun 28, 226.211 223.203.
spring-run ESU). tshawytscha. Chinook salmon originating 2005.
from the Sacramento River
and its tributaries. Also,
spring-run Chinook salmon
from the Feather River
Hatchery Spring-run Chinook
Program. This DPS does not
include Chinook salmon that
are designated as part of
an experimental population.
[[Page 20808]]
Salmon, Chinook (Central Valley Oncorhynchus Central Valley spring-run 78 FR 79622, Dec 31, NA 223.301.
spring-run ESU-XN). tshawytscha. Chinook salmon only when, 2013.
and at such times as, they
are found in the San
Joaquin River from Friant
Dam downstream to its
confluence with the Merced
River, delineated by a line
between decimal latitude
and longitude coordinates:
37.348930[deg] N.,
120.975174[deg] W. and
37.349099[deg] N.,
120.974749[deg] 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.
Salmon, Chinook (Lower Columbia Oncorhynchus Naturally spawned Chinook 70 FR 37160, Jun 28, 226.212 223.203.
River ESU). tshawytscha. salmon originating from the 2005.
Columbia River and its
tributaries downstream of a
transitional point east of
the Hood and White Salmon
Rivers, and any such fish
originating from the
Willamette River and its
tributaries below
Willamette Falls. Not
included in this DPS are:
(1) spring-run Chinook
salmon originating from the
Clackamas River; (2) fall-
run Chinook salmon
originating from Upper
Columbia River bright
hatchery stocks, that spawn
in the mainstem Columbia
River below Bonneville Dam,
and in other tributaries
upstream from the Sandy
River to the Hood and White
Salmon Rivers; (3) spring-
run Chinook salmon
originating from the Round
Butte Hatchery (Deschutes
River, Oregon) and spawning
in the Hood River; (4)
spring-run Chinook salmon
originating from the Carson
National Fish Hatchery and
spawning in the Wind River;
and (5) naturally 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
Program; Astoria High
School Salmon-Trout
Enhancement Program (STEP)
Tule Chinook Program;
Warrenton High School STEP
Tule Chinook Program;
Cowlitz Tule Chinook
Program; North Fork Toutle
Tule Chinook Program;
Kalama Tule Chinook
Program; Washougal River
Tule Chinook Program;
Spring Creek National Fish
Hatchery (NFH) Tule Chinook
Program; Cowlitz Spring
Chinook Program in the
Upper Cowlitz River and the
Cispus River; Friends of
the Cowlitz Spring Chinook
Program; Kalama River
Spring Chinook Program;
Lewis River Spring Chinook
Program; Fish First Spring
Chinook Program; and the
Sandy River Hatchery
(Oregon Department of Fish
and Wildlife Stock 11).
[[Page 20809]]
Salmon, Chinook (Puget Sound ESU)... Oncorhynchus Naturally spawned Chinook 70 FR 37160, Jun 28, 226.212 223.203.
tshawytscha. salmon originating from 2005.
rivers flowing into Puget
Sound from the Elwha River
(inclusive) eastward,
including rivers in Hood
Canal, South Sound, North
Sound and the Strait of
Georgia. Also, Chinook
salmon from 26 artificial
propagation programs: the
Kendall Creek Hatchery
Program; Marblemount
Hatchery Program (spring
subyearlings and summer-
run); Harvey Creek Hatchery
Program (summer-run and
fall-run); Whitehorse
Springs Pond Program;
Wallace River Hatchery
Program (yearlings and
subyearlings); Tulalip Bay
Program; Issaquah Hatchery
Program; Soos Creek
Hatchery Program; Icy Creek
Hatchery 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 Program;
Hamma Hamma Hatchery
Program; Dungeness/Hurd
Creek Hatchery Program;
Elwha Channel Hatchery
Program; and the Skookum
Creek Hatchery Spring-run
Program.
Salmon, Chinook (Snake River fall- Oncorhynchus Naturally spawned fall-run 70 FR 37160, Jun 28, 226.205 223.203.
run ESU). tshawytscha. Chinook salmon originating 2005.
from the mainstem Snake
River below Hells Canyon
Dam and from the Tucannon
River, Grande Ronde River,
Imnaha River, Salmon River,
and Clearwater River
subbasins. Also, fall-run
Chinook salmon from four
artificial propagation
programs: the Lyons Ferry
Hatchery Program; Fall
Chinook Acclimation Ponds
Program; Nez Perce Tribal
Hatchery Program; and the
Oxbow Hatchery Program.
Salmon, Chinook (Snake River spring/ Oncorhynchus Naturally spawned spring/ 70 FR 37160, Jun 28, 226.205 223.203.
summer-run ESU). tshawytscha. summer-run Chinook salmon 2005.
originating from the
mainstem Snake River and
the Tucannon River, Grande
Ronde River, Imnaha River,
and Salmon River subbasins.
Also, spring/summer-run
Chinook salmon from 11
artificial propagation
programs: the Tucannon
River Program; Lostine
River Program; Catherine
Creek Program; Lookingglass
Hatchery Program; Upper
Grande Ronde Program;
Imnaha River Program; Big
Sheep Creek Program; McCall
Hatchery Program; Johnson
Creek Artificial
Propagation Enhancement
Program; Pahsimeroi
Hatchery Program; and the
Sawtooth Hatchery Program.
Salmon, Chinook (Upper Willamette Oncorhynchus Naturally spawned spring-run 70 FR 37160, Jun 28, 226.212 223.203.
River ESU). tshawytscha. Chinook salmon originating 2005.
from the Clackamas River
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 Department
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;
Willamette Hatchery Program
(ODFW Stock 22);
and the Clackamas Hatchery
Program (ODFW Stock 19).
Salmon, chum (Columbia River ESU)... Oncorhynchus keta...... Naturally spawned chum 70 FR 37160, Jun 28, 226.212 223.203.
salmon originating from the 2005.
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.
[[Page 20810]]
Salmon, chum (Hood Canal summer-run Oncorhynchus keta...... Naturally spawned summer-run 70 FR 37160, Jun 28, 226.212 223.203.
ESU). chum salmon originating 2005.
from Hood Canal and its
tributaries as well as from
Olympic Peninsula rivers
between Hood Canal and
Dungeness Bay (inclusive).
Also, summer-run chum
salmon from four artificial
propagation programs: the
Hamma Hamma Fish Hatchery
Program; Lilliwaup Creek
Fish Hatchery Program;
Tahuya River Program; and
the Jimmycomelately Creek
Fish Hatchery Program.
Salmon, coho (Lower Columbia River Oncorhynchus kisutch... Naturally spawned coho 70 FR 37160, Jun 28, NA 223.203.
ESU). salmon originating from the 2005.
Columbia River and its
tributaries downstream from
the Big White Salmon and
Hood Rivers (inclusive) and
any such fish originating
from the Willamette River
and its tributaries below
Willamette Falls. Also,
coho salmon from 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 Program; Warrenton
High School STEP Coho
Program; Cowlitz Type-N
Coho Program in the Upper
and Lower Cowlitz Rivers;
Cowlitz Game and Anglers
Coho Program; Friends of
the Cowlitz Coho Program;
North Fork Toutle River
Hatchery Program; Kalama
River Type-N Coho Program;
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
Program; Eagle Creek
National Fish Hatchery
Program; Sandy Hatchery
Program (ODFW Stock 11); and the Bonneville/
Cascade/Oxbow Complex (ODFW
Stock 14) Hatchery
Program.
Salmon, coho (Oregon Coast ESU)..... Oncorhynchus kisutch... Naturally spawned coho 76 FR 35755, Jun 20, 226.212 223.203.
salmon originating from 2011.
coastal 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 (Southern Oregon/ Oncorhynchus kisutch... Naturally spawned coho 70 FR 37160, Jun 28, 226.210 223.203.
Northern California Coast ESU). salmon originating from 2005.
coastal streams and rivers
between Cape Blanco,
Oregon, and Punta Gorda,
California. 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, sockeye (Ozette Lake ESU)... Oncorhynchus nerka..... Naturally spawned sockeye 70 FR 37160, Jun 28, 226.212 223.203.
salmon originating from the 2005.
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.
Steelhead (California Central Valley Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.211 223.203.
DPS). O. mykiss (steelhead)
originating 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
National Fish Hatchery
Program, and the Feather
River Fish Hatchery Program.
[[Page 20811]]
Steelhead (Central California Coast Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.211 223.203.
DPS). O. mykiss (steelhead)
originating 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 Island 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 (Lower Columbia River DPS) Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.212 223.203.
O. mykiss (steelhead)
originating below natural
and manmade impassable
barriers from rivers
between the Cowlitz and
Wind Rivers (inclusive) and
the Willamette 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 Cowlitz Trout
Hatchery Late Winter-run
Program (Lower Cowlitz);
Kalama River Wild Winter-
run and Summer-run
Programs; Clackamas
Hatchery Late Winter-run
Program (Oregon Department
of Fish and Wildlife (ODFW)
Stock 122); Sandy
Hatchery Late Winter-run
Program (ODFW Stock 11); Hood River Winter-
run Program (ODFW Stock
50); and the Lewis
River Wild Late-run Winter
Steelhead Program.
Steelhead (Middle Columbia River Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.212 223.203.
DPS). O. mykiss (steelhead)
originating below natural
and manmade impassable
barriers from the Columbia
River and its tributaries
upstream of the Wind and
Hood Rivers (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 Program
(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 (Middle Columbia River DPS- Oncorhynchus mykiss.... Middle Columbia River 78 FR 2893, Jan. 15, NA 223.301.
XN). steelhead only when, and at 2013.
such times as, they are
found above Round Butte Dam.
Steelhead (Northern California DPS). Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.211 223.203.
O. mykiss (steelhead)
originating below natural
and manmade impassable
barriers in California
coastal river basins from
Redwood Creek to and
including the Gualala River.
Steelhead (Puget Sound DPS)......... Oncorhynchus mykiss.... Naturally spawned anadromous 72 FR 26722, May 11, NA 223.203.
O. mykiss (steelhead) 2007.
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.
[[Page 20812]]
Steelhead (Snake River Basin DPS)... Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.212 223.203.
O. mykiss (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
National Fish Hatchery
Program; Lolo Creek
Program; North Fork
Clearwater Program; East
Fork Salmon River Program;
and the Little Sheep Creek/
Imnaha River Hatchery
Program (Oregon Department
of Fish and Wildlife Stock
29).
Steelhead (South-Central California Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.211 223.203.
Coast DPS). O. mykiss (steelhead)
originating below natural
and manmade impassable
barriers from the Pajaro
River to (but not
including) the Santa Maria
River.
Steelhead (Upper Columbia River DPS) Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.212 223.203.
O. mykiss (steelhead)
originating 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 Program.
Steelhead (Upper Willamette River Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.212 223.203.
DPS). winter-run O. mykiss
(steelhead) originating
below natural and manmade
impassable barriers from
the Willamette River and
its tributaries upstream of
Willamette Falls to and
including the Calapooia
River.
Sturgeon, Atlantic (Atlantic Acipenser oxyrinchus Anadromous Atlantic sturgeon 77 FR 5880, Feb 6, 2012. NA 223.211.
subspecies; Gulf of Maine DPS). oxyrinchus. originating from watersheds
from the Maine/Canadian
border and extending
southward to include all
associated watersheds
draining into the Gulf of
Maine as far south as
Chatham, Massachusetts.
Sturgeon, Atlantic (Gulf subspecies) Acipenser oxyrinchus Entire subspecies........... 56 FR 49653, Sep 30, 226.214 17.44(v).
desotoi. 1991.
Sturgeon, green (Southern DPS)...... Acipenser medirostris.. Green sturgeon originating 71 FR 17757, April 7, 226.219 223.210.
from the Sacramento River 2006; 71 FR 19241,
basin and from coastal April 13, 2006.
rivers south of the Eel
River (exclusive).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coral, elkhorn...................... Acropora palmata....... Entire species.............. 71 FR 26852, May 9, 2006 226.216 223.208.
Coral, staghorn..................... Acropora cervicornis... Entire species.............. 71 FR 26852, May 9, 2006 226.216 223.208.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Plants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Seagrass, Johnson's................. Halophila johnsonii.... Entire species.............. 63 FR 49035, Sep 14, 226.213 NA.
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 Marine Fisheries Service, is
limited to turtles while in the water.
0
4. In Sec. 223.201, paragraph (b)(1) is revised to read as follows:
Sec. 223.201 Guadalupe fur seal.
* * * * *
(b) Exceptions. (1) The Assistant Administrator may issue permits
authorizing activities which would otherwise be prohibited under
paragraph (a) of this section subject to the provisions of part 222
subpart C, General Permit Procedures.
* * * * *
0
5. In Sec. 223.203:
0
a. Revise paragraph (a), the introductory text of paragraph (b),
paragraph (b)(1), and the introductory text of paragraphs (b)(2),
(b)(3), and (b)(4);
0
b. Remove and reserve paragraph (b)(4)(v);
0
c. Revise the introductory text of paragraphs (b)(5) through (13); and,
0
d. Revise the first sentence of paragraph (c).
The revisions read as follows:
Sec. 223.203 Anadromous fish.
(a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to fish
with an intact adipose fin that are part of the threatened West Coast
salmon ESUs and steelhead DPSs (of the genus Oncorhynchus) listed in
Sec. 223.102.
(b) Limits on the prohibitions. The limits to the prohibitions of
paragraph (a) of this section relating to threatened West Coast salmon
ESUs and steelhead DPSs (of the genus Oncorhynchus)
[[Page 20813]]
listed in Sec. 223.102 are described in the following paragraphs:
(1) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and
other exceptions under the Act relating to endangered species,
including regulations in part 222 of this chapter implementing such
exceptions, also apply to the threatened West Coast salmon ESUs and
steelhead DPSs (of the genus Oncorhynchus) listed in Sec. 223.102.
(2) The prohibitions of paragraph (a) of this section relating to
threatened Puget Sound steelhead listed in Sec. 223.102 do not apply
to:
* * * * *
(3) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to any employee or
designee of NMFS, the United States Fish and Wildlife Service, any
Federal land management agency, the Idaho Department of Fish and Game
(IDFG), Washington Department of Fish and Wildlife (WDFW), the Oregon
Department of Fish and Wildlife (ODFW), California Department of Fish
and Game (CDFG), or of any other governmental entity that has co-
management authority for the listed salmonids, when the employee or
designee, acting in the course of his or her official duties, takes a
threatened salmonid without a permit if such action is necessary to:
* * * * *
(4) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to fishery harvest
activities provided that:
* * * * *
(5) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to activity
associated with artificial propagation programs provided that:
* * * * *
(6) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to actions
undertaken in compliance with a resource management plan developed
jointly by the States of Washington, Oregon and/or Idaho and the Tribes
(joint plan) within the continuing jurisdiction of United States v.
Washington or United States v. Oregon, the on-going Federal court
proceedings to enforce and implement reserved treaty fishing rights,
provided that:
* * * * *
(7) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to scientific
research activities provided that:
* * * * *
(8) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to habitat
restoration activities, as defined in paragraph (b)(8)(iv) of this
section, provided that the activity is part of a watershed conservation
plan, and:
* * * * *
(9) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to the physical
diversion of water from a stream or lake, provided that:
* * * * *
(10) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to routine road
maintenance activities provided that:
* * * * *
(11) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to activities within
the City of Portland, Oregon Parks and Recreation Department's (PP&R)
Pest Management Program (March 1997), including its Waterways Pest
Management Policy updated December 1, 1999, provided that:
* * * * *
(12) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to municipal,
residential, commercial, and industrial (MRCI) development (including
redevelopment) activities provided that:
* * * * *
(13) The prohibitions of paragraph (a) of this section relating to
the threatened West Coast salmon ESUs and steelhead DPSs (of the genus
Oncorhynchus) listed in Sec. 223.102 do not apply to non-Federal
forest management activities conducted in the State of Washington
provided that:
* * * * *
(c) Affirmative Defense. In connection with any action alleging a
violation of the prohibitions of paragraph (a) of this section with
respect to the threatened West Coast salmon ESUs and steelhead DPSs (of
the genus Oncorhynchus) listed in Sec. 223.102, any person claiming
the benefit of any limit listed in paragraph (b) of this section or
Sec. 223.204(a) shall have a defense where the person can demonstrate
that the limit is applicable and was in force, and that the person
fully complied with the limit at the time of the alleged violation. * *
*
* * * * *
0
6. In Sec. 223.208, paragraph (a)(1) is revised to read as follows:
Sec. 223.208 Corals.
(a) * * *
(1) The prohibitions of section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) relating to endangered species apply to elkhorn (Acropora
palmata) and staghorn (A. cervicornis) corals listed as threatened in
Sec. 223.102, except as provided in Sec. 223.208(c).
* * * * *
0
7. In Sec. 223.210:
0
a. Revise section heading;
0
b. Revise paragraphs (a) and (b) introductory text, (b)(1) introductory
text, paragraph (b)(2), (b)(3) introductory text, and (b)(4)
introductory text;
0
c. Revise paragraph (c) introductory text, (c)(1) introductory text,
(c)(2) introductory text, and (c)(3) introductory text; and,
0
d. Revise paragraphs (d) and (e).
The revisions read as follows:
Sec. 223.210 Green sturgeon.
(a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to the
threatened Southern Distinct Population Segment (DPS) of green sturgeon
listed in Sec. 223.102.
(b) Exceptions. Exceptions to the take prohibitions described in
section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) applied in paragraph
(a) of this section to the threatened Southern DPS listed in Sec.
223.102 are described in the following paragraphs (b)(1) through
(b)(3).
(1) Scientific research and monitoring exceptions. The prohibitions
of paragraph (a) of this section relating to the threatened Southern
DPS listed in Sec. 223.102 do not apply to ongoing or future Federal,
state, or private-sponsored scientific research or monitoring
activities if:
* * * * *
[[Page 20814]]
(2) Enforcement exception. The prohibitions of paragraph (a) of
this section relating to the threatened Southern DPS listed in Sec.
223.102 do not apply to any employee of NMFS, when the employee, acting
in the course of his or her official duties, takes a Southern DPS fish
listed in Sec. 223.102 without a permit, if such action is necessary
for purposes of enforcing the ESA or its implementing regulations.
(3) Emergency fish rescue and salvage exceptions. The prohibitions
of paragraph (a) of this section relating to the threatened Southern
DPS listed in Sec. 223.102 do not apply to emergency fish rescue and
salvage activities that include aiding sick, injured, or stranded fish,
disposing of dead fish, or salvaging dead fish for use in scientific
studies, if:
* * * * *
(4) Habitat restoration exceptions. The prohibitions of paragraph
(a) of this section relating to the threatened Southern DPS listed in
Sec. 223.102 do not apply to habitat restoration activities including
barrier removal or modification to restore water flows, riverine or
estuarine bed restoration, natural bank stabilization, restoration of
native vegetation, removal of non-native species, or removal of
contaminated sediments, that reestablish self-sustaining habitats for
the Southern DPS, if:
* * * * *
(c) Exemptions via ESA 4(d) Program Approval. Exemptions from the
take prohibitions described in section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) applied in paragraph (a) of this section to the threatened
Southern DPS listed in Sec. 223.102 are described in the following
paragraphs:
(1) Scientific research and monitoring exemptions. The prohibitions
of paragraph (a) of this section relating to the threatened Southern
DPS listed in Sec. 223.102 do not apply to ongoing or future state-
sponsored scientific research or monitoring activities that are part of
a NMFS-approved, ESA-compliant state 4(d) research program conducted
by, or in coordination with, state fishery management agencies
(California Department of Fish and Game, Oregon Department of Fish and
Wildlife, Washington Department of Fish and Wildlife, or Alaska
Department of Fish and Game), or as part of a monitoring and research
program overseen by, or coordinated by, one of these agencies. State
4(d) research programs must meet the following criteria:
* * * * *
(2) Fisheries exemptions. The prohibitions of paragraph (a) of this
section relating to the threatened Southern DPS listed in Sec. 223.102
do not apply to fisheries activities that are conducted in accordance
with a NMFS-approved Fishery Management and Evaluation Plan (FMEP). If
NMFS finds that an FMEP meets the criteria listed below, a letter of
concurrence which sets forth the terms of the FMEP's implementation and
the duties of the parties pursuant to the FMEP, will be issued to the
applicant.
* * * * *
(3) Tribal exemptions. The prohibitions of paragraph (a) of this
section relating to the threatened Southern DPS listed in Sec. 223.102
do not apply to fishery harvest or other activities undertaken by a
tribe, tribal member, tribal permittee, tribal employee, or tribal
agent in Willapa Bay, WA, Grays Harbor, WA, Coos Bay, OR, Winchester
Bay, OR, Humboldt Bay, CA, and any other area where tribal treaty
fishing occurs, if those activities are compliant with a tribal
resource management plan (Tribal Plan), provided that the Secretary
determines that implementation of such Tribal Plan will not appreciably
reduce the likelihood of survival and recovery of the Southern DPS. In
making that determination the Secretary shall use the best available
biological data (including any tribal data and analysis) to determine
the Tribal Plan's impact on the biological requirements of the species,
and will assess the effect of the Tribal Plan on survival and recovery,
consistent with legally enforceable tribal rights and with the
Secretary's trust responsibilities to tribes.
* * * * *
(d) ESA section 10 permits. The exceptions of section 10 of the ESA
(16 U.S.C. 1539) and other exceptions under the ESA relating to
endangered species, including regulations in part 222 of this chapter
II implementing such exceptions, also apply to the threatened Southern
DPS listed in Sec. 223.102. Federal, state, and private-sponsored
research activities for scientific research or enhancement purposes
that are not covered under Scientific Research and Monitoring
Exceptions as described in paragraph (b)(1) of this section or
Scientific Research and Monitoring Exemptions as described in paragraph
(c)(1) of this section, may take Southern DPS fish pursuant to the
specifications of an ESA section 10 permit.
(e) Affirmative defense. In connection with any action alleging a
violation of the prohibitions of paragraph (a) of this section with
respect to the threatened Southern DPS listed in Sec. 223.102, any
person claiming that his or her take is excepted via methods listed in
paragraph (b) of this section shall have a defense where the person can
demonstrate that the exception is applicable and was in force, and that
the person fully complied with the exception's requirements at the time
of the alleged violation. This defense is an affirmative defense that
must be raised, pleaded, and proven by the proponent. If proven, this
defense will be an absolute defense to liability under section
9(a)(1)(G) of the ESA with respect to the alleged violation.
* * * * *
0
8. Add Sec. 223.212 to read as follows:
Sec. 223.212 Southern DPS of spotted seal.
The prohibitions of section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) relating to endangered species shall apply to the Southern
Distinct Population Segment of spotted seal listed in Sec. 223.102.
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
9. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq. and 16 U.S.C. 1361 et seq.
0
10. Revise Sec. 224.101 to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species
(a) The regulations in this part identify the species under the
jurisdiction of the Secretary of Commerce that have been determined to
be endangered species pursuant to section 4(a) of the Act, and provide
for the conservation of such species by establishing rules and
procedures to governing activities involving the species.
(b) The regulations in this part apply only to the endangered
species enumerated in this section.
(c) The provisions of this part are in addition to, and not in lieu
of, other regulations of parts 222 through 226 of this chapter which
prescribe additional restrictions or conditions governing endangered
species.
(d) The table below identifies the species under the jurisdiction
of the Secretary of Commerce that have been determined to be endangered
pursuant to section 4(a) of the Act, species treated as endangered
because they are sufficiently similar in appearance to endangered
species, and experimental populations of endangered species.
(e) The columns entitled ``Common name,'' ``Scientific name,'' and
``Description of listed entity'' define the species within the meaning
of the Act. In the ``Common name'' column,
[[Page 20815]]
experimental populations are identified as ``XE'' for essential
populations or ``XN'' for nonessential populations. Species listed
based on similarity of appearance are identified as ``S/A.'' Although a
column for ``Common name'' is included, common names cannot be relied
upon for identification of any specimen, because they may vary greatly
in local usage. The ``Scientific name'' column provides the most
recently accepted scientific name, relying to the extent practicable on
the International Code of Zoological Nomenclature. In cases in which
confusion might arise, a synonym(s) will be provided in parentheses.
The ``Description of listed entity'' column identifies whether the
listed entity comprises the entire species, a subspecies, or a distinct
population segment (DPS) and provides a description for any DPSs.
Unless otherwise indicated in the ``Description of listed entity''
column, all individual members of the listed entity and their progeny
retain their listing status wherever found, including individuals in
captivity. Information regarding the general range of the species,
subspecies, or DPS may be found in the Federal Register notice(s) cited
in the ``Citation(s) for listing determination(s)'' column.
(f) The ``Citation(s) for listing determination(s)'' column
provides reference to the Federal Register notice(s) determining the
species' status under the Act. The abbreviation ``(SPR)'' (significant
portion of its range) after a citation indicates that the species was
listed based on its status in a significant portion of its range. If a
citation does not include the ``(SPR)'' notation, it means that the
species was listed based on its status throughout its entire range. For
``(SPR)'' listings, a geographical description of the SPR may be found
in the referenced Federal Register Notice. The ``(SPR)'' notation
serves an informational purpose only and does not imply any limitation
on the application of the prohibitions or restrictions of the Act or
implementing rules.
(g) The ``Critical habitat'' and ``ESA rules'' columns provide
cross-references to other sections in this part and part 226. The term
``NA'' appearing in the ``Critical habitat'' column indicates that
there are no critical habitat designations for that species; similarly,
the term ``NA'' appearing in the ``ESA rules'' column indicates that
there are no ESA rules for that species. However, all other applicable
rules in parts 222 through 226 and part 402 still apply to that
species. Also, there may be other rules in this title that relate to
such wildlife. The ``ESA rules'' column is not intended to list all
Federal, state, tribal, or local governmental regulations that may
apply to the species.
(h) The endangered species under the jurisdiction of the Secretary
of Commerce are:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
-------------------------------------------------------------------------------------------- Citation(s) for listing Critical ESA rules
Common name Scientific name Description of listed entity determination(s) habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dolphin, Chinese River (aka baiji).. Lipotes vexillifer..... Entire species.............. 54 FR 22906, May 30, NA NA.
1989.
Dolphin, South Asian River (Indus Platanista gangetica Entire subspecies........... 55 FR 50835, Dec 11, NA NA.
River subspecies). minor. 1990.
Porpoise, Gulf of California harbor Phocoena sinus......... Entire species.............. 50 FR 1056, Jan 9, 1985. NA NA.
(aka vaquita or cochito).
Sea lion, Steller (Western DPS)..... Eumetopias jubatus..... Steller sea lions born in 62 FR 24345, May 5, 1997 226.202 224.103, 226.202.
the wild, west of 144[deg]
W. Long. Also, Steller sea
lions born in captivity
whose mother was born in
the wild, west of 144[deg]
W. Long., and progeny of
these captives.
Seal, Hawaiian monk................. Monachus schauinslandi. Entire species.............. 41 FR 51611, Nov 23, 226.201 NA.
1976.
Seal, Mediterranean monk............ Monachus monachus...... Entire species.............. 35 FR 8491, Jun 2, 1970. NA NA.
Seal, ringed (Ladoga subspecies).... Phoca (=Pusa) hispida Entire subspecies........... 77 FR 76706; Dec 28, NA NA.
ladogensis. 2012.
Seal, ringed (Saimaa subspecies).... Phoca (=Pusa) hispida Entire subspecies........... 58 FR 26920, May 6, 1993 NA NA.
saimensis.
Whale, beluga (Cook Inlet DPS)...... Delphinapterus leucas.. Beluga whales originating 73 FR 62919, Oct 22, 226.220 NA.
from Cook Inlet, Alaska. 2008.
Whale, blue......................... Balaenoptera musculus.. Entire species.............. 35 FR 18319, Dec 2, 1970 NA NA.
Whale, bowhead...................... Balaena mysticetus..... Entire species.............. 35 FR 18319, Dec 2, 1970 NA NA.
Whale, false killer (Main Hawaiian Pseudorca crassidens... False killer whales found 77 FR 70915, November NA NA.
Islands Insular DPS). from nearshore of the main 28, 2012.
Hawaiian Islands out to 140
km (approximately 75
nautical miles) and that
permanently reside within
this geographic range.
Whale, fin or finback............... Balaenoptera physalus.. Entire species.............. 35 FR 8491, Jun 2, 1970. NA NA.
Whale, gray (Western North Pacific Eschrichtius robustus.. Western North Pacific 35 FR 8491, Jun 2, 1970; NA NA.
DPS). (Korean) gray whales. 59 FR 31094, Jun 16,
1994.
Whale, humpback..................... Megaptera novaeangliae. Entire species.............. 35 FR 18319, Dec 2, 1970 NA 224.103.
Whale, killer (Southern Resident Orcinus orca........... Killer whales from the J, K, 70 FR 69903, Nov 18, 226.206 224.103.
DPS). and L pods, except such 2005.
whales placed in captivity
prior to November 2005 and
their captive born progeny.
Whale, North Atlantic right......... Eubalaena glacialis.... Entire species.............. 73 FR 12024, Mar 6, 2008 226.203 224.103, 224.105.
Whale, North Pacific right.......... Eubalaena japonica..... Entire species.............. 73 FR 12024, Mar 6, 2008 226.215 224.103.
[[Page 20816]]
Whale, sei.......................... Balaenoptera borealis.. Entire species.............. 35 FR 18319, Dec 2, 1970 NA NA.
Whale, Southern right............... Eubalaena australis.... Entire species.............. 35 FR 18319, Dec 2, 1970 NA NA.
Whale, sperm........................ Physeter macrocephalus Entire species.............. 35 FR 18319, Dec 2, 1970 NA NA.
(= catodon).
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Sea Turtles \2\
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Sea turtle, green................... Chelonia mydas......... Breeding colony populations 43 FR 32800, Jul 28, 226.208 224.104.
in Florida and on the 1978.
Pacific coast of Mexico.
Sea turtle, hawksbill............... Eretmochelys imbricata. Entire species.............. 35 FR 8491, Jun 2, 1970. 226.209 224.104.
Sea turtle, Kemp's ridley........... Lepidochelys kempii.... Entire species.............. 35 FR 18319, Dec 2, 1970 NA 224.104.
Sea turtle, leatherback............. Dermochelys coriacea... Entire species.............. 35 FR 8491, Jun 2, 1970. 226.207 224.104.
Sea turtle, loggerhead Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 224.104.
(Mediterranean Sea DPS). originating from the 2011.
Mediterranean Sea.
Sea turtle, loggerhead (North Indian Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 224.104.
Ocean DPS). originating from the North 2011.
Indian Ocean.
Sea turtle, loggerhead (North Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 224.104.
Pacific Ocean DPS). originating from the North 2011.
Pacific Ocean.
Sea turtle, loggerhead (Northeast Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 224.104.
Atlantic Ocean DPS). originating from the 2011.
Northeast Atlantic Ocean
east of 40[deg] W. Long.,
except in the vicinity of
the Strait of Gibraltar
where the eastern boundary
is 5[deg]36' W. Long.
Sea turtle, loggerhead (South Caretta caretta........ Loggerhead sea turtles 76 FR 58868, Sep 22, NA 224.104.
Pacific Ocean DPS). originating from the South 2011.
Pacific Ocean west of
67[deg] W. Long., and east
of 141[deg] E. Long.
Sea turtle, olive ridley............ Lepidochelys olivacea.. Breeding colony populations 43 FR 32800, Jul 28, NA 224.104.
on the Pacific coast of 1978.
Mexico.
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Fishes
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Bocaccio (Puget Sound/Georgia Basin Sebastes paucispinis... Bocaccio originating from 75 FR 22276, Apr 28, NA NA.
DPS). Puget Sound and the Georgia 2010.
Basin.
Salmon, Atlantic (Gulf of Maine DPS) Salmo salar............ Naturally spawned Atlantic 74 FR 29344, Jun 19, 226.217 NA.
salmon originating from the 2009.
Gulf of Maine, including
such Atlantic salmon
originating from watersheds
from the Androscoggin River
northward along the Maine
coast to the Dennys River.
Also, Atlantic salmon from
two artificial propagation
programs: Green Lake
National Fish Hatchery
(GLNFH) and Craig Brook
National Fish Hatchery
(CBNFH). This DPS does not
include landlocked salmon
and those salmon raised in
commercial hatcheries for
aquaculture.
Salmon, Chinook (Sacramento River Oncorhynchus Naturally spawned winter-run 70 FR 37160, Jun 28, 226.204 NA.
winter-run ESU). tshawytscha. Chinook salmon originating 2005.
from the Sacramento River
and its tributaries. Also,
winter-run Chinook salmon
from one artificial
propagation program: the
Livingston Stone National
Fish Hatchery.
Salmon, Chinook (Upper Columbia Oncorhynchus Naturally spawned spring-run 70 FR 37160, Jun 28, 226.212 NA.
River spring-run ESU). tshawytscha. Chinook salmon originating 2005.
from Columbia River
tributaries upstream of the
Rock Island Dam and
downstream of Chief Joseph
Dam (excluding the Okanogan
River subbasin). Also,
spring-run Chinook salmon
from six artificial
propagation programs: the
Twisp River Program;
Chewuch River Program;
Methow Program; Winthrop
National Fish Hatchery
Program; Chiwawa River
Program; and the White
River Program.
Salmon, coho (Central California Oncorhynchus kisutch... Naturally spawned coho 70 FR 37160, Jun 28, 226.210 NA.
Coast ESU). salmon originating from 2005; 77 FR 19552, Apr
rivers south of Punta 2, 2012.
Gorda, California to and
including Aptos Creek, as
well as such coho salmon
originating from
tributaries to San
Francisco Bay. Also, coho
salmon from three
artificial propagation
programs: the Don Clausen
Fish Hatchery Captive
Broodstock Program; the
Scott Creek/King Fisher
Flats Conservation Program;
and the Scott Creek Captive
Broodstock Program.
[[Page 20817]]
Salmon, sockeye (Snake River ESU)... Oncorhynchus nerka..... Naturally spawned anadromous 70 FR 37160, Jun 28, 226.205 NA.
and residual sockeye salmon 2005.
originating from the Snake
River basin. Also, sockeye
salmon from one artificial
propagation program: the
Redfish Lake Captive
Broodstock Program.
Sawfish, largetooth................. Pristis perotteti...... Entire species.............. 76 FR 40835, Jul 12, NA NA.
2011.
Sawfish, smalltooth (United States Pristis pectinata...... Smalltooth sawfish 68 FR 15674, Apr 1, 2003 226.218 NA.
DPS). originating from U.S.
waters.
Steelhead (Southern California DPS). Oncorhynchus mykiss.... Naturally spawned anadromous 71 FR 834, Jan 5, 2006.. 226.211 NA.
O. mykiss (steelhead)
originating below natural
and manmade impassable
barriers from the Santa
Maria River to the U.S.-
Mexico Border.
Sturgeon, Atlantic (Atlantic Acipenser oxyrinchus Atlantic sturgeon 77 FR 5914, Feb 6, 2012. NA NA.
subspecies; Carolina DPS). oxyrinchus. originating from watersheds
(including all rivers and
tributaries) from Albemarle
Sound southward along the
southern Virginia, North
Carolina, and South
Carolina coastal areas to
Charleston Harbor.
Sturgeon, Atlantic (Atlantic Acipenser oxyrinchus Anadromous Atlantic sturgeon 77 FR 5880, Feb 6, 2012. NA NA.
subspecies; Chesapeake Bay DPS). oxyrinchus. originating from watersheds
that drain into the
Chesapeake Bay and into
coastal waters from the
Delaware-Maryland border on
Fenwick Island to Cape
Henry, Virginia.
Sturgeon, Atlantic (Atlantic Acipenser oxyrinchus Anadromous Atlantic sturgeon 77 FR 5880, Feb 6, 2012. NA NA.
subspecies; New York Bight DPS). oxyrinchus. originating from watersheds
that drain into coastal
waters, including Long
Island Sound, the New York
Bight, and Delaware Bay,
from Chatham, Massachusetts
to the Delaware-Maryland
border on Fenwick Island.
Sturgeon, Atlantic (Atlantic Acipenser oxyrinchus Atlantic sturgeon 77 FR 5914, Feb 6, 2012. NA NA.
subspecies; South Atlantic DPS). oxyrinchus. originating from watersheds
(including all rivers and
tributaries) of the ACE
(Ashepoo, Combahee, and
Edisto) Basin southward
along the South Carolina,
Georgia, and Florida
coastal areas to the St.
Johns River, Florida.
Sturgeon, shortnose................. Acipenser brevirostrum. Entire species.............. 32 FR 4001, Mar 11, 1967 NA NA.
Totoaba............................. Cynoscion macdonaldi... Entire species.............. 44 FR 29480, May 21, NA NA.
1979.
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Molluscs
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Abalone, black...................... Haliotis cracherodii... Entire species.............. 74 FR 1937, Jan 14, 2009 226.221 NA.
Abalone, white...................... Haliotis sorenseni..... Entire species.............. 66 FR 29054, May, 29, NA NA.
2001.
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\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 Marine Fisheries Service, is
limited to turtles while in the water.
[FR Doc. 2014-08347 Filed 4-11-14; 8:45 am]
BILLING CODE 3510-22-P
